DAVIES v NEW ZEALAND POLICE [2019] NZHC 3081

DAVIES v NEW ZEALAND POLICE [2019] NZHC 3081 [25 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-390CRI-2019-404-391[2019] NZHC 3081BETWEEN BRONSON DAVIESAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 25 November 2019Appearances: A R Naseri and C Sigamoney for the appellantS A Rankin for the respondentDate of judgment: 25 November 2019ORAL JUDGMENT OF JAGOSE JSolicitors/Counsel:Public Defence Service, WaitākereMeredith Connell, Auckland[1] Bronson Davies appeals his sentence of 19 months' imprisonment imposed byJudge B A Gibson in the District Court at Waitākere on 7 August 2019,1 on Mr Davies'guilty pleas to two charges of theft (over $1000),2 three charges of theft (between $500and $1,000),3 one charge of breach of community work,4 and one charge of breachinghis sentence of intensive supervision.5Background—offending[2] Mr Davies' lead convictions arose from his thefts in November last year andJune this year. He had been sentenced to 100 hours community work on 19 October2018 for previous dishonesty offending. On four occasions in November 2018,Mr Davies stole power tools from retailers. The tools respectively were valued at $938,$997, $1038, and $1388. He failed to report to Community Work on multipleoccasions. He had not completed the community work to which he was sentenced. On29 June 2019, Mr Davies stole jackets valued at $932 from another retailer, this timeusing tools to remove price and security tags. He was on bail at the time, and subjectto the sentence of community work and supervision imposed on 19 October 2018.—District Court decision[3] The Judge characterised Mr Davies' offending as "fairly brazen",6 notingMr Davies' previous 25 convictions, and his "guarded" interactions with probationofficers. As "electronically monitored options [were] not available inevitably asentence of imprisonment ha[d] to be imposed".7[4] A global starting point of two years' imprisonment was adopted, with a two-month uplift for Mr Davies' previous convictions. A further uplift of two months wasapplied, given he offended while on bail and under sentence. A four-month discount1 Police v Davies [2019] NZDC 15455.2 Crimes Act 1961, ss 219 and 223(b). Maximum penalty is seven years' imprisonment.3 Sections 219 and 223(c). Maximum penalty is one years' imprisonment.4 Sentencing Act 2002, s 71(1)(a). Maximum penalty is three months' imprisonment or a fine notexceeding $1000.5 Section 70(A)(a). Maximum penalty is six months' imprisonment or a fine not exceeding $1500.6 Police v Davies, above n 1, at [2].7 At [3].applied in light of Mr Davies' youth (he was aged 20 at the time), bringing the sentenceback to two years' imprisonment. From that, a discount of 20 per cent was given forMr Davies' guilty plea, which brought the end sentence to 19 months' imprisonment.[5] The Judge then "apportion[ed] the sentences", noting all would be concurrent.8Sentences of 19 months' imprisonment were imposed on three of the theft charges(exceeding the maximum penalty for one charge), six months' imprisonment on theremaining theft charges, two months' imprisonment for the breach of communitywork, and three months' imprisonment for the breach of intensive supervision.Approach to appeals against sentence[6] I must allow the appeal only if satisfied there is an error in the sentence, and adifferent sentence should be imposed.9 In any other case, I must dismiss the appeal.10The approach previously taken by courts on sentencing appeals continues to apply,11so that the measure of error is the sentence be "manifestly excessive" – a principle"well-engrained" in this Court's approach to sentence appeals.12 I will not intervenewhere the sentence is within the range that can properly be justified by acceptedsentencing principles. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.13Issues on appeal[7] Mr Davies' counsel, Alofa Naseri, says the Judge's two-year starting point wastoo high. She says the five theft charges should be treated alike, as they were all aboutthe $1,000 threshold. Six months' imprisonment for stealing tools worth $997 she saysis grossly disproportionate to 19 months' imprisonment for stealing tools worth onlya few dollars more at $1038. With reference to comparable case law and the principleof totality,14 Ms Naseri contends for a global starting point of nine months'imprisonment. Only a month was justified she says in uplift for previous convictions.8 At [5].9 Criminal Procedure Act 2011, s 250(2).10 Section 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].12 At [33] and [35].13 Ripia v R [2011] NZCA 101 at [15].14 Henry v Police [2016] NZHC 800; and Samuels v Police [2019] NZHC 694.And she says Mr Davies should have the full 25 per cent discount for his guilty plea.Thus an end sentence of eight to nine months' imprisonment is appropriate.[8] The Crown accepts the end sentence was manifestly excessive, as the globalstarting point was too high. But it submits the two-month uplift for previous offendingwas appropriate, and the 20 per cent discount for Mr Davies' guilty plea was"generous". It contends for an end sentence of 12 months' imprisonment.Discussion—starting point[9] The 19-month sentence imposed for one of the theft charges (between $500 to$1000) exceeds the prescribed maximum penalty by seven months. It has no effect onthe end sentence, given the sentences were imposed concurrently. But it is an errornonetheless; Mr Davies' sentence at least requires restructuring.15[10] The 'infinite variety' of theft's circumstances mean there can be no tariff case;instead, the statute's staggered approach to sentencing applies.16 The "difference inpenalties" turns on the value of the item stolen, indicating "the importance of value tosentencing".17 So, while the value of the goods stolen on two occasions might havebeen "barely" over $1000 (although one exceeds it by more than one-third), thethreshold remains an important differentiation. Repeated thefts at or about thethreshold might easily attract the lower charge's maximum 12-month sentence.[11] The Judge did not adopt the orthodox approach of identifying a lead charge,uplifted to reflect the totality of the offending. Neither did he cite any comparableauthority. This does not mean his end sentence necessarily is manifestly excessive.18But his 24-month starting point seems to exceed the justifiable range.1915 See R v Henderson CA86/05, 17 October 2005 at [9] and [21].16 At [32].17 R v Duncan [2009] NZCA 408 at [7].18 Ripia v R, above n 13, at [15]; and McMurtrie v Police [2015] NZHC 1031 at [17].19 See for example Faben v R HC Hamilton CRI 2007-419-109, 26 September 2007. A starting pointof 18 months' imprisonment was held appropriate for 10 shoplifting charges (one of which wasfor the theft of items valued at over $1000), one of theft from a vehicle, one of trespass and oneof breach of bail. The offending was comparably worse than that of Mr Davies, but Randerson Jconsidered a lower starting point appropriate.[12] That is confirmed by adopting the orthodox approach to sentencing. Taking the$1388 theft as the lead charge at least by value, comparable authority suggests astarting point of eight months' imprisonment is appropriate for Mr Davies'premeditated and non-opportunistic offending, uplifted by two months to reflect thecircumstances of the offending while on bail and under sentencing.20 A further upliftof four months to reflect the totality of the offending would bring the adjusted startingpoint to 14 months' imprisonment.21 By comparison, while using the same uplifts, theJudge's 24-month starting point is manifestly excessive.—two-month uplift for previous convictions[13] Mr Davies has nine previous convictions for shoplifting, seven burglary-related convictions, and two convictions for receiving property. He further has threeprevious convictions for breaching court release conditions and one conviction forbreach of conditions of supervision. All have occurred in the past four years. Hisprevious convictions show a predilection to commit dishonesty offences and to fail tocomply with court orders. Previous sentences have failed to deter him.[14] Far more dishonesty convictions over a longer period have warranted a two-month uplift.22 But Mr Davies' previous convictions are closely connected in time tohis current offending (all having occurred in the last four years) and, as the pre-sentence report notes, he has displayed "a developing pattern of offending". The Judgedid not err in applying the uplift, which serves to address those additional concerns.Applying the uplift of two months brings the sentence to 16 months' imprisonment.[15] I take no issue with the discount applied for Mr Davies' youth, which amountedto approximately 15 per cent. It could even be considered generous, balancing out20 Renata v Police [2017] NZHC 504 at [24]; Samuels v Police, above n 14, at [22].21 For comparison see Asres v Police [2019] NZHC 2760 at [8] (two charges of theft over $1000,one charge of theft of goods valued $500 to $1000; a starting point of nine months' imprisonmentwas not disturbed on appeal; a further three months was added for the breach of intensivesupervision and bail breaches before a deduction of two months was made for totality); andSamuels v Police, above n 14 (one charge of theft over $1000, seven charges of theft under $500and four charges of trespass (total value of goods taken less than $2000); the lead charge of theftover $1000 warranted a six-month starting point, with a five-month uplift to reflect the remainingcharges and the fact the offending occurred while on release conditions; equalled an 11-monthstarting point).22 Henry v Police, above n 14, at [7].what may have been a stern uplift for previous convictions. Applying a 15 per centdiscount results in a sentence of 14 months' imprisonment.—guilty plea discount[16] There is some uncertainty as to the timing of entry of various guilty pleas,which earlier indications are relied on by Ms Naseri to afford Mr Davies the fulldiscount. The record before me only shows a guilty plea at Mr Davies' seventhappearance, a case review hearing in May 2019. I acknowledge there was a disputeover the value of goods relating to one of the theft charges which was resolved latewith amendment to the summary of facts relating to the charge in question. But itsresolution should not have prevented Mr Davies' earlier guilty plea to the othercharges. Mr Davies is not entitled to the full 25 per cent discount. The Judge did noterr in allowing a 20 per cent discount, which with respect in the circumstances, isgenerous.[17] Applying the guilty plea discount of 20 per cent brings the end sentence to 11months' imprisonment, which I formulate as:(a) eight months' imprisonment for each of the theft (over $1000) chargesto be served concurrently with one another;(b) six months' imprisonment on each of the remaining theft charges, torun concurrently;(c) three months' imprisonment for the breach of intensive supervision, tobe served cumulatively; and(d) two months' imprisonment for the breach of community work, to beserved concurrently.But the individual sentences imposed are "not terribly important"; what matters is anend sentence matching the totality of the offending.2323 R v Xie [2007] 2 NZLR 240 (CA) at [38].Result[18] The appeal is allowed.[19] The Judge's sentence of 19 months' imprisonment is quashed, and replacedwith a sentence of 11 months' imprisonment.—Jagose J