WOODMASS v NEW ZEALAND POLICE [2019] NZHC 2503

WOODMASS v NEW ZEALAND POLICE [2019] NZHC 2503 [2 October 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-74[2019] NZHC 2503BETWEEN CAINE TREVOR LANCE WOODMASSAppellantAND NEW ZEALAND POLICERespondentHearing: 1 October 2019Appearances: S I Mills for the AppellantG Banuelos for the RespondentJudgment: 2 October 2019JUDGMENT OF GAULT JThis judgment was delivered by me on 2 October 2019 at 4.00 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Mr S I Mills, Lance Lawson, RotoruaG Banuelos, Gordon Pilditch, Office of the Crown Solicitor, Rotorua[1] Mr Woodmass appeals against sentence following guilty pleas to charges of:(a) driving whilst disqualified x5;1(b) failing to stop x3;2(c) unlawfully using a motor vehicle x4;3(d) burglary (under $500);4(e) wilful damage;5 and(f) theft under $500.6[2] He was sentenced on 1 August 2019 by Judge Hollister-Jones in the RotoruaDistrict Court to two years and three months' imprisonment.[3] Mr Woodmass appeals on the ground that that the Judge erred by not giving adiscount for his youth – Mr Woodmass is 19 years' old – and as a secondary issue thatthe starting point for the lead charge of burglary was too high.Facts[4] Mr Woodmass had been actively avoiding the Police for a number of months.The Police attempted to apprehend him on a number of occasions, but he managed toflee either on foot or by vehicle.[5] On 27 June 2018 Mr Woodmass was convicted and sentenced in the RotoruaDistrict Court for being an unlicensed driver who failed to comply with prohibitionand failed to stop when followed by red/blue flashing lights. As a result, he was1 Sections 32(1)(a) and 32(3) of the Land Transport Act 1998, maximum sentence 3 months'imprisonment.2 Sections 52A(1)(a) and 52A(4) of the Land Transport Act 1998, maximum sentence $10,000 fine.3 Section 226(1) of the Crimes Act 1961, maximum sentence 7 years' imprisonment.4 Section 231(1)(a) of the Crimes Act 1961, maximum sentence 10 years' imprisonment.5 Section 11(1)(a) of the Summary Offences Act 1981, maximum sentence 3 months' imprisonment.6 Sections 219 and 223(d) of the Crimes Act 1961, maximum sentence 3 months' imprisonment.disqualified from driving until 27 March 2019. He was then convicted on 1 October2018 of driving while disqualified, and the disqualification was extended to28 September 2019.[6] The present offending began on 26 December 2018. The defendant wasdriving a car down Gordon Road in Rotorua. Police pursued him in a patrol car withlights on, but he parked and ran from police.[7] On 11 January 2019 Police observed the defendant in the driver's seat of astationary car. When they pulled up he sped off, driving 80 km/h in a 50 km/h zone.Police pursued him with flashing lights. He drove through a reserve with pedestrians,stopped and ran from Police.[8] On 16 January 2019 a car was stolen from an address in Rotorua.On 19 January 2019 Mr Woodmass was found driving that car. Upon seeing Police,Mr Woodmass exited the vehicle and fled.[9] On 29 January 2019 another car was stolen from a different address in Rotoruabetween 6.15 am and 8.30 am. It was found about 2 pm. Mr Woodmass used the carover the time the car was taken, evidenced by his fingerprints being found inside.[10] On 31 January 2019 a further car was stolen from another address.Mr Woodmass was found driving it. Police pursued him through a residential areawith a speed limit of 50 km/h, and Mr Woodmass was driving at 90–100 km/h toescape. He drove erratically, at one point driving through a fence. He eventuallyturned into a driveway, leapt out of the car while it was still moving and ran away.The car crashed into a garage.[11] On 25 February 2019 at 10.30 pm a complainant locked his house and left fortwo days. He returned on 27 February 2019 to find his house had been broken into.At some point in that time, Mr Woodmass went to the address, tried to start amotorcycle with a screwdriver, then tried to prise open a window of the house. He wasunable to do so, but did take two jars of money sitting on the window sill containingover $100.[12] On 1 March 2019 a car was stolen. Mr Woodmass was found with it on5 March 2019. He drove dangerously to escape police, eventually driving through areserve along a walking track before losing control and sliding down a steep bank.He ran away and escaped.[13] On 8 April 2019 Mr Woodmass and an associate were at 87 Wrigley Road inRotorua. The complainant was driving her car down the driveway with her daughterin the backseat, when Mr Woodmass threw a rock through the rear window, smashingthe glass.[14] On 14 April 2019 Mr Woodmass stole a vacuum cleaner, valued at $99, froma hotel. The offending on 8 and 14 April 2019 occurred while Mr Woodmass was onbail.District Court decision[15] The Judge began by describing Mr Woodmass and his history. When he was17 and 18, he amassed 17 convictions. These include similar offences to the above,as well as convictions for male assaults female, breaching a sentence and drug relatedconvictions. He also had several notations in the Youth Court for similar offending.[16] The Judge took the burglary as the lead charge, and adopted a starting point of16 months' imprisonment. The Judge considered it was a low level burglary of aresidential property at an unknown time, with the damage to the bike and stolen cashas aggravating factors.[17] The Judge then applied uplifts for the other charges. An aggravating featureof three of the driving offences was the close connection in time to the thefts. In eachcase, he was the driver. Further, in three cases he was disqualified, and in two caseshe was fleeing police, and in doing so endangered the public. The Judge consideredthis warranted an uplift of 20 months. The Judge applied a further uplift of threemonths for the 26 December 2018 and 11 January 2019 driving while disqualifiedoffending.[18] The Judge then considered the April 2019 offending, noting it was anaggravating feature that the offending occurred while on bail, and it was discreteoffending. Throwing the rock endangered the person in the back seat. The Judgeuplifted the starting point by a further three months. This came to a global startingpoint of three years and six months' imprisonment.[19] The Judge then determined that, because the offending was all mostly similar,an adjustment for totality was appropriate, so he lowered the sentence by 4 months tothree years and two months' imprisonment.[20] The Judge then turned to features personal to Mr Woodmass. There was a s 38psychiatric report, prepared by Dr Dean. Dr Dean wrote that Mr Woodmass was raisedin an "extremely chaotic" environment, where both his parents were addicted to drugsand alcohol. His father was imprisoned. He was subject to physical abuse. He hadtrouble with drugs and alcohol from an early age. He has strong connections withgangs. Apparently, the vehicle related offending was due to pressure from the gang.Mr Woodmass expressed that he got a thrill from engaging in criminal activity.[21] Mr Woodmass became a father at 15.[22] Dr Dean also wrote that Mr Woodmass was diagnosed with child conductdisorder and ADHD during childhood, which has progressed to antisocial personalitydisorder. However, Dr Dean was of the opinion Mr Woodmass is not mentallydisordered, and his risk is related to his socially deviant behaviour.[23] The Judge then noted that the pre-sentence report assessed Mr Woodmass as athigh risk of re-offending, which the Judge considered was linked to Dr Dean'sfindings. Mr Woodmass did express remorse to the report writer. The Judge alloweda discount of two months for remorse, bringing the sentence down to three years'imprisonment.[24] The Judge then considered whether to give a discount for youth:[33] My approach to this has been guided by Dr Dean's report andI conclude, when I read his report, that the primary driver of your offending isnot what might be called impulsive offending by a young person, or immaturedecision-making by a person who is not yet formed as an adult, but by whatDr Dean described as your antisocial personality disorder which arises fromyour upbringing, your substance abuse and your gang involvement.[34] In a decision from the higher Courts called Churchward v R,7Dr Chaplow, one of New Zealand's leading forensic psychiatrists, describedone group of young offenders as "Life-Course-Persistent Offenders." Thisgroup's anti-social conduct begins in childhood and continues into adulthood.8Given what Dr Dean says about you, I think you fall into that category.Reluctantly, I have reached that conclusion.[35] So in my assessment, particularly when I view your offending in theYouth Court and your offending in the adult Court, this all fits in with whatDr Dean has described. This means that people with this diagnosis have a poorprospect of rehabilitation and the Court has to consider other matters, andI will come to that.[37] I have also stood back and considered whether there should be adiscount for your deprived childhood, which has resulted in your anti-socialpersonality disorder and really your upbringing which has now created you asa 19 year old with a criminal propensity, but I do not consider I can.[38] So I will discount you for remorse; I have already indicated that. Thatis two months or five percent, but there will be no discount for personalmitigating factors. I have not uplifted the start point for prior convictions,despite the fact that there is a high likelihood of you re-offending according tothe pre-sentence report and Dr Dean, which should mean that the principle ofdeterrence would kick in, but I consider my decision not to discount for youthbalances that.[25] Thus, the Judge considered youth was not the primary driver of the offendingand there were poor prospects of rehabilitation and so decided not to discount foryouth, or at least a discount for youth was cancelled out by an available uplift forMr Woodmass' criminal history.[26] The Judge finally allowed a full discount for the guilty pleas. So, from threeyears' imprisonment, with a 25 per cent discount (nine months) for the guilty pleas,the final sentence came to two years and three months' imprisonment.7 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.8 At [55].Approach on appeal[27] To succeed on an appeal against sentence, the appellant must satisfy the appealcourt that there has been an error in the imposition of the sentence and that a differentsentence should be imposed.9[28] The Court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles. The Court will onlyintervene and substitute its own view if the sentence is manifestly excessive or wrongin principle.10 However, the appeal court's focus is on the final sentence imposedrather than its component parts or how the ultimate sentence was reached.11[29] As indicated, the appeal grounds are that the starting point for the burglarycharge was too high, and the Judge erred by not giving a discount for youth. Mr Mills,for the appellant, does not challenge the other adjustments to the sentence, but submitsthey were stern and therefore leave no room for an argument that uplifts could havebeen higher and therefore the overall sentence is within range.DiscussionStarting point[30] The Court of Appeal in Arahanga v R stated that, although there was no tariffcase for burglary because of the wide range of circumstances in which offending ofthis type can occur, dwellinghouse burglaries at the relatively minor end of the scaletend to attract a starting point of approximately 18 months to two years and six months'imprisonment.12[31] Mr Mills submits the starting point range for this burglary, which did notinvolve the defendant gaining entry inside the house, is 12 – 15 months' imprisonment.He referred me to decisions involving comparable offending. In Moeroa v Police,Mr Moeroa appealed against a sentence of two years four months' imprisonment for9 Criminal Procedure Act 2001, ss 250(2) and (3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].11 Ripia v R [2011] NZCA 101 at [15].12 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; and Stepanicic v R [2015] NZCA211 at [9].one charge of burglary and one charge of being found in an enclosed yard.13The burglary charge related to an incident where Mr Moeroa went to a property andwas confronted by a neighbour. He told the neighbour he was picking flowers.He tried to enter the property through a window but left after being seen by theoccupant. The High Court noted that this offending was during the day, there is nosuggestion he actually entered the dwelling, he acted alone and no property was takenor damaged. Taking into account those facts, a starting point of 15 months'imprisonment was considered appropriate.[32] In Columbus v R, Mr Columbus appealed against a sentence of two years threemonths' imprisonment for burglary and theft.14 Mr Columbus stole a mountain bikefrom the garage of a residential property, causing damage of $672 to the garage.The ground of appeal was that the sentence was manifestly excessive. The Court ofAppeal considered that the offending was opportunistic or spontaneous becauseMr Columbus wanted quick money. The mountain bike was later recovered.The owner suffered a natural sense of emotional violation and distress and limitedfinancial loss. The Court of Appeal considered that the circumstances of the burglarywould not themselves justify a starting point of more than one year's imprisonment.I note here that Ms Banuelos, for the respondent, submits that burglary of a mainresidential dwelling is more serious than burglary of a garage.[33] In Herewini v Police, the defendant entered a residential address by forcing aroller door of the garage open, crawling under it, and then entering the dwelling.15 Hebegan to search the house but was observed in the lounge by an off-duty police officer.No property was taken. The High Court considered that the burglary itself was at thevery low end of the scale of residential burglaries. It occurred during the day whennobody was home, no damage was caused and no property stolen. The offending wasmore serious than R v Columbus, as Mr Herewini had entered the house, but on theother hand, no damage was caused and nothing taken. It was less serious than caseswhere a burglar is interrupted by the occupant, where the offending is likely to have amuch greater impact on the occupant. However, as he had a screwdriver and gloves,13 Moeroa v Police [2015] NZHC 2226.14 Columbus v R [2008] NZCA 192.15 Herewini v Police [2015] NZHC 2807.the offending was premeditated rather than spontaneous. Given those factors, theappropriate starting point was 15 months' imprisonment for the burglary charge.[34] In Tairi v Police, the offender broke into a residential property during the dayby smashing a window pane and took items worth approximately $370 and caused$150 worth of damage.16 It does not appear there were occupants present. Duffy Jheld a starting point of 16 months' imprisonment was appropriate.[35] In Newton v Police,17 the offender in that case was driving by an address onemorning, stopped, entered a house and stole goods worth a reasonably large amountof money. Kós J held that an appropriate starting point was 15 months' imprisonment,taking into account that it was an unoccupied residential address, in the morning, andthere was no premeditation.[36] In a recent decision in Nelson v Police, Hinton J stated that many cases sincethe guidance in Arahanga have come to starting points less than 18 months.She considered that a more realistic range might be one to two and half years'imprisonment.18[37] In this case, the aggravating features of the offending are the damage to themotorbike and that a small amount of money was taken. While it was a residentialproperty, no one was home, although Mr Woodmass may not necessarily have knownthat. There is also no information as to what time Mr Woodmass went to the house.Considering the cases referred to me, I do not consider the Judge's starting point wasout of range. This case is perhaps most comparable to Tairi except that Mr Woodmasswas unable to get inside. In that respect, it is similar to Moeroa except that propertywas taken.Youth discount[38] Mr Mills sought a discount for youth of 10 – 15%. Mr Woodmass was18 years' old at the time of the offending.16 Tairi v Police [2015] NZHC 187.17 Newton v Police [2012] NZHC 2829.18 Nelson v Police [2019] NZHC 2434 at [33].[39] I do not consider the Judge was correct to decline a discount for Mr Woodmass'youth. The Judge considered the primary driver of the offending was not impulsiveoffending or immature decision making but Mr Woodmass' underlying personalitydisorder, substance abuse and gang involvement. Even if youth was not the primarydriver, I consider that is not a sufficient reason to deny a discount. While concerning,Mr Woodmass' offending has the attributes of youthful offending: impulsive or spurof the moment offending (to evade Police) and opportunistic, relatively petty crime.Also, as Mr Mills submitted, his medical diagnosis might be equally relevant to hislevel of culpability. The Judge reluctantly concluded that Mr Woodmass was aLife-Course-Persistent Offender with a poor prospect of rehabilitation, and that thesentencing principle of protecting the public must take priority. While this is indeedone purpose of sentencing,19 in offending such as this, especially where the defendantis young, that purpose should ordinarily give way to the need to assist in the offender'srehabilitation and reintegration.20 I do not consider a substantial term of imprisonmentmeets this purpose.[40] The Court of Appeal in Churchward v R, gave three reasons why a youthdiscount is appropriate:21 to reflect the neurological differences between adults andyoung people, which make young people more susceptible to negative influences; longsentences of imprisonment may have a "crushing" effect on young people; and youngpeople have a greater capacity for rehabilitation.[41] These reasons are engaged in this case despite the combination of drivers ofMr Woodmass' offending. Mr Woodmass obviously has much maturing to do, andthere is cause for concern as to his rehabilitation prospects. But I consider that, at hisage, notwithstanding his past and medical diagnosis, a youth discount is appropriatefor the reasons indicated in Churchward. Dr Dean did not rule out rehabilitation, andMr Mills pointed to some history of rehabilitation efforts. I note the Judge consideredthat Mr Woodmass justified a specific discount for remorse. Having considered thecases, I consider an additional discount for youth of 15 per cent is warranted.19 Sentencing Act 2002, s 7(1)(g).20 Section 7(h).21 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].[42] Keeping the Judge's other figures, this makes the total before the guilty pleasof two years and six months. With a 25 per cent discount for the guilty pleas, or eightmonths, this comes to one year and ten months' imprisonment.[43] This is a difference of five months. I consider this difference is enough to makethe sentence manifestly excessive. I do not consider there was real room for greateruplifts for offending while on bail or previous convictions, as submitted by therespondent, to offset this difference.[44] This is a short-term sentence of imprisonment. Mr Mills does not seek asentence of home detention because Mr Woodmass' offending while on bail involvedremoving his EM bracelet and because there are address issues. In the circumstances,I consider imprisonment is the least restrictive outcome taking into account the needto hold Mr Woodmass accountable and to deter others from committing similaroffences.Conclusion[45] I allow the appeal and substitute an end sentence of one year and 10 months'imprisonment. This will be imposed as nine and a half months' imprisonment for theburglary charge and 12 and a half months' imprisonment for all of the unlawful usecharges. For the charges of wilful damage and theft, one month's imprisonment to beserved concurrently, and for the driving while disqualified charges, two months'imprisonment also to be served concurrently.________________________________Gault J