KARA-NEWCOMBE v NEW ZEALAND POLICE [2018] NZHC 25

KARA-NEWCOMBE v NEW ZEALAND POLICE [2018] NZHC 25 [30 January 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-000003[2018] NZHC 25BETWEEN CLEVELAND KARA-NEWCOMBEAppellantAND NEW ZEALAND POLICERespondentHearing: 30 January 2018 (via AVL at Wellington)Counsel: W R Hawkins for AppellantC C Gullidge for RespondentJudgment: 30 January 2018JUDGMENT OF COLLINS JIntroduction[1] Mr Kara-Newcombe appeals a sentence of 13 months' imprisonment imposedby Judge Adeane in the Napier District Court on 14 December 2017.1[2] The sentence in question was imposed after Mr Kara-Newcombe pleadedguilty to unlawfully getting into a motor vehicle.2 Initially, Mr Kara-Newcombe wascharged with unlawfully taking a motor vehicle and burglary. On the morning of thescheduled trial before Judge Adeane the charges were amended to a single charge ofunlawfully getting into a motor vehicle.[3] Mr Kara-Newcombe was sentenced with Mr Waikato, who faced a charge ofburglary in addition to unlawfully getting into the motor vehicle.1 New Zealand Police v Waikato [2017] NZDC 28685.2 Crimes Act 1961, s 226(2). Maximum penalty is two years' imprisonment.[4] Judge Adeane adopted a starting point of 12 months' imprisonment for bothoffenders. He increased Mr Kara-Newcombe's sentence by three months to takeaccount of his history of dishonesty offending and then reduced the provisionalsentence by two months to reflect Mr Kara-Newcombe's guilty plea. Mr Waikato'ssentence was increased by three months to reflect the burglary charge and a furtherthree months to reflect his previous convictions for dishonesty offending.Background[5] On 19 August 2017, Mr Kara-Newcombe and Mr Waikato were in a carparknear a bar in Napier. Mr Waikato entered the bar and stole the keys to an Audi vehiclefrom inside the victim's bag. It is that conduct that formed the basis of the burglarycharge against Mr Waikato. Mr Waikato and Mr Kara-Newcombe located the Audi inthe carpark. They then drove off. They were stopped by the police some time later.They fled the scene but were soon apprehended and arrested.Personal circumstances[6] Mr Kara-Newcombe is a 19 year old beneficiary who has significant substanceabuse problems. He is a daily user of methamphetamine and cannabis and has anentrenched affiliation to a gang. He has six previous convictions for burglary, twoconvictions for shoplifting, one conviction for theft, one conviction for theft from acar and 10 other convictions that primarily relate to breaching release conditions. Healso has similar convictions in the Youth Court.Starting point[7] I am satisfied that the starting point of 12 months' imprisonment for unlawfullygetting into a motor vehicle was beyond the level that was appropriate in this case. Asa consequence, the end sentence was manifestly excessive. The criteria in s 250 of theCriminal Procedure Act 2011 for allowing an appeal against sentence are thereforesatisfied in this case.[8] In reaching this conclusion I have examined a number of similar cases.[9] In Mack v Police, the accused was sentenced to three months' imprisonmentfor unlawfully getting into and interfering with a motor vehicle, alongside separatecharges of assault and theft.3 Mr Mack was 20 years old, and had criminal convictionsfor a wide range of offences. Mr Mack was involved with a co-offender whounlawfully took the vehicle.[10] In Prasad v Police, the accused was sentenced to six months' imprisonmentfor unlawfully getting into a motor vehicle.4 Mr Prasad had 18 previous convictions,many for dishonesty offences. Mr Prasad had entered the vehicle, which he knew hadbeen converted by a co-offender, to go on a "joyride". An aggravating factor was thatMr Prasad had recently been realised from prison.[11] In Rota v Police, the accused was sentenced to six months' imprisonment forthree charges of unlawfully getting into a motor vehicle and one charge of conversionof a motor vehicle, alongside a separate charge of aggravated assault.5 Mr Rota was18 years old and pleaded guilty. A co-offender had broken into most of the cars, butMr Rota was responsible for breaking into one of them.[12] In McDonald v Police, the accused was sentenced to eight months'imprisonment for unlawfully getting into a motor vehicle, in the context of theft andpossession of instruments for conversion charges.6 Mr McDonald and an associateunlawfully took a car from Christchurch to Dunedin, where they were found with toolscommonly used to break into vehicles. The sentencing Judge described this as "spreeoffending", and Mr McDonald as a "career criminal given his history". Pre-meditationwas an aggravating factor, given the tools.[13] I acknowledge that in Karetu v Police,7 a case relied upon by the Crown, Iimposed a sentence of one year's imprisonment for three charges, which includedunlawfully getting into a motor vehicle, refusing to provide a blood specimen andcareless driving causing injury. That case, however, is clearly quite distinguishable3 Mack v Police HC Dunedin CRI-2007-012-4365, 4 October 2007.4 Prasad v Police HC Napier AP50/1, 13 December 2001.5 Rota v Police HC Gisborne CRI-2009-416-20, 14 September 2009.6 McDonald v Police [2012] NZHC 1408.7 Karetu v Police [2012] NZHC 2370.from the present situation where there were not the aggravating factors of refusing toprovide a blood specimen and careless driving causing injury.[14] Mr Kara-Newcombe's circumstances are similar in most respects to the casesoutlined above, but Prasad v Police in particular. The starting point adopted byJudge Adeane was well beyond the range normally adopted in cases of this kind.[15] In this Court counsel for the Crown submitted that the starting point of12 months' imprisonment was "stern" but reasonably available. In my assessment,however, the starting point of 12 months' imprisonment offends the principle ofconsistency in sentencing which aims to ensure that offenders who commit similaroffences are, so far as is reasonably possible, sentenced in a similar way.8 Based uponthe similar authorities to which I have referred, a starting point of between six to eightmonths' imprisonment would have been more appropriate for Mr Kara-Newcombe.In my assessment, the appropriate starting point in this case was one of seven months'imprisonment.[16] It was appropriate to impose an uplift to reflect Mr Kara-Newcombe's previousconvictions and the fact that he offended while subject to release conditions. It is alsoappropriate that he receive a discount for his guilty plea that was entered on the sameday the charges were amended to reflect his role in the offending.[17] In this case, both the uplift for previous convictions and the discount for theguilty plea should have been in the vicinity of 20 per cent. Those factors thereforecancel each other out.Result[18] The appeal against sentence is allowed. The sentence of 13 months'imprisonment is quashed and substituted with a sentence of seven months'imprisonment.8 Sentencing Act 2002, s 8(e)._______________________D B Collins JSolicitors:Public Defence Service, Napier for AppellantCrown Solicitor, Napier for Respondent