SKEENS v NEW ZEALAND POLICE [2022] NZHC 875

SKEENS v NEW ZEALAND POLICE [2022] NZHC 875 [29 April 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2022-488-000010[2022] NZHC 875BETWEEN DAMAIN JOSEPH SKEENSAppellantAND NEW ZEALAND POLICERespondentHearing: 27 April 2022Appearances: D Watkins for the AppellantA Tupuola for the RespondentJudgment: 29 April 2022JUDGMENT OF WALKER JThis judgment was delivered by me on 29 April 2022 at 12.30 pmRegistrar/Deputy RegistrarIntroduction[1] Damain Skeens appeals his sentence of nine months' imprisonment forunlawfully taking a motor vehicle (conversion) 1 and being unlawfully in a building.2The sentence was imposed by Judge GL Davis in the Whangārei District Court on21 January 2022 following guilty pleas. 3[2] Mr Skeens was remanded in custody for an initial period after arrest and afurther period from either 11 or 17 January 2022 to 21 January 2022. The combinedperiod of custodial remand and sentence means that as at today's date, Mr Skeens willhave approximately 3 weeks before eligibility for release. That calculation assumesthat he has successfully served one half of his sentence. It is regrettable that,practically speaking, this appeal may have little practical utility.[3] An urgent hearing date for this appeal was originally set for 10 March 2022. Ithad to be adjourned due to difficulties with legal aid assignment. The Court invitedan application for bail pending appeal but I understand that was unable to be advanceddue to lack of a suitable address.The offending[4] The charges arise from two incidents.Theft of car[5] On 21 July 2021, Mr Skeens texted the victim asking if he could come over.The two were known to each other as their parents used to associate when they wereyounger. They had not seen each other for a considerable amount of time. The victimagreed for him to come over. Mr Skeens and the co-defendant, his partner, Ms Murrayturned up at the victim's house. They asked if they could stay the night as they hadnowhere else to go. The victim agreed.1 Crimes Act 1961, s 226(1) carrying a maximum penalty of 7 years' imprisonment.2 Summary Offences Act 1981, s 29(1)(a) carrying a maximum penalty of 3 months' imprisonmentor a fine not exceeding $2,000.3 New Zealand Police v Skeens [2022] NZDC 908.[6] The following day, Mr Skeens asked the victim if they could go for a drive toDargaville. He said he would give the victim some money for gas and asked to drivehis car. The victim agreed. Mr Skeens drove Ms Murray and the victim to a petrolstation in Whangārei but did not drive onto the forecourt. He gave the victim a plasticpetrol container and asked if he would put $10 worth of petrol in it for him. The victimwalked over to the forecourt and filled up the petrol container. From there, he couldjust see where the vehicle was parked. As he went into the service station shop to payfor the petrol, he saw a dark figure walk around from the rear of the car and get intothe driver's seat. The victim assumed that Mr Skeens and Ms Murray had swappedseats and that she was now driving. The victim started to walk towards the car but itdrove off in a northerly direction.[7] The victim tried to contact Mr Skeens several times by phone and Messenger.Mr Skeens denied taking the vehicle. He said someone else took the car.[8] Mr Skeens later swapped the vehicle with another individual who was theninvolved in a traffic accident. The vehicle was extensively damaged.Unlawfully in Building[9] At 6.25 am on 23 August 2021, Mr Skeens and Ms Murray were at an addressin Otaika, Whangārei. They entered the address and illegally resided there without theknowledge or authority of the owner. Neighbours of the property saw through CCTVMr Skeens looking through an ashtray located at the entrance to their property. Theyconfronted Mr Skeens. An altercation ensued, resulting in police being called.District Court decision[10] Judge G L Davis in the District Court took the theft of the motor vehicle as thelead charge. He described it as a "significant breach of trust", noting that it is now notable to be returned to the complainant. He determined that a starting point ofimprisonment was appropriate. He noted that Mr Skeens has 120 previous convictionsinvolving general failures to complete sentences, violent offences, and dishonestyoffences.[11] The Judge adopted a starting point of 12 months' imprisonment. He then gaveMr Skeens a 25 per cent discount for the guilty pleas which brought the sentence to atotal of nine months' imprisonment. In doing so, he recorded that there was a strongargument that Mr Skeens was not entitled to the full discount for a guilty plea in viewof the timing of the plea.[12] For the charge of being unlawfully in a building, the Judge sentencedMr Skeens to one month's imprisonment, to be served concurrently.SubmissionsAppellant submissions[13] Mr Skeens' notice advanced two grounds of appeal. The second ground – thatsentencing was based on an incorrect summary of facts – was abandoned prior tohearing. That was a responsible position to take. That ground of appeal could neverhave succeeded in the circumstances.[14] The sole remaining ground of appeal is that the sentence is manifestlyexcessive. Although initially the starting point adopted by the sentencing Judge wasattacked, Mr Watkins properly conceded that the start point was within range. I agreefor the reasons briefly set out below.[15] The focus of this appeal thus became whether the Judge erred by not grantingleave to apply for home detention in terms of s 80I of the Sentencing Act 2002 (Act).Respondent submissions[16] The respondent submits the starting point was appropriate and within range. Itsays that the appellant's history means that a sentence of home detention was notappropriate, nor available.Approach on appeal[17] An appeal against sentence must be allowed if the court is satisfied that thereis an error in the sentence imposed and a different sentence should be imposed.4Otherwise, the court must dismiss the appeal. The court will dismiss the appeal if itis "within the range that can properly be justified by accepted sentencing principles".5In short, an appellate court will not intervene unless the sentence is manifestlyexcessive.6 Whether the sentence is manifestly excessive is to be assessed in terms ofthe sentence given, rather than the process by which it is reached.7Discussion[18] Although the appeal grounds were considerably narrowed, I briefly discuss theadopted starting point. It is common ground that there is no tariff case for the unlawfultaking of a motor vehicle. Sentencing in this context can vary widely, in part becauseit is often accompanied by other charges. As Mr Watkins points out, if such a chargeis considered in a sentencing exercise involving multiple charges, the sentence for theunlawful taking can be as low as two to four months. Where sentencing involves twoor less charges, the starting points and penalties appear to be higher.[19] Assistance is provided by Wylie J's survey in Curle v New Zealand Police.8He commented on the starting points in some unlawful taking of motor vehicle orconversion cases:9There are a number of cases in this court where sentences have been imposedin relation to the conversion of motor vehicles. Assistance can readily bederived from them. For example in Muir v Police, the Court adopted a startingpoint of 15 months' imprisonment for conversion of a single car. InAffleck v R, the Court upheld a starting point of two years' imprisonment. Inthis case, the vehicle which was stolen was a commercial van. It was targeted,due to the potential for large gain from theft of its contents. In Duxfield vPolice, a starting point of 12 months' imprisonment in relation to theconversion of a motor vehicle was upheld on appeal. Similarly in Gideon vPolice, a starting point of 12 months' imprisonment was upheld for the sameoffence. In Kushell v Police, a starting point of 18 months' imprisonment was4 Criminal Procedure Act 2011, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 At [30].7 Ripia v R [2011] NZCA 101 at [15].8 Curle v New Zealand Police [2017] NZHC 1194.9 At [27]upheld on appeal. In Riini v Police, the Court accepted that a 12 month startingpoint was available for conversion of a motor vehicle.[20] Mr Curle was sentenced in respect of nine offences but the starting point forthe car conversion charge was one of 15 months' imprisonment.[21] Based on the cases referred to the Court by counsel, a starting point in the rangeof 12 to 15 months is common for a charge of unlawful taking of a motor vehicle.10Mr Watkins' observation that the sentence for unlawful taking is lower in cases wherethere are multiple charges is reflective of the totality principle.11 It follows that thestarting point of 12 months and end sentence of nine months' imprisonment is withinthe range available. Whether or not the start point adopted by the Judge in fact tookinto account an uplift for Mr Skeens' previous offending is not material since the focusmust be on the final sentence, but I observe that its historic nature tells against anuplift.[22] Mr Watkins submits that a sentence will still be manifestly excessive where itdoes not represent what the least restrictive sentence requires. The sentencing Judgedid not expressly refer to consideration of a sentence of home detention in hissentencing notes. On the basis of the information before me, Mr Skeens did not askthat the sentence be commuted to one of home detention at the time of sentencing norseek leave to apply should an address become available.12[23] A court is bound to consider whether home detention should be imposed if itis technically available within the terms of s 15A of the Sentencing Act 2002, even ifa defendant does not request it.13 There is no presumption either way.14 The judgemust assess what is the least restrictive sentence after taking into account the relevantpurposes of sentencing in the context of the present offending.1510 Ratahi v New Zealand Police [2014] NZHC 2394; Hall v Police [2012] NZHC 2641; Singh v R[2011] NZCA 139; Edwards v Police HC Auckland, CRI-2010-404-103, 11 May 201011 Sentencing Act 2009, s 85.12 Mr Watkins was not counsel at sentencing.13 R v Vhavha [2009] NZCA 588 at [29]. Simon France (ed) Adams on Criminal Law — Sentencing(online ed, Thomson Reuters) at [SA15A.01].14 R v Vhavha [2009] NZCA 588 at [29].15 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147.[24] An omission to consider the grant of leave under s 80I is a sentencing errorleading an appellate court to consider the matter afresh.16[25] In this instance, an appeal on this ground is somewhat moot because Mr Skeensis due for release in three weeks. It also appears that he was unable to provide anaddress for EM monitoring to enable him to advance an application for EM bailpending the hearing of this appeal. Practically speaking, this suggests that the reasonwhy no application was made at the time of sentencing was because of the absence ofan address.[26] Mr Watkins submits that the proper course, should I allow the appeal on thisbasis, would be to order release of Mr Skeens immediately. One problem with thatsubmission is that it requires that I quash the original sentence and substitute a slightlyshorter term when there is no error in the term of imprisonment imposed.[27] Looking at the question of the availability of home detention afresh, I considerthat, at the time of sentencing, the relevant factors weighed so heavily againstcommuting the sentence to home detention that the sentencing Judge could hardly becriticised for not giving it consideration. This was not someone on the "cusp of homedetention" to adopt the phrase used by Duffy J in Richmond v New Zealand Police. 17[28] The only factor in favour of commuting the sentence or granting leave to applywas the relatively short duration of the term of imprisonment. Against that, in the pastten years, Mr Skeens has been convicted of at least thirteen charges of breaches ofconditions of his sentence, including post-release conditions, post-detentionconditions, conditions of community detention or community work. Based on hisrecord of persistent disregard for Court-imposed sanctions, there was (and remains)no good reason to think that Mr Skeens can satisfactorily complete a sentence of homedetention. The rehabilitative purpose of a sentence of home detention would nottherefore be fulfilled.16 Pahulu v Police [2020] NZHC 153 at [42]; Richmond v New Zealand Police [2019] NZHC 2001;Papa v Police [2019] NZHC 1309.17 Richmond v New Zealand Police [2019] NZHC 2001 at [55].[29] It follows that, even if there was utility in allowing the appeal, the end resultwould have been the same.Result[30] For those reasons, I dismiss the appeal.............................................................Walker J