BURGESS v NEW ZEALAND POLICE [2017] NZHC 393

BURGESS v NEW ZEALAND POLICE [2017] NZHC 393 [9 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000006[2017] NZHC 393BETWEEN DANIEL BURGESSAppellantAND NEW ZEALAND POLICERespondentAND DEPARTMENT OF CORRECTIONSSecond RespondentHearing: 7 March 2017Appearances: D Dickson for AppellantE J Henderson for CrownJudgment: 9 March 2017JUDGMENT OF DUNNINGHAM J[1] Mr Burgess was sentenced on 16 December 2016 on the following 11 charges:(a) breach of community work;(b) driving while disqualified in the aggravated form (x 4);(c) using a forged document (x 2);(d) unlawful interference with a motor vehicle;(e) possession of methamphetamines;(f) possession of a pipe for smoking methamphetamine; and(g) possession of an instrument (that is, 22 car keys) for the taking of motor vehicles.[2] The sentence imposed was two years and four months' imprisonment.Mr Burgess is also disqualified from driving for two years and six months. He now appeals this sentence on the grounds that it was manifestly unjust.Background facts[3] On 15 January 2016, Mr Burgess was disqualified for 12 months. On 27 July 2016, he was caught driving in Christchurch and admitted he was a disqualified driver.[4] On 9 August, he drove to a petrol station and purchased cigarette supplies valued at $81.05. He used a hundred dollar note to pay. A short time later he entered the shop again to purchase some food, presenting another hundred dollar note to pay for it. The shop assistant noticed it was counterfeit. Staff checked the first note and discovered it was also a forgery.[5] Mr Burgess' first appearance for the initial driving while disqualified charge was on 10 August. All offending from this date was while he was on bail.[6] On 12 August, the appellant drove to a different petrol station. He entered the shop and paid for petrol and some other items, using a hundred dollar note to pay. Staff found this was a forgery. In explanation, the appellant stated that he did not know the notes were counterfeit and that he had been given them for doing some gardening work.[7] On 24 August, the appellant was a passenger in a vehicle which had been stolen several hours earlier by an associate of his. He was searched pursuant to arrest. Police found 17 car keys of varying sizes in his underwear and five more in his pocket. They also found a small bag containing .15 grams of methamphetamine and a glass pipe for smoking it in his back pack. He explained to police that he did not have permission to be in the vehicle and used the keys to try car doors. However he denied knowledge of the drugs and pipe.[8] On 11 November, the appellant was stopped by police while driving his vehicle. He explained that he drove because he had to go get some rent money.The District Court decision[9] After setting out the facts which led to the charges, the Judge noted that the appellant had a significant list of prior convictions, including theft by shoplifting, unlawfully taking a motor vehicle and theft from a car. He also had three previous convictions of driving while disqualified.[10] The Judge considered the pre-sentence report, which put the appellant at a medium risk of re-offending. The recommendation was for supervision and community detention but the Judge noted that the report-writer was unaware of the forgery charges and therefore the recommendation underestimated the cumulative seriousness of his offending.[11] The Judge stated that the fact the appellant had not complied with his community work sentence did not bode well for compliance with an electronically monitored sentence. He also emphasised that the use of forged bank notes must be taken very seriously. He therefore concluded that a sentence of less than imprisonment was precluded by the cumulative seriousness of the offending, theappellant's criminal history, and the need for denunciation and deterrence.[12] The Judge adopted the 12 August forgery charge as the lead offence, saying that this would allow him to impose a sentence reflecting the totality of the offending and that he would then impose concurrent sentences for the other charges.[13] The Judge took a starting point of three years to reflect the personalaggravating factors of the appellant's previous offending, his offending undersentence and his offending while on bail. He found no personal mitigating factors that justified any reduction. He concluded that the remorse mentioned by the report writer would be sufficiently taken into account in the credit for guilty pleas, particularly given the fact of his offending while on remand. The appellant was given an eight month discount, which was slightly less than full credit, to reflect thefact that some of the guilty pleas had not been entered straight away. This resulted in an end sentence of two years and four months' imprisonment.[14] The Judge also imposed the following concurrent sentences of imprisonment:(a) 30 June 2016, breach of community work – three months;(b) 27 July 2016, driving while disqualified – four months;(c) 9 August 2016:(i) using a forged document– six months;(ii) driving while disqualified – six months;(d) 12 August, driving while disqualified – eight months;(e) 24 August 2016:(i) unlawful interference with a motor vehicle – four months;(ii) possession of methamphetamines – one month;(iii) possession of a pipe for smoking methamphetamine – one month;(iv) possession of an instrument for the taking of motor vehicles –three months; and(f) 11 November 2016, driving while disqualified – 10 months.[15] The Judge also ordered that the appellant be disqualified from driving for twoyears and six months, commencing on 15 January 2017 when the appellant's currentdisqualification expires.Principles of appeal[16] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1[17] It is only appropriate for this Court to intervene and substitute its own viewsif the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.2 The focus is on the end sentence rather than the specific process by which the Judge reached it.3 The appellate court will not intervene when the sentence is within the range that can properly be justified by sentencing principles.4SubmissionsAppellant[18] The appellant submits that:(a) the Judge erred by not taking the seventh charge of driving while disqualified as the lead offence despite acknowledging that it might have been the most serious;(b) the Judge erred by assessing the seriousness of the use of forged banknotes at too high a level;(c) an end sentence of 20 months' imprisonment for the 11 charges would have been appropriate; and(d) a two year disqualification would be sufficient.1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Ripia v R [2011] NZCA 101 at [15].3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Larkin v Ministry of Development [2015] NZHC 680 at [26].[19] The appellant argues, by reference to sentences imposed in other cases involving recidivist driving while disqualified, that an end sentence of 15 months'imprisonment would be appropriate for his four driving offences.5[20] The appellant could not identify any cases involving sentencing for s 257(1)(a) Crimes Act 1961 and instead puts forward Hogan v Ministry of Social Development as the leading case on knowingly using a forged document for a comparison.6 There the appellant was sentenced to six months' imprisonment for $27,766 of benefit fraud. The appellant suggests that, as the present case only involved the use of a few forged $100 notes, a one month sentence for each charge would be appropriate, to be served concurrently with the sentence for the driving offences.[21] Taking account of modest cumulative sentences for the other offending, andthe discount for his guilty plea, the appellant suggests an end sentence of 20 months'imprisonment for the 11 charges would be appropriate. He also asserts that a disqualification of two years on each of the four driving while disqualified charges, to be served concurrently, would be sufficient instead of the two year six months'disqualification imposed.Respondent[22] The respondent submits that the end sentence of two years and four months'imprisonment was not manifestly excessive given the totality of the offending.[23] The respondent sets out a number of cases that would support the need for a high starting point in cases of recidivist offenders of driving while disqualified. InApiata v Police, the Judge took an overall starting point of 30 months' imprisonment on four charges of driving while disqualified.7 He reached this by adopting a starting point of 12 months' imprisonment for the fourth and most "recidivist" charge andthen uplifting this by six months for each of the other three charges (although noting these charges were the defendant's twentieth to twenty-third convictions for this5 That appears to assume that the discount for guilty pleas has been applied.6 Hogan v Ministry of Social Development (2005) 23 CRNZ 500.7 Apiata v Police [2016] NZHC 3119.offence). A 16 to 18 month starting point would therefore be appropriate on these charges alone.[24] After discussing the appropriate cumulative sentences for the other offending, and the generous discount for guilty plea, the respondent submits that the endsentence cannot be described as "manifestly excessive".Analysis[25] This was a complex sentencing exercise due to the large number of charges and their diversity. The Judge dealt with all charges on a concurrent basis, choosing one starting point to reflect the totality of the offending. However, equally, given the different types of offending and the long period over which they were committed, they could have been dealt with on a cumulative basis. In my view, the critical issue will be whether, when considered in totality, the end sentence was manifestly excessive.Did the Judge assess the seriousness of using forged bank notes at too high a level?[26] The appellant is critical of the Judge for taking the charge of forgery as the lead charge when he acknowledged in sentencing that the seventh driving while disqualified charge may in fact be the most serious.[27] However, I am not persuaded this amounts to an error in the sentencing process as the Judge made it clear he was sentencing on a "totality" basis so that, nomatter which charge he selected as the lead charge, the sentence for that would reflect the totality of offending. Furthermore, the charge of forgery had a maximumof 10 years' imprisonment, whereas the charge of driving whilst disqualified/suspended, third or subsequent, attracts a maximum sentence of imprisonment of two years which provided some justification for selecting it as the lead charge.8 More importantly though, it was clear that the selection of the lead charge was not material to the sentencing exercise, as it was always intended to reflect the totality of the offending rather than the seriousness of the individual offence. The issue is whether the end sentence does, in fact, reflect that.8 Land Transport Act 1998, s 32(4).[28] As a check, I consider it appropriate to consider the individual sentences imposed and the total sentence they would lead to if cumulative sentences were imposed where appropriate, taking account of the principles in s 84 of the Sentencing Act 2002, to see if, in totality, the sentence imposed was excessive.Driving while disqualified[29] The appellant argues that Opetaia v Police is the case most similar to the present in terms of recidivist driving while disqualified.9 There the appellant was being sentenced for her fourth to eighth offences. A sentence of 18 months'imprisonment imposed on the four charges before any discount was applied was upheld on appeal.10 I consider a starting point of the same magnitude would be available in the present case on the four driving while disqualified in the aggravated form charges which Mr Burgess was facing.Forgery[30] In respect of the two forgery charges, there was a surprising dearth of accessible precedents on sentencing for this offence. The appellant suggests that as the present case only involved the use of a few forged $100 notes, a one month sentence for each charge would be appropriate, to be served concurrently.[31] It is difficult to find examples of sentencing under s 257(1)(a) of the Crimes Act 1961 which relate to use of forged bank notes. Furthermore, such cases appear to be very fact-dependent and no real patterns emerge. In Police v McIntyre, the defendant used bank notes which had forged by her partner to purchase just over $1,000 worth of products from a store.11 In a sentencing indication, the Judge indicated a starting point of 120 hours' community work which would be uplifted forrecent dishonesty convictions but discounted to 105 hours' community work if thedefendant chose to plead guilty.9 Opetaia v Police [2015] NZHC 2532.10 While it was treated as 18 months in discussion, the actual sentence was 19 months, but a further two month sentence imposed was erroneously said to total 20 months.11 Police v McIntyre DC Wellington CRI-2016-085-002343, 3 November 2016.[32] In Police v Karepa, the defendant forged eight $50 bank notes and used them in various stores.12 The Judge took a starting point of 18 months for this offending and then uplifted it by a total of 12 months for another fraud offence and for previous offending.[33] In R v Pohutuhutu, the defendant was sentenced for theft and possession of forged bank notes.13 The Judge took a starting point of one month for the theft, increased it by two months for the possession of forged bank notes and by two months for relevant criminal history. It should be noted however, that possession of forged bank notes is a lesser crime than using them (with a maximum sentence of seven years as opposed to 10 years).[34] I consider that use of forged notes, on a minor scale such as here, would warrant a starting point of somewhere between non-custodial options to a sentence of one year imprisonment depending on the degree of culpability, including thedefendant's history of dishonesty offending.[35] In the present case, the Judge did not identify what element of the sentence related to the two charges of using forged bank notes, but rather set a sentence whichreflected the totality of the offending. In my view, a sentence of four to six months'imprisonment was warranted given the inherent seriousness of the charges of using aforged document, the appellant's history of dishonesty offending, and with the fact he was on bail at the time of the second incident. I also consider that the sentence for those offences should be imposed cumulatively on the driving while disqualified offending because they are offences of a completely different nature.Other offences[36] In respect of the charges of unlawful interference with a vehicle, and of possession of an instrument, they warranted the starting points of four months and three months respectively as imposed by the Judge, given that the appellant here offended while on bail and has previous convictions for theft and unlawfully taking a motor vehicle.12 Police v Karepa DC Palmerston North CRI-2009-054-4305, 24 November 2009.13 R v Pohutuhutu [2015] NZDC 8771.[37] The sentence of one month imprisonment imposed on each of the drug related offences to be served concurrently with each other was also appropriate given that this was the appellant's first offending of this nature.Totality[38] Finally, in respect of the breach of community work charge, I note this is theappellant's first breach. While the Judge imposed a sentence of three months, I would likely have imposed a lesser sentence of one month.[39] This totals a 31 to 33 month sentence whereas the Judge took a starting point of three years to reflect the totality of the offending including the personalaggravating factors of the appellant's previous offending, his offending under sentence and his offending while on bail. That then would attract a discount forguilty plea which, if the District Court's 22 per cent reduction is applied, results in asentence of 24 to 26 months' imprisonment. That is close to the sentence imposed of two years and four months.[40] While I have used a different approach to the sentencing exercise, that was simply as a way to check whether his assessment of the totality of the offending was appropriate. I am satisfied that the overall sentence reached by the totality method was not manifestly excessive and that there is no basis for this Court to interfere with the sentence imposed.Disqualified from driving[41] In respect of the duration of the disqualification period imposed, the appellant provided no information to support the submission that a total disqualification period of no more than two years was required.[42] Section 32(4) Land Transport Act requires a mandatory period of disqualification of at least one year for this offence. Given the appellant was sentenced on four charges under this section, I can not conclude the period of two years and six months was outside the available range for this level of offending.Conclusion[43] Neither the sentence of imprisonment, nor the period of disqualification imposed, have been demonstrated to be manifestly excessive. The appeal is therefore dismissed.Solicitors:Public Defence ServiceRaymond Donnelly & Co., Christchurch