WOODS v NEW ZEALAND POLICE [2017] NZHC 3093

WOODS v NEW ZEALAND POLICE [2017] NZHC 3093 [13 December 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2017-425-40[2017] NZHC 3093BETWEEN DANIEL FRANCIS WOODSAppellantAND NEW ZEALAND POLICERespondentHearing: 12 December 2017Appearances: S G Vidal for the AppellantR W Donnelly for the RespondentJudgment: 13 December 2017JUDGMENT OF DUNNINGHAM JIntroduction[1] Between 6 and 16 June 2017, the appellant, Daniel Francis Woods, embarkedon a spate of offending which left him facing 12 charges. These included six chargesof burglary and one charge each of; unlawfully in a yard, receiving under $500,resisting police, assaulting a police officer, sustained loss of traction, and breach ofrelease conditions.[2] He pleaded guilty to all charges and was sentenced in the Invercargill DistrictCourt on 10 August 2017, to two years and seven months' imprisonment.1[3] He now appeals his sentence on the basis that:1 Police v Woods [2017] NZDC 17796.(a) the original starting point was too high;(b) the uplift applied for the receiving charge was in error;(c) the uplifts applied for the other offending were too great; and(d) in all the circumstances the end sentence was manifestly excessive.Background to the offending[4] The offending which resulted in these charges began on 6 June 2017, when theappellant attempted to sell 27 stolen steel wheel rims to a scrap metal dealer inInvercargill.[5] Between 9 and 17 June 2017, the appellant entered various farm sheds and aworkshop, and stole chainsaws, tools, and other farm equipment. Some of these itemswere recovered, but not all were.[6] On 10 June 2017, the appellant was stopped by police, because his vehiclenumber plates had either been removed or obscured. Although he behavedaggressively towards the police, he was permitted to leave after explaining that he hadcovered his number plates to take photographs in order to sell the vehicle. However,the appellant then drove off in such a way that he caused his tyres to skid and losetraction, and he continued to drive in this manner for a distance up the road. As aconsequence, he was again stopped by police and arrested for sustained loss oftraction. He then became abusive and uncooperative. When advised that he was goingto be handcuffed he threatened to assault the officer. When police then attempted tohandcuff him, a scuffle ensued in which one of the police officers sustained minorinjuries.[7] The breach of release conditions charge arose at the time the appellant wasarrested for sustained loss of traction, as he was found to have a 15 year old girl in thecar with him. At the time he was subject to a release condition not to associate withanyone under the age of 16, following his imprisonment in 2014 for sexual connectionwith a minor.The District Court decision[8] After reciting the facts of the offending, the effects of that offending on thevictims, and information provided about the appellant in the pre-sentence report, theJudge turned to the sentencing exercise. He held that the lead charges were theburglaries. He acknowledged that they were not of dwelling houses but nevertheless,being burglaries from rural properties, they had had a significant impact on the victimsand their families. Given the number of burglaries, he considered that a starting pointof two years and nine months' imprisonment was appropriate.[9] To that he added an uplift of three months for the receiving charge, one monthfor the assault on police and for resisting police, and a further one month for thesustained loss of traction. He also applied an uplift of one month for the breach ofrelease conditions and uplifted the sentence a further two months to reflect theappellant's raft of previous convictions. That resulted in a cumulative starting pointof three years five months' imprisonment.[10] The Judge then considered whether, in light of the totality principle, thatsentence fairly reflected the totality of the offending involved here. He concluded thatit did. He then applied a full discount for the appellant's guilty pleas, resulting in anend sentence of 31 months' imprisonment. He also ordered payment of reparation onfour charges of burglary, amounting to $950.Principles on appeal[11] Appeals against sentence are brought under s 244 of the Criminal ProcedureAct 2011, and must be determined in accordance with s 250 of that Act. Specifically,this Court may only allow an appeal against sentence if it is satisfied that there hasbeen an error in the imposition of the sentence, and that in the event, a differentsentence should be imposed.2 The Court will not engage in an exercise which amountsto mere tinkering with the sentence.32 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Maihi v R [2013] NZCA 69.[12] If the sentence under appeal may be properly justified having regard to therelevant sentencing principles, it is not the place of this Court to intervene andsubstitute its own views for those of the sentencing Judge. It is only if the sentence is"manifestly excessive" that the Court should interfere with the exercise of the Judge'sdiscretion.[13] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,4the Court of Appeal held that:5the focus is on the sentence imposed rather than the process by which thesentence is reached. That encapsulation of the position will no doubt representthe position in the vast majority of cases.Was the starting point too high?[14] The appellant submits that a starting point for the burglary offending shouldhave been in the range of 30 months instead of 33 months, saying that none of theaggravating factors identified in Senior v Police were present here.6 The rural natureof the targeted farm properties meant there was little risk of confrontation and whilethere were six burglaries, none of them demonstrated sophisticated planning.[15] The respondent, however, notes that the appellant committed six burglaries inunder three weeks, and was assisted on three occasions with a co-offender acting as alook out. Furthermore, he was targeting rural sheds for tools to sell and such offendingimpacts directly on the livelihoods of the owners. In addition, there is always thepossibility of running into an owner, as occurred in respect of the 19 June convictionfor unlawful entering. The victim impact statements indicate the burglaries of theserural sheds have had significant impacts on the victims who are often living close bywith their families in isolated areas, and are therefore more vulnerable.[16] Judge Callaghan's starting point was reached having regard to the number ofburglaries, their proximity in time, and their relative impacts in terms of effect on thevictims involved. His sentencing notes provide:4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 At [36].6 Senior v Police (2000) 18 CRNZ 340 (HC).[16] In sentencing you, the lead charges have to be the burglaries.Accepting that they are not of dwellinghouses, they nonetheless have hadsevere impact upon the victims and their families. You were the person whowent onto the property to steal the items while your co-offender was thelookout. You were also the driver of the motor vehicle.[17] The starting point has to be imprisonment for offending of this nature.While accepting they are not serious burglaries of their kind, the number ofthem is aggravating. In my view a starting point of two years and nine months'is appropriate[17] The appellant submits the available range for this type of offending is betweentwo and a half and three and a half years' imprisonment, so the starting point adoptedwas well within range.[18] Counsel have drawn the Court's attention to various authorities which arerelied on to identify the proper starting point in this case. As the Court of Appeal heldin Arahanga v R, a single burglary of a dwelling house at the "relatively minor end ofthe scale" attracts a starting point of between 18 months and two and a half years.7However, as the Judge noted, these are not residential dwellings, and so the startingpoint must be commensurately lower.[19] In McArthur v Police,8 a 16 month starting point was upheld in respect oftwo burglary charges, relating to the theft on a single night, of a small amount ofproperty, from sheds on residential properties. Clearly the present offending, involvinga greater number of charges, over an extended period of time, and exhibiting a greaterdegree of planning, is more serious. In Chalmers v Police, the High Court on appealconsidered that an adjusted starting point of 16 months, on two charges of burglary ofthe same rural property, was "stern" but within range.9 Again, the offending here issubstantially more serious in its scope.[20] Overall, I consider that the starting point of 33 months adopted here was wellwithin range for this type of offending. Indeed, the appellant's proposed starting pointof 30 months reinforces this.7 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].8 McArthur v Police [2014] NZHC 201.9 Chalmers v Police [2017] NZHC 1434 at [17].[21] This ground of appeal fails.Was the uplift for the receiving charge in error?[22] The appellant submits that there is no rationale for effectively imposing, byway of cumulative uplift, the maximum penalty of three months for receiving whenthis offending was not the most serious of its kind. That is accepted, in part, by therespondent who acknowledges that, looked at on its own, the offending wasunexceptionable, and an uplift which reflected the maximum penalty available, wasinappropriate.[23] I agree. The Sentencing Act 2002 provides that maximum penalties must beimposed where the offending is within the most serious of cases,10 and that penaltiesnear to the maximum must be imposed where the offending is near to the most seriousof cases.11 Neither of those circumstances apply here.[24] It follows that, on its own, the imposition of a three month uplift for thereceiving charge was unjustified. However, that is not the end of the matter. Onappeal, the focus must be on whether the end sentence as a whole was manifestlyexcessive. In addition, the Court must be mindful not to engage in an exercise thatamounts to mere "tinkering". This can only be decided after looking at the sentencethat is finally imposed.Was the uplift for loss of traction appropriate?[25] Having set out the factual background to the charge, Judge Callaghan did notdiscuss the relative seriousness of this offending in any detail. He considered that it"is also separate and uplift of one month imprisonment is appropriate for that".12[26] The maximum penalty for this offending is three months' imprisonment.13 Theappellant submits that, although he has previous convictions for dangerous driving, hehas none directly for sustained loss of traction, and accordingly this offending did not10 Sentencing Act 2002, s 8(c).11 Section 8(d).12 Police v Woods, above n 1, at [20].13 Land Transport Act 1998, s 35(2)(a).warrant a separate uplift of one month. In my view, there is a link between thoseprevious dangerous driving convictions and the present loss of traction charge, suchthat the Judge was justified in treating this as more serious offending. While care mustbe taken to ensure that there has not been double-counting for that aggravating feature,given the global uplift, I do not consider the Judge was in error by imposing a smallcumulative uplift for this offending.Was the uplift for resisting and assaulting police appropriate?[27] The appellant submits that a one month uplift for this aspect of the offendingwas unwarranted. This uplift reflected two charges under the Summary Offences Act1981. The assault charge has a maximum penalty of six months' imprisonment,14 andthe charge of resisting police carries a maximum penalty of three months'imprisonment.15[28] The appellant notes that this offending occurred at the same time as thesustained loss of traction offending, presumably suggesting that this formed part andparcel of that offending. He also submits that the offending here was at the lower endof the spectrum as the police officer involved sustained only minor injuries in the formof cuts and grazes.[29] I consider, however, the offending is of a different kind to the sustained loss oftraction offence, and a cumulative sentencing response was warranted, even though itformed part of a connected series of events.16 The fact that it was at the lower end ofthe spectrum is, to an extent, already reflected in the fact that the assault charge waslaid under the Summary Offences Act and not the Crimes Act. Finally, I consider theoffending warranted an uplift because the summary of facts makes it clear it formedpart of a clear pattern of aggressive and confrontational behaviour by the appellanttowards the police on this occasion. In the circumstances, I consider that an uplift ofone month for these two offences was clearly available to the Judge. This aspect ofthe appeal fails.14 Summary Offences Act 1981, s 10.15 Summary Offences Act 1981, s 23(a).16 Sentencing Act 2002, s 84(1).Was the uplift for breach of release conditions appropriate?[30] The appellant submits that no uplift should have been imposed on this charge.That is consistent with his position that a one month uplift was sufficient to accountfor all offending other than the lead burglary charges. The appellant emphasises thathe has no previous convictions for breach of release conditions and, had he not beenfacing a custodial sentence for the other charges, he would not have received a prisonsentence for this charge. In reflecting the principle that the least restrictive sentenceshould be imposed that is appropriate in the circumstances, Ms Vidal, for the appellant,submitted that a conviction should have been entered but no other sentence imposed.[31] However, as the respondent submits, this was a particularly acute breach of arelease condition, given that the condition was imposed following the appellant's twoconvictions for sexual connection with a young person aged 12-16, in August 2014.The breach thus went to the heart of concerns raised by that previous offending.Coupled with the appellant's noticeable lack of remorse for his present offending, thisbreach was especially troubling. It was clearly separate offending, which wouldnormally warrant a cumulative response.[32] In the circumstances, I am satisfied that the particular seriousness of theappellant's breach, in the context of his previous offending, is such that a one monthuplift on this account cannot be said to be manifestly excessive.Was the sentence manifestly excessive overall?[33] The appellant submits that the Court should have adopted a starting point of 30months' imprisonment with a one month uplift for the other offending and two monthsfor his previous convictions. Applying a 25 per cent reduction for entering guilty pleasat the first opportunity, that would result in an end sentence of 24 months and threeweeks' imprisonment. Accordingly, the sentence of two years and seven months'imprisonment was manifestly excessive.[34] However, as the respondent submits, the starting point for the burglaryoffending, together with the various uplifts, with the exception of the uplift on thereceiving charge, tend towards the lower end of the permissible range. Thus, whilethe uplift for the receiving charge was not available to the sentencing Judge, the otheraspects of sentencing do not persuade me that the end sentence of two years and sevenmonths was manifestly excessive. In particular, I note that the Judge applied a modesttwo month uplift for the appellant's relevant previous convictions which are nottrifling. They include convictions for dangerous driving in 2006, 2009 and 2014,various violence-related offences including resisting police and assaulting police,threatening to kill and behaving in a disorderly manner in 2012 and 2013, and forreceiving in 2014. Many of these convictions resulted in community-based sentencesand there are several further convictions for breaches of those community sentences.[35] Standing back and looking at the sentence as a whole, an uplift of six monthson a starting point of two years nine months, which reflected a series of separateoffences and a reasonably significant relevant criminal history, was not unjustified.Furthermore, the Judge, having reached a cumulative end starting point, gave carefulregard to the principle of totality and concluded that it was not breached in this case.[36] I agree with that conclusion. For that reason, while the uplift for receiving wasoutside the available range, the appellant has failed to show that the end sentence,viewed as a whole, was manifestly excessive.[37] Accordingly, the appeal is dismissed.Solicitors:Southern Law, InvercargillPreston Russell Law, Invercargill