HEPBURN v NEW ZEALAND POLICE [2023] NZHC 475

HEPBURN v NEW ZEALAND POLICE [2023] NZHC 475 [9 March 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000193[2023] NZHC 475BETWEEN DOUGLAS KELVIN HEPBURNAppellantAND NEW ZEALAND POLICEDEPARTMENT OF CORRECTIONSRespondentsHearing: 9 March 2023Appearances: J M Grainger and E E McClay for the AppellantA R T Garrick for the RespondentJudgment: 9 March 2023ORAL JUDGMENT OF GENDALL JSummary[1] On 9 November 2022 following a guilty plea, the appellant Douglas Hepburnwas sentenced in the Christchurch District Court to six years' imprisonment anddisqualified from driving for five years and six months on the following charges:1(a) Three counts of receiving property over $1,000;(b) Two counts of theft over $1,000;(c) One count of dishonestly taking a motor vehicle;1 Police v Hepburn [2022] NZDC 22047.(d) One count of dishonestly obtaining a document;(e) 31 counts of driving while disqualified;(f) Five counts of dangerous driving;(g) 12 counts of receiving under $500;(h) 19 counts of theft under $500;(i) Four counts of failing to stop;(j) Failing to answer District Court bail; and(k) Two counts of breach of home detention.[2] Mr Hepburn now appeals the sentence.Facts[3] The majority of the charges Mr Hepburn faced relate to offending which tookplace between January and March 2022. The remaining charges concerned offendingwhich occurred in May, July and November 2021. The stolen goods Mr Hepburn dealtin included vehicles, number plates, petrol, a brush cutter and power tools. The drivingrelated offences arise from Mr Hepburn driving while disqualified on 31 occasions,failing to stop for flashing police red and blue lights and driving away from police onfive occasions. Mr Hepburn also breached the conditions of his home detention ontwo occasions, including by failing a drug and alcohol screening test.[4] Mr Hepburn is 31 years of age. He has previously appeared before the courtsbut has not served a sentence of imprisonment before.District Court's Decision[5] Mr Hepburn, having entered guilty pleas he faced, appeared before Judge AACouch in the Christchurch District Court on 9 November 2022 for sentencing.[6] Judge Couch began by canvassing the charges Mr Hepburn appeared for,noting the large volume. He took the lead charges as those carrying maximumpenalties of seven years' imprisonment. There were seven such charges. For thetotality of these seven charges, the Judge adopted a starting point of two years andeight months' imprisonment.[7] The Judge then considered the 31 charges of driving while disqualified. Eachof these charges carries a maximum penalty of two years' imprisonment. For thetotality of the 31 charges, the Judge adopted a starting point of four years'imprisonment.[8] Next, Judge Couch considered the five charges of dangerous driving andadopted a starting point of six months' imprisonment, noting the danger Mr Hepburnposed to road users. The Judge applied no uplift for the four charges of failing to stopsince they are fine only offences but carry a mandatory driving disqualification.[9] As to the 12 receiving charges, the Judge dealt with these by taking a startingpoint of 10 months' imprisonment. For the 19 charges of theft, the Judge adopted astarting point of 15 months' imprisonment.[10] The breaches of home detention attracted a starting point of two months'imprisonment, and the final charge of failing to answer District Court bail attracted anuplift of two months' imprisonment.[11] This brought the Judge to a combined starting point of nine years and sevenmonths' imprisonment. Noting, however, the considerable connection between muchof the offending, the Judge adopted an adjusted starting point of seven years and sixmonths' imprisonment.[12] The adjusted starting point was then uplifted by 10 per cent to reflect theaggravating feature of the majority of the offending having been committed whileMr Hepburn was on bail, and a further five per cent uplift to reflect similar offendingappearing in Mr Hepburn's criminal history. The Judge then applied a 20 per centdiscount for Mr Hepburn's guilty pleas, despite the delay. To account forMr Hepburn's personal mitigating factors, including an at-times unstable life and drugaddiction, the Judge applied a discount of five per cent resulting in an end point of sixyears' imprisonment.[13] The Judge cited R v Xie,2 a Court of Appeal authority as the basis for imposinga combination of cumulative and concurrent sentences. Accordingly, it would appearthat the Judge structured the sentence so that Mr Hepburn was to serve three years'imprisonment for the seven charges carrying maximum penalties of seven years'imprisonment, three years' imprisonment for the driving while disqualified chargesand the balance to be dealt with concurrently. Two reparation orders were also made.Grounds of Appeal[14] Mr Hepburn brings this appeal on the grounds that the end sentence, includingthe period of driving disqualification were manifestly excessive due to the followingerrors:(a) Grouping of offences by maximum penalty rather than type resulted inconnected offending being treated cumulatively and this resulted in anexcessive starting point which was not adequately reduced for totality;(b) The four-year starting point for the driving while disqualified chargesfailed to recognise the offending as a continuing course of conduct northe fact that the bad driving was reflected in other charges as well;(c) A 25-month starting point for the three-months' imprisonmentmaximum penalty charges was excessive;(d) Percentage uplifts exacerbated the already excessive starting point;(e) Personal mitigating factors, including addiction, were not adequatelydiscounted for; and2 R v Xie [2007] 2 NZLR 240 (CA).(f) The driving disqualification period failed to address the causes of theoffending and was crushingly excessive.Relevant Law[15] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence isan appeal against a discretion and must only be allowed if the Court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.3[16] Generally, the focus in a sentence appeal is on the final sentence and whetherthat was in the available range, rather than the exact process by which it was reached.4The Court of Appeal has accepted, however, that there may be cases where "what hasgone wrong is such as to require correction albeit the sentence imposed is withinrange".5[17] Although s 250 does not refer to "manifestly excessive", it is a principle thatis well-established in the Court's approach to determining the extent of the error insentence appeals.6 As Ellen France J said in Tutakangahau v R:7The claim that a sentence is manifestly excessive (or inadequate) is inevitablypremised on the contention of a prior error which often will involve questionssuch as whether the starting point is too high given the facts, or of incorrectdiscounts or as to parity with co-offenders.[18] In R v Shipton Hammond J said:8It is only if an error of that character is involved that the Court should re-exercise the discretion. If it should come to that, the Court will then form itsown view of the appropriate sentence to be passed. If in its own view it "thinksthat a different sentence should have been passed", the original sentence willbe quashed and a new sentence imposed.3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.4 Ripia v R [2011] NZCA 101, At [15].5 Tutakangahau v R, above n 3, at [36].6 At [35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].7 Tutakangahau v R, above n 3, at [32].8 R v Shipton, above n 8, at [140].[19] That formulation was repeated in Tutakangahau where the Court of Appealsaid: 9 "If there is an error of the requisite character, the court will then form its ownview of the appropriate sentence."Analysis[20] The appellant has raised a number of discrete grounds of appeal. I will dealwith each in turn. But the gist of submissions advanced on his behalf is that the endsentence imposed of six years' imprisonment for Mr Hepburn's crime spree whichinvolved driving while disqualified, dangerous driving and dishonesty charges relatedto the theft of two vehicles and the other lower value items was manifestly excessive.Instead, the end sentence, counsel for the appellant maintains, should be in the vicinityof four years' imprisonment.[21] The respondent says that the end sentence and the starting points adoptedaccurately reflect the appellant's culpability here and the volume of charges he faced,making the sentence within range and appropriate in the circumstances.Charges grouped according to penalty[22] The appellant before me submitted that by grouping offences by penalty, theDistrict Court treated similar and connected offending cumulatively, leading to anexcessive starting point. Instead, the Court should have recognised that Mr Hepburn'soffending was best characterised as a four-month crime spree, driven by drugaddiction. The appellant submits that all of the dishonesty related offences wereconnected to the driving while disqualified offences which in turn were connected tothe failing to stop for police and dangerous driving offending. Accordingly, it wasartificial to separate this inter-connected offending based on the maximum penalty thecharges carried.[23] The Crown submits that the Judge did not only group offences by maximumpenalty but instead, appropriately, grouped similar offending together and adopted aconcurrent approach for offences committed as a series. For example, the three broad9 Tutakangahahu v R, above n 5, at [30].groups were driving offences all involving high speeds and evasive manoeuvres;dishonesty offences involving high value identifiable property; and dishonestyoffences relating to low level stolen number plates. Additionally, the Crown says, theJudge assessed starting points for the totality of the conduct in each group of chargeseven before adjusting the overall starting point for totality. All of this shows, theCrown submits, that the sentence imposed was not in error but appropriately arrivedat.[24] Section 84 of the Sentencing Act 2002 provides guidance that concurrentsentences are generally appropriate for offences of a similar kind and a connectedseries of offences. Generally I do acknowledge the appellant's argument that theoffending here is best characterised as a crime spree, driven by drug addiction. Thestealing of high value items, mainly vehicles, was connected to the stealing of the lowvalue items, the number plates, and, resulted in the driving offences of dangerousdriving, driving while disqualified and failing to stop. Accordingly, I am prepared toaccept the offending was connected in time and nature and to an extent warrantedconsideration of a concurrent sentencing approach.[25] Offences committed in order to avoid the consequences of an earlier offenceattract a cumulative sentence despite being connected in time when the offences aredifferent in nature.10 However, in a more recent authority, Anderson v R, the Court ofAppeal noted that concurrent sentences may have been more appropriate for theoffences of theft, receiving and arson because, despite its difference in nature, thearson charge was "intimately connected with one of the theft charges".11[26] While the approach to adopt cumulative sentences I accept was open to theJudge here, the overall sentence arrived at in my view to an extent is contrary to theprinciple of totality in s 85 of the Sentencing Act. The "overall criminality" ofMr Hepburn's offending here as I see it does not warrant an end sentence of six years'10 R v Uon CA108/05, 27 June 2005; and Hughes v R [2012] NZCA 388: Offences of driving withexcess blood alcohol and disqualified driving committed at the same time, where the offender hadmultiple convictions for both offences, were held to be "different in kind" and justifying acumulative term of imprisonment.11 Anderson v R [2017] NZCA 91 at [8].imprisonment.12 I acknowledge that the volume of charges is very significant.However, I do note that many of the charges themselves, are, in part, of relativelylimited seriousness.[27] I consider the appropriate way to approach this sentencing exercise is to followthe Court of Appeal's suggestion in Anderson, i.e., by adopting the dishonestyoffending as the lead charges and then applying uplifts for the related driving offendingand other comparatively less serious charges. A starting point of three years, in linewith Fraser v R,13 Doidge v Police14 and Skeens v Police,15 is appropriate here in myview for all the dishonesty related offending.Driving while disqualified uplift[28] I now deal with the uplift for the driving while disqualified charges. I note thelarge volume of charges for this offending and the appellant's submission on the pointthat the course of conduct which gave rise to the majority of these charges wasuninterrupted. The number of charges do not reflect the appellant being caught andcautioned by police between each offence. Rather, the continuing course of conductwas caught by police once all the offences had been committed. In other words, theappellant submits, the culpability would have been better reflected in threerepresentative charges of driving while disqualified. The appellant also emphasisesthat driving while disqualified charges are such that they themselves take into accountthe aggravated nature of the offence when the offender has previous convictions fordriving while disqualified. Accordingly, uplifts for previous convictions are notusually appropriate.16 In any case, the appellant has three previous convictionsrelating to driving while disqualified.[29] Ms Garrick for the respondent in reply says that the uninterrupted nature ofMr Hepburn's offending is of no moment. His recidivist offending of this type,Ms Garrick maintains, warrants a strict response and the three previous convictions12 R v Xie, above n 2, at [17]; and see also Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at[16].13 Fraser v R [2019] NZHC 3298.14 Doidge v Police [2021] NZHC 2256.15 Skeens v Police [2022] NZHC 875.16 Finch v R CA401/2012, 28 September 2012.she says should have served as warning enough for Mr Hepburn to not drive whiledisqualified again.[30] To an extent, however, I share the appellant's concern here about the chargingdecision having an unusual quality to it, making the comparison to like cases difficult.I also accept the appellant's point about being cautioned after every instance ofoffending. Mr Hepburn's accumulation of 31 charges over some 23 days is differentto a situation where someone is convicted 31 times for the same type of offence havingbeen charged and cautioned after each instance and having some degree of timeseparation between each instance of offending. Mr Hepburn's culpability in my viewis lower than that hypothetical situation and does not warrant an uplift of twice themaximum penalty for the offence. I adopt an uplift of two years' imprisonment for allthe driving related offences.Other charges[31] The remaining charges which warrant a cumulative sentence or an uplift arethe two breaches of home detention and one charge of failing to answer bail. I adoptthe same uplifts adopted by Judge Couch in respect of these charges, that is,two months' imprisonment for the breach of home detention charges and a furthertwo-month uplift for the failure to answer bail.[32] This leads me to a starting point for all of the charges of five years and fourmonths' imprisonment. In coming to this final starting point, I have been particularlymindful of the totality of Mr Hepburn's offending, noting on the one hand the largevolume of charges as well as the fact, on the other hand, that the great majority of thecharges arose as a result of one continuous crime spree on Mr Hepburn's part. I amsatisfied that a final starting point of five years and four months' imprisonment reflectsMr Hepburn's overall criminality and is proportionate to the offending here in itsentirety.Personal aggravating and mitigating factors[33] Mr Hepburn has previous convictions relating to driving while disqualified anddishonesty offences. I am guided by Finch v R that caution is to be exercised whenuplifting a sentence for previous convictions relating to driving while disqualifiedcharges. That is because the charges have built into themselves the aggravated natureof the repeat offence.17 Additionally, and considering the volume of charges here,there comes a point where the court has to question whether uplifts will have thedesired deterrent effect or whether imposing an uplift will amount to doublepunishment by sentencing someone on their criminal record.18 Uplifts are not to beapplied as a matter of course19 and this is a case where I do not consider an uplift tobe appropriate. Again, I note Ms McClay before me suggested Mr Hepburn's actionshere, albeit involving a significant crime spree committed over a four-month period,were simply ones driven by addiction. I say nothing more on that here. But I do notealso that the current sentence will be Mr Hepburn's first one of imprisonment and thedeterrent and hopefully rehabilitative effect of that will not be lost on him.[34] As for the uplift imposed for offending while on bail as well as the discountsapplied for Mr Hepburn's guilty pleas and personal mitigating factors, I do not thinkit is necessary to disturb those. I agree with the District Court Judge's reasoning forcoming to each and find the results appropriate. Accordingly, I adopt the 10 per centuplift for the majority of the offending here having been committed while on bail, the20 per cent discount for the appellant's guilty plea, albeit that this was a plea enteredin a rather delayed manner, and the five per cent discount for Mr Hepburn's personalmitigating factors, this last aspect including the impact of drug addiction onMr Hepburn's offending.[35] This leads to an end sentence here of four years and seven months'imprisonment, rather than the sentence of six years' imprisonment imposed by theDistrict Court Judge.Driving disqualification period[36] I turn now to Mr Hepburn's driving disqualification period sentence.17 At footnote 2.18 See, for example, Andrew Becroft and Geoff Hall Becroft and Hall's Transport Law (online ed,LexisNexis) at [SPPA.3.2(a)].19 O'Connor v R [2014] NZCA 328 at [41].[37] The appellant says the period of five years and six months imposed in theDistrict Court is crushing and will never allow Mr Hepburn to break the cycle ofoffending he is in. It also means that he will not be able to obtain his licence duringhis parole period, thereby first, setting him up to fail; secondly, increasing the risk thathe will continue to drive while disqualified and, thirdly, creating a further risk to thepublic.[38] Ms Garrick for the respondent responds by saying that the disqualificationperiod imposed was within range and will still allow the appellant to obtain a licencewhile on parole, provided he is released at the halfway mark (given the originalsentence stands). Further, the respondent submits that Mr Hepburn's imprisonmentwill provide motivation in changing his behaviour so that he does not repeat suchoffending once he is released.[39] Having come to the conclusion that Mr Hepburn's sentence in theDistrict Court was manifestly excessive and having substituted it for a sentence of fouryears seven months' imprisonment, I accept what seems generally to be commonground between the parties, that Mr Hepburn should be given an opportunity to obtainhis licence during the parole period. This reason alone is sufficient to allow the appealagainst the period of driving disqualification. However, I am also persuaded by theappellant's submission that the period of disqualification must be one that, whiledenouncing the culpable conduct, leaves room for Mr Hepburn to rectify his mistakesby enabling him to become a legal driver.20 Accordingly, in line with the authorities,I consider a period of one and a half years' disqualification from Mr Hepburn's releasefrom prison is appropriate, especially given the lack of actual harm caused byMr Hepburn's driving while disqualified offending.21Conclusion[40] Considering the principle of totality, the sentences imposed on Mr Hepburn ofsix years' imprisonment and a period of driving disqualification of five years andsix months I find are manifestly excessive here.20 Hitchens v R CA380/03, 25 March 2004 at [10]; and Shirley v Police [2022] NZHC 986.21 Contrast with Leaupepe v Police [2016] NZCA 228 where death was caused. The offender wasdisqualified for a period of five years, which was upheld on appeal.[41] I allow the appeal and quash both aspects of that sentence. I substitute for themfirst, a sentence of imprisonment of four years and seven months and secondly, aperiod of driving disqualification of one and a half years from his release from prison.[42] The reparation orders made in the District Court stand.ADDENDUM:(a) Addressing the allocation of the new cumulative sentences for MrHepburn amounting to four years seven months' imprisonment (inplace of the total cumulative sentence of six years' imprisonment,imposed on 9 November 2022 in the District Court) this is now to be:(i) On CRN 220090 – two years seven months' imprisonment(received an Isuzu truck).(ii) On CRN 2200903408 – one year's imprisonment (disqualifieddriving).(iii) On CRN 22009003416 – one year's imprisonment (disqualifieddriving).All sentences are cumulative.(b) On other concurrent sentencesfor Mr Hepburn – imposed on9 November 2022 in the District Court, those now to be altered by thisdecision from a concurrent sentence of three years' imprisonment to aconcurrent sentence of two years seven months' imprisonment are:CRN 22009002253CRN 22009003327CRN 22009003328CRN 22009003329CRN 22009003443CRN 22009003445All these being concurrent on the cumulative sentences noted in (a)above.(c) On other concurrent sentences for Mr Hepburn imposed on9 November 2022 in the District Court, those now to be altered by thisdecision from a concurrent sentence of one year and six months'imprisonment to a concurrent sentence of one year's imprisonment are:CRN 22009002255CRN 22009003382CRN 22009003383CRN 22009003384CRN 22009003385CRN 22009003386CRN 22009003387CRN 22009003388CRN 22009003389CRN 22009003390CRN 22009003391CRN 22009003392CRN 22009003393CRN 22009003394CRN 22009003395CRN 22009003396CRN 22009003397CRN 22009003398CRN 22009003399CRN 22009003400CRN 22009003401CRN 22009003402CRN 22009003404CRN 22009003405CRN 22009003409CRN 22009003412CRN 22009003414CRN 22009003429CRN 22009003436(d) All the other concurrent sentences for Mr Hepburn imposed on9 November 2022 in the District Court are to remain unchanged by thisappeal decision as follows:(i) As to the concurrent sentences of two months' imprisonment(which remain unchanged)CRN 21009500839CRN 21009501100CRN 21009002666(ii) As to the concurrent sentences of one month's imprisonment,which remain unchanged:CRN 22009002254CRN 22009002257CRN 22009003365CRN 22009003366CRN 22009003367CRN 22009003368CRN 22009003369CRN 22009003370CRN 22009003371CRN 22009003372CRN 22009003373CRN 22009003374CRN 22009003375CRN 22009003380CRN 22009003410CRN 22009003411CRN 22009003413CRN 22009003415CRN 22009003417CRN 22009003418CRN 22009003419CRN 22009003420CRN 22009003421CRN 22009003422CRN 22009003423CRN 22009003424CRN 22009003425CRN 22009003427CRN 22009003431CRN 22009003432CRN 22009003433CRN 22009003438CRN 22009003439CRN 22009003441CRN 22009003446CRN 22009003787Gendall JSolicitors:Ministry of Justice – Public Defence Service Christchurch for the AppellantRaymond Donnelly & Co for the Respondent