EVANS v NEW ZEALAND POLICE [2019] NZHC 842

EVANS v NEW ZEALAND POLICE [2019] NZHC 842 [12 April 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2019-419-14[2019] NZHC 842BETWEEN GARY WILFRED EVANSAppellantAND NEW ZEALAND POLICERespondentHearing: 12 April 2019Appearances: T C Tran for AppellantA S Alcock for RespondentJudgment: 12 April 2019Reasons: 16 April 2019REASONS JUDGMENT OF DUFFY JThis judgment was delivered by me on 16 April 2019 at 12.30 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:T C Tran, Barrister, HamiltonCrown Solicitor, Hamilton[1] The appellant Gary Evans appealed against the imposition of a sentence of 12months' imprisonment for two offences of using a document to obtain a pecuniaryadvantage; failing to answer to District Court bail; being an unlicensed driver and twooffences of unlawful conversion of a motor vehicle.[2] I allowed the appeal. The sentence of imprisonment was set aside and in itsplace I imposed a sentence of six months' home detention with standard conditionsand the addition of the special condition set out in the pre-sentence report.Facts of offending[3] The offending arose out of two incidents, each of which involved apremeditated scheme to unlawfully convert a motor vehicle. The first unlawfulconversion occurred between 18 and 19 May 2018 when Mr Evans approached theseller of a Peugeot motor vehicle, who had posted the vehicle for sale on Facebook,and offered to purchase it for the sum of $400.00. The vehicle had defects, which theowner had declared on the Facebook post. Mr Evans said he would take the vehicleto get started on the repairs and pay for it the following day. He never made thispayment. Instead, on 7 August 2018 Mr Evans completed a New Zealand LandTransport Authority form forging the owner's signature to have ownership of thevehicle transferred into his name, which is the conduct supporting the charge of usinga document to obtain a pecuniary advantage. Later the vehicle was found abandonedin a carpark at Tauranga Hospital. A towing company removed the vehicle andincurred costs through storage in its yard.[4] Then on 19 June 2018 Mr Evans approached the owner of a BMW, which wasadvertised in Katikati for sale for the sum of $1,100.00. When Mr Evans spoke withthe seller he asked if he could take the vehicle to show his wife. Mr Evans waspermitted to do so and after leaving with the vehicle he never returned it to the seller.Over the next few days the seller exchanged text messages with Mr Evans seekingpayment or return of the vehicle. Mr Evans agreed to and did make an initial paymentof $100, but no further payments were made. Later Mr Evans sold the BMW to a thirdparty for the price of $1600, however, he only ever received an initial payment of $500from the third party.[5] On 25th October 2018, Mr Evans was stopped by Police and admitted he wasdriving without a license. The breach of bail offending relates to a failure to appear inthe District Court in Te Kuiti in relation to the above charges. Mr Evans is a prohibiteddriver. He was unable to get transport to the Te Kuiti District Court.Personal circumstances[6] Mr Evans is 67 years old and is retired. He lives with his partner in a HousingNew Zealand unit. They both receive retirement benefits. Mr Evans was born inWales and has lived in New Zealand since 1982. Mr Evans has previous dishonestyoffences. The first such offence was theft by misappropriation which was committedin April 1989. The amount was significant, as I note there was reparation of $5,300ordered as well as 100 hours community service imposed. Then in July 1997 Mr Evanswas convicted of forging a cheque over $500 and ordered to pay reparation of$4,047.00.[7] Mr Evans has acquired a considerable number of Land Transport Act offencesfor driving whilst under the influence of alcohol. He has received numerousdisqualifications and in April 2010 he was sentenced to six months imprisonment fordriving with excess breath alcohol, third or subsequent offence. Nonetheless, I notethat before the present offending he had not offended since July 2013. The numerousdrunk driving offences he has acquired suggest to me he has a severe alcohol problem.I note that the pre-sentence report states that Mr Evans started drinking alcohol toexcess shortly after his wife died of cancer only a few years after they had arrived inNew Zealand.[8] Mr Evans is seemingly an intelligent man. He achieved a mechanical andelectrical engineering degree at Cardiff University. He has specialist engineeringskills and at one time undertook to start and manage his own engineering business.[9] The pre-sentence report states that Mr Evans has limited disposable incomeand no other income stream. At the time of sentencing he had outstanding fines of$892 for driving offences and $1,474.25 reparation. There were also enforcement feeswhich brought the total amount he owed to Court Collection Services to the sum of$2,972.25. Although reparation had been sought for the losses caused to the victimsin the present offending Mr Evans was clearly in no position to pay reparation andJudge Roberts recognised this.Sentencing decision[10] Judge Roberts considered the offending to involve a pattern of conduct andpremeditation, which in essence, was to deceive the sellers of the motor vehicles togain a financial benefit. The Judge took a dim view of the excuse Mr Evans offeredthat there had been misunderstandings with the sellers of the motor vehicles,describing the excuse as "nothing short of contrived nonsense." He describedMr Evans as "manipulative" and "dishonest."[11] The Judge's view of Mr Evans led him to adopt a starting point of 12 monthsimprisonment. He uplifted this by six months and then reduced by two months toaccommodate totality and four months to accommodate Mr Evans' guilty plea. Thisleft an end sentence of 12 months imprisonment on the lead charges of unlawfulconversion of the motor vehicles.Submissions on appeal[12] For Mr Evans, Mr Tran submits that Judge Roberts erred by failing to considerthe imposition of a sentence of home detention. Mr Tran relies on Fomai v Policewhere Woodhouse J observed:1[17] The Judge did not refer to the possibility of home detention at all. Hereferred only to the submission that had been made to him that there shouldbe a community-based sentence. This was not a reference to a sentence ofhome detention.[18] On this point, as on other relevant points, I acknowledge that a Judgesentencing in the District Court, and possibly in a busy list Court, cannot beexpected to articulate every point that may be relevant. However, giving thatconsideration proper weight, I do not consider it is possible to infer that theJudge gave consideration to home detention. A sentencing Judge is bound toconsider home detention, if it is technically available in terms of s 15A of theSentencing Act, notwithstanding that there is no submission for a defendantthat home detention should be imposed. For this reason the question of homedetention needs to be assessed by this Court. It is not an assessment on appealof the exercise of a discretion by the sentencing Judge, but an original exerciseof discretion by this Court.1 Fomai v Police [2014] NZHC 377 (footnotes omitted).[13] Further, in relation to a sentence of home detention Mr Tran referred to R vIosefa where the Court of Appeal stated:2[35] Home detention provides a sentencing Court with a further sentencingoption, which is particularly relevant in light of s 16(1) of the Sentencing Actwhich requires the Court to have regard to the desirability of keeping offendersin the community as far as that is practicable and consonant with the safety ofthe community; and of s 16(2) which provides that the Court must not imposea sentence of imprisonment unless it is being imposed for the purposes in s 7and those purposes cannot be achieved by a sentence other than imprisonmentand no other sentence would be consistent with the principles of sentencing ins 8.[14] In relation to Mr Evans' circumstances, Mr Tran submitted that Mr Evans wasconsidered by the pre-sentence report writer to be at low risk of reoffending and harmgiven his criminal history was largely historical. Apart from the two dishonesty relatedoffences his offending was largely traffic related. He has ill health and is said to be inthe early stages of pancreatic cancer.[15] Whilst it was accepted the offending involved a pattern of conduct andpremeditation, it was submitted the scale of the offending was at the lower to moderateend with two sets of offending occurring at most within a duration of four months.Further, the offending was not sophisticated. It involved Mr Evans contacting sellersafter they advertised their vehicles, meeting up with them, and either not paying forthe vehicles after agreeing to purchase or never returning the vehicles after a test drive.[16] Mr Tran submitted that Mr Evans' offer to make reparation of $400 to theowner of the Peugeot and $1,100 to the owner of the BMW by payments of $20 perweek was realistic given his financial circumstances.[17] Mr Tran submits the Court must take into account the principles set out at s 8of the Sentencing Act 2002, including the circumstances of the offender and the needto impose the least restrictive sentence. It was submitted that Judge Roberts failed toassess the need to impose the least restrictive outcome in accordance with thehierarchy of sentences and orders set out in s 10A of the Sentencing Act. The pre-sentence report had recommended community detention. The Judge rejected that2 R v Iosefa [2008] NZCA 453 at [35].sentencing option but then moved directly to imprisonment without first consideringwhether home detention was a real and viable alternative. It was submitted that withMr Evans being assessed at low risk of reoffending and harm it was desirable to keephim in the community and accordingly a sentence of home detention should have beenimposed.[18] The respondent acknowledged that Judge Roberts had not expressly referredto a sentence of home detention, but submitted that by rejecting a sentence ofcommunity detention the Judge had also implicitly considered and rejected a sentenceof home detention. Accordingly, the respondent submitted there was no sentencingerror of the type recognised in Palmer v R that would permit this Court to interferewith the sentence imposed.3 The respondent also referred to Tutakangahau v Rwherethe Court of Appeal noted the standard of 'manifestly excessive' continues to apply,so an appellate Court will not intervene where the sentence imposed is within a rangethat could be properly justified by accepted sentencing principles.4The respondentcontended that the sentence imposed on Mr Evans was within the range of sentencesfor this type of criminal offending.Analysis[19] I rejected the respondent's submission that Judge Roberts had implicitlyconsidered a sentence of home detention. In my view a sentence of home detentionrequired express consideration. This is consistent with the requirements for a two-stepprocess identified by William Young P in R v Vhavha:5In effect, the Court is given a discretion to commute to home detention whatwould otherwise be a short-term sentence of imprisonment. There is nothingin the Sentencing Act to suggest a presumption for or against suchcommutation, either generally or in respect of particular types of offence. Sowhat is called for is an exercise of sentencing discretion in a way which giveseffect to the purposes and principles of sentencing recorded in ss 7 and 8 ofthe Sentencing Act.3 Palmer v R [2016] NZCA 541 at [17].4 Tutakangahau v R [2014] NZCA 279 at [35].5 R v Vhavha [2009] NZCA 588 at [29] - [31]. This was said in the context of a dissenting judgmentwhere William Young P would have allowed the appeal. However, the statement of principle hassubsequently been adopted by the Court of Appeal in Osman v R [2010] NZCA 199.[31] The two-step process required for a sentence of home detention requiresthe Judge first to decide that the sentence which is otherwise appropriate is ashort-term sentence of imprisonment ("stage one") and then whether tocommute that sentence to home detention ("stage two")[20] Further, as was noted by Brewer J in Kanuta v R:6The principles in considering a sentence appeal are well established. Whenconsidering the imposition of a period of imprisonment for a particular offencethe Court must have regard to the desirability of keeping an offender in thecommunity so far as that is practicable and consonant with the community'ssafety. It follows from this principle that the Court must impose the leastrestrictive outcome that is appropriate in the circumstances according to thehierarchy of sentences set out in the Act. The Court cannot impose a sentenceof imprisonment unless it is satisfied:(a) that the sentence is being imposed for a statutory purpose or purposesthat is to hold the offender accountable, or to induce in him or her asense of responsibility, or to serve the interests of any victim or todenounce the offending or to deter or protect the community; and(b) that those purposes cannot be achieved by a sentence other thanimprisonment; and(c) that no other sentence would be consistent with the statutoryprinciples as applied to the particular case.[21] Whilst the Crown submitted that in light of the relevant principles JudgeRoberts had imposed the appropriate sentence I could not accept that submission.[22] First, I considered that in order to be sure a sentencing Judge has properlyfollowed the two-step process required by s 15A of the Sentencing Act 2002, thatprocess needs to be expressly referred to in the sentencing notes. In the present caseJudge Roberts had not referred to the possibility of home detention at all. The rejectionof the sentence of community detention could not be read as an inclusive dismissal ofa sentence of home detention. Thus, I was satisfied that the sentencing of Mr Evanshad proceeded along the same lines as in Fomai v Police, where there was failure torefer to home detention.7 This led me to conclude that the sentencing process hadmiscarried.6 Kanuta v R [2016] NZHC 436 at [37].7 Fomai v Police [2014] NZHC 377.[23] Second, I was satisfied that a sentence of 12 months imprisonment fordishonesty offending that in total deprived the victims of less than $2000 wasmanifestly excessive. Particularly, given Mr Evans' personal circumstances andcriminal history. The historic dishonest offending revealed he was not a recidivistoffender in this regard.[24] In my view, The particular circumstances of Mr Evans and of this offendingcoupled with the requirement in s 8 of the Act to impose the least restrictive sentence,necessarily led to a sentence of home detention. Whilst the offending did involvepremeditation, it could still properly be addressed by a sentence of home detention. Iwas satisfied in all the circumstances that a sentence of six months home detentionwas the least restrictive sentence that could be imposed on Mr Evans.Result[25] The appeal was allowed. The sentence of 12 months' imprisonment was setaside. In its place Mr Evans was sentenced to six months' home detention.Duffy J