CANDLER v NEW ZEALAND POLICE [2018] NZHC 1414

CANDLER v NEW ZEALAND POLICE [2018] NZHC 1414 [14 June 2018]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-000027[2018] NZHC 1414BETWEEN HAYDEN CANDLERAppellantAND NEW ZEALAND POLICERespondentHearing: 12 June 2018Appearances: N Dutch for the AppellantS J P Davison E F Collis for RespondentJudgment: 14 June 2018JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 14 June 2018 at 10.00amPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:Crown Solicitor, TaurangaN Dutch, TaurangaIntroduction[1] On 21 February 2018, the appellant, Hayden Candler, was sentenced in theTauranga District Court by Judge Ingram to 12 months' imprisonment on the followingcharges:1(a) driving while suspended (third or subsequent) x 2;2(b) theft;3 and(c) dishonestly using a document.4[2] On 21 March 2018, Mr Candler filed a notice of appeal. He alleges that thesentence was manifestly excessive, that the Judge erred in not addressing the pre-sentence report, that the starting point should have been lower, that there should havebeen a full credit of 25 per cent for the guilty pleas which he entered, and that theJudge was wrong not to grant him an electronically monitored sentence in thecommunity.[3] The appeal is opposed by the respondent.Relevant facts[4] The charges to which Mr Candler pleaded guilty arise out of a number ofseparate events. I deal with them as follows:Driving related charges[5] On 11 July 2017, Mr Candler was suspended from driving for a period of threemonths for excess demerit points. Notwithstanding this suspension:1 Police v Candler [2018] NZDC 3119.2 Land Transport Act 1998, s 32(1)(c). The maximum penalty is imprisonment for a term notexceeding two years or a fine not exceeding $6,000. The court must also order the person to bedisqualified from holding or obtaining a driver licence for one year or more.3 Crimes Act 1961, s 223(c). The maximum penalty is imprisonment for a term not exceeding oneyear.4 Crimes Act, s 228(1)(b). The maximum penalty is imprisonment for a term not exceeding sevenyears.(a) At around 7:10 pm on 2 August 2017, Mr Candler was driving a Toyotasurf vehicle on Christopher Street in Tauranga. The police pulled MrCandler over because the vehicle had false licence plates. Mr Candlersaid in explanation that he did not know he was suspended fromdriving.(b) At around 12:30 pm on 4 October 2017, Mr Candler was driving a Hinolight truck on Cameron Road in Tauranga. As a result of policeinquiries relating to that vehicle, Mr Candler was spoken to by policeat the Tauranga Police Station the following day. Mr Candler admittedto being a suspended driver. He said in explanation that he needed towork to earn a living.Theft[6] At around 4:19 pm on 21 December 2017, Mr Calder was inside a retail storein Katikati. A female associate reversed a Toyota station wagon into a parking spotoutside the store. The hatch back door was open. Mr Candler uplifted a large boxwith a portable swimming pool in it from the store and placed the box inside the rearof the station wagon. This was recorded on CCTV security footage. Mr Candler andthe female associate then left in the station wagon. Mr Candler had stolen theswimming pool. It was valued at $800. It was subsequently recovered undamaged.Using a document[7] Mr Candler purchased a Toyota surf vehicle with the licence plate numberHCH207. He registered it in his name on 16 February 2017.[8] Between 24 March 2017 and 26 July 2017, Mr Candler displayed the licenceplate number JFS498 on the front and back of that vehicle while driving it. Thatlicence plate belonged to a similar Toyota surf vehicle owned by another person in theSouth Island. On 15 separate occasions over the period noted above, Mr Candlerpassed through toll gates. He avoided $27 worth of road tolls, which were attributedto the registered owner of the vehicle in the South Island.District Court decision[9] After setting out the factual background to the offending, Judge Ingramfocused on the charge of driving while suspended (Mr Candler's third suchconviction).5 He adopted a starting point of six months' imprisonment for thisoffending.6 He then allowed a two-month discount for Mr Candler's guilty plea,convicting and sentencing Mr Candler to four months' imprisonment on this charge.7The Judge stated that leave to apply for substitution of the sentence was declined.8[10] Judge Ingram then focused separately on the second driving while suspendedcharge (Mr Candler's fourth such conviction) which occurred on 4 October 2017. TheJudge noted that this occurred while Mr Candler was on bail on the first charge ofdriving while suspended, commenting that it was "simply a case of Mr Candlercontinuing to thumb his nose at Court orders".9 The Judge adopted a starting point of12 months' imprisonment for this offence.10 As for Mr Candler's guilty plea, the Judgestated:[3] Any credit for plea would be more than taken up by the necessityfor an uplift to cover his prior history and the fact that this occurred whilst hewas on bail. Accordingly, on the second charge he will be convicted andsentenced to imprisonment for a period of 12 months. Again, leave to applyfor substitution of sentence is declined with standard release conditions untilsix months after his sentence expiry date.Judge Ingram then, as required, disqualified Mr Candler from holding or obtaining adriver's licence for 12 months on a concurrent basis for these two charges.11[11] Turning to the using a document charge, Judge Ingram took a starting point ofthree months' imprisonment.12 He gave Mr Candler a one-month discount for hisguilty plea.13 The Judge, therefore, convicted and sentenced Mr Candler to twomonths' imprisonment.5 Police v Candler, above n 1, at [2].6 At [2].7 At [2].8 At [2].9 At [3].10 At [3].11 At [4].12 At [5].13 At [5].[12] Lastly, as to the charge of theft, Judge Ingram took a starting point of threemonths' imprisonment and then gave Mr Candler a one-month discount for his guiltyplea.14 The Judge convicted and sentenced Mr Candler to two months' imprisonment.[13] Judge Ingram stated that all these sentences were to run concurrently.15Therefore, the Judge sentenced Mr Candler to an end sentence of 12 months'imprisonment.16Approach on appeal[14] Section 250(2) of the Criminal Procedure Act 2011 provides:(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.In any other case, the court must dismiss the appeal.17[15] A sentence may be set aside where it is manifestly excessive.18 Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached. The court will not intervene where the sentence iswithin range. But, if the court determines the sentence is manifestly excessive, it willform its own view of the appropriate sentence.19Analysis[16] Both counsel submitted that Judge Ingram applied an unorthodox approach tosentencing, in particular in the way in which he dealt with the second charge of drivingwhile suspended (Mr Candler's fourth conviction for that or similar offences). Bothcounsel submitted that it was unclear how the various discounts allowed by the Judge14 At [6].15 At [7].16 At [8].17 Criminal Procedure Act 2011, s 250(3).18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].19 Tutakangahau v R, above n 18, at [30].had been factored into the end sentence, although Mr Davison, for the Crown, arguedthat it made no difference.[17] I agree that the sentencing process adopted by Judge Ingram is unusual, butthat is not the critical question. What is in issue is rather whether or not the endsentence imposed by the Judge is manifestly excessive.[18] Judge Ingram approached the charges of driving while suspended (third orsubsequent) as the lead offending. Both counsel accepted that that was appropriate. Iagree.[19] Under the Land Transport Act 1998, driving while suspended and driving whiledisqualified attract the same maximum penalties.20 The Courts have treated theoffences as being the same for the purposes of assessing starting points.21[20] There is no tariff case, but it is clear that the number of previous convictionsfor driving while disqualified or driving while suspended is strongly and directlyrelevant in assessing the starting point for this kind of offending.22 The fact thatmultiple convictions are sentenced together will inevitably justify the imposition of aharsher sentence.23[21] There are various cases where similar offending has been considered by thisCourt:(a) In Muhinda v Police,24 the appellant was found guilty of seven charges,including a charge of driving while disqualified. It was the appellant'sfourth conviction for this type of offending. Dunningham J upheld astarting point of eight months' imprisonment in respect of this charge.2520 See Land Transport Act, s 32(1) and (4).21 See Cadle v Police [2017] NZHC 30242; Opetaia v Police [2015] NZHC 2532.22 Opetaia v Police, above n 21, at [38].23 Opetaia v Police, above n 21, at [38].24 Muhinda v Police [2015] NZHC 2024.25 At [27].(b) In Townshend v Ministry of Health,26 the appellant had pleaded guiltyto 129 charges under the Medicines Act 1981, and two charges ofdriving while disqualified – his fourth and fifth such offences. GendallJ upheld a cumulative sentence of nine months' imprisonment for thesetwo charges.27 The Judge noted as follows:[30] Neither do I accept that a cumulative nine-monthsentence for the driving while disqualified offences wasmanifestly excessive. I do not consider that there is anysignificance in the fact that this is only the appellant's secondappearance for this kind of offending. The important factor isnot the number of appearances, but the number of convictions.Judge Saunders here was correct to impose a sentence inkeeping with third and fourth offences. The maximumsentence for third and subsequent offences of this kind is twoyears imprisonment, and a review of the case law in myjudgment indicates that nine months in the circumstances waswithin range.(Citations omitted)(c) In Fox v Police,28 the appellant was found guilty of several charges,including two charges of driving while disqualified (his fourth and fifthsuch convictions). Downs J held that a starting point of 14 months'imprisonment, taken in relation to these two charges, was "towards, andpossibly at, the bottom end of the available range for that offending".29[22] In Apiata v Police,30 Clifford J set out a table which, inter alia, noted the degreeof recidivism of each offender. He observed that relevant factors include the gapbetween the defendant being sentenced and previous like offending, and the period oftime over which all of the offending has occurred.31[23] There are no cases directly on point in Clifford J's table. It does, however,refer to the case of Finch v R.32 In that case, the appellant was convicted of one chargeof attempting to pervert the course of justice and three charges of driving while26 Townshend v Ministry of Health [2017] NZHC 1993.27 At [30].28 Fox v Police [2017] NZHC 573.29 At [6].30 Apiata v Police [2016] NZHC 3119 at [19].31 At [19].32 Finch v R [2012] NZCA 446.disqualified (his fifth to seventh such convictions). On appeal, the Court of Appealupheld a starting point of 14 months' imprisonment in relation to the three charges ofdriving while disqualified.33[24] The previous authorities are of some limited assistance because each casenecessarily turns on its individual circumstances and on the circumstances of theoffender.34[25] Here, Mr Candler was being sentenced in respect of his third and fourth drivingwhile suspended/disqualified offences. In my judgment, it is appropriate to approachthe offending on a concurrent basis – it was the same in kind. Having considered theauthorities, a starting point of nine months' imprisonment is appropriate for bothoffences. I would uplift that starting point by one month to take into account the factthat the second offence (Mr Candler's fourth such offence) was committed while MrCandler was on bail in relation to the first offence.[26] Both of the remaining offences were low-level. They were discrete offences,different in kind and unrelated in time. They should be dealt with on a cumulativebasis. The starting points of three months' imprisonment each adopted by JudgeIngram were within the available range and, in my view, appropriate.[27] This takes my starting point to one of 16 months' imprisonment.[28] I now turn to Mr Candler's personal circumstances.[29] In my view, Judge Ingram should have considered whether or not an uplift wasrequired because of Mr Candler's previous record. He should then have consideredwhether any discounts were required to recognise any mitigating factors personal toMr Candler, and then finally considered Mr Candler's guilty pleas.[30] As I have noted, Mr Candler has a lengthy criminal record. His offending goesback to 2008. It continued on a regular basis through to 2012. Thereafter, Mr Candler33 At [6].34 Harris v Police [2017] NZHC 3224 at [22].was not convicted of any further offending until February 2018, when he wasconvicted of a dishonesty related offence which occurred in March 2017.[31] Judge Ingram did not uplift the sentence to recognise Mr Candler's previoushistory. That course was open to him. Mr Candler's criminal history was interruptedby a long period where no offending occurred. Mr Candler is entitled to point to that.I do not disturb the approach applied by Judge Ingram.[32] Judge Ingram refused to give Mr Candler a discount for his guilty plea inrelation to the second driving while suspended charge (the fourth such offence for MrCandler). He noted that Mr Candler had committed the offence while he was on bailand that he had a lengthy list of previous convictions.[33] In my judgment, Judge Ingram erred in his approach to this issue. A guilty pleais conceptually different to an uplift or a discount for a defendant's personalcircumstances.35[34] Mr Candler is entitled to a discount from the overall sentence imposed torecognise his guilty pleas.[35] The pleas were entered at an early stage. Mr Candler is entitled to a fulldiscount of 25 per cent. This would take the end sentence to one of 12 months'imprisonment. Judge Ingram imposed the same sentence, albeit by a different route.[36] It is asserted that Judge Ingram did not take into account the pre-sentencereport. I accept that he did not expressly refer to it, but he will have had it before him.I am not prepared to infer that he ignored it.[37] Judge Ingram's (and my) end sentence is a short term of imprisonment.36Section 15A(1) of the Sentencing Act 2002 required Judge Ingram to consider asentence of home detention. The Judge did not expressly do so. He should have.35 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [57]-[60].36 Parole Act 2002, s 4(1).[38] The writer of the pre-sentence report noted that electronic monitoring enquirieswere requested by the Court. The report writer also noted that the address providedwas suitable, and that there were no objections by the occupants.[39] Mr Candler has convictions for breach of community work orders – one in2009, one in 2010 and three in 2011. Further, Mr Candler has flouted other Courtorders as shown by his convictions for driving while suspended/disqualified. As JudgeIngram noted, his second offence of driving while suspended (his fourth suchconviction), in respect of which he was being sentenced, was committed while he wason bail. As the Judge noted, it was very much a case of Mr Candler "continuing tothumb his nose at Court orders".37[40] It is also relevant that Mr Candler is facing another charge. That was referredto by the report writer, and on the same day as he sentenced Mr Candler, Judge Ingramdeclined Mr Candler bail on that charge.38 Insofar as I am aware, there has been noappeal against that decision.[41] In my view, there was accordingly a proper basis for refusing Mr Candler leaveto apply for a substituted community based sentence. The Judge should have explicitlyarticulated why he reached a decision in this regard. While he did not do so, it cannotbe said that the ultimate decision was in error.[42] It follows that the appeal is dismissed.___________________________Wylie J37 Police v Candler, above n 1, at [3].38 Police v Candler [2018] NZDC 3104.