BECKER v NZ POLICE [2017] NZHC 1073

BECKER v NZ POLICE [2017] NZHC 1073 [22 May 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000037[2017] NZHC 1073BETWEEN HEMI DONALD BECKERAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2017Appearances:Memoranda Filed:G Dixon for AppellantS J Mallett for RespondentOn 12 May 2017 - Counsel for AppellantOn 16 May 2017 - Counsel for RespondentJudgment: 22 May 2017JUDGMENT OF GENDALL JIntroduction[1] On 23 February 2017, the appellant, Hemi Donald Becker, was sentenced by Judge Couch in the District Court to a total of 27 months imprisonment after pleading guilty to the following charges:(a) Receiving property exceeding $1000 in value (x 2);(b) Driving while disqualified, third or subsequent (x 2);(c) Theft;(d) Reckless driving;(e) Failing to stop when followed by red and blue flashing lights;(f) Failing to answer District Court bail;[2] The appellant was also disqualified from driving for two years, nine months. He appeals both aspects of the sentence on the basis that the sentence is manifestly excessive.Background[3] In October 2016 the appellant was twice found driving while suspended.[4] In November 2016, on an unrelated matter, the police attended an address where the appellant was present. He was found in possession of a stolen Holden Commodore motor vehicle valued at $30,000. It was displaying stolen registration plates, and identification tags had been removed from its firewall and engine bay. The appellant claimed he bought the vehicle through Trademe for $9,000.[5] On 16 December 2016, the appellant purchased another stolen Holden Commodore motor vehicle for $5,500 from persons unknown. It too had stolen plates and missing identification tags. Two days later, the appellant took the car to a petrol station in Blenheim and filled it with $60 worth of fuel. He claimed to the staff he had left his wallet on the Picton ferry, and would have to go back and get it. The staff told him he could go and get his wallet but that he would have to leave the car behind. He drove off and did not pay for the petrol.[6] The police were alerted and half an hour later located the appellant driving west at Renwick. The police attempted to stop the vehicle but the appellant accelerated heavily and sped away. He maintained excessive speeds of around 140km/h, including through roadwork areas with 30km/h speed limits. He was seen by police passing other motorists in the roadwork areas which contained loose surface gravel and where road workers were present on foot.[7] Four hours later the police again located the appellant's vehicle, stopped it, and arrested the appellant and a female associate. At the time the appellant admitted to taking the petrol but claimed he was not the driver of the vehicle while it was being pursued.Jurisdiction and approach on appeal[8] The appellant appeals as of right.1 This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.2 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestlyexcessive or inappropriate if the sentencing Judge's discretion is to be interferedwith.[9] It is not enough that the Judge made an error in his or her reasoning. The focus is on the sentence imposed, the correctness of the end result, rather than the process by which the sentence was reached.3District Court sentencing[10] In the District Court, Judge Couch noted the appellant's significant history ofoffending, including three convictions for receiving, 11 convictions for driving while disqualified or suspended and two for reckless driving causing injury or death.[11] His Honour divided the charges into two categories: those relating to dishonesty and those relating to driving. He characterised the receiving charges as"serious" and said he had difficulty accepting the appellant's explanations as to how he got the vehicles. On this, the Judge noted the appellant was unable to say where and from whom he had purchased the vehicles or to provide any evidence of the steps he took to establish whether they were stolen. Given the price paid for the firstHolden vehicle, which was at "a great undervalue", and the appellant's experiencewith cars, the Judge said the appellant must have been at least suspicious when buying vehicles with no identification marks. For the dishonesty (receiving) charges the Judge took a starting point of 18 months imprisonment.1 Criminal Procedure Act 2011, s 244.2 Criminal Procedure Act, s 250.3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[12] For the driving offence charges, Judge Couch considered the lead charges to be those relating to driving while disqualified. These, he said, were significantlyaggravated by the reckless driving charge, which the Judge regarded as "very serious". They were further aggravated by his failure to stop when pursued by police. For the driving charges the Judge took a starting point of 16 months cumulative to the dishonesty charges.[13] The offending on 16 December 2016 occurred while the appellant was on bail. For this the Judge applied an uplift of three months. Judge Couch said he had taken the previous driving while disqualified convictions into account in assessing the starting point, but for the appellant's other history a further uplift of three monthswas applied, giving an all-up total at this point of forty months imprisonment. A 25 per cent discount for guilty pleas was granted, resulting in a sentence of 30 months. Considering the totality of the offending, the Judge further reduced the sentence by three months. This resulted in a final sentence of 27 months imprisonment.[14] On the charges of driving while suspended the appellant was disqualified for two years, and for a further nine months for the charge of reckless driving.Submissions in support of appeal[15] Before me, Mr Dixon counsel for the appellant, did not appear to dispute either of the starting points adopted by Judge Couch, nor the uplifts and discounts that were given. This appeal, he said, is based solely on the submission that the Judge failed to take into account rehabilitative steps taken by the appellant prior to the offending and his remorse. In this regard, Mr Dixon referred me to s 7(1)(h) Sentencing Act 2002 addressing the purposes of sentencing. This provision provides:7 Purposes of sentencing or otherwise dealing with offenders(1) The purposes for which a court may sentence or otherwise deal with an offender are—(h) to assist in the offender's rehabilitation andreintegration; [16] The Court had before it an email from the Ashburton Community Alcohol and Drug Service attesting to the appellant's ongoing engagement with that service.The appellant previously had addiction problems, but it appears he has been "clean"for some time now. The appellant further tendered to the Court letters of apology, a safety plan for release, and evidence of the appellant's recent qualifications attained within the past four years in the field of dairy farming.[17] This sustained effort at rehabilitation, Mr Dixon submits, justifies a further three month reduction in the appellant's sentence. This would bring the sentence down to 24 months and within the range for home detention consideration. The appellant says too that he has been in a stable relationship with a partner who lives in Ashburton, and it is submitted that this could provide a suitable home detention address.[18] Although the period of licence disqualification is also appealed, before me Mr Dixon in his submissions conceded that "no exception" can be taken to this in thecircumstances. That particular aspect of this appeal is effectively abandoned therefore.Memoranda containing supplementary submissions filed[19] Shortly after concluding the face to face hearing and reserving my decision on this appeal on 3 May 2017, I issued a minute regarding the filing of further written submissions for this appeal. During the hearing of the appeal I had made anenquiry of Mr Dixon as to issues he had put before the Court over the appellant's previous and possible future employment and residential possibilities. These related particularly to the appellant's engagement in and commitment to dairy farming work.[20] As a result, on 4 May 2017, I issued directions for the filing and service of further evidence on behalf of the appellant. This was to relate to his previous employment and references and future employment and possible residential addresses, in particular addressing the possibility of work on dairy farms which had been the subject of specific reference at the hearing before me.[21] In response, on 12 May 2017, Mr Dixon filed supplementary submissions on this appeal. These included an attached email from the appellant's previous dairyfarming employer and emails from a third party confirming prospective employment for the appellant as a painter.[22] Mr Mallett, counsel for the respondent in turn has provided a memorandum in response dated 16 May 2017.[23] Both counsel have indicated they do not wish to be heard further in this matter.[24] From this material filed on behalf of the appellant, there is an email from his previous dairy farm employer, Mr David Mundt of Mundtville Farms. This email dated 9 May 2017 states:Hemi (Becker) was employed by us from 1/9/2014 to 3/7/2016.He was on ACC from February 2016. I paid out all holiday pay owing in May 2016 and he did not return to work after this so was deemed to have abandoned his employment.Attached is the totals paid and a weekly breakdown of payment.Hope this helps.David Mundt.[25] Also attached to Mr Dixon's 12 May 2017 supplementary submissions areemails from a Mr Brendon Mohi of Brendon Limited, which is described as"Contractors, Gib Fixing, Plastering, Painting". The first of these emails, dated 19 April 2017, states:I have been advised of Hemi Becker situation,There is a position in the company available.Depending on his situation, accommodation may also be available to him. Hes asked for some form of letters stating this, ThanksContracts ManagerBrendonThe second of these emails, dated 10 May 2017, states:This letter is to advise you that Hemi Becker has employment available within our company (Brendon Limited).Hemi will be employed as a painter, hours are 7:30 a.m. to 5 p.m. Monday to Friday (some Saturday work).We work on a number of sites throughout Christchurch.This is a full time position.Brendon[26] In his supporting supplementary submissions Mr Dixon notes that the appellant has this offer of employment as a painter from Brendon Mohi of Brendon Limited. With this in mind, and subject to a report from community probation as to the suitability of a home detention address, Mr Dixon suggests that if this Court were to grant the present appeal, and reduce the imprisonment sentence to not more than two years, it might wish to consider the possibility of granting leave to the appellant to apply to the District Court for a substitute sentence of home detention pursuant to s 80I of the Sentencing Act 2002.[27] In response, Mr Mallett for the Crown repeats his earlier contentions that the sentence imposed by Judge Couch was a lenient one and there is no justifiable basis on which this Court can reduce the sentence on appeal to bring it within the available range for home detention to be considered. He suggests too that any prospects of employment available to the appellant are irrelevant unless and until a short term of imprisonment of not more than two years is imposed. In any event, he quite properly notes here that the Court of Appeal in a number of decisions has clearly rejected any attempt by a sentencing Judge to tailor the length of an appropriate prison sentence so that it is artificially reduced to two years or less to make the offender eligible for home detention. Mr Mallett's final submission is that, because a short term sentence of imprisonment he says is not available in this case, it is wrong for any suggested employment prospects to be considered with a view to endeavouring simply to create eligibility for a home detention sentence.Analysis[28] The letters and documents supplied for the original appeal hearing before the Court appear to show that, prior to this bout of offending, the appellant had made a number of efforts to turn his life around. While this is to be commended, the offending here cannot be characterised merely as a slip-up or relapse in the process of rehabilitation. The appellant committed eight offences, some of which were very serious, over a period of three months in 2016, some time after even on his own evidence he had turned his life around. The amount of any possible further sentence discount, on this issue of prior rehabilitation efforts made by the appellant, therefore can only be minimal at best.[29] And, before me it was suggested for the appellant first, that as part of this changed life direction he had made a substantial commitment to his dairy farming employment and secondly, that he had also completed certain qualifications relating to dairy farming. The possibility of continuing with future dairy farming employment was signalled.[30] This said, it is concerning to some extent therefore to receive the commentfrom his previous employer Mr David Mundt in his 9 May 2017 email that "I paidout all holiday pay owing in May 2016 and he [the appellant] did not return to workafter this so was deemed to have abandoned his employment." And, there is no suggestion now of any future dairy farming employment being available from his previous employer or elsewhere.[31] To the appellant's credit, however, there is the communication now before the Court from Mr Brendon Mohi that he would provide employment for the appellant as a painter if this was sought. That, combined with the suggestion that accommodation might possibly be available as well to the appellant is useful and of clear benefit to him.[32] Notwithstanding this, however, what is clear from the authorities is that it is not until a short term sentence of imprisonment of two years or less is available that prospects of employment and accommodation are open for consideration by the Court.[33] In Adams on Criminal Law at para SA81.05 the learned authors state:The Court of Appeal has rejected any attempt by a sentencing Judge to tailor the length of the appropriate prison sentence so that it is artificially reduced to two years and makes the offender eligible for home detention under s 15A(1): Solicitor General v Lam [1997] 15 CRNZ 18 (CA); R v Edwards[2006] 3 NZLR 180 (CA); R v Honan [2015] NZCA 94 at [34]. Discounts for mitigating factors should not be given undue weight in order to get down to the two year threshold.[34] And in R v Vhavha4 the Court of Appeal at [31] held that:The two step process required for a sentence of home detention requires the Judge first to decide that the sentence which is otherwise appropriate is ashort term sentence of imprisonment ("Stage 1") and then whether to commute that sentence to home detention (Stage 2").[35] It is clear, therefore, that before the Court is satisfied that a short term of imprisonment at or under two years is available to the appellant, issues of granting home detention and thus considering employment prospects do not arise.[36] The appellant argues that the sentence was manifestly excessive, but it is suggested for him that the unjustifiable excess in the sentence was only some three months. Sentencing involves the exercise of judicial discretion, and on a sentence of 27 months, it is perhaps difficult to see how a minimal discrepancy of possibly a few months up to a maximum of three months could lead to a finding of manifest excess. Judge Couch would no doubt have been well aware of the possibility of home detention here being triggered only if a sentence of two years or less was to be imposed. And, in my judgment, as the sentencing Judge he was entitled to decide that the interests of rehabilitation did not necessitate any further reduction in the sentence length he had reached.[37] Mr Dixon has suggested that, as the appellant is a man who has insight into his offending and is someone who has made sustained efforts in particular relating to drug testing for his rehabilitation and has expressed genuine remorse here, he should have been entitled to a further sentence discount. Judge Couch however, according to Mr Dixon, in reality failed to take these matters into account. I disagree however. Overall, as I see the position, Judge Couch took a reasonably lenient approach in4 R v Vhavha [2009] NZCA 588 at [31].sentencing the appellant for his offending here. Any further discount, in my judgment, would have needed to be only minimal. Any such reduction on appeal, as I see it, would amount merely to tinkering. As such, in my view, it would be inappropriate. I find therefore that generally the sentence imposed must be considered to be within the available range.[38] It appears that the true purpose of the appeal in this case is to attempt to bring the sentence within the range for home detention consideration. Home detention need only be considered if the sentence to be imposed is 24 months imprisonment or less.5 As the 27 month sentence is not manifestly excessive, it is not necessary to consider home detention. However, for completeness I add that if the sentence had been 24 months, my view is that the seriousness and circumstances of the present offending and the appellant's long history of offending, albeit up to about 2015, must suggest that a sentence of home detention might in any event be inappropriate.[39] And, as I have noted at [18] above, the appellant concedes that no issue can be taken with the period of licence disqualification and so this ground of appeal, effectively abandoned, must inevitably fail.Conclusion[40] The appellant has failed to show that the sentence imposed was manifestly excessive and that an alternative sentence should be imposed. As I am not persuaded that there was any significant error on the part of Judge Couch in the sentencing this appeal must be dismissed.[41] This appeal is dismissed....................................................Gendall JSolicitors:Public Defence ServiceRaymond Donnelly & Co, Christchurch5 Sentencing Act 2002, s 15A.