WILSON v NEW ZEALAND POLICE [2021] NZHC 402

WILSON v NEW ZEALAND POLICE [2021] NZHC 402 [5 March 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000189[2021] NZHC 402BETWEEN ISAAC VAUGHN WILSONAppellantAND NEW ZEALAND POLICERespondentHearing: 3 March 2021Appearances: T R Nicholls for AppellantS R D D Bicknell for RespondentJudgment: 5 March 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 5 March 2021 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Isaac Wilson, was sentenced by Judge Couch on11 December 2020 to 26 months' imprisonment on eight charges: dishonestly using amotor vehicle, driving while disqualified (twice), refusing the impairment test,possession of utensils (twice) and possession of methamphetamine, failing to stop, andpossession of cannabis.1 The appellant appeals that sentence.1 Police v Wilson [2020] NZDC 26004.Facts[2] The charges arise out of three sets of offending.[3] Four of the charges stemmed from events occurring in the early hours of themorning of 27 August 2020. The appellant was seen by police driving a car which hadbeen stolen 12 days earlier. The appellant failed to stop at a stop sign on a suburbanChristchurch street. The police then activated their flashing lights and siren to havethe appellant stop, but he failed to do so and accelerated away in excess of the50 kilometre per hour speed limit.[4] During the pursuit the appellant drove on the wrong side of the road. He thendrove up a driveway where he was confronted by police. Mr Wilson showed signs ofimpairment and refused to undergo a compulsory impairment test. At that time, theappellant was disqualified from driving. These actions led to charges of driving whiledisqualified third or subsequent, refusing an impairment test (being his third orsubsequent alcohol or drug related driving offence), and failing to stop (being histhird or subsequent such offence).[5] Three further charges arose out of events on 1 September 2020. The appellantwas again driving a motor vehicle in a suburban street in Christchurch. When stoppedby police, he was searched and found in possession of a methamphetamine pipe and asmall amount of cannabis. A further charge of driving while disqualified third orsubsequent resulted, as well as a charge of possession of utensils and a charge ofpossession of cannabis.[6] The final two charges arose out of events on 11 September 2020. The appellantwas in a vehicle but this time as a passenger. The police had reason to search thevehicle and found on him a point bag containing a small amount of methamphetamine.The appellant also had on his person a methamphetamine pipe. This has led to chargesof possession of methamphetamine and possession of utensils.District Court decision[7] Judge Couch noted the two charges of driving while disqualified were theappellant's eighth and ninth such convictions for driving while disqualified orsuspended. It was Mr Wilson's fourth conviction for impaired driving andsixth conviction for failing to stop.[8] Judge Couch considered the lead charge of the offending was that ofdishonestly using the motor vehicle as it carried a maximum sentence of seven years'imprisonment.2 He regarded the gravity of the appellant's offending in this regard asmoderate. The vehicle was valued at $6,500 and there was no information about hisuse of this vehicle on other occasions. However, the Judge considered the fact that thevehicle was unlawfully used to commit other offences to be an aggravating factor. TheJudge took a starting point of 12 months' imprisonment in relation to this charge.[9] Noting Mr Wilson's history of similar offending, the Judge regarded the gravityof offending on all the other driving offences as serious and consequently applied anuplift of 18 months in respect of those charges. The Judge then applied a further upliftof two months for the charge of possession of methamphetamine and two charges ofpossession of utensils, leading to a combined starting point of 32 months'imprisonment. However, looking at the totality of the offending, the Judge deemed itappropriate to reduce the starting point to 28 months.[10] The Judge then identified several personal aggravating features. The Judgenoted that when the appellant committed these offences, he was subject to releaseconditions forming part of a sentence of imprisonment imposed in April. Theappellant also had a community work sentence imposed in July and the main offenceshere, being those committed on 27 August 2020, occurred only some four weeks afterhe had been released from prison. In addition, the Misuse of Drugs Act 1975 offencesoccurred whilst the appellant was on bail. For these reasons, the Judge applied an upliftof eight per cent.2 Crimes Act 1961, s 226(1).[11] Judge Couch took into account the appellant's criminal history. The Judgeacknowledged the appellant's driving history had been considered in setting thestarting point on the driving charges, but nonetheless noted the appellant has 13 otherconvictions for offences of dishonesty, including burglary and robbery. The Judge putparticular weight on a conviction in April 2020 on two charges of stealing motorvehicles in 2019. The Judge applied an uplift of 10 per cent for the appellant's criminalhistory.[12] The Judge turned to consider the appellant's personal mitigating factors. TheJudge rejected the submission that Zhang v R applied in this case so that the appellant'smethamphetamine habit should be regarded as a mitigating factor.3 The Judgedistinguished Zhang on the basis that it related to offending committed to feed a drughabit and noted none of the appellant's offences involved theft or otherwise obtainingproperty to sell for drugs to feed his habit. Judge Couch did, however, reduce thesentence by 25 per cent to reflect the appellant's prompt guilty pleas and his clearacknowledgement that his actions were wrong.[13] Therefore, applying the methodology in Moses v R, the Judge reduced thesentence by seven per cent from the adjusted starting point of 28 months, resulting inan end sentence of 26 months' imprisonment.4 Furthermore, on the two charges ofdriving while disqualified third or subsequent, the appellant was disqualified fromholding or obtaining a driver's licence for 15 months, on the charge of refusing theimpairment test, he was indefinitely disqualified pursuant to s 65 of the Land TransportAct, and on the charge of failing to stop third or subsequent, the appellant wasdisqualified from holding or obtaining a driver's licence for 24 months from11 March 2022. Hence, the appellant was disqualified for 39 months in total.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that there3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.4 Moses v R [2020] NZCA 296.has been an error in the imposition of the sentence and that a different sentence shouldbe imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".6 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.7SubmissionsAppellant's submissions[15] Mr Nicholls, for the appellant, submits the starting point of 12 months'imprisonment in relation to the lead charge of dishonest use of a motor vehicle ismanifestly excessive. While it is accepted the appellant did or should have known thevehicle was stolen, Mr Nicholls submits the circumstances of the offending and shortdistance travelled mean the starting point was excessive. Mr Nicholls says he isinstructed that the appellant drove the vehicle to assist a friend. He claims he wasgiven the key to the vehicle, that he was advised his friend's goddaughter needed togo to hospital urgently, and that he did not have direct knowledge the vehicle wasstolen. He submits the Judge did not consider these circumstances in concluding thegravity of the offending was moderate and, taking these factors into account, theoffending ought to have been regarded as less than moderate, and attracting a lowerstarting point than 12 months.[16] In support of this submission, Mr Nicholls cites Oldham v Police.8 In that case,a commercial premise was broken into which stored recently imported motor vehicles.Persons entered into the office area and obtained keys to between 30 and 40 vehicles,which were then taken. The appellant received a number of vehicles from unknownpersons, valued together at $440,000, and at some stage unlawfully entered into oneof these vehicles. Mr Nicholls notes the starting point for the charge of unlawful entry5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].8 Oldham v Police [2017] NZHC 2602.into a motor vehicle in Oldham was only eight months' imprisonment for offendinghe submits was significantly more serious than in the present case.[17] Mr Nicholls also contends the uplift of 18 months' imprisonment for theappellant's other driving offences is manifestly excessive. Mr Nicholls accepts theappellant has a poor driving record that requires a significant uplift, particularly inrespect of charges of driving while disqualified and while suspended. However, theappellant relies on the starting point for the lead charge as being too high, so that theuplift given for the appellant's other driving offences is rendered disproportionate tothe starting point for the lead charge.[18] Consequently, the appellant submits the overall starting point of 28 months'imprisonment, even after adjustment, is manifestly excessive, and the starting pointshould have been reduced to 15 to 18 months. Mr Nicholls reaches this figure byreducing the starting point on the lead charge to 6 months' imprisonment and reducingthe uplift for the appellant's driving offending to 9 to 12 months' imprisonment.[19] Mr Nicholls further submits the District Court Judge should not have upliftedthe appellant's sentence by 10 per cent for his previous criminal history when therehad been an uplift already given for the appellant's driving history. Counsel submitsit was unjust for the appellant to be doubly punished for being convicted earlier in2020 on two charges of stealing motor vehicles in 2019. Accordingly, the appellantsubmits the 10 per cent uplift for previous criminal history should not apply.[20] Mr Nicholls also argues the District Court was wrong in its analysis of Zhangand that case should have been applied so that the appellant received a discount toreflect his methamphetamine addiction. Mr Nicholls draws attention to the summaryof the judgment in Zhang, which states that:9Addiction shown to be causative of the offending is a mitigating consideration.It may in its own terms justify a sentence discount of up to 30 per cent,although that is not to be treated as an absolute limit. Addiction will oftencombine with mental health issues, and the two may need to be considered incombination, although without the doubling-up of an otherwise appropriatediscount. Addiction also calls for consideration of a rehabilitative response aspart of sentencing.9 Zhang, above n 3, at [10(k)].[21] Mr Nicholls says it was not disputed that the appellant did have and continuesto suffer from a methamphetamine addiction. In the Alcohol and Other DrugAssessment and Treatment Service (ADAS) report, counsel notes it was stated theappellant "would likely meet criteria for residential treatment with regards to hissubstance abuse". Counsel submits the appellant has on several occasions outlined tocounsel his need and desire to obtain assistance for his addiction and has instructedcounsel his methamphetamine addiction was a significant factor in his offending.Mr Nicholls refers to a letter written by the appellant dated 29 November 2020 inwhich the appellant outlines his hope for help dealing with his addiction and says heis remorseful for his offending. For these reasons, counsel for the appellant submits adiscount in the vicinity of 25 per cent would have been appropriate to take account ofthe appellant's addiction.[22] If these submissions are accepted, the end sentence will be less than 24 months'imprisonment, bringing into consideration a sentence of home detention.Respondent's submissions[23] Ms Bicknell, for the respondent, submits the starting point of 12 months'imprisonment is not manifestly excessive. She submits it is not clear what startingpoint was adopted for the unlawful entry into a motor vehicle charge in Oldham. Inany event, it is not clear that the offending was more serious than in the present case.The basis of the charge in Oldham was the appellant entered his partner's car duringan assault on her. The appellant took her keys while she sought help, got inside the car,and turned it on and there was no further use of the car.10[24] In terms of setting the starting point for the dishonest use of a motor vehiclecharge, Ms Bicknell refers to the following two cases:(a) O'Sullivan v Police:11 a starting point of 12 months' imprisonment wasadopted where the appellant was charged with unlawfully taking a10 Oldham, above n 8, at [3].11 O'Sullivan v Police [2015] NZHC 2032.motor vehicle, driving while disqualified, failing to stop, excess breathalcohol, resisting a police officer, and possession of cannabis;(b) Shufflebotham v Police:12 a starting point of 12 months' imprisonmentwas adopted for the charge of unlawfully taking a motor vehicle.[25] Ms Bicknell therefore submits the appellant's offending is analogous to theoffending in these cases. Although she accepts the court may view the presentoffending as less serious because the appellant was not sentenced on the basis he tookthe car, the respondent submits the starting point of 12 months' imprisonment waswithin range. In any event, the sentence for an offence under s 226(1) Crimes Act isthe same whether the offence involves taking a vehicle owned by another person orusing it.[26] The respondent also submits the 18 month uplift for the driving offences wasopen to the Judge. The gravity of these offences was serious given the impaired anddangerous nature of the driving. The respondent notes this type of offending is notamenable to tariff categorisation.13 However, the respondent finds guidance fromSamson v Police,14 where Whata J broadly categorised the starting points for this typeof offending in terms of the aggravating factors present and identified a range ofaggravating factors in the context of excess breath alcohol offending.[27] The respondent submits there were one or more of the serious aggravatingfactors identified by Whata J present in the current offending. These were:intoxication combined with dangerous driving, committing the additional offences ofdriving while disqualified and failing to stop, the occurrence of the second incident ofdriving while disqualified only a week later, and a continuous history ofdriving-related offending. On this basis, the respondent submits an 18 month upliftfor the four driving-related charges, across two incidents, would not have beenmanifestly excessive.12 Shufflebotham v Police [2015] NZHC 3114.13 R v McQuillan CA129/04, 12 August 2004 at [22].14 Samson v Police [2015] NZHC 748 at [15].[28] For the above reasons, Ms Bicknell submits the end starting point of28 months' imprisonment was not manifestly excessive. The two month uplift for thepossession charges was not challenged. She contends it is clear the Judge properlyconsidered the totality principle which resulted in a four month deduction from theoriginal starting point.[29] In terms of the uplifts applied to the starting point for previous criminal historyand offending while subject to sentence, the respondent submits there was no error.Ms Bicknell cites Clunie v R for the proposition that section 9(1) of the SentencingAct 2002 specifically recognises that offending committed on bail or subject to asentence is an aggravating feature.15[30] In respect of the uplift for previous convictions this specifically did not takeaccount of the appellant's driving convictions, but was in relation to dishonestyoffending. On this basis, the respondent submits the uplift applied by the Judge of10 per cent for the appellant's previous criminal offending did not involve doublecounting.[31] Finally, in response to the Mr Nicholls' submission that, on the basis of Zhang,the appellant should have been afforded a discount to recognise his methamphetamineaddiction, the respondent submits it was not an error to refuse to give such a discount.Ms Mills contends it was open to the Judge to find there was no causal nexus betweenthe appellant's methamphetamine addiction and the offending to warrant a discount.Discussion[32] There is no tariff judgment for the offence of unlawful use of a motor vehicle.The appellant relied on Oldham v Police, to suggest that the 12 month starting pointwas excessive. However, as the respondent identified, it is unclear what starting pointwas adopted for the unlawful entry into a motor vehicle charge in that case. I also donot accept that the facts are sufficiently analogous to use it as a comparison for anappropriate starting point. The cases provided by the respondent are of greaterassistance.15 Clunie v R [2013] NZCA 110 at [22].[33] In both O'Sullivan and Shufflebotham, a starting point of 12 months'imprisonment was adopted for the charge of unlawfully taking a motor vehicle. I alsohave regard to Galloway v Police, where a car worth $7,000 had been taken fromoutside a suburban address.16 Five days later the appellant was driving that vehicleand failed to stop when the police attempted to pull him over for speeding. He wasdisqualified from driving at the time and he drove dangerously to evade the police, farexceeding the speed limit and crossing to the wrong side of the road. The Judge notedthat there was a pattern of similar offending in the appellant's criminal history and arepeated failure to follow release conditions and rehabilitative programmes. In thatcase, a 12 month starting point was imposed (down from 20 months on appeal).[34] Having considered these cases, I am satisfied the starting point of 12 months'imprisonment imposed by the Judge was within range. The appellant was driving astolen vehicle of similar value to that in Shufflebotham and Galloway, while he wasdisqualified. Like O'Sullivan, the appellant had the car for a relatively short periodand the car was returned to its owner. As in all three cases, the appellant evaded policeleading to a pursuit. Indeed, the offending is almost identical to Galloway, involvingas it did, dangerous and erratic driving in excess of the speed limit and crossing overto the wrong side of the road. While I accept there was no evidence he had taken thecar originally, the associated dangerous and erratic driving (for which he was notseparately charged, but which was separately charged in Galloway), increases thegravity of this offending. I consider his explanation for why he was driving that nightis implausible and, in any event, does not excuse the erratic and dangerous driving.The range of sentences imposed for such offending was canvassed in Galloway andranged from nine months to 15 months. In the circumstances, I am entirely satisfiedthat the 12 month sentence was within range.[35] Taking account of Mr Wilson's significant history of similar offending, Iconsider the Judge was right to say the gravity of offending of the other drivingoffences was serious. These charges were: two charges of driving while disqualified,one of failing to stop, and one of refusing to undergo a compulsory impairment test.They arose on two different dates, but in close succession. Mr Wilson has been16 Galloway v Police [2009] NZHC 3363.convicted 11 times in the past on charges of driving while disqualified or suspendedand these convictions form part of a continuous history of driving-related offending.It is clear Mr Wilson is a recidivist driving offender which exacerbates the gravity ofhis offending. While the sentence on these four charges might be considered towardsthe higher end of the available spectrum, I cannot say it is out of range.Was the overall starting point of 28 months manifestly excessive?[36] I have found that the sentences of 12 months for the unlawful use of a motorvehicle, and 18 months for the other four charges, including two charges of drivingwhile disqualified, were individually within range. However, the Judge then went onto consider the principle of totality and determined the 32 months sentence ofimprisonment was too high, adjusting it to 28 months. I am satisfied that thisadjustment was appropriate and the end sentence of 28 months for all the charges waswithin range.Was the Judge wrong to uplift the appellant's sentence by 10 per cent for his previouscriminal history?[37] The appellant's primary ground for challenging the uplift on the appellant'ssentence for his previous criminal history was his concern that it involveddouble-counting. However, as the respondent makes clear, the Judge was careful toavoid double-counting and expressly ignored the appellant's previous drivingconvictions which he had already considered when imposing 18 months on the otherdriving related charges. The uplift solely reflected dishonesty offending, includingrecent convictions in April 2020 on two charges of stealing motor vehicles in 2019.Again, I consider the uplift of 10 per cent was within range.Should the appellant have received a discount to account for his methamphetamineaddiction?[38] Judge Couch held at [11] of his decision that:The Court in Zhang, on my understanding, was talking about offending to feeda drug habit. That is not the situation here. None of your offences involvedtheft or otherwise obtaining property to sell for drugs.[39] The Court of Appeal in Zhang considered the personal mitigating factor ofaddiction particularly germane to methamphetamine offending. In terms of addiction,the Court made several points. First, the Court noted the implication of s 9(3) of theSentencing Act, which provides that voluntary consumption of alcohol or drugs, otherthan for a bona fide medical purpose, cannot be taken into account by way ofmitigation.17 The Court attended to the expert evidence demonstrating that a numberof relevant mitigating considerations do arise in relation to addiction, such as the factthat strong pro-social tendencies may be overwhelmed by dependence.18 Addictionalso calls into question the effectiveness of deterrence,19 and calls for consideration ofa rehabilitative response as part of sentencing.20[40] Importantly, however, the Court accepted "non-causative addiction will be oflittle mitigatory relevance"21 and that:22 any such discount should be based on persuasive evidence, as opposed tomere self-reporting Inasmuch as a stage two discount for mitigatingcircumstances is engaged, the onus of proof (to the civil standard) lies on theoffender to establish the extent and effect of addiction.[41] The Court continued to say that addiction may logically give rise to a discountbut this "depends on the extent to which it mitigates moral culpability for theoffending".23[42] On this basis, it was not an error to refuse to give the appellant a discount formethamphetamine addiction. There was no evidence of a causal nexus between theappellant's methamphetamine addiction and the offending. Mr Wilson's offendingwas not motivated by the need to further his dependence on methamphetamine or dueto any external pressure to obtain property to sell for drugs. Any consumption ofmethamphetamine that led Mr Wilson to engage in the offending was a voluntary actthat does not mitigate his moral culpability.17 Zhang, above n 3, at [143].18 At [145].19 At [146].20 At [150].21 At [147].22 At [149], citing Sentencing Act, s 24(2)(d).23 At [149].[43] Furthermore, there was a lack of persuasive evidence before the Court todischarge the onus on the offender to establish the extent and effect of his addiction.Whilst Mr Wilson may well meet the criteria for residential treatment with regards tohis substance abuse, the evidence provided does not go much further than mereself-reporting and does not demonstrate his addiction was causative of the offending.Furthermore, the suggestion he was motivated to address his addiction wasinconsistent with the ADAS report of 3 December 2020, which said the appellant was"not interested in maintaining abstinence fully from methamphetamine on releasefrom prison".[44] This ground of appeal fails.Conclusion[45] I have found there was no error in sentence and the end sentence was notmanifestly excessive. Accordingly, the appeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:T R Nicholls, Barrister, Christchurch