DAWSON v POLICE [2021] NZHC 3441

DAWSON v POLICE [2021] NZHC 3441 [15 December 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-468[2021] NZHC 3441BETWEEN JAEDON MEINATA DAWSONAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2021Appearances: S Fernando for the Appellant H J Bell for the RespondentJudgment: 15 December 2021JUDGMENT OF GAULT JThis judgment was delivered by me on 15 December 2021 at 10:00 am.Registrar/Deputy RegistrarSolicitors / Counsel: Ms S Fernando, Barrister, Auckland Mr H J Bell, Meredith Connell, Office of the Crown Solicitor, AucklandIntroduction[1] Mr Dawson pleaded guilty to two charges of unlawfully using a motor vehicle,1three charges of breaching home detention2 and one charge of breaching post detention conditions.3 On 1 October 2021, in the District Court at Waitākere, he was sentenced by Judge J M Jelaš to 15 months' imprisonment.4[2] Mr Dawson appeals against this decision on the basis this sentence is manifestly excessive. He advances three grounds of appeal: that insufficient weight was given to mitigating factors; too much weight was given to non-compliance with court orders to impose a cumulative sentence; and, the starting point adopted by the Judge was too high.Offending[3] The offending can conveniently be set out in chronological order, with the sentence breaches occurring before the motor vehicle offending.[4] On 26 November 2020, Mr Dawson was absent from his electronically monitored residence. Then, on 4 April 2021, he tampered with the GPS tracker by cutting the strap. Next, on 27 April 2021, Mr Dawson failed to submit to electronic monitoring by failing to adequately charge the GPS tracker. His sentence of home detention expired on 2 May 2021. He was subject to six months standard post- detention conditions from that date until 2 November 2021. In breach of those conditions, on 4 May 2021, he failed to report to a Probation Officer when required to do so.[5] On 8 May 2021, Mr Dawson found driving a Subaru without the permission or authority of the registered owner. On 31 May 2021, he was recorded on CCTV in possession of a BMW he did not have authority to drive or use.1 Crimes Act 1961, s 226(1). Maximum penalty: seven years' imprisonment.2 Sentencing Act 2002, s 80S. Maximum penalty: one year imprisonment or fine of $2,000.3 Sentencing Act 2002, s 80U. Maximum penalty: six months' imprisonment or fine of $1,500. Counsel referred to two charges under s 80S and two under s 80U, but nothing turns on this.4 New Zealand Police v Dawson [2021] NZDC 19596.District Court decision[6] After setting out the background to the offending, the Judge described Mr Dawson's "unfortunate history". She noted that, since 2012, he had been repeatedly before the courts and, since 2016, sentenced to several periods of imprisonment. None had a deterrent effect. The Judge acknowledged Mr Dawson's addictions as a significant contributing factor in his offending along with childhood deprivation which had influenced his adult behaviour. She added that there was some hope as Mr Dawson had responded well in the structured environment of prison and completed an anger management programme. She recognised the pandemic response had hindered his further participation in rehabilitation.[7] The Judge adopted a starting point on the charges of using a motor vehicle of 14 months' imprisonment. She noted that an aggravating feature of the first charge was the close connection between Mr Dawson and those who had taken the car and an aggravating feature of the second was that he had been using it for some time. The Judge considered the sentence breaches justified an uplift of six months. The final starting point was therefore 20 months' imprisonment.[8] The Judge acknowledged Mr Dawson's guilty pleas and said he was entitled to the full discount, reducing the sentence by five months to an end sentence of 15 months' imprisonment. The role of addiction in his offending did not reduce his culpability and in any case the Judge did not consider a rehabilitative sentence was appropriate given the need to protect the community.[9] The overall structure of the sentence was 10 months' imprisonment on each of the unlawful use of a motor vehicle charges, to be served concurrently, with sentences of five months' imprisonment on each of the breach charges to be served concurrently but cumulatively with the unlawful use charges.Approach on appeal[10] To succeed on an appeal against sentence, the appellant must satisfy the appeal Court that there has been an error in the imposition of the sentence and that a differentsentence should be imposed.5 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle. 6 The appeal Court's focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached. 7DiscussionStarting point[11] I first deal with the starting point on the unlawful use of a motor vehicle charges. Ms Fernando, for Mr Dawson, submits the Judge did not distinguish between "taking" and "using" a car and infers from this that the Judge did not properly account for the distinction in justifying a lesser starting point. Ms Fernando points out that there was no evidence to suggest Mr Dawson had taken the cars.[12] This distinction was put before the Judge who directly addressed it in her sentencing notes. She considered it was a distinction with no significance. She did not misapprehend that Mr Dawson had taken the cars from the registered owners or that he was otherwise responsible for procuring them. But the Judge did observe that the proximity in time between the taking of one of the cars and Mr Dawson being seen with it suggested a close relationship with those who had taken it, and the time since the other car was taken suggested he had had use of it for an extended period.[13] Further, as Mr Bell for the respondent observes, had the Judge incorrectly sentenced Mr Dawson for taking motor vehicles, a higher starting point would have been necessary. As Downs J said in Wood v Police, a single unlawful taking can give rise to a starting point of at least 18 months' imprisonment.85 Criminal Procedure Act 2011, ss 250(2).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].8 Wood v Police [2018] NZHC 1629 at [24].[14] Mr Bell also points to George v Police, where the sentencing Judge adopted a starting point of 14 months' imprisonment for using a stolen car, which was not challenged on appeal. 9[15] In this case, there were two charges involving different cars. I consider the starting point adopted by the Judge was within range in the circumstances. Indeed, it may have been generous.Double counting / totality[16] Ms Fernando submits the primary ground of appeal is that the Judge was wrong to impose a cumulative sentence for the breaches. She submits the Judge, in arriving at a starting point, incorrectly placed weight on Mr Dawson's poor compliance with his sentence of home detention despite the withdrawal of an application to cancel that sentence and completion of the sentence. She submits this was, in effect, double counting the breaches. She submits a reduction of one to two months was appropriate to recognise the totality of the offending or the sentences for the breaches should have been concurrent. In relation to the structure of the sentence, she also submits that the Judge did not look at the overall totality in imposing a cumulative sentence for the two sets of offending.[17] I do not consider that double counting has occurred. The Judge said that Mr Dawson completed, albeit not particularly well, five months of his sentence of six months' home detention. The "not particularly well" referred to the issues with the breaches that led to the four current charges. An uplift for the specific breaches that led to the four charges was appropriate. It did not amount to double counting.[18] As to totality, as I have set out, Ms Fernando approaches this issue in two ways. She submits there should have been adjustment down for totality or the sentences should all have been concurrent, and that the Judge did not consider totality in imposing a cumulative sentence.9 George v Police [2020] NZHC 1725.[19] A cumulative sentence for the sentence breaches was appropriate. They were separate in nature and time. Furthermore, although the Judge ultimately structured the sentence by imposing a cumulative sentence for the sentence breaches, she did so based on her earlier calculation of an end sentence based on the overall offending; that is adopting a starting point for the unlawful use charges and an uplift for the sentence breaches. Of course, the sentence for the overall offending should reflect the totality principle. Mr Bell submits that a six month uplift for the sentence breaches was appropriate having regard to totality. There were four separate breaches. Even if the uplift was stern, I consider the adjusted starting point of 20 months' imprisonment was within range.Personal mitigating circumstances[20] Ms Fernando also raises a number of issues with the manner in which the Judge dealt with mitigating factors. First, she submits there was a report before the Court addressing Mr Dawson's background of deprivation and hardship which justified a discount. Second, she points to his mental health issues and his dependency on drugs. The report identified a nexus between his background and pattern of offending. Third, she submits the Judge did not properly account for the rehabilitation efforts by completing an anger management workbook or the letter from a prison officer about his conduct in prison. Ms Fernando also notes the difficulties in accessing programmes owing to the response to the pandemic emergency. Fourth, she notes Mr Dawson's willingness to participate in restorative justice so he could apologise to the victims of his offending. This did not occur. Fifth, she submits Mr Dawson's willingness to participate in a restorative justice conference along with his letter of remorse justified credit for remorse beyond that available for his guilty pleas. She submits that a discount of two to three months is warranted.[21] Mr Bell resists each of these submissions. First, he submits the Judge referred to Mr Dawson's background and addictions in her remarks even if she did not refer specifically to a report. Second, even if a discount was given to reflect Mr Dawson's deprived background, the Judge did not add an uplift for extensive prior convictions, and one would offset the other. Third, Mr Dawson's efforts to engage in rehabilitation were referred to by the Judge along with clear indications that rehabilitation waslimited due to his conduct. Given the extent of his prior convictions, the Judge was entitled to acknowledge his limited rehabilitation by refusing any discount. Fourth, an offer to engage in restorative justice will have little impact without other evidence that a defendant has taken responsibility for offending and take steps to address the causes of it. Mr Bell submits the letter written by Mr Dawson to the victims of his offending contains an apology and sets out a plan but shows no insight into the effect of his actions on his victims. Mr Bell says no discrete discount for remorse was warranted.[22] It is common ground that the Judge had a psychological assessment report dated 14 July 2020 which contained relevant background akin to a s 27 report. The report had been prepared for a previous sentencing before the Judge. The report indicated a childhood of deprivation and disadvantage that included a strong gang influence leading to drug and alcohol use and criminal offending from a young age. This has resulted in anti-social personality disorder and methamphetamine addiction. I have also reviewed the report. In that previous sentencing, the Judge allowed a discount of 45 per cent for these personal circumstances, leading to the sentence of home detention.10[23] In this sentencing, the Judge referred again to Mr Dawson's substance dependency and disadvantage but indicated that she was not prepared to give credit for his addiction. He had engaged for a very limited period with the Odyssey programme, but his behaviour was too challenging and he was excluded. The Judge said until he was in an appropriate place and personal space the rehabilitative principle available at sentencing could not be emphasised. I consider the Judge was best placed to make this assessment. Also, as Mr Bell submitted, even if a discount was given to reflect Mr Dawson's deprived background, the Judge did not add an uplift for extensive prior convictions, and one would offset the other.[24] Overall, I do not consider the Judge erred in declining to give Mr Dawson a net discount for these or other personal circumstances beyond the full credit given for his guilty plea.10 R v Dawson [2020] NZDC 22663.Conclusion[25] It follows that the sentence imposed was not manifestly excessive.Result[26] The appeal is dismissed.________________________________ Gault J