PAUL v NZ POLICE [2019] NZHC 1650

PAUL v NZ POLICE [2019] NZHC 1650 [16 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000153[2019] NZHC 1650BETWEEN JONATHAN PAULAppellantAND NEW ZEALAND POLICERespondentHearing: 8 July 2019Appearances: C Oxnam and S Papp for the AppellantH MacDonald for the RespondentJudgment: 16 July 2019JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Tuesday, 16 July 2019 at 3:30 pmRegistrar/Deputy RegistrarSolicitors: Public Defence Service (N Baier), AucklandMeredith Connell (Office of the Crown Solicitor), AucklandSummary[1] On 14 March 2019, the appellant, Mr Jonathan Raniera Paul, was sentenced inthe District Court in respect of the following 18 charges:1(a) Three charges of unlawfully taking a vehicle (CRN's ending in 0535,4830, 6005);2(b) Two charges for dishonestly taking or using a document (CRN's endingin 6006, 6008);3(c) One charge of unlawfully getting into a vehicle (CRN ending in 6992);4(d) Three charges of failing to answer District Court bail (CRN's ending in7568, 0173, 0119);5(e) One charge of failing to answer police bail (CRN ending in 0963);6(f) One charge of breaching conditions of intensive supervision (CRNending in 3362);7(g) One charge of breaching community work (CRN ending in 2745);8(h) One charge of receiving (CRN ending in 6007);9(i) One charge of wilful damage (CRN ending in 4828);101 Police v Paul [2019] NZDC 4817.2 Crimes Act 1961, s 226. The maximum penalty is seven years' imprisonment.3 Crimes Act 1961, s 228. The maximum penalty is seven years' imprisonment.4 Crimes Act 1961, s 226(2). The maximum penalty is two years' imprisonment.5 Bail Act 2000, s 38. The maximum penalty is one years' imprisonment or a fine not exceeding$2,000.6 Bail Act 2000, s 24. The maximum penalty is three months' imprisonment or a fine not exceeding$1,000.7 Sentencing Act 2002, s 70A. The maximum penalty is six months' imprisonment or a fine notexceeding $1,500.8 Sentencing Act 2002, s 71(1)(a). The maximum penalty is three months' imprisonment or a finenot exceeding $1,000.9 Crimes Act 1961, s 246. The maximum penalty is three months' imprisonment.10 Summary Offences Act 1981, s 11. The maximum penalty is three months' imprisonment or afine not exceeding $2,000.(j) One charge of failing to stop (CRN ending in 4826);11(k) One charge of operating a vehicle carelessly (CRN ending in 4827);12(l) Two charges of driving without a licence (CRN's ending in 4829,4246).13[2] Judge Ronayne sentenced the appellant to three years and two months'imprisonment.[3] The appellant appeals that sentence on the grounds that it is manifestlyexcessive. The respondent, the New Zealand Police, opposes the appeal and submitsthat the sentence was plainly available to the Judge.Summary of facts[4] The District Court Judge divided the offending into groups:(a) On 2 September 2015, the appellant unlawfully took a vehicle valuedat $5,300 overnight (0535).(b) On 25 March 2017, the appellant drove without a licence (4246).(c) On 22 October 2017, the appellant unlawfully took a vehicle valued at$8,000 (4830). In doing so, he breached his bail and failed to complywith his prohibition from driving (0119, 4829). He failed to stop forpolice when they signalled him with flashing lights and a siren (4826).He drove on the wrong side of the road before abandoning the vehicle(4827). He was apprehended by police and caused intentional damageto a constable's notebook (4828).11 Land Transport Act 1998, s 52A(1)(a)(ii). The maximum penalty is a fine not exceeding $10,000and mandatory disqualification under s 52A(3).12 Land Transport Act 1998, s 37. The maximum penalty is a fine not exceeding $3,000 anddisqualification from driving for such period as the Court thinks fit.13 Land Transport Act 1998, s 52. The maximum penalty is a fine not exceeding $10,000.(d) The appellant failed to answer police bail and failed to answer DistrictCourt bail twice (0963, 7568, 0173).(e) In July 2017, the appellant breached community work (2745) andintensive supervision (3362).(f) In January 2018, the appellant received and twice used a credit card heknew was stolen (6006, 6008, 6007). He spent $68.50 and $67 with thecard.(g) On 7 May 2018, the appellant unlawfully took and got into a vehiclevalued at $3000 (6005, 6922).District Court decision[5] The District Court Judge adopted a starting point of 18 months' imprisonmentfor the October unlawful taking charge.14 This was because of the value of the vehicleuplifted, his bad driving to avoid apprehension and the fact that within three days theappellant was involved in a police chase. The Judge referred to the discussion in Leafv Police:15The most serious offence in this set was the unlawful taking of the Holden car,an offence punishable by a maximum penalty of seven years' imprisonment.No guideline judgment exists in relation to unlawful takings, but High Courtauthority is plentiful. I analysed some in Wood v Police, and concluded:All this suggests a single unlawful taking charge can give rise to astarting point of at least 18 months' imprisonment, if the offence hasa significant aggravating feature or features; see Gurnick. If adefendant unlawfully takes a car and attempts to evade Police in achase, typical global starting points range between 18 and 20 months'imprisonment; see O'Sullivan, Ratahi and Edwards. But, an especiallybad constellation can attract more; see Bell. If a defendant unlawfullytakes several cars, or takes one and engages in other similardishonesty, a starting point of two and a half years' imprisonment ormore may follow; see Gibbon, Taki and Singh.14 Police v Paul [2019] NZDC 4817 at [8].15 Leaf v Police [2018] NZHC 3209, citing Wood v Police [2018] NZHC 1629 at [24] (citationsomitted).[6] The Judge calculated the appellant's end sentence of three years and twomonths' imprisonment as follows:CRN Date Offence Months' imprisonment ordisqualified from driving0535 02/09/2015 Car conversion 4 (cumulative)4246 25/03/2017 Driving without licence 6 months disqualification3362 11/07/2017 Breach of intensive supervision 2 (cumulative)2745 13/07/2017 Breach of community work 1 (concurrent)0963 09/08/2017 Police bail breach convicted and discharged4830 22/10/2017 Car conversion 18 (cumulative)4828 25/10/2017 Wilful damage 1 (concurrent)4829 25/10/2017 Driving without licence 6 months disqualification4826 25/10/2017 Failing to stop 2 years' disqualification4827 25/10/2017 Careless driving convicted and discharged7568 19/12/2017 Court bail breach 1 (concurrent)0173 22/12/2017 Court bail breach 2 (concurrent)6007 16/01/2018 Receiving document 1 (concurrent)6006 17/01/2018 Using a document 6 (concurrent)6008 16/01/2018 Using a document 6 (concurrent)6992 03/05/2018 Unlawfully getting into a vehicle 6 (concurrent)6005 07/05/2018 Car conversion 12 (cumulative)0119 08/08/2018 Court bail breach 2 (cumulative)[7] Although the Judge considered making the document charges cumulative, hedecided that an overall sentence of three years and two months' imprisonment wassuitable. The Judge did not discuss the aggravating features of each offence or anydiscounts. He did acknowledge that the appellant had pleaded guilty and takenresponsibility for his actions. He discussed the appellant's criminal history, includinghis previous convictions for similar offending.[8] The Judge noted that a burglary had occurred in St Heliers on the night theappellant used the credit cards, and a vehicle was unlawfully taken fromMt Wellington early that morning. The Judge called this proximity 'incredible':You know what I think don't you? That you were the burglar, but you are notbefore me on a burglary charge, but I certainly take into account the fact thatit is an extraordinary coincidence and you are an unlucky man, or you are veryclose to the burglar if you were using that at two in the morning.[9] The Judge's oral sentencing notes are confusing and do not accord entirelywith his handwritten notations on the charging documents or with the appellant'scriminal history printed on the date of the appeal hearing. The following discrepanciesare able to be identified:(a) In his oral sentencing notes the Judge stated that he would adopt an endsentence of 22 months in prison for the all of the October offences.16However, the charge of unlawful taking was accounted for with18 months' imprisonment. The other charges resulted indisqualification from driving or discharge without conviction, plus aone month concurrent sentence of imprisonment for the wilful damagecharge.17(b) In his oral sentencing notes the Judge stated:So here it is on car conversion 0535 four months' prison. Onfailing to comply with that prohibition 4246 six months'disqualification, and then the October 2017 offending. So onthe car conversion 4830 18 months but that is cumulative onthe four months that I gave you for that car conversion 0535.The appellant's criminal history, however, shows 0535 and 4830 asconcurrent.(c) In his oral sentencing notes the Judge stated:Then the sixth group, on the receiving of that car on16 January last year one month prison. On 6008 using a16 Police v Paul [2019] NZDC 4817 at [10].17 Police v Paul [2019] NZDC 4817 at [22].document so using it at the gas station, six months' prison. On6006 using a document six months' prison.The Judge, however, wrote on the charging document for 6006"6 months prison cumulative on 3362". This is reflected in theappellant's criminal history, which states that the sentence of sixmonths' imprisonment is cumulative on 3362.[10] The net result of the above discrepancies means that I am unclear as to whatthe total sentence imposed on the appellant was. The appellant's criminal historyshows a total sentence of three years and four months' imprisonment rather than threeyears and two months' imprisonment, which seems to have been intended by theJudge.The appeal[11] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied that there is an error in the sentence and a different sentence should beimposed. For sentencing multiple offences, it does not matter if the lower court'smethod was convoluted, only that the total sentence was within range.18 The focus ofan appeal should be on the end sentence rather than the Judge's approach.19 If thereis an error of the requisite character, I will form a view of the appropriate sentence.20Section 251(2) of the Criminal Procedure Act 2011 sets out the orders I may make ifthe appeal is successful.SubmissionsAppellant Submissions[12] Counsel for the appellant submits that the Judge took an unorthodox approachto sentencing, but acknowledges that it is not the methodology but the result that isimportant in appeals.[13] In summary, counsel points to the following errors made by the Judge:18 Dellaway v R [2010] NZCA 100 at [22].19 Tutakangahau v R [2014] NZCA 279 at [35] – [36].20 At [30].(a) The Judge incorrectly compared the offending in this case to theoffending discussed in Leaf v Police and Wood v Police. Counselsubmitted that a starting point of 18 months' imprisonment for theOctober offending would have been appropriate.(b) Only small uplifts (for the other substantive offences, for the non-compliance charges and the fact that some of the offending occurred onbail) should have been applied;(c) The Judge failed to apply adequate discounts for guilty pleas and timespent on EM bail;(d) The Judge failed to make an adjustment for totality.[14] Counsel proposes that an appropriate sentence would approximately bebetween two years' imprisonment and two years and two months' imprisonment. Onthis basis, counsel submits that the sentence imposed in the District Court is manifestlyexcessive.Police submissions[15] Counsel for the police submits that the grounds of appeal do not justify theintervention of this Court. Counsel submits that the starting point was within theavailable range.[16] Counsel also submits that the Judge did take totality into account, because heused a combination of concurrent and cumulative sentences. Further, although nodiscrete uplifts and discounts were applied, it can be inferred that the Judge turned hismind to the appellant's history of offending and guilty pleas:21I am not going to go through all the sentencing submissions made on yourbehalf, but your lawyer has filed extensive written submissions which havebeen very helpful, and I have read them carefully and understood them.21 Police v Paul [2019] NZDC 4817 at [3].Counsel submits that it was open to the Judge to take this approach. Further, counselsubmits that an uplift of up to 12 months' imprisonment can be justified to reflect anextensive history of criminal offending.22 The appellant has 35 previous convictions.He also "deliberately flouted Court decisions" in breaching bail and other sentences.23[17] Even if the Court finds that the starting point was not appropriate, counselsubmits that the end sentence was within range. Counsel submits that the appellanthas not demonstrated any error in the sentence imposed and accordingly the appealshould be dismissed.Discussion[18] Although the Judge did make comments about the appellant's previousconvictions ("there has got to be some sort of calculation in my head about yourprevious convictions because you cannot just keep coming back before the Court withprevious convictions under your belt, and not expect that to effect how things go"),pleas of guilty ("I acknowledge that you are pleading guilty to everything now andyou are taking full responsibility, you did not on the night, but you are now"), andtotality ("But I am satisfied that overall the three years and two months is about right"),it is preferable that any uplifts or discounts to initial starting points should be clearlyspecified and the process by which a judge arrives at a final sentence should be quitetransparent. However, it is the end sentence, rather than the process by which thatsentence is reached, that is important on appeal. The question is whether a sentenceof three years and two months' imprisonment is within a range justified by acceptedsentencing principles.[19] It must be determined whether the Judge materially erred in calculating upliftsand discounts, and whether the discrepancies identified above were significant enoughto mean a different sentence should have been imposed.22 Columbus v R [2008] NZCA 192; R v Povey [2009] NZCA 362; Nelson v Police [2012] NZHCand Johnston v Police [2012] NZHC 551.23 Police v Paul [2019] NZDC 4817 at [8].Is 18 months' imprisonment for the lead charge too high?[20] The unlawful taking of a motor vehicle on 22 October 2017 is obviously thelead charge as the appellant failed to stop for the blue and red flashing lights and sirensof the police, and drove on the wrong side of the road at a time traffic in the area wasmedium to heavy before abandoning the vehicle.[21] Counsel for the appellant seeks to distinguish Wood v Police, which was citedby the Judge.24 That case was an appeal involving 17 charges, mostly carried out onbail, including three counts of unlawfully taking a motor vehicle. A 20 month startingpoint for the lead unlawful taking offence was approved on appeal, because of theprolonged very dangerous driving, evasion of the police and the weapons found in thecar.25 Counsel for the Police submits that Wood is comparable to the present case -weapons were not present in the car, but the appellant was unlicensed and tore up apolice notebook when he was apprehended. In Wood, the Court found that typicalglobal starting points for unlawfully taking a car are between 18 and 20 months'imprisonment when the defendant attempted to evade Police, but an "especially badconstellation" can attract more.26[22] Given the appellant's dangerous driving, failing to stop, the fact he wasunlicensed and his behaviour when he was apprehended, I think an 18 month sentenceis justified. The starting point adopted by the Judge for this offending is within rangefor this offence.27 As noted, the Judge did not specify any uplifts or discounts to thestarting point, so the starting point was also the end sentence for the offending.Were the uplifts on the lead charge excessive?[23] The dates of the offences on which the appellant was sentenced ranged from2 September 2015 to 8 August 2018, almost a three year period. Of the 18 charges towhich the appellant pleaded guilty, only five had a maximum sentence of more thantwo years' imprisonment – three of unlawful taking of a motor vehicle (on 2 September24 Wood v Police [2018] NZHC 1629.25 At [26].26 Wood v Police [2018] NZHC 1629 at [24], citing O'Sullivan v Police [2015] NZHC 2032; Ratahiv Police [2014] NZHC 2394; Woolston v Police [2017] NZHC 1079.27 Although the Judge stated that he would adopt a 22 month starting point for the October offences,an 18 month starting point was the actual outcome.2015, 22 October 2017 and 7 May 2018), and two of dishonestly using a document(on 16 and 17 January 2018).[24] Of the two further charges of unlawful taking of a motor vehicle, the firstvehicle was recovered the next day. The appellant ran from the third vehicle whenpolice located it five days after its taking.[25] The two charges of dishonestly using a document involved using a stolen debitcard by using its paywave function to obtain goods valued at $68.50 and $67.00 fromtwo different petrol stations. The Judge noted that these charges carried a maximumpenalty of seven years' imprisonment, but erred in treating the appellant as the burglar.[26] In Wood the 11 remaining charges could have warranted a 20 month uplift, butonly a 16 month uplift was added to the lead offence of unlawfully taking a car toaccount for totality.28 The additional charges included two further charges ofunlawfully taking a car, as well as more serious offences such as possession ofweapons. In O'Sullivan v Police, an eight month uplift for relatively serious associatedoffending (driving while disqualified, failing to stop, excess breath alcohol, resistingpolice officer and possession of cannabis) on a lead charge of unlawfully taking amotor vehicle was upheld on appeal.29[27] Regarding the non-compliance charges, counsel for the appellant notes thatsimilar charges in other cases have resulted in conviction and discharge,30 or a one-month cumulative sentence.31 In the recent case Ashqar v Police, Palmer J said a one-month uplift for two bail offences was 'on the high side'.32 In McKenzie v Police atwo month uplift for four non-compliance charges was considered appropriate.33[28] On this basis, it can be seen that the uplifts imposed on the lead offending bythe Judge were manifestly excessive. An uplift of six months' imprisonment to take28 Wood v Police [2018] NZHC 1629 at [27].29 O'Sullivan v Police [2015] NZHC 2032 at [21].30 R v Emery [2012] NZHC 2933 at [20], De Seymour v Police [2013] NZHC 2232 at [20].31 Williams v Police [2014] NZHC 2622 at [23], and Dick v Police [2014] NZHC 434 at [23].32 Ashqar v Police [2019] NZHC 1184 at [9].33 McKenzie v Police [2015] NZHC 2742 at [27].into account the remaining (less serious) substantive charges,34 and a further uplifttwo months' imprisonment to take into account the remaining non-compliance chargesis appropriate.35[29] As for the appellant's criminal history, he is 31 years of age. He did not receivehis first conviction until he was 23 years old. Prior to sentencing on the currentcharges, he had received 30 convictions in the previous five years. Seven of the30 convictions were for traffic offences. A further 15 convictions related to non-compliance with Court orders, such as failure to answer bail or breach of conditionsof supervision. His most serious previous convictions were two family violenceoffences of male assault female and assault of a child in 2016, for which he received18 months' intensive supervision. He had never previously been sentenced tocommunity detention, home detention or imprisonment.[30] An offender's criminal history is relevant to sentencing if it is indicative oftheir character or shows they are predisposed to commit a relevant kind of offence.36I am of the view that an uplift in the term of imprisonment for the appellant's previousconvictions is not warranted as he has never previously been sentenced toimprisonment. However, an uplift of a further one month's imprisonment is warrantedfor the appellant's offending while on bail.[31] An appropriate adjusted starting point is, therefore, two years and threemonths' imprisonment.Did the Judge fail to apply adequate discounts?[32] It is not crucial for a Judge to mention the totality principle, if the sentenceimposed is not out of proportion to the gravity of the offending.37 However, thesentence imposed at the District Court did not reflect the overall culpability of the34 It seems the Judge intended to impose a total sentence of two years and 10 months' imprisonmenton the three car conversion charges (four months + 18 months + 12 months), but the criminalhistory records a total sentence of two years and six months' imprisonment (four months(concurrent), 18 months + 12 months).35 The Judge sentenced the appellant to a cumulative sentence of four months imprisonment on twocharges of breach of Court bail and breach of intensive supervision (two months + two months).36 Beckham v R [2012] NZCA 290 at [84].37 Kite v R [2018] NZCA 485 at [21].appellant, because three years and two months' imprisonment is excessive for thetotality of his conduct. For the most part, the offences were not very serious and theywere committed over a long period of time.[33] The sentencing process should be guided from the outset by the principle oftotality.38 If the uplift on the starting point for the remaining substantive charges tookinto account the less serious nature of offences, no reduction for totality would berequired. That is the case here with uplifts totalling nine months on the 18 monthsentence for the lead charge.[34] The appellant spent five and a half months on EM bail from 29 May 2018,before removing his bracelet, absconding for a couple of days and then voluntarilypresenting himself at Court to be arrested and remanded in custody on 12 November2018. The appellant explained that he had heard that his partner had been admitted tohospital. He, therefore, made a quick decision to cut off his bracelet, get on a train,and visit his children to check on their welfare. In line with the Court of Appealauthority of O'Connor v R,39 the appellant should be accorded a credit of two months'imprisonment for the restrictive terms of EM bail. That brings the adjusted startingpoint down to two years and one month's imprisonment.[35] Finally, the appellant is entitled to a 20 per cent discount for his guilty pleas.40This brings his end sentence down to one year and eight months' imprisonment.Result[36] An appeal cannot be based on the Judge's method alone, but I am satisfied inthis case that that the Judge's method has resulted in a manifestly excessive sentence.Accordingly, the appeal is allowed and the following sentences substituted. Allsentences are concurrent.38 Haywood v R [2015] NZCA 551 at [11].39 O'Connor v R [2014] NZCA 328, where the appellant was on EM bail for 10 months beforeremoving his bracelet and was still given a four month discount.40 Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.CRN Date Offence Months'imprisonment4830 22/10/2017 Car conversion 1 year 8 months0535 02/09/2015 Car conversion 6 months6992 03/05/2018 Unlawfully getting into motor vehicle 3 months6005 07/05/2018 Car conversion 6 months6007 16/01/2018 Receiving debit card 1 month6008 16/01/2018 Using debit card 3 months6006 17/01/2018 Using debit card 3 months7568 19/12/2017 Failing to answer Court bail 2 months0173 22/12/2017 Failing to answer Court bail 2 months0119 08/08/2018 Failing to answer Court bail 2 months0963 09/08/2017 Failure to answer police bail Convicted andDischarged3362 11/07/2017 Breach condition of intensive supervision 2 months2745 13/07/2017 Breach community work 1 month4828 25/10/2017 Wilful damage 1 month4826 25/10/2017 Failing to stop 2 yearsdisqualification4827 25/10/2017 Careless use of motor vehicle Convicted andDischarged4829 25/10/2017 Driving without licence 6 monthsdisqualification4246 25/03/2017 Driving without a licence 6 monthsdisqualification________________________________Woolford J