PATANGATA v NEW ZEALAND POLICE [2020] NZHC 407

PATANGATA v NEW ZEALAND POLICE [2020] NZHC 407 [5 March 2020]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2020-416-000002[2020] NZHC 407BETWEEN JORDAN PATANGATAAppellantAND NEW ZEALAND POLICERespondentHearing: 3 March 2020Counsel: M Terekia for the AppellantC Stuart for the RespondentJudgment: 5 March 2020JUDGMENT OF DOOGUE JIntroduction[1] Mr Patangata was granted leave to bring this appeal against sentence out oftime by France J on 3 February 2020.[2] Mr Patangata was sentenced on 10 December 2019 in theGisborne District Court by Judge Cathcart to 17 months imprisonment anddisqualified from driving for one year and one day.11 Police v Patangata [2019] NZDC 25078.[3] This was in relation to charges of theft of petrol,2 burglary,3 driving whiledisqualified (third or subsequent),4 using a document for pecuniary advantage (x10),5a Bail Act 2000 charge,6 and a charge of failing to stop for an enforcement officer.7Factual background[4] The theft occurred on 28 April 2019. Mr Patangata was a passenger of a Mazdamotor vehicle in the Palmerston North area. When the driver pulled the vehicle into aZ Energy Station in Palmerston North, he got out and put $30 worth of petrol in thecar while the driver went inside to use the bathroom. Mr Patangata then approachedthe staff and attempted to use his cell phone as a deposit. The staff advised him thatthey could not accept it and went to uplift a form for him to complete. Mr Patangatathen took a Snickers bar and went back to the vehicle. Mr Patangata and his associateleft the store without paying for the fuel or the food.[5] The burglary occurred on 1 May 2019. Mr Patangata and the same associatewere again driving in the Palmerston North area in the same vehicle. The vehicle wasstopped outside the victim's address after some engine problems. Mr Patangata gotout of the vehicle, went up the driveway and forced entry into a garden shed. Hisassociate attempted to resolve the problems with the vehicle. A witness approachedthe associate and offered assistance to jump start the vehicle but that was notsuccessful. Mr Patangata exited the garden shed carrying a petrol can and weed eater.He placed the weed eater in the boot and poured the fuel into the vehicle. Mr Patangataand his associate then left the area in the vehicle.[6] The charges of driving while disqualified and failing to remain stopped for anenforcement officer occurred on 15 October 2019. On that day, at 11:10 pmMr Patangata was driving a Mitsubishi motor vehicle along Childers Road in2 Crimes Act 1961, ss 219 and 223(d). Category 2. Maximum penalty of three months'imprisonment.3 Section 231(1)(a). Category 3. Maximum penalty of 10 years' imprisonment.4 Land Transport Act 1998, ss 32(1)(a) and 32(4). Category 3. Maximum penalty of two years'imprisonment or $6,000 fine.5 Crimes Act, s 228(1)(b). Category 3. Maximum penalty of seven years' imprisonment.6 Bail Act 2000, s 38(a). Category 2. Maximum penalty of one year imprisonment or $2,000 fine.7 Land Transport Act, ss 52A(1)(b), 52A(4), 52A(6) and 114. Category 1. Maximum penalty of$10,000 fine.Gisborne. Police observed him at a roundabout with his vehicle on the wrong side ofthe road. Before the officers were able to signal for his vehicle to stop, he turned intoa driveway of a commercial premise and stopped. The police officers activated theirred and blue flashing lights, and pulled up behind his vehicle with the intention ofadministering a compulsory breath test. However, Mr Patangata got out of the driver'sseat, ran from the vehicle, jumped over a fence and ran away before police could speakto him. He was located a short time later in a local bar and was arrested. Police checksrevealed Mr Patangata was indefinitely disqualified in March 2012.[7] The offending relating to using a document for pecuniary advantage relate toMr Patangata's repetitive use of a BNZ Visa PayWave card on 12 February 2019. Heused the card on numerous occasions that day to purchase items from variousbusinesses in Palmerston North. Towards the end of that sequence of offending atransaction was declined and his offending came to an end.District Court decision[8] The Judge structured his sentencing by fixing a starting point for the burglaryoffending and all other offending except the driving whilst disqualified charge. Hetreated the burglary as the lead charge within the first group of offending. He settledon 17 months' imprisonment as the appropriate starting point for that group ofoffending.[9] He settled upon a starting point of 10 months' imprisonment for the drivingwhilst disqualified charge.8[10] Adding the two starting points together he made an adjustment for totality andsettled upon a globally adjusted starting point of 21 months' imprisonment.[11] Because the two sets of offending occurred while Mr Patangata was on bail,the Judge made an uplift of two months' imprisonment.8 With reference to Samson v Police [2015] NZHC 748.[12] The Judge made an uplift of one months' imprisonment for the history ofdishonesty offending.9[13] He gave a full discount of six months for the early guilty plea.[14] He noted a referral for restorative justice was made but "little more than that",noting the pre-sentence reports indicated he was a high-risk offender who did notaccept responsibility for his offending and did not expect to have to pay reparation.10The Judge said this "somewhat dampened" the claim that he wanted to take steps torehabilitate.11 While the Judge initially rejected a discount for remorse, he lateramended the judgment based on a letter Mr Patangata had written and deducted onemonth for remorse.[15] The final sentence was 17 months' imprisonment and disqualification fromdriving for one year and one day.[16] The sentencing exercise is summarised in table format below:Description Date Starting PointUsing a document for pecuniary advantage (x10). 12 February 2019 17 monthsTheft of petrol and confectionary valued around $30 28 April 2019Burglary of garden shed taking petrol and weed eater 1 May 2019Failing to answer District Court Bail 14 October 2019Failing to stop for enforcement officer 15 October 2019 Fine onlyUplift for driving while disqualified 15 October 2019 + 10 monthsTotality adjustment - 6 monthsSub total 21 monthsUplift for offending on bail + 2 monthsUplift for previous dishonesty offending + 1 monthGuilty plea discount - 6 months (25%)Reduction for remorse - 1 monthEnd sentence 17 months9 In accordance with the principles from Orchard v R [2019] NZCA 529.10 Police v Patangata, above n 1, at [18].11 At [20].Principles on appeal[17] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and therefore must only beallowed if the Court is satisfied that there has been (for any reason) an intrinsic errorin the sentence imposed, and that a different sentence should be imposed.12[18] The sentence must be either manifestly excessive or inappropriate if theappellate court is to interfere with the discretion.13[19] The focus is on the final sentence rather than the exact process by which it wasreached and whether the sentence was in the available range.14 As articulated inR v Peters:15As this Court has indicated on many occasions, the issue whether a sentenceis manifestly excessive or manifestly inadequate or inappropriate must beexamined in terms of the sentence actually passed rather than the preciseprocess by which it is reached. Thus, if a sentence might be the product of astarting point which is itself manifestly excessive but it is in the resultameliorated by allowances made for mitigating factors so as ultimately to bebrought to a point of acceptability, this Court will be disinclined to intervenethrough concern over any particular component.[20] Mr Patangata's appeal raises the following questions:(a) Was the starting point of 17 months' imprisonment in respect of the firstcategory of dishonesty offending excessive?(b) Should Mr Patangata have been granted leave to apply for homedetention?12 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.13 Affleck v Police [2017] NZHC 3220 at [9].14 Ripia v R [2011] NZCA 101 at [15].15 R v Peters CA12/03, 14 May 2003 at [13].Was the starting point for the burglary excessive?Appellant's submissions[21] Mr Terekia for Mr Patangata compared the present case to the facts inR v Columbus where Mr Columbus pleaded guilty to one charge of burglary,two charges of theft, possession of cannabis and possession of a pipe.16 In Columbusthe offending consisted of getting into a garage on a residential property, taking amountain bike, gardening tools and a toolbox. Mr Columbus then sold the bike. Hewent on to steal a lawnmower worth about $479.00. Having been granted bail, he thentook $68 worth of petrol from the petrol station.[22] In that case the Court of Appeal said a burglary in those circumstances wouldnot attract a starting point of more than one year imprisonment.17 A further uplift ofsix months was then applied to reflect the remaining offences and the fact that someoffences were committed while on bail.[23] Mr Terekia also submitted that the facts in Blance v Police were on foot withthe facts in this case.18 The offending in Blance involved going on to a residentialproperty and breaking into a shed to obtain fuel.[24] Finally, Mr Terekia submitted there was no premeditation in this offending andthat it arose as a result of the vehicle Mr Patangata and his associate were travelling inhaving problems. He referred to the fact that the offending occurred in the morningbut not the early hours. Because of these facts and the similarity to the facts ofColumbus19 and Blance,20 Mr Terekia submitted the starting point on the burglarycharge alone should have been no more than 12 months' imprisonment.16 R v Columbus [2008] NZCA 192.17 At [16].18 Blance v Police [2015] NZHC 2566.19 R v Columbus, above n 16.20 Blance v Police, above n 18.Respondent's submissions[25] Mr Stuart for the Police conceded that a starting point of 12 months'imprisonment for the burglary alone may have been appropriate having regard to thesimilarity of the facts in this case to those in Columbus.21Analysis[26] For present purposes I shall assume that a starting point of 12 months was moreappropriate having regard to the similarities between Columbus, Blance and this case.Was the uplift for the remaining offences in the first set of offending justified?Appellant's submissions[27] Mr Terekia referred to the fact that the theft consisted of taking $30 of fuel, anda Snickers bar, from a petrol station. The using a document charges related toMr Patangata using an EFTPOS card with PayWave. He used the card to obtain$577.73 worth of goods through a series of purchases.[28] Mr Terekia submitted that the uplift in Columbus was for six months and thatreflected the additional offending and the fact that some of that offending occurredwhile on bail.22 Mr Terekia accepted that in this case an uplift of two months from astarting point of a year would have appropriately reflected the additional offending,including the failure to answer bail.Respondent's submissions[29] Mr Stuart submitted that the dishonesty offending could not be adequatelyaccounted for by an uplift of two months. He submitted that a starting point of aroundsix months for these charges alone was available having regard to the following cases:(a) Palmer v Police23 – the appellant and his partner found an EFTPOScard with a pin number recorded on it. A total of $10,200 was21 R v Columbus, above n 16.22 R v Columbus, above n 16.23 Palmer v Police HC Rotorua CRI-2009-463-82 (4 November 2009).withdrawn over five days. The offending was described asopportunistic. A starting point of nine months' imprisonment wasadopted.(b) Horrell v Police24 – the appellant used bank cards stolen from aneighbour's property to withdraw $600 cash and purchase $133.15worth of goods. A starting point of six months' imprisonment wasconsidered appropriate.(c) Doctor v Police25 – the appellant used a stolen PayWave card 12 timesto purchase petrol, alcohol, food and tobacco. The total loss wasdescribed as a modest amount and in the hundreds rather thanthousands. A starting point of 12 months was considered appropriate.(d) Tiopira v Police26 – the appellant used a number of stolen credit andEFTPOS cards over a fortnight to obtain money and goods on33 occasions to the value of $11,606.21. The starting point of30 months' imprisonment was considered at the top of the availablerange.[30] Mr Stuart submitted that the overall starting point of 17 months could berepresented by a 12-month starting point for the burglary and five-month starting pointfor the other offending, and that was well within range having regard to the cases setout in [29].Analysis[31] Based on a comparison between this case and those listed in [29], I find thatthe remaining dishonesty offences could have attracted a six-month uplift.24 Horrell v Police [2016] NZHC 820.25 Doctor v Police [2017] NZHC 1084.26 Tiopira v Police [2012] NZHC 1720.[32] Therefore, the overall starting point of 17 months, represented by a 12-monthstarting point for the burglary and a five-month starting point for the other offending,was within the available range.[33] The subsequent adjustment for totality and the unchallenged adjustments to thestarting point cannot therefore be described as leading to a manifestly excessive endsentence.[34] Any reduction in this case would be so modest as to amount to mere tinkering,even if a slightly lower starting point may have been adopted by another Judge onanother day.[35] It follows I find there is no discernible error in this part of the sentence and theanswer to the first question on appeal is no.Should leave have been granted to apply for home detention?[36] In this case Mr Patangata did not seek leave to apply for home detention.Nevertheless, he was declined leave to appeal for home detention.Appellant's submissions[37] Mr Terekia submitted a useful analysis from the High Court in Kanuta v R:27[37] The principles in considering an appeal of this nature are well-established. When considering the imposition of a period of imprisonment fora particular offence, the Court must have regard to the desirability of keepingan offender in the community so far as that is practicable and consonant withthe community's safety. It follows from this principle that the Court mustimpose the least restrictive outcome that is appropriate in the circumstancesaccording to the hierarchy of sentences set out in the Act. The Court cannotimpose a sentence of imprisonment unless it is satisfied:(a) that the sentence is being imposed for a statutory purpose or purposes,that is: to hold the offender accountable; or to induce in him or her asense of responsibility; or to serve the interests of any victim; or todenounce the offending; or to deter; or to protect the community;(b) that those purposes cannot be achieved by a sentence other thanimprisonment; and27 Kanuta v R [2016] NZHC 436.(c) that no other sentence would be consistent with the statutoryprinciples as applied to the particular case.[38] Where the end sentence reached is a short term of imprisonment, theJudge must decide whether to commute that sentence to one of homedetention. But, as the Court of Appeal has said:28That does not mean that a short-term period of imprisonment mustalways be commuted to a sentence of home detention. That equallywould be an error of law. What it does mean is that the judge mustmake a considered and principled choice between the two forms ofsentence recognising that both serve the principles of denunciationand deterrence, and identifying which of them better qualifies as theleast restrictive sentence to impose taking into account all thepurposes of sentencing.[39] The choice between imprisonment and home detention must beintelligible. The Judge must properly identify and weigh the factors that reallycount.[38] Mr Terekia submitted that leave should have been granted to apply for homedetention for the following reasons:(a) The offending, while serious and aggravated by Mr Patangata's history,could not be described as high-level offending, and the total financialloss of the current offending would be less than $1,000.(b) The Senior Courts have recognised that home detention is in and ofitself a serious sentence and carries with it a significant degree ofdeterrence.(c) Mr Patangata was attempting to begin a rehabilitation programme atHe Waka Tapu prior to returning to the North Island.(d) Mr Patangata completed a three-month sentence of communitydetention in 2012 without breaching that sentence, and a similarsentence in 2010 with a single breach demonstrating an ability tocomply with community-based sentences.28 Fairbrother v R [2013] NZCA 340 at [30].Respondent's submissions[39] Mr Stuart relied on the following considerations evident in the Judge's decisionas justifying no leave being provided to apply for home detention:(a) Mr Patangata's previous sentences of imprisonment for similaroffending;(b) that the driving whilst disqualified represented Mr Patangata's 10thconviction for that offending;(c) Mr Patangata's high risk of reoffending; and(d) Mr Patangata's implausible denials about some aspects of hisoffending.[40] Mr Stuart submitted that the cumulative effect of those considerations gave theJudge significant latitude to refuse granting leave to apply for home detention.Analysis[41] I find the Judge was justified exercising his discretion to refuse to grant leaveto apply for home detention given the appellant's previous convictions (particularlyfor driving whilst disqualified). He has served previous terms of imprisonment fordriving whilst disqualified and denouncement and deterrence was justified in a furtherterm. It would be inconsistent with the principles of consistency for him to have beensentenced to a lesser sentence.[42] The Judge canvassed all matters relevant to leave for home detention includingthose in the previous paragraph and the consideration of prospective rehabilitationin [18]-[21] of his decision.[43] Finally, he noted no available address had been identified in which theappellant could serve home detention in any event.[44] Whilst the Judge did not expressly state he was determining the issue of thesuitability of home detention, it is clear from his judgment he had considered thepossibility and that for the very good reasons given in his decision he considered itinappropriate.Conclusion[45] The end sentence of 17 months' imprisonment was within the range availableto the Judge.[46] The Judge was correct in exercising his discretion to refuse to grant leave toapply for home detention, given Mr Patangata's previous convictions and sentences,and the lack of a suitable address.Result[47] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, GisborneWoodward Chrisp, Gisborne