WOOD v POLICE [2018] NZHC 1629

WOOD v POLICE [2018] NZHC 1629 [4 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000125[2018] NZHC 1629BETWEEN JOSHUA RODOP WOODAppellantAND NEW ZEALAND POLICERespondentHearing: 2 July 2018Counsel: CW Farquhar for AppellantNB Porter for RespondentJudgment: 4 July 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 4 July 2018 at 11 am.Registrar/Deputy RegistrarSolicitors/Counsel:CW Farquhar, Auckland.Crown Solicitor, Auckland.The appeal[1] Judge B A Gibson sentenced Mr Wood to a term of imprisonment of two yearsand eight months after his "one man crime wave".1 Mr Wood contends the sentenceis manifestly excessive by approximately eight months.2 Police submit the sentenceis comfortably within range. Central are charges of unlawfully taking a car; othercar-related dishonesty; and reckless driving. Mr Wood failed to stop for Police anddrove recklessly to escape them.Facts[2] On 17 September 2016, someone stole Mr Ben Townend's Mitsubishi Lancer.The car was worth $10,000. Days later Mr Wood attempted to "hot wire" it by crossingthe ignition wires. He could not. On 21 September 2016, someone stoleMs Cecelia Wu's Subaru car from her home. Mr Wood was seen driving it two dayslater, as captured by CCTV footage. Mr Wood was charged with unlawfullyinterfering with a car and unlawfully getting into a car.[3] On 17 December 2016, someone stole Mr Alexander McRobie's HondaTorneo. It was worth $5,000. Mr Wood took the car the next day from colleagues,using a screwdriver to start it. Days later Police noticed the car near Mr Wood's home.Inside his home, they found a cannabis "bong" and a glass pipe used to smokemethamphetamine. Mr Wood was charged with unlawfully taking a car, andpossession of utensils for both cannabis and methamphetamine.[4] On the afternoon of 10 February 2017, someone broke into Mr Dion Pou's car.And, stole his wallet. At 2.35 that afternoon, Mr Wood bought $59.29 of items usingMr Pou's ATM card. Mr Wood was charged with using the card for pecuniaryadvantage.[5] Overnight on 1 March 2017, Mr Wood stole Mr Joel Sunde's Mazda car worthapproximately $10,000. Six days later, Mr Wood stole $40 worth of petrol for it. The1 Police v Wood [2018] NZDC 5965 at [5].2 In the District Court, Mr Wood accepted the sentence might be as much as two years and threemonths' imprisonment.next day (7 March 2017) Police approached the car. Mr Wood and a friend wereinside. Mr Wood refused to get out and threatened the officers with a metal object.He resisted arrest. Police found a flick knife in the car, a screwdriver, torch, crowbarand homemade "ignition barrel puller". Mr Wood was charged with possession of aknife in a public place, unlawfully taking a car, resisting Police and possession ofinstruments for conversion.[6] On 14 September 2017, Mr Wood stole Mr Ovidijus Trinkunas' Honda Civic.The next day, he stole $40 worth of petrol. The Police helicopter was engaged. A"prolonged and dangerous pursuit" followed. Mr Wood:(a) Repeatedly failed to stop.(b) Drove up to 100 kilometres per hour in residential speed zones.(c) Mounted the footpath "multiple times". At one stage, Mr Wood "usedthe footpath like a road".(d) Ran "multiple" stop signs; and red lights.(e) Drove close to pedestrians at speed, and into oncoming traffic.[7] Mr Wood abandoned the car. In it, Police found screwdrivers, vice grips andpliers, as well as a pair of knuckle dusters, a taser and knife. When arrested shortlythereafter, Mr Wood said he did not stop as he did not want to go back to jail. Mr Woodwas charged with unlawfully taking a car, theft, failing to stop, reckless driving,possession of a restricted weapon and possession of an offensive weapon.[8] As will be apparent, much of Mr Wood's offending occurred while on bail. On2 June 2017, Mr Wood pleaded guilty to 17 charges:(a) Three of unlawfully taking a car.(b) Unlawfully interfering with a car.(c) Unlawfully getting into a car.(d) Two of stealing petrol.(e) Failing to stop.(f) Reckless driving.(g) Possession of utensils (the cannabis bong).(h) Possession of a methamphetamine pipe.(i) Two of possession of an offensive weapon (the knuckle duster and theknife).(j) Possession of a taser.(k) Possession of implements for conversion.(l) Using a document to obtain pecuniary advantage (the stolen ATM card).(m) Resisting Police.Sentence[9] The Judge adopted a starting point of 16 months' imprisonment in relation toMr Wood's first unlawful taking; see [2]. The Judge added 20 months' imprisonmentfor all remaining offences, and uplifted the 36-month starting point by six months:Mr Wood has a record of dishonesty, and as observed, many of the offences werecommitted on bail. The Judge then mitigated the sentence by four months forMr Wood's "good intentions as expressed in the restorative justice report", and thenby 15 per cent for his guilty pleas.Appeal grounds[10] Mr Wood takes no issue with the six-month uplift or restorative justicediscount. But on his behalf, Ms Farquhar contends the Judge adopted an excessivestarting point; failed to apply the totality principle; and gave inadequate discount forMr Wood's guilty pleas. For reasons that will become apparent, the first two pointsare conveniently addressed together.AnalysisStarting point and totality[11] Mr Wood's primary offence was unlawfully taking a car (x 3). The maximumpenalty is seven years' imprisonment.3 No guideline judgment exists. Case analysisis therefore necessary.[12] In Gibbons v Police,4 the defendant was convicted of a raft of offencescommitted over almost 12 months. These included three charges of unlawfully takinga car, one of unlawfully interfering with a car, and one of theft from a car. On appealto the High Court, Ronald Young J held a starting point of two and a half years'imprisonment in relation to the dishonesty offences was "easily justified".5[13] In Singh v R,6 the defendant took a car and unlawfully got into three others.He was also charged with three relatively minor thefts. The Court of Appeal concludedthe starting point of two and a half years' imprisonment was within the available range,albeit "near the top of that range".7[14] In R Gurnick,8 the defendant was found guilty of one charge of unlawfullytaking a car. The starting point appears to have been 18 months' imprisonment. TheCourt of Appeal upheld the sentence. The case was a little unusual in that there wereelements of "stand-over" and retribution: the victim had discovered a cannabis crop3 Crimes Act 1961, s 226(1).4 Gibbons v Police [2013] NZHC 2136.5 At [28].6 Singh v R [2011] NZCA 139.7 At [11].8 R v Gurnick CA286/05, 8 December 2005.and reported it to the Police. The Court of Appeal observed linkage to "drugoffending" and "an overlay of enforcement put this into the category of seriousproperty offending".9[15] In Taki v Police,10 the defendant was sentenced for one charge of unlawfullytaking a car, one of theft, one of being in an enclosed yard, and two charges of breachof parole conditions. The primary offence was the unlawful taking. The car was worth$2,000. Joe Williams J described the starting point of three years for the totality of theoffending as "stern but not manifestly excessive".11[16] In Bell v Police,12 the defendant unlawfully took a car, stole the stereo from itand then drove recklessly and while disqualified. The decision pre-dates clear startingpoint elucidation, but it must have been at least four years' imprisonment. Gendall Jdescribed this as "severe", and adopted a starting point of imprisonment of more thanthree years (the precise figure is unclear). As with Mr Wood, Mr Bell failed to stop.There was a "frenetic, lawless high speed" chase.13[17] Three other High Court decisions involve similar offending; a single instanceof unlawful taking and related Police evasion: O'Sullivan v Police;14 Ratahi v Police;15and Edwards v Police.16 Each is briefly discussed.[18] In O'Sullivan v Police, the defendant pleaded guilty to six charges: unlawfullytaking a car, driving while disqualified, failing to stop, driving with excess breathalcohol, resisting arrest and possession of cannabis. Police observed the defendantdriving the car on State Highway 2. He did not stop, and was pursued for17 kilometres. The defendant reached speeds of up to 150 kilometres per hour;17 drove9 R v Gurnick, above n 8, at [25].10 Taki v Police HC Rotorua CRI-2010-470-25, CRI-2010-470-26, 2 July 2010.11 At [23]. The Judge's assessment appears to have been influenced by Mr Taki's criminal record,which disclosed extensive convictions for dishonesty. Somewhat unorthodoxly, that record wasnot separately analysed.12 Bell v Police HC Napier AP58/97, 11 September 1997.13 At p 3.14 O'Sullivan v Police [2015] NZHC 2032.15 Ratahi v Police [2014] NZHC 2394.16 Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010. See also Woolston v Police[2017] NZHC 1079.17 O'Sullivan v Police, above n 14, at [3]–[4].through road spikes and kept going. He eventually stopped but then ran away, andresisted arrest. He was intoxicated too.18[19] On appeal, the High Court adopted a starting point of 12 months' imprisonmentfor the lead charge of unlawfully taking a car. An uplift of eight months wasconsidered appropriate for the associated offending, including the Police pursuit anddriving with excess breath alcohol. The result: a global starting point of 20 months'imprisonment.19[20] In Ratahi v Police, the defendant pleaded guilty to charges of unlawfully takinga car, reckless driving and failing to stop. The defendant broke into a car parked onthe street, hotwired the ignition and drove away. Later that evening, Police tried tostop the car (to conduct a routine breath-test). The defendant accelerated away. Hedrove faster than 80 kilometres per hour in a residential speed zone; through a stopsign; and then at open road speed in 60 and 70 kilometre per hour areas.20 Thedefendant lost control of the car. He too ran off, but was caught.21[21] The High Court held a starting point of not more than 18 months' imprisonmentshould be adopted for the unlawful taking, with an uplift of one month for the balanceof charges.22[22] In Edwards v Police, the defendant pleaded guilty to charges of unlawfullytaking a car, driving in a dangerous manner, driving while disqualified, unlawfullyinterfering with a car and breaching conditions of home detention. The defendant hadstolen a car and was located the next day by Police. He drove away.23 The defendantwove through traffic; crossed the centre line several times; and drove on the wrongside of the road at speeds between 120 and 130 kilometres per hour. He also drove thewrong way up an off-ramp. Oncoming traffic forced him to make a u-turn; and he18 O'Sullivan v Police, above n 14, at [4]–[5].19 At [20]–[21].20 Ratahi v Police, above n 15, at [1]–[3].21 At [4]–[5].22 At [22].23 Edwards v Police, above n 16, at [4].careered off the road.24 Like driving continued until the defendant eventuallyabandoned the car.[23] The High Court adopted a starting point of 15 months' imprisonment for thecharge of unlawfully taking a car. The Court applied an uplift of three months forassociated offending.25[24] All this suggests a single unlawful taking charge can give rise to a starting pointof at least 18 months' imprisonment, if the offence has a significant aggravating featureor features; see Gurnick. If a defendant unlawfully takes a car and attempts to evadePolice in a chase, typical global starting points range between 18 and 20 months'imprisonment; see O'Sullivan, Ratahi and Edwards. But, an especially badconstellation can attract more; see Bell. If a defendant unlawfully takes several cars,or takes one and engages in other similar dishonesty, a starting point of two and a halfyears' imprisonment or more may follow; see Gibbon, Taki and Singh.[25] Ms Farquhar placed significant reliance on Gibbon. There, up to $20,000 ofdamage was caused. However, Gibbon did not involve reckless driving or Policepursuit.26 Nor did it involve possession of various offensive weapons. Moreover,Ronald Young J did not identify a ceiling. As will be recalled, the Judge said a startingpoint of two and a half years was "easily reached".[26] Mr Wood's offending on 14 and 15 September 2017—see [6] and [7]—warranted a starting point of not less than 20 months' imprisonment. After unlawfullytaking a car, Mr Wood drove recklessly to evade Police. Only by chance was no oneseriously injured—or worse. And, weapons were found in the stolen car, including aknife and taser.[27] The balance of Mr Wood's offending, if treated separately from the 14 and 15September offending, could have attracted the same term; see [2]–[5]. The remainingoffences constituted a catalogue of crime: unlawfully taking a car (x 2); unlawfully24 Edwards v Police, above n 16, at [4].25 At [18].26 The defendant took the cars on "joyrides", thereby damaging them. However, he did not engagein reckless or dangerous driving.interfering with a car; unlawfully getting into a car; stealing petrol; possession ofutensils; possession of a methamphetamine pipe; possession of a knife in a publicplace; resisting Police; possession of instruments for conversion; and using a bankcard for pecuniary advantage. This also addresses Ms Farquhar's submission theJudge made no explicit allowance for totality. The Judge adopted a global startingpoint of 36 months—not 40 months, in turn implying a reduction of 10 percent fortotality.Guilty pleas[28] Mr Wood first appeared in the Waitakere District Court on 26 December 2016.As will be recalled, he pleaded guilty on 2 June 2017. Ms Farquhar contends the Judgeerred in not affording a greater discount than 15 percent, as guilty pleas wereforeshadowed from 16 March 2017.[29] I agree with the Judge. It is one thing to signal a guilty plea; it is another toenter one. Until a defendant pleads guilty, victims, witnesses and others cannot knowthe case is over. The same is true of everyone and everything else connected with thecase—courts included. As Judge Gibson observed, the evidence against Mr Wood wasstrong. He admitted most of the offences to Police. There was other evidence too,including CCTV footage and footage from the Police helicopter. Fifteen percent wascorrect.Result[30] The appeal is dismissed.[31] I thank counsel for the quality of their submissions, especially their writtensubmissions...Downs J