PRICE v POLICE [2021] NZHC 3265

PRICE v POLICE [2021] NZHC 3265 [20 December 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-443-47CRI-2021-443-48CRI-2021-443-49[2021] NZHC 3265BETWEEN KAOSS WAYNE PRICEAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2021Appearances: N Bourke for AppellantJ M Marinovich for RespondentJudgment: 20 December 2021JUDGMENT OF GRICE JOverview[1] Mr Price appeals his sentence1 of two years and six months' imprisonment ona lead burglary charge2 and 32 other charges that include reckless driving, motorvehicle theft, offensive weapon, police chases, failing to stop, escaping custody andtheft.[2] Mr Price appeals on the basis that the combined uplift for the other charges of33 months was manifestly excessive, that insufficient credit was given to his youth,and that the end sentence was manifestly excessive. The offending occurred over aperiod of approximately 12 months: November 2020 to October 2021.1 Police v Price [2021] NZDC 21466.2 Crimes Act 1961, s 231: maximum penalty of 10 years' imprisonment.Background[3] In addition to the lead burglary charge, the sentencing Judge analysed thebalance of the offending in four groupings.[4] As the appeal turns on whether the uplifts for various groups of offences whentaken cumulatively reflected the totality of the offending, I set out the facts in fullfollowing the Judge's analysis.8 July 2021 (lead burglary)[5] Mr Price went into the victim's home through an unlocked front door and wentinto the living room area. Mr Price sat down and smoked a cigarette inside beforetossing it on the floor. He then took a set of car keys for a Bighorn vehicle owned bythe victim and drove it away. The victim was awoken by the sound of his vehiclebeing taken from the address and driven down the drive.Offending set 1: 5 November 2020[6] In the early hours of the morning, Mr Price drove to a service station, fuelledup with $60 worth of petrol and drove off without paying. He was suspended fromdriving at the time.[7] Later that morning, at 8.35am, a police car attempted to stop the appellant andturned on its red and blue lights. Mr Price accelerated toward a shopping area, took awide turn and momentarily lost control, before continuing toward oncoming traffic.The vehicle then approached a pedestrian crossing where school children were forcedto take evasive action to avoid being hit. The police pursuit was abandoned.[8] Shortly afterwards, the appellant's vehicle crashed into two occupied vehicles,one of which had young children inside. The appellant drove away from both crashes.He stopped a short while later and ran but was arrested. Following a car search,2.5 gram of methamphetamine was found along with a knuckle duster. A compulsoryimpairment test showed the appellant had methamphetamine and cannabis in hisblood.Offending set 2: 18 May to 6 July 2021[9] On 18 May, Mr Price was given keys to a car which he promised to return thatevening. He did not. Following inquiries made by the victim's family, the car waslocated and recovered. However, the appellant took the car again that evening.[10] On 21 May, the appellant drove the car to a petrol station, filled it up with $30worth of petrol before driving off without paying. An employee ran out. The mannerin which Mr Price drove led the employee to believe he was going to be hit.[11] On 22 May, the appellant went to another gas station, filled it up with $50worth of petrol and drove off again without paying. Later that day, Mr Price was apassenger in the car when police signalled the car to stop. After the driver got out andapproached police, Mr Price moved into the driver's seat and drove off at speed. Policefollowed and signalled to stop with red and blue lights, but due to the speed, the policedid not pursue.[12] The next day, the appellant drove to a different gas station and again droveaway without paying for $50 worth of petrol.[13] On 28 May, the appellant was found at an address where police were makingenquiries. When he was told he was under arrest, Mr Price resisted and tried to breakfree as a police officer tried to hold him to be handcuffed. Mr Price broke free, sprintedaway and was unable to be located.[14] On 1 June, the appellant was at a bar where he took a victim's keys to her caras well as her wallet and took the victim's car.[15] The next day he was driving that car when police spotted him and signalledhim to pull over. The appellant complied. As police approached the vehicle, he spedoff. Later that day, the vehicle was located abandoned.[16] On 4 June, the appellant, driving a different car, was pulled over by police. Hedrove off and was unable to be located.[17] On 13, 14 and 16 June, Mr Price drove to three different petrol stations and hedrove off without paying for fuel he took, amounting to $90, $60 and $80 worth,respectively.[18] On 24 June, Mr Price attempted to do the same. A police car then parked infront of the appellant's vehicle. Mr Price stopped refilling, threw the fuel hose overhis roof, moved into the driver's seat and reversed at speed. The police followed theappellant with active red and blue lights. The appellant accelerated and drove throughseveral stop signs, driving approximately 100km per hour, in a 50 km per hour zone.At one point he swerved into and narrowly missed a parked police car. The appellantalso drove on the wrong side of the road.[19] On 6 July the appellant drove a car that had earlier been stolen to a gas stationbefore driving off with $139.24 worth of fuel without paying.Offending set 3: 22 October 2020[20] Having been bailed to his grandmother's home, the appellant removed a goldring from her handbag. When asked to return it, Mr Price responded, "get fucked".While she slept, Mr Price located keys for a car parked outside and drove off, at whichpoint he was suspended from driving. Later, the victim noticed her ring, iPhone andtinderbox were missing, valued at $2,780.Offending set 4: Other offending[21] On 25 July 2020, the appellant stole a tip jar containing $150 from anunattended counter at a cinema.[22] On 3 October 2020, the appellant stole an iPhone containing a debit card,which he used to purchase goods at two gas stations, totalling $58.40.[23] The appellant also stole a car which contained the victim's keys and wallet. Heused two bank cards to purchase goods at two locations, totalling $181.17.[24] On 22 October 2020, the appellant was served with a three-month demeritsuspension, in breach of that suspension. On 1, 3, 9 and 24 November, the appellantdrove to different gas stations and drove off with $80, $30, $100 and $80 worth ofpetrol without paying, respectively. On the second occasion the store attendantinactivated the pump when Mr Price attempted to put in more petrol.[25] Later, on 3 November, police followed the appellant and active blue and redlights. Mr Price accelerated and narrowly missed a collision.District Court decision[26] The Judge first noted the lead charge was a "reasonably serious burglary",involving breaking into in a dwelling house, while the victim was at home asleep. TheJudge set a starting point of 18 months. No issue is taken with this starting point onappeal.[27] The Judge then set out the factual background of the four sets of offending andapplied the relevant uplifts:(a) nine months was given on a totality basis for all offending on 5November;(b) nine months was given on a totality basis for all offending between 18May and 6 July;(c) six months was given for the specific offending on 22 October; and(d) nine months for the remaining charges, a review of the earlier sentencesand offending while on bail.[28] The Judge gave a 25 per cent discount for Mr Price's guilty plea. He noted the"illuminating" information in the cultural report, for which a 15 per cent discount wasapplied, totalling 21 months.[29] This led to an end sentence imposed of two years and six months'imprisonment.Law on appeals against sentence[30] Section 250 of the Criminal Procedure Act 2011 governs first appeals againstsentences. It provides that an appeal court must allow the appeal if for any reasonthere is an error in the sentence imposed and a different sentence should be imposed.[31] The focus is on the end sentence rather than the process by which the sentenceis reached.3 The Court will not intervene where the sentence is within range and canbe justified by accepted sentencing principles.4[32] If an appeal is allowed this Court may set aside the sentence and imposeanother sentence, vary the sentence or any part or condition of the sentence or remitthe sentence to the District Court with directions to amend the sentence.5Summary of submissions[33] The appellant submits that insufficient regard was given to the totality principlein applying the uplifts. The appellant says that an adjusted starting point in the rangeof three to three and half years' imprisonment would be appropriate. As for a youthdiscount, the appellant submits that, in light of Churchward v R (as discussed below),6a discount of 15 per cent should have been applied. No issue is taken with the 18-month starting point for the lead burglary charge.[34] The respondent submits that each set of uplifts were appropriate given theoffending, and that the overall starting point of 51 months (four years and threemonths) was appropriate to reflect the totality of the offending. The offender wasdescribed as a "one-man crime wave" who placed the public in danger on severaloccasions. The respondent also submits that, at most, a credit of five percent could be3 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR482 at [36].4 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].5 Criminal Procedure Act 2011, s 251.6 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.given for youth and this would merely be tinkering with the sentence. Standing back,the end sentence was not out of proportion with the gravity of the totality of theoffending.Uplifts for offendingAppellant submissions[35] The appellant submits that, although mentioned, the Judge gave insufficientregard to the totality principle. Not only should each offence be consideredindividually, but the offender's overall culpability should be assessed to determinewhat sentence appropriately reflects the totality of their conduct.7 In this case, thetotal end sentence should not have been determined sequentially and adjusted for eachindividual offence or group of offences but rather, the analysis should have beenguided by the appreciation that the total period of imprisonment should be inproportion to the overall offending.8[36] The appellant notes that the 51-month starting point greatly exceeds that takenin any of the authorities cited for offending "sprees" with a lead burglary charge.[37] Most offending was low-level, the defendant says. The thefts, involving goodsof less than $500 in value had maximum penalties of three years. This is borne out bythe relatively low level of reparation sought by police, of $4,119.40. The appellantsubmits such offending pales in comparison to that in Hamilton v Police, where 19separate burglaries with a total value of over $100,000 led to an adjusted starting pointof three years and 10 months.Respondent submissions[38] For the 5 November 2020 offending, the respondent submits that the ninemonths was within range, given the totality of the offending. The respondent refers tothe desperate and extremely dangerous driving that placed young children near a7 R v Bradley [1979] 2 NZLR 262 (CA); R v Strickland [1989] 3 NZLR 47, (1989) 4 CRNZ 632;and R v Dodd [2013] NZCA 270 at [32]-[33].8 Haywood v R [2015] NZCA 551; and Ogden v R [2016] NZCA 214 at [64].school pedestrian crossing in clear danger. The cumulative sentence was warranted asthe offending was discrete and unrelated (to the lead burglary charge).[39] For offending between 18 May and 6 July, the respondent submits the unlawfultaking of a motor vehicle, escape from custody, operating a vehicle dangerously andvarious thefts could have justified a starting point between 18 months and two years,in light of Wood v Police.9 The cumulative sentence was warranted and lenient.[40] The respondent submits the 22 October offending involved theft of goods of arelatively significant amount ($2,780 in value) as well as unlawful taking of a motorvehicle, which, in light of Wood v Police, would have justified a starting point of 15to 18 months. The six-month10 cumulative sentence for that offending is within range[41] The respondent submits that the "other" offending is to insignificant, andtherefore an uplift for this totality is not excessive.Analysis[42] The appellants pointed to the case of Nelson v Police, in which a two year andfour-month starting point was set for a 22-year-old who pleaded guilty to a leadburglary charge and a raft of other charges not dissimilar to those in present cases.11The appellant also pointed to other cases involving less serious offending with lowerstarting points.[43] In relation to Nelson, there are some clear differences with the present case.The most significant is that Nelson did not feature the reckless driving and endangeringof the public that is apparent in this case. These factors bear on totality.[44] The Crown referred to Wood v Police. It says the specific penalties applied tothe sets of offending here might be seen as lenient in comparison. This is in view ofthe fact the Court has said the single unlawful taking charge can give rise to a startingpoint of 18 months "if the offence has a significant aggravating feature or features".129 Wood v Police [2018] NZHC 1629.10 The Crown submissions refer to nine months.11 Nelson v Police [2019] NZHC 2434.12 Wood v Police, above n 9, at [24].[45] Some of the groupings of the offences involved repeated low-level theft atpetrol stations. The repetitive nature does increase the seriousness of the offending.[46] This case is more serious than that of Nelson for the reasons stated above.However, Hamilton v Police was significantly more serious in relation to the numberof burglary charges and the significant amount of stolen goods. However, the presentcase does have the added factor of public endangerment.[47] The totality principle requires consideration of all the offending, rather thansimply discrete uplifts for sequential groupings of events. In each grouping, the upliftsappear within range. However, it is their combined amount that seems out ofproportion with the offending, especially in light of the authorities cited.[48] In my view while the discrete sets of offences were properly analysed thesentence uplift applied for those on a cumulative basis (including the uplift foroffending while on bail) led to a totality which was out of range. The starting point of51 months was manifestly excessive. A starting point between 40 to 45 months wouldbe the range.Youth discount[49] Youth discounts are not automatic but require reference to the defendant's ageat the time of the offence.13 The Court of Appeal in Churchward described in detailwhy such discounts are applied to take into account the neurological differencebetween young people and adults (which bear on culpability) and the adverse effect ofimprisonment on young people.14 Such a discount will also vary by circumstance.15In Pouwhare v R, the Court of Appeal stated:16 the fact than an offender is a young person can sometimes be given radicaleffect on sentence, unconstrained by any normative percentage, even whereoffending is serious. In other cases that is not possible. The young age of theoffender cannot be accorded presumptive, let alone paramount, weight. Theobjective seriousness of the offending, the young person's part in it, anythingaggravating and otherwise mitigating must also be weighed. 13 R v LB [2020] NZHC 94 at [42].14 Churchward v R [2011] NZCA 531 at [78]-[85].15 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [83].16 At [96].[50] The appellant notes the case of Waikato-Tuhenga v R,17 where a discrete 15 percent discount was allowed for youth in addition to a 15 per cent discount for theappellant's personal and cultural background. In this case, the appellant says theoffending is the architype of that described in Churchward. Mr Price was young,immature and making impulsive decisions that lacked judgment. This was the sort ofoffending described in Nelson v Police as youthful, impulsive, stupid, substance-fuelled offending committed by a young person without structure in life. Therefore, adiscount of 15 per cent would be warranted.[51] The respondent submits that such a discount is not presumptive but weighed inan objective analysis against the seriousness of the offending. Mr Price was alreadysubject to a sentence of supervision for other offending. He has committedconsistently over a significant period of time, on occasions putting the public at risk.At most, only a five per cent discount could be given. Mr Marinovich, for therespondent, acknowledged the factor of youth had not been considered and shouldhave been.[52] Youth is an important factor here. The offending has the hallmarks of the typeof offending discussed in Churchward and Nelson. Some offending involvedhighspeed chases, which did put the public at risk and is a factor to be taken intoaccount when considering a discount for youth.[53] Churchward has recognised that Mr Price's behaviour may in part beattributable to brain development, which in young males may remain immature up tothe end of a person's twenties. There will be occasions where the public interestrequires the discount that would otherwise be applied for youth to be reduced.18 Suchoccasions have included motor manslaughter19 or serious violent offending wheredeterrence and public protection have prevailed.20 However, despite the fact therewere vehicle offences which put the public at risk, I do not consider Mr Price'soffending to fall into a category that requires the discount for youth to be reduced.17 Waikato-Tuhenga v R [2021] NZCA 503.18 Tahuri v R [2013] NZCA 254 at [42] and [43].19 Ormsby v R [2013] NZCA 578.20 Arahanga v R [2014] NZCA 379.[54] I also note that some of the factors considered in the cultural report also bearout that youth was a factor in this offending. In Mr Price's case, this is particularlyexacerbated by the lack of support and his transient and chaotic family life. It isperhaps surprising that this is the first non-community-based sentence Mr Price hasfaced.[55] I reach the conclusion, given the factor of his youth, a discount of 10 per centis appropriate in these circumstances.Conclusion[56] I conclude the uplifts applied were manifestly excessive and there was an errorin the totality consideration. An additional discount for youth would be appropriate inthis case. Failure to consider that factor was an error.[57] Taking a starting point of 45 months and a discount for the guilty pleas (25 percent), with personal background factors attracting a discount (15 per cent) and youth(10 per cent), the result is an end sentence in the vicinity of 23 months imprisonment.This is not an exact arithmetical exercise but, in my view, that reflects the totality ofthe offending, taking into account the youth and personal factors. It is also sufficientto reflect the principles of sentencing, including deterrence and denunciation, but isthe least restrictive in the circumstances.[58] This makes Mr Price eligible for home detention.21 There is currently noaddress available under the pre-sentence report.[59] The report also notes Mr Price is at a high risk of reoffending. The culturalreport notes his high level of immaturity and lack of support. There are not strongindications supporting rehabilitation however that must be balanced against hisrelative youth and background to date.[60] I grant leave to apply to the District Court for substitution of the sentence ofimprisonment for one of home detention if a suitable residence is found. If such an21 Under s 80I(2) of the Sentencing Act 2002.application is made, the Judge hearing that application will have the benefit of mycomments as to the nature of the offending when considering the suitability of theproposed residence and appropriate conditions.Result[61] The appeal is allowed. The sentence is quashed. A sentence of 23 months isimposed with leave to apply for home detention.___________________Grice JSolicitors:Bourke Law, Ngāmotu | New Plymouth, for the Appellant.Crown Solicitor, Ngāmotu | New Plymouth, for the Respondent.