TITO-FURZE v NEW ZEALAND POLICE [2021] NZHC 2784

TITO-FURZE v NEW ZEALAND POLICE [2021] NZHC 2784 [18 October 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-34[2021] NZHC 2784BETWEEN KARN TITO-FURZEAppellantAND NEW ZEALAND POLICERespondentHearing: 12 October 2021 (via AVL)Appearances: J C Hannam for Appellant L A Blencowe for RespondentJudgment: 18 October 2021JUDGMENT OF ISAC JIntroduction[1] The appellant, Mr Tito-Furze, was sentenced to 18 months' imprisonment on a range of charges.1 He now appeals his sentence.The offending[2] Over a three-week period Mr Tito-Furze committed 15 offences. At the centre of them are his use of methamphetamine.20 April 2021[3] In the afternoon of 20 April 2021, Mr Tito-Furze was driving a vehicle in New Plymouth. Police had become aware of his driving as a result of an incident the day before, and subsequent traffic complaints from members of the public.1 Police v Tito-Furze [2021] NZDC 17649.[4] Police stopped the appellant's vehicle using road spikes after he failed to stop when signalled.[5] After his arrest, the defendant underwent a compulsory impairment test, and a subsequent blood test was found to contain methamphetamine.[6] Mr Tito-Furze pleaded guilty to a charge of driving while impaired.226 April – 3 May 2021[7] On six separate occasions between 26 April and 3 May 2021, Mr Tito-Furze drove into service stations and stole petrol. The total value of petrol stolen was $1289.32. Three of the offences related to stealing fuel worth $281.74, $352.91 and $423.61 respectively. Of note, however, is that he returned to steal petrol from two of the service stations. Five of the six stations were operated by Z Energy.[8] Mr Tito-Furze pleaded guilty to a further six charges of theft (under $500).315 May 2021[9] In the early hours of 15 May 2021 the owner of a motor vehicle parked in New Plymouth had her car stolen. Later that day Mr Tito-Furze drove the car to a service station in Stratford and stole $61.01 of petrol. It was another Z Energy station.[10] At 7.50 pm the same day Mr Tito-Furze and a co-offender went to the Z Energy service station in Rata Street, Inglewood. This was the same station he stole petrol from on 3 May 2021.[11] When he arrived, he was wearing a hood over his head and a mask over his face. The number plates of the vehicle that had been stolen earlier that day had been removed. These steps had been undertaken to conceal Mr Tito-Furze's identity.2 Land Transport Act 1998, s 57(A)(1) – maximum penalty 3 months' imprisonment or a $4,5000 fine.3 Crimes Act 1961, ss 219 and 223(d) – maximum penalty 3 months' imprisonment.[12] Mr Tito-Furze and the co-offender then set about pumping petrol from two bowsers into two large 200 litre plastic drums situated in the rear of the vehicle. When a service station attendant intervened, they drove away with $709.78 of petrol.[13] Police located Mr Tito-Furze driving the stolen car as it approached the township of Waitara. They followed the vehicle around the Waitara rural area before setting spikes on State Highway 3.[14] Mr Tito-Furze avoided the spikes by driving across the centreline, giving rise to a charge of dangerous driving. He then turned around and drove back into Waitara township. A police patrol vehicle activated its red and blue lights and siren but the appellant failed to stop. Police then used two vehicles to try and slow the appellant's car. He then rammed both police vehicles before he was forcibly stopped.[15] As officers sought to arrest him, Mr Tito-Furze fought with the arresting officer. And, finally upon return to the police station, Mr Tito-Furze refused to undertake a compulsory impairment test. He told police "I think I've been drugged".[16] The events of 15 May gave rise to eight charges:(a) Unlawfully taking a motor vehicle;4(b) Two charges of theft (under $500 and $500–$1000);5(c) Dangerous driving;6(d) Failing to stop for red and blue flashing lights;7(e) Resisting arrest;84 Section 226(1) – maximum penalty seven years' imprisonment.5 Section 219 and 223(c) – maximum penalty one year imprisonment.6 Land Transport Act 1998, s 35(1)(b) – maximum penalty three months' imprisonment or a $4,500 fine.7 Sections 52A(1)(a)(ii) and 114(2) – maximum penalty $10,000 fine.8 Summary Offences Act 1981, s 23(a) – maximum penalty three months' imprisonment or $2,000 fine.(f) Wearing a disguise intending to commit an imprisonable offence;9 and(g) Refusing to undergo a compulsory impairment test.10[17] The charge of unlawfully taking a motor vehicle, laid under s 226(1) of the Crimes Act 1961, was reduced to a charge of unlawfully getting into a vehicle under s 226(2) by the time Mr Tito-Furze entered his plea and was sentenced. This had the effect of reducing the maximum penalty from seven years' imprisonment to two.Decision under appeal[18] After outlining the facts of the offending, the Judge noted Mr Tito-Furze has 52 previous convictions which included two for driving with excess breath alcohol,11a conviction for failing to stop, two for dangerous driving and a number of convictions for possession or supply of Class A and B drugs.12 The Judge noted an absence of remorse and an assessed high risk of re-offending.13[19] Turning to the submissions on sentence, the Judge noted:[9] Probation conclude that your response to community-based sentences has been poor; lack of motivation, poor compliance and a lack of engagement. You have been in custody for the last three and a half months and it is suggested that I sentence you to seven months' imprisonment which would be time served. The police say it should be a little bit more than that, it should be 10 months. I disagree with both. If I am way off beam, I will find out in a few weeks' time but I put things higher than that.[10] The protection of the community is now upper most, Mr Tito-Furze, I am sorry. Your rehabilitation now comes second to that. Some of these offences put a lot of people in danger. The way you drove, the way you rammed the police cars, the way you drove whilst impaired.[20] The Court then considered the appropriate starting point should be set by reference to the three sets of offending:149 Crimes Act 1961, s 233(1)(b) – maximum penalty three years' imprisonment.10 Land Transport Act 1998, s 60(1)(d) – maximum penalty three months' imprisonment or $4,500 fine.11 Of relevance to the driving while impaired and refusing to undertake an impairment test charges.12 Police v Tito-Furze, above n 1, at [6].13 At [7].14 At [11].(a) for the offences committed on 20 April 2021, a starting point of two months' imprisonment was adopted;(b) for all eight offences committed on 15 May, the Judge considered a cumulative and discrete 17 months' starting point was appropriate; and(c) for the six charges of theft of petrol, a further cumulative sentence of six months was identified.[21] That brought a total starting point on all 15 charges of 25 months. The Judge gave a seven-month discount to reflect early guilty pleas and the fact that the appellant had just become a father. There was no discount to reflect the role of the appellant's addiction in the offending. Accordingly an end-sentence of 18 months' imprisonment was imposed.15 Leave to apply for home detention was declined and standard release conditions for a period of six months' post-sentence were imposed. One special condition was added, requiring Mr Tito-Furze to undertake any programme as directed by a probation officer. Finally, Mr Tito-Furze was disqualified from driving for a total period of 18 months.16Grounds of appeal[22] Two grounds of appeal are advanced:(a) First, that the overall starting point adopted was too high;(b) There ought to have been a deduction made to reflect the appellant's drug addiction and the approach in Zhang v R.17Approach on appeal[23] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there15 At [12].16 At [15].17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.has been an error in the imposition of the sentence and that a different sentence should have been imposed.18 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.19 It is only appropriate for this Court to intervene and substitute its own view if the sentence being appealed is "manifestly excessive".20[24] The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.21My assessment[25] I am not satisfied that either ground of appeal is made out, or that the sentence imposed was manifestly excessive.Starting point[26] Mr Hannam submitted that the sentence imposed for the theft charges was too high given the culpability present and the total value of the petrol stolen was, by his count, $1,704.89.22 These were said to be "rudimentary thefts". In addition, the real error below was said to be the starting point for the offending on 15 May 2021. Rather than the 17 months adopted by the District Court, an eight month sentence was said to be appropriate.[27] I do not accept the appellant's submission.[28] There were 15 charges in all before the Court. While the bulk of them were for theft, the charges of unlawfully getting into a motor vehicle and wearing a disguise for a criminal purpose carry maximum penalties of two years' and three years' imprisonment respectively.18 Criminal Procedure Act 2011, ss 250(2) and 250(3).19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].20 Ripia v R [2011] NZCA 101 at [15].21 At [15].22 My calculation of the value of stolen petrol, based on the summaries of fact, is $2,060.11, but nothing ultimately turns on the difference.[29] The spate of offending on 15 May gave rise to eight offences. It was not limited to dishonesty offending. I agree with the Judge that the appellant's dangerous driving created a serious risk of harm to the public, the attending police officers who intervened, and to Mr Tito-Furze himself.[30] Starting points of between six and eight months have been considered appropriate on a single charge of unlawfully getting into a motor vehicle.23 In my view, a higher starting point than eight months would have been warranted in this case. The vehicle was stolen for use in other criminal offending, namely theft of petrol. Its licence plates had been removed to facilitate that purpose. Mr Tito-Furze was in control of the vehicle, and he was the principal user of the vehicle in the driving offences that followed. Overall, a starting point of at least 10 months measured against a two-year maximum penalty would have been be appropriate.[31] Even so, if we take an eight month starting point for the lead-charge, the overall starting point adopted by the Judge of 17 months for all 8 offences would mean no more than nine months' imprisonment encompassed seven charges which at their core involved dangerous driving endangering the public and police, refusing to undergo a compulsory impairment test, as well as two discrete charges of theft, one of which targeted a victim who had already been the subject of Mr Tito-Furze's offending on 3 May. Viewed in totality, the overall starting point of 17 months cannot be criticised.24[32] There is a further problem for this ground of appeal. The Judge did not provide any uplift to reflect Mr Tito-Furze's previous convictions. As noted, he has previous convictions for unlawfully getting into a motor vehicle, failing to stop, dangerous driving, and a number of dishonesty convictions, including one for burglary. The23 Kara-Newcombe v Police [2018] NZHC 25 at [10]–[12]; and Wheeler v Police [2018] NZHC 1695 at [13]–[14].24 This is consistent with other cases with similar fact patterns, although more serious charges. See, for example: Hindmarsh v Police [2019] NZHC 160 (two and a half year starting point imposed for five charges arising from a series of offending, including two charges of burglary, unlawfully taking a motor vehicle, failing to stop and dangerous driving); and Singh v Police [2011] NZCA 139 (appellant faced eight charges for unlawfully getting into a motor vehicle, unlawfully taking motor vehicle, theft, and driving while disqualified. Court of Appeal accepted a starting point of two and a half years was within range, although at the top end.)appellant's criminal history would have warranted a discrete uplift of between 10– 20 per cent.25 Given the absence of any uplift, Mr Tito-Furze's criticism of the starting point falls away; that is because the end sentence could not have been manifestly excessive.Lack of discount to reflect addiction[33] The essence of this ground of appeal is that the offending was undertaken as a result of, and to enable, Mr Tito's Furze's addiction to methamphetamine, and therefore warranted a discrete discount.[34] The pre-sentence report provides some insight into Mr Tito-Furze's addiction and its connection to his offending. It discloses that he "wanted to get some P" and "stole petrol to get it". He "needed time in jail to get off the P", and he doubted he could have stopped using methamphetamine if he had not been placed in custody.[35] While I readily accept Mr Hannam's submission that the offending clearly has a link to Mr Tito-Furze's addiction to methamphetamine, that does not mean he automatically qualifies for a discount to reflect reduced moral culpability. If it appears an offender finds it difficult or impossible to avoid offending, this may increase the importance of community protection in the sentencing process.26 In Bugmy v R, the High Court of Australia said:27An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[36] The same principle applies to the consideration of discounts for addiction. If on the information available there is no realistic prospect of drug rehabilitation or willingness on the part of the defendant to address their addiction, protection of the community may become the dominant consideration at sentencing. Equally, the period of imprisonment serves a rehabilitative role; it provides an offender with a period25 See, for example, Kara-Newcombe v Police, above n 23.26 Poi v R [2020] NZCA 312 at [27].27 Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [44].removed from drug use. Mr Tito-Furze's comments to the probation officer appear to be an acknowledgment of that.[37] The view taken by the Judge in this case was supported by the information in the pre-sentence report. I agree with his assessment, and do not consider this is an appropriate case for a discount to reflect the role of addiction in the offending.Result[38] For the foregoing reasons, the sentence imposed was within range, and unaffected by an error in approach. The appeal is dismissed.Isac JSolicitors:Hannam & Co. Lawyers Ltd, New Plymouth for AppellantCrown Solicitor, New Plymouth for Respondent