WOODSTOCK v NEW ZEALAND POLICE [2019] NZHC 2070

WOODSTOCK v NEW ZEALAND POLICE [2019] NZHC 2070 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI 2019-409-0088[2019] NZHC 2070BETWEEN KIERAN AARON WOODSTOCKAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2019Appearances: J Lucas for the AppellantJ Whitcombe for the RespondentJudgment: 22 August 2019ORAL JUDGMENT OF JAGOSE JThe judgment was delivered by me on 22 August 2019.Registrar/Deputy RegistrarCounsel/Solicitors:J Lucas, Barrister ChristchurchRaymond Donnelly & Co, Christchurch[1] Kieran Woodstock appeals his sentence of two years and two months'imprisonment, imposed by Judge A D Garland in the District Court at Christchurch on29 May 2019.1 The sentence related to vehicle conversion,2 reckless driving,3 failingto stop,4 and recidivist driving while suspended,5 in mid-2017, and four subsequentcharges of vehicle receiving6 in late-2017. He appeals the sentence as inadequatelyrecognising his youth.Background[2] Mr Woodstock was suspended from driving for three months from 29 May2017. He nonetheless was observed driving a stolen car on 15 August 2017. He tookoff from police signalling him to stop, at speeds well in excess of the applicable speedlimits, through and into oncoming heavy traffic, which had to take avoiding action. Hewas later found in possession of another three stolen cars, valued between $12,000 and$30,000.[3] Judge Garland took the receiving charges as the lead offending, justifying astarting point of two years and six months' imprisonment, uplifted by six months forthe aggravating driving offences. Turning to Mr Woodstock's personal factors, theJudge declined further to uplift for his five previous dishonesty convictions, includingthree for unlawfully taking motor vehicles. He gave discounts of three months for MrWoodstock's uneventful time on electronically-monitored bail, and seven months forearly guilty pleas on three of the receiving charges, resulting in the end sentence oftwo years and two months' imprisonment.Issues on appeal[4] Mr Woodstock was 21 years old at the time of the offending. His counsel, JoshLucas, says a further three to four month discount should have been applied inrecognition of his youth, which is recognised as leading to poor decision-making,1 Police v Woodstock [2019] NZDC 10396.2 Crimes Act 1961, s 226(1): maximum seven years' imprisonment.3 Land Transport Act 1998, s 35(1)(a): maximum three months' imprisonment.4 Section 52A(1)(a)(ii): maximum $10,000 fine.5 Section 32(1)(c) and (4): maximum two years' imprisonment.6 Crimes Act 1961, ss 246(1) and 247: maximum seven years' imprisonment.while offering larger prospects for rehabilitation. Imprisonment of such immature andvulnerable offenders is significant punishment.Approach to appeals against sentence[5] I must allow the appeal only if I am satisfied both there is an error in thesentence, and a different sentence should be imposed.7 In any other case, I mustdismiss the appeal.8 The approach previously taken by courts on sentencing appealscontinues to apply;9 the measure of error is the sentence be "manifestly excessive" –the principle is "well-engrained" in this Court's approach to sentencing appeals.10 Iwill not intervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.11Discussion[6] An offender's youth undeniably is a material consideration in sentencing,12but:13 [it] 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.[7] An example of such seriousness can be seen in Richards v R, in relation toreckless driving:14Offending of this kind is most commonly carried out by young, immature,male drivers. While that does not mean a discount for youth can never beappropriate in such cases, it is noteworthy Parliament increased the sanctionfor this kind of offending. As this Court noted in Gacitua v R, while it isregrettable that young men of unblemished character and obvious potential7 Criminal Procedure Act 2011, s 250(2).8 Section 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].10 At [33] and [35].11 Ripia v R [2011] NZCA 101 at [15].12 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77], citing Pouwhare v R [2010]NZCA 268, (2010) 24 CRNZ 868 at [69]; R v Chankau [2007] NZCA 587 at [26]; R v K(CA345/02) (2003) 20 CRNZ 62 (CA) at [22]; R v Mahoni (1998) 15 CRNZ 428 (CA) at 436–437; and R v Titoko CA144/96, 11 September 1996.13 Pouwhare v R, above n 12, at [96].14 Richards v R [2017] NZCA 232 at [40] (footnotes omitted).can face lengthy prison terms, "the public interest in discouraging dangerousand grossly irresponsible driving must prevail".Although Mr Woodstock's lead offences are for receiving, rather than driving,offences, the overall vehicle-related nature of his offending – including exceedinglyreckless driving in avoidance of police – engages similar considerations.[8] Judge Garland had specific regard for "the desirability of keeping offenders inthe community as far as that is practicable and consonant with the safety of thecommunity".15 That may be implicit regard for youth. He applied no uplift for prioroffending. His guilty plea discount exceeds 25 per cent of the initial term, evenalthough only applicable to some of the charges.[9] Still, it is the end-sentence that matters. The starting point rightly is notchallenged.16 The absence of any discount for youth is balanced by the absence of anyuplift for prior offending.17 Such uplift certainly was available, and in comparableduration to that now sought to be discounted.18 From that perspective, it cannot be saidthe sentence is manifestly excessive.Result[10] The appeal is dismissed.—Jagose J15 Sentencing Act 2002, s 16(1).16 Cribb v Police HC Hamilton CRI-2010-419-0046, 8 July 2010.17 See, similarly, Tukaki v R [2013] NZCA 411 at [18], where the Court of Appeal addressed the lackof youth discount by removing the uplift for prior convictions.18 Rako v R [2015] NZCA 463 at [14]–[15]; Turner v R [2014] NZCA 454 at [12]; and Craigie v R[2012] NZCA 67 at [28]–[30].