ANNGOW v POLICE [2017] NZHC 2056

ANNGOW v POLICE [2017] NZHC 2056 [25 August 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000092CRI-2017-409-000093[2017] NZHC 2056BETWEEN LEVI JOSEPH DAVID ANNGOWAppellantAND THE POLICERespondentHearing: 17 August 2017Appearances: J Lucas for the AppellantC J Bernhardt for the RespondentJudgment: 25 August 2017JUDGMENT OF NATION J[1] Mr Anngow appeals against a sentence of four months' imprisonment uponresentencing for driving dangerously causing injury, driving while suspended and receiving stolen property.[2] On 9 November 2015, an associate of Mr Anngow unlawfully took a Briford trailer containing a Yanmer 1.7 excavator digger from outside an address in Sumner. In the early hours of the morning on the next day, the associate towed the trailer withthe digger to Mr Anngow's address. Mr Anngow agreed he could store it there. ThePolice executed a search warrant two days later and located the stolen property.[3] Mr Anngow first appeared on the charge of receiving stolen property on 11 January 2016. He pleaded not guilty on 1 February 2016 and was remanded to 5 April 2016. On that day, he pleaded guilty and was sentenced to 300 hours'community work and ordered to pay Court costs of $130.[4] On 5 March 2016, Mr Anngow was charged with driving a motor vehicle on 21 November 2015 in a manner which might have been dangerous and thereby causing injury. He first appeared in Court on that charge on 11 April 2016 but was remanded to 26 April 2016 when he pleaded guilty, was convicted and sentenced to a further 80 hours' community work, cumulative on the earlier sentence of 300 hours'community work. He was also ordered to pay emotional harm reparation to the person injured in the sum of $500 and was disqualified from holding or obtaining a driver licence for one year. At the same time, he was convicted of driving while his licence was suspended or revoked. On that charge, he was disqualified from driving for one year.[5] On 27 October 2015, Mr Anngow was suspended from driving for three months because he had accumulated in excess of 100 demerit points. On Saturday 21 November 2015, he drove out of his driveway at 84 Main North Road, accelerated heavily causing the vehicle to lose traction and fish-tail across the road. He continued south and overtook two vehicles at speed. A short distance up the road, he struck a pedestrian barrier at speed, causing the vehicle to lose control. He skidded and hit a concrete brick wall and a wooden fence before coming to rest in a driveway. His speed was estimated at 87 kilometres per hour just prior to the crash. The was in a 50 kilometre area in a built up residential area. A passenger in the vehicle was injured. Mr Anngow initially denied he was the driver. After further enquires, he was spoken to again and admitted he was driving.[6] On 11 January 2017, Probation applied to the District Court to cancel the sentence of community work on the grounds Mr Anngow was unable and unwilling to comply with the sentence due to ongoing drug dependency and mental health issues and a pattern of non-compliance. That application was accompanied by an affidavit.[7] In that affidavit, the Probation Officer said:(a) Mr Anngow was inducted into his community work obligations on 9 April 2016 and signed an instruction to report on 15 April and every week after that;(b) Mr Anngow produced a medical certificate dated 28 April 2016 indicating he would be unable to work until 27 July 2016 because of drug dependency and possible borderline personality disorder;(c) Mr Anngow failed to report for community work as directed after that period expired on 27 July 2016 and was sent a final warning letter on 1 September 2016;(d) on 9 September 2017, Mr Anngow reported to the Rangiora community work centre with a new medical certificate. This stated that, because of drug dependency and borderline personality disorder, he had been unable to work from 26 July 2016 but that his work capacity should be reviewed from 25 October 2016. He was excused from work on that basis.(e) Mr Anngow had not reported for community work at all since 13 May 2016, despite text messages, warning letters and phone calls. As at 11 January 2017, he had completed only 10.5 hours of community work and had 369.5 hours outstanding.District Court decision[8] Mr Anngow was resentenced on 12 July 2017. A pre-sentence report of 4 July 2017 indicated that he had completed a total of 27 hours of community work by that time and last attended community work on 6 May 2017.[9] The pre-sentence report advised the Court that Mr Anngow said he worked six days a week and believed his continued employment would be at risk if he had to take time off work to do community work over a lengthy period. The report advised that Mr Anngow was willing to complete a short sentence of community work in conjunction with a sentence of community detention. It referred to the medical certificates that had been provided in 2016 indicating he was not then fit for community work and said he also had a historic conviction for breach of community work for which he received a final warning. He had $3,911.63 outstanding in fines, fees and costs. The PAC report recommended imprisonment as the appropriate sentence but advised that he had an address suitable for home detention orcommunity detention. It did not recommend home detention because of the way it would impact on his ability to work.[10] When resentenced on 12 July 2017, the Judge said he had been informed byMr Anngow's counsel that, by that time, Mr Anngow had completed 43 and a halfhours' community work. The Judge said that it appeared to him there had "just been a small splurge of activity prior to sentencing". He referred to the statement whichMr Anngow had made to the Probation Officer as to how community work over a lengthy period would put his continuing employment at risk, and the outstanding fines. He said counsel had told him there was an attachment order then in placeagainst Mr Anngow's wages.[11] The Judge referred to the submission made for Mr Anngow that an electronically monitored sentence would be more appropriate because it would enable Mr Anngow to work, pay off fines and support his family. The Judge referredto a letter from Mr Anngow's employer which said he had proved to be a reliable and good worker.[12] The Judge said he bore in mind the purposes and principles of sentencings in ss 7 and 8 Sentencing Act 2002 and was particularly mindful of the provisions of s 16. That section requires the Court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consummate with the safety of the community, and refers to the Court needing to be satisfied about a number of matters before imposing a sentence of imprisonment.[13] In conclusion, the Judge referred to the substantial number of community work hours still to be performed, 336 and a half hours, and two previous convictions for failing to complete community work. The Judge was of the view that MrAnngow's offer to do community work at this late stage was too late. He sentencedhim to four months' imprisonment on the charge of receiving stolen property, onemonth imprisonment on the charge of dangerous driving causing injury, those terms to be concurrent with standard conditions of release.Normal approach on sentencing appeals[14] For Mr Anngow, Mr Lucas argued there had been an error in that the Judge did not follow the Taueki methodology of sentencing, with a starting point, uplift and discount for aggravating and mitigating features of the offending and the offender, and then given credit for a discount for a guilty plea.[15] He also submitted the Judge had been in error in not considering Mr Anngow's reasons for not doing the community work in 2016 and in referring to breaches of community work which were historic given those breaches occurred in 2006 and not having regard to the fact that he had shown in 2008 that he was capable of doing community work when he had completed 200 hours of community work on a sentence of arson.[16] Mr Lucas acknowledged there did not have to be a strict correlation between the sentence imposed previously and the resentencing exercise but argued there should have been some proportionality. He said there was an error in adopting a dramatically changed sentence by way of imprisonment. Mr Lucas argued that the Judge was in error in not expressly considering whether a sentence less than imprisonment, such as home detention or community detention, could be imposedand there had been inadequate consideration of Mr Anngow's favourablecircumstances with regard to employment, his guilty plea and that he did have an address suitable for an electronically monitored sentence. He submitted that the appeal should be allowed but that, given Mr Anngow had already served almost five weeks in custody, it would be appropriate to sentence him to community detention, possibly with a further sentence of community work.[17] For the Police, Mr Bernhardt submitted that, on appeal, the emphasis must be on the end sentence rather than the method by which it is reached. He noted the Judge had considered the feasibility of an electronically monitored sentence, having adjourned the sentencing for a full pre-sentence report to be commissioned to explore the feasibility of an electronically monitored sentence. He had also referredto the submission from Mr Anngow's counsel that an electronically monitoredsentence would be appropriate and the reasons for that submissions. He noted that,while the pre-sentence report indicated Mr Anngow had an address which was suitable for an electronically monitored sentence, the Probation Officer had assessed imprisonment as the only appropriate outcome.Discussion[18] On appeal, the emphasis has to be on the appropriateness of the end sentence and not the method by which it was reached.[19] I have not been persuaded that there was an error in the Judge's approach tosentencing or that the sentence ultimately imposed was wrong and that a different sentence ought to have been imposed.[20] The Judge was entitled to conclude that the sentence of community work should be cancelled because the record showed that Mr Anngow had been shown to be unable and unwilling to comply with the sentence due to ongoing drug dependency as well as mental health issues and there had been a pattern of non- compliance. Mr Anngow had also advised the Probation Officer of the difficulty he would have in completing a lengthy term of community work because of the impact this would have on his employment.[21] Through reference to counsel's submissions, the Judge did considercommunity-based sentences as an alternative to imprisonment.[22] On a resentencing, the Judge had to arrive at a sentence that was appropriate for the original offending. Correctly, the Judge advised the receiving charge as being the more serious of the two charges on which he had to be sentenced. Mr Anngow admitted having assisted in the concealment of the trailer and digger after those items had been stolen. Through his guilty plea, he acknowledged that, when he allowed those items to be stored at his property, he had known they were stolen. That is understandable given that they had been brought to his property at 3.00 am on 10 November 2015.[23] There is no tariff judgment for the offence of receiving. Given the obvious significant value of a trailer and digger, the fact the items were taken to MrAnngow's property so soon after the theft of them and the acknowledged association between Mr Anngow and the thief, a sentence of four months' imprisonment for thereceiving of those items is, I consider, well within the range of the sort of sentence that could be imposed for that offending. The sentence could have been longer or a sentence of home detention could have been considered but a longer term of imprisonment or any term of home detention would have interfered more than wasdesirable with Mr Anngow's employment over a longer period than will be the casewith a short term of imprisonment.[24] A sentence of community detention which permitted Mr Anngow to carry on with his employment would, of itself, not have sufficiently denounced Mr Anngow'soffending, especially so having regard to the circumstances associated with the driving charges.[25] The dangerous driving was a separate offence which obviously had significant consequences for the victim of that case, given the order for Mr Anngow to make an emotional harm reparation payment of $500.[26] The Probation Officer's assessment in this particular case was that the punitive element of a sentence of imprisonment would be rehabilitative in the sense of encouraging Mr Anngow to lead an offence-free lifestyle on his release.[27] Taking all those matters into account, I have not been persuaded that the sentence imposed on Mr Anngow was manifestly excessive. His appeal is dismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch.