DANIELS v POLICE [2017] NZHC 3070

DANIELS v POLICE [2017] NZHC 3070 [11 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-359[2017] NZHC 3070BETWEEN LORENZO GENE DANIELSAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2017Counsel: P I Pati (on instructions from J Johnson-Aufaʼi) for AppellantF E Gourlay for RespondentJudgment: 11 December 2017JUDGMENT OF BREWER JSolicitors:Public Defence Service (Auckland) for AppellantKayes Fletcher Walker (Auckland) for RespondentIntroduction[1] Mr Daniels appeals against his sentence of two years and six months'imprisonment handed down against him by Judge GA Andrée Wiltens in the DistrictCourt at Manukau on 14 September 2017.1 The submission made on his behalf is thatthe sentence is manifestly excessive, should have been two years or less, and shouldhave been commuted to a sentence of home detention.[2] Mr Daniels is a man of 26 years. He has a problem with gambling and withdrug taking. He comes from a good family and he has a partner and children. It is theintense desire of his family to assist with his rehabilitation, which I suspect providesmuch of the motivation for today's appeal.[3] Mr Daniels does not have an extensive criminal record as these things go.However, on 2 May 2016 he was sentenced on nine charges of dishonesty involvingmultiple thefts and shoplifting. He was given a very significant chance on thatoccasion because he was convicted and discharged on all of those charges. Theoffending for which he was sentenced by Judge Andrée Wiltens commenced threemonths later.[4] My task on an appeal against sentence is to look at what the District CourtJudge did and see whether he was in error to such an extent that a different sentenceshould be imposed. The position is different when considering home detention. If asentencing Judge decides that the appropriate sentence is one of imprisonment of aperiod of two years or less, then the sentencing Judge may commute the sentence toone of home detention. That is a matter for the discretion of the Judge. I wouldoverturn such an exercise of discretion only if I were to decide that the Judge hadcommitted some error in the exercise of it. In this case, the Judge did not turn his mindto home detention because the end sentence was greater than two years. Accordingly,if I find that the sentence should have been one of two years or less, I would have toexercise that discretion myself.1 Police v Daniels [2017] NZDC 20747.Background[5] I turn now to the factual background.[6] Mr Daniels came before Judge Andrée Wiltens for sentencing on 12 separatecharges which can be grouped into three parts.[7] The first part was this. On 14 August 2016, 16 September 2016 and 12 October2016, Mr Daniels filled his car with petrol at petrol stations and then drove off withoutpaying. He was apprehended by the Police on 21 October 2016 because he had adispute with his partner during which he took out a hunting knife and threatened toslash the tyres of the vehicle that she was in. For this offending he was charged withthree charges of theft under $500 and possession of an offensive weapon. He wasreleased on bail.[8] The next offending was that in February 2017, Mr Daniels went to a swimmingpool changing room, found a woman's handbag and stole it and its contents valued ataround $2,000. For this he was charged with theft over $1,000. Inside the handbagwere keys to the victim's car. Mr Daniels stole the car, although the charge wasunlawful taking of a motor vehicle. He obtained stolen number plates and replacedthe legitimate number plates with the stolen number plates. For this he was chargedwith receiving. When he was caught some three days later, he was carrying somethingcalled an extendable baton which he said he needed for self-protection. For this hewas charged again with possession of an offensive weapon.[9] The third group of offending occurred in May 2017. On 7 May 2017, therewas a theft from someone's car. Mr Daniels obtained a BNZ credit card and used it toobtain some hundreds of dollars worth of goods. He also took an iPad and otherclothing and items valued at $770 from that vehicle. He was charged with theft froma car and using a document for that offending. Ten days later he failed to turn up to aCourt hearing and was charged with failure to answer District Court bail. Finally, on20 May 2017, there was a further theft of clothing and footwear, this time from a shop.This resulted in a charge of theft over $1,000.District Court[10] Faced with this offending, the Judge adopted as the lead offence the secondgroup of offences involving the stealing of the handbag from the changing sheds, itscontents, the unlawful taking of the car and the receiving charge in respect of thenumber plates. For all that offending together, the Judge assessed a starting point oftwo years' imprisonment.[11] For the next most serious offending, being the use of the credit card and thetheft of items from the second car, the Judge assessed a global starting point of sixmonths' imprisonment. He then considered the rest of the offending as follows:• Possession of the hunting knife, four months' imprisonment;• Possession of the extendable baton, six months' imprisonment;• The final charge of theft over $1,000, three months'imprisonment; and• Breach of bail and each of the petrol thefts, one monthimprisonment[12] The arithmetic total of these starting points was 45 months' imprisonment. TheJudge then stood back and looked at the totality of the offending and reduced theoverall starting point to 40 months' imprisonment.[13] The Judge then looked at mitigating factors and considered that the only factorthat merited a reduction was the entry of the plea of guilty to all 12 charges. HisHonour also took into account Mr Daniels's personal circumstances, particularly thefact that his family was going to be deprived of his company and, therefore, support.The Judge gave the maximum discount available, being 25 per cent, and that reducedthe end point to two years and six months' imprisonment.Appeal[14] Mr Pati has appeared today for Mr Daniels and has spoken to the writtensubmissions filed in support of the appeal.[15] Initially the thrust of the appeal was that the starting point of two years'imprisonment on the second group of charges was too high. However, that was basedon the misapprehension that the starting point related only to the unlawful taking ofthe car. It did not. Mr Pati, as he must, acknowledges that for all that group of charges,two years as a starting point was not manifestly excessive.[16] Mr Pati has spoken of the starting points adopted for the other groups ofcharges, but, really, he has had to grapple with whether the end point of two years sixmonths' imprisonment was manifestly excessive taking into account the totality of allof the offending.[17] Mr Pati has had the difficulty that Judge Andrée Wiltens did not give specificuplifts for Mr Daniels's previous offending (although he did mention it in fixing thetwo years starting point), and nor did he give a specific uplift for the fact that thesecond and third groups of offending were committed while Mr Daniels was on bail.[18] The thrust of Mr Pati's submissions to me is that Judge Andrée Wiltens shouldhave given much greater weight to Mr Daniels's personal circumstances. These arethe circumstances I mentioned at the outset of this Judgment. A relatively young manovertaken by gambling and drug problems, but coming from a respectable family withreal family support. The least restrictive sentence would have been one of homedetention and that allows for the fact that the writers of two pre-sentence reportsconsidered a lesser community-based sentence to be appropriate. Implicit in Mr Pati'ssubmission is the acknowledgement of the anguish of Mr Daniels's family and theirintense desire to assist him.Decision[19] The problem for Mr Daniels is that his offending was so serious that it did notand could not bring him within the range of sentences which would allow homedetention to be considered. I have done my own analysis of the sentencing and, in myview, the two years and six months reached by Judge Andrée Wiltens was at the lowerend of the range available to him. If the end sentence had been one of three years'imprisonment, I doubt if that would be challengeable on appeal.[20] There is, given the range and number of charges to which Mr Daniels pleadedguilty, no prospect of the end sentence being close to two years' imprisonment. Onthat basis, I have no alternative other than to dismiss the appeal and I do so accordingly.________________________________Brewer J