WOOLSTON v POLICE [2017] NZHC 1079

WOOLSTON v POLICE [2017] NZHC 1079 [23 May 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000131[2017] NZHC 1079BETWEEN LUKE JASON WOOLSTONAppellantAND NEW ZEALAND POLICERespondentHearing: 22 May 2017Counsel: NC Baier for AppellantL Fraser for RespondentJudgment: 23 May 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 23 May 2017 at 1 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, Auckland.Meredith Connell, Auckland.The appeal[1] This is a sentence appeal against a term of 22 months' imprisonment.1 The appellant contends Judge Sharp adopted an excessive starting point, gave insufficient discount for guilty pleas, and should have imposed home detention rather than imprisonment. The appellant was sentenced on one charge each of breaching release conditions;2 unlawfully taking a motor vehicle;3 unlawfully getting into a motor vehicle;4 dangerously operating a motor vehicle;5 and failing to stop.6Background[2] The narrative commences on 28 July 2016 when, despite a number of warnings, the appellant breached release conditions by failing to report to his probation officer. On 19 August 2016 a Toyota Corolla was stolen. Police found it on 6 September 2016. The driver—later identified to be the appellant—failed to stop. He and two associates parked the car in a driveway and ran away. They were caught. The appellant was not.[3] Similar events followed on 22 September when the appellant took a Mazda Familia, and failed to stop on 1 October 2016.7 Police gave chase. The appellant drove:(a) Through a residential area at speeds of over 100 kilometres per hour.(b) On the wrong side of the road a number of times, toward oncoming traffic.(c) Through a red light, narrowly avoiding another car.And, the appellant completed at least one dangerous u-turn.1 Police v Woolston [2017] NZDC 6038.2 Parole Act 2002, s 71(1). Maximum penalty is one year imprisonment.3 Crimes Act 1961, s 226(1). Maximum penalty is seven years' imprisonment.4 Crimes Act, s 226(2). Maximum penalty is two years' imprisonment.5 Land Transport Act 1988, s 35(1)(b). Maximum penalty is three months' imprisonment.6 Land Transport Act, ss 52(1)(c) and (3). Maximum penalty is a fine up to $10,000 and a minimum disqualification period of three months.7 It was common ground the date in the summary of facts was wrong.[4] The appellant then abandoned the car. He was found on the same street a short time later.[5] The appellant was on bail for breach of release conditions at the time, having been charged with the offence at [2] on or about 1 September 2016.The sentence[6] Judge Sharp adopted a global starting point of 24 months' imprisonment. The Judge added six months for the appellant's criminal history; deducted fourmonths for restrictive bail and rehabilitative efforts; and a further three months in recognition of guilty pleas (a deduction of approximately 15 percent).[7] The Judge declined to commute the sentence to one of home detention. Theappellant's non-compliance with court orders was seen as material. So too his more general criminal history.Starting point[8] Ms Baier submits the starting point for the totality of the offending shouldhave been 16 to 18 months' imprisonment.8 She notes the Judge referred to a collision with another car, but the agreed summary is silent on that. Ms Baier refers to three cases:(a) In Edwards v Police, Mr Edwards was found by Police driving a stolen vehicle.9 Mr Edwards accelerated away from Police while they were talking to him. He weaved through traffic, crossing the centre line on a number of occasions. He reached speeds of up to 130 km/h. At one point, Mr Edwards drove the wrong way up an off-ramp. In the face of on-coming traffic, he performed a u-turn before once more weaving in and out of traffic at high speeds. On appeal, the High Court considered a starting point of 15 months' imprisonment to be8 No issue is taken with the uplift for previous convictions.9 Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010.appropriate. The sentence was uplifted by three months to reflect the rest of the offending, including a charge for driving while disqualified.(b) In Ratahi v Police, Mr Ratahi broke into a vehicle, hotwired the ignition and then drove off.10 He was later stopped by Police for a routine breath test. Mr Ratahi accelerated away from Police travelling at speeds in excess of 80 km/h in an area in which the speed limit was 50 km/h. He then drove recklessly, including through a stop sign and at speeds in excess of 100 km/h in semi-residential areas. Mr Ratahi eventually lost control of the vehicle and spun out across the road. A starting point of 18 months was held to be appropriate on the lead charge of unlawfully taking a motor vehicle. An uplift of one month was appropriate to reflect the reckless driving and failing to stop charges. Or, an overall starting point of 19 months.(c) In O'Sullivan v Police, Mr O'Sullivan faced six charges, the mostserious of which was unlawfully taking a motor vehicle.11Mr O'Sullivan fled from Police. The ensuing chase lasted17 kilometres along State Highway 2. Mr O'Sullivan reached speedsof up to 150 km/h. On appeal, the Court adopted a starting point of 12 months' imprisonment for the lead charge of unlawfully taking a motor vehicle and increased it by eight months for the balance of the offending.[9] Mr Fraser for the respondent accepts the Judge's reference to a collision is anerror. But as he observes, consequential error does not necessarily follow.[10] The appellant's 22 September offending was similar to that in each caseabove, which suggests it could have attracted a starting point of 18–20 months'imprisonment. The dangerous driving offence is a bad example of its kind. Any number of its aspects could have caused serious injury—or worse.10 Ratahi v Police [2014] NZHC 2394.11 O'Sullivan v Police [2015] NZHC 2032.[11] Material uplift was then required to recognise the earlier unlawful entry of the Toyota. That was discrete offending. And relatively serious.12 Then there is the breach of release conditions, and the commission of a number of offences on bail.[12] It follows the Judge's global starting point of 24 months was available—but stern.Guilty plea discount[13] As observed, the Judge gave a discount of four months for the appellant'sguilty pleas. Ms Baier submits the full discount of 25 percent should have been afforded. The appellant pleaded guilty:(a) At his second appearance to unlawfully taking a motor vehicle, dangerous driving and failing to stop.(b) At a case review hearing to unlawfully getting into a motor vehicle. That plea followed an amended charge.(c) On the day of trial to breach of release conditions, again, following a resolution of charges (a second breach charge was dropped).[14] I am not persuaded of error. The appellant sought a 20 percent discount at sentencing—not 25 percent. The pleas to the most serious charges were entered very promptly, but not all pleas were early. The evidence against the appellant was strong in relation to the 22 September offending; it will be recalled he was found at or close to the scene. And, the appellant benefited from the plea resolutions.Home detention[15] Ms Baier submits the Judge erred in imposing a sentence of imprisonment when the least restrictive outcome appropriate in the circumstances was home detention. Ms Baier emphasises Mr Woolston's compliance with the conditions of12 Marriner v Police [2014] NZHC 354 at [19].electronically monitored bail in the four months preceding sentence. She also notes his potential for rehabilitation as the Judge expressly recognised in his sentencing notes.13 Ms Baier submits the Judge placed insufficient weight on these prospects when considering whether a sentence of home detention would meet the relevant principles and purposes of sentencing. Finally, Ms Baier notes Mr Woolston has three young children and while he does not reside with them he plays a significant part in their lives. Mr Woolston has another child due to be born in September 2017.[16] The Court of Appeal has held "the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification oferror, if any, in the court below".14[17] The pre-sentence report recommended a sentence of imprisonment given the appellant's pattern of offending and "wavering motivation" to attend rehabilitativeprogrammes. The appellant has a significant and unfortunate criminal history, which includes a number of convictions for unlawfully taking or getting into motor vehicles, other dishonesty offending and breaching various court orders. And, the appellant had been released from prison in only April 2016, after being sentenced toa term of two and half years' imprisonment in January 2014 for a raft of offencesincluding five unlawful takings of motor vehicles, failing to stop for Police, and failing to answer bail. In other words, similar offending to that in issue.[18] It was open to the Judge to place weight on these factors—and to impose a sentence of imprisonment. It is true, as Ms Baier submits, the appellant has not had the benefit of home detention. But Courts are not required to engage in experimental sentences.[19] The appeal is dismissed.13 Police v Woolston, above n 1, at [12].14 Manikpersadh v R [2011] NZCA 452 at [12].[20] I thank counsel for the quality of their written submissions...Downs J