TITO v NEW ZEALAND POLICE [2017] NZHC 2552

TITO v NEW ZEALAND POLICE [2017] NZHC 2552 [19 October 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000291[2017] NZHC 2552BETWEEN MICHAEL WAYNE TITOAppellantAND NEW ZEALAND POLICERespondentHearing: 17 October 2017Appearances: P Masani and D B Dow for the AppellantE J Smith for the RespondentJudgment: 19 October 2017JUDGMENT OF HINTON JThis judgment was delivered by me on 19 October 2017 at 11.00 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Public Defence Service, WaitakereMeredith Connell, AucklandIntroduction[1] On 6 January 2017, Mr Tito was stopped by Police in a stolen car. Following his arrest, Mr Tito volunteered and confessed to a number of other dishonesty crimes.[2] Mr Tito pleaded guilty to a number of charges, including one charge of unlawfully taking a motor vehicle; two charges of theft of property valued over $1,000, and one charge of theft of property valued at $500-$1,000.1[3] On 10 July 2017, Mr Tito was sentenced in the District Court by Judge Jelas.2 He now appeals the sentence imposed of 22 months' imprisonment, on the basis the Judge adopted too high a starting point on the lead charge andfailed to allow a discount for Mr Tito's confessions.Factual background[4] Mr Tito is a 31-year-old man of Ngāti Porou descent. He experienced adifficult childhood that included physical and emotional abuse. He has spent his adulthood in and out of prison as a result of a considerable record of offending. He has more than 100 previous criminal convictions, largely for dishonesty or driving-related offences. The pre-sentence report suggests that Mr Tito'sdishonesty offending is in part due to the need to fund his alcohol and drug abuse.[5] On 6 January 2017, Mr Tito was stopped driving a stolen car that he had taken on 30 December 2016, having found the car unlocked in a driveway with the keys inside. The car was worth $18,000. On 4 January 2017, Mr Tito filled up the car at a petrol station with fuel worth $118.60, and drove off without paying.[6] Following his arrest, Mr Tito spoke to the Police about a number of other crimes. Police suspected Mr Tito of being involved in some, but had insufficient1 The other charges were three charges of theft of property valued under $500; one charge of receiving ($500-1,000); two representative charges of unlawfully using a document; and one charge of breaching release conditions.2 Police v Tito [2017] NZDC 14958.evidence. Others had not been linked to Mr Tito. As a result of this discussion, Mr Tito confessed to the following offending:(a) Taking clothing, vouchers, cash and a debit card worth $668 from an unlocked vehicle between 14 and 15 December 2016, and using the debit card to purchase items on three occasions totalling $170.24.(b) Taking credit cards, a ring, sunglasses and cash together worth over $6,629 from vehicles parked down a driveway between 18 and 19 December 2016.(c) Taking building tools worth $4,700 from a vehicle between 30 and 31 December 2016.(d) Receiving goods, being a snowboard and a gym bag worth $800, between 10 and 31 December 2016.(e) Taking a debit card, vouchers, cash and sunglasses worth $300 from a car between 4 and 5 January 2017, and using the debit card to purchase items and food worth $143.07.(f) Filling his car at a petrol station with $101.21 and driving off without paying.[7] In total, the value of the items taken by Mr Tito was $31,487.25. That includes the car which was retrieved, undamaged.[8] Mr Tito accepted that a sentence of imprisonment is appropriate. Although he has previously made attempts at rehabilitation, these have on the whole been of limited success. He has refused community-based sentences in the past having recognised that he struggles to comply with such sentences.District Court judgment[9] Judge Jelas took the charge of unlawfully taking a motor vehicle worth $18,000 as the lead offence. She considered an appropriate starting point for thatcharge alone was 18 months' imprisonment. She applied an uplift of six months'imprisonment for the remaining dishonesty charges,3 and a further uplift of six months' imprisonment for Mr Tito's criminal history and the fact that heoffended while subject to release conditions.4 This brought the sentence to 30 months' imprisonment before discounts.[10] The Judge then allowed a 25 per cent discount for Mr Tito's guilty plea.5She noted he was entitled to "maximum credit for that as it reflects a taking of responsibility for the offending and also saving the system by not having to prove the charges".6 This reduced the sentence to 22 months' imprisonment, which was imposed along with concurrent sentences of four months'imprisonment on each of the charges for breach of release conditions, receiving, two charges of theft and pecuniary advantage of credit cards. In addition, concurrent sentences were imposed of 22 months for theft from a car and the theftof builders' tools, and concurrent sentences of one month for each theft of petrol.Approach on appeal[11] An appeal against sentence is an appeal against a discretion. It must be allowed only if the Court is satisfied both that there has been an error in the sentence imposed and that a different sentence should be imposed.7 An error will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances.8 The focus is on the end sentence rather than the process adopted to reach the end sentence; if the end sentence is within range, an appeal court will not tinker with it.9 Accordingly:103 The Judge said she would impose an uplift of eight months' imprisonment, but only applied an uplift of six months' imprisonment.4 At [8].5 At [9].6 At [5].7 Criminal Procedure Act 2011, s 250.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31].9 Ripia v R [2011] NZCA 101 at [15].The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.AnalysisStarting point[12] The defence submits that the starting point of 18 months adopted by Judge Jelas for the lead charge was out of range in light of case law.[13] The respondent accepts that the starting point may have been a little high, but says the end sentence was clearly within range.[14] Some of the cases cited by the defence are not particularly helpful because they involve vehicles taken only for short periods. In O'Rourke v Police, for example, the offender used the car for only a short period and it was quickly recovered with no damage.11 Offending will be considerably more serious where the offender intends to deprive the owner of their vehicle for a long period, if not permanently.12 Here, Mr Tito was apprehended with the car nearly a week after it was taken.[15] More analogous are Gideon v Police, Muir v Police and Edwards v Police.13 In Gideon v Police, Mander J upheld a sentence of 12 months'imprisonment for unlawful taking of a car where, as here, the defendant intended to deprive the owner of the vehicle for at least a lengthy period of time.14However, in that case the car taken was worth only $750. The much lower value of the car makes that a less serious example of offending.10 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].11 O'Rourke v Police [2016] NZHC 273 at [8].12 Gideon v Police [2014] NZHC 1065 at [16].13 Gideon v Police, above n 12; Muir v Police [2015] NZHC 1425; Edwards v PoliceHC Auckland CRI-2010-404-103, 11 May 2010.14 Gideon v Police, above n 12, at [16].[16] More helpful is Muir v Police. The offender took a car of similar value from a dealer. He took the car on a long journey, with seemingly no intention of returning it, and in addition caused $1,300 worth of damage to the vehicle. Gendall J considered that a 15-month starting point was appropriate and said that, but for the long journey, the fact that the offender had caused more than $1,300 worth of damage to the vehicle, and the fact the offender seemed to have no intention of returning the vehicle, the starting point could have been 12 to 14 months' imprisonment.15[17] In Edwards v Police, Venning J considered a starting point of 15 months'imprisonment was appropriate for the unlawful taking of a motor vehicle.16In that case, the offender was caught in the car the day after it was taken, but he attempted to evade Police.[18] In light of these cases, particularly Muir v Police where Gendall J considered further case law, I consider a 14-month starting point is appropriate for the lead charge. The 18-month starting point imposed by the Judge was outside the available range.Discount for confessions[19] I also accept the defence submission that Mr Tito was entitled to a discount for his co-operation in confessing to crimes for which Police would not otherwise have been able to charge him. The courts recognise that self-reporting will be a mitigating circumstance, akin to co-operation, which is above and beyond a guilty plea in the face of evidence and a charge.17 Judge Jelas did notmention Mr Tito's co-operation beyond his guilty plea. In S v R,18 an additional discount was allowed of 20 per cent.[20] However, Mr Tito did not self-report in relation to the charge that resulted in the bulk of his sentence. In my view, it would not therefore be appropriate to15 Muir v Police, above n 13, at [23].16 Edwards v Police, above n 13, at [18]. Venning J considered an additional uplift of three months for the defendant's dangerous driving when stopped by Police was appropriate.17 R v Sanday CA146/99, 29 July 1999; S v R [2017] NZHC 205.18 S v R, above n 17, at [33].apply a full discount of 20 per cent. I propose rather to factor the confession into the uplift for the balance of the charges.End sentence[21] The Judge imposed an uplift of only six months for Mr Tito's remainingoffending. That offending was serious and amounted to an additional nine dishonesty charges relating to property worth approximately $13,000. I consider it would have been open to the Judge to impose a larger uplift.19[22] I note the Court of Appeal's decision in Singh v R.20 The District Court Judge imposed an overall starting point of two-and-a-half years' imprisonment forone count of unlawfully taking a motor vehicle worth $15,000, in combination with three counts of unlawfully getting into a motor vehicle, one count of theft of $500-$1,000, one count of theft of $2,500, one count of theft under $500, and one count of driving while disqualified. The Court of Appeal held that the overall starting point of two-and-a-half years was not outside the available range for theoffending in total, although it was "near the top of that range". The overall value of the property stolen was considerably lower than that taken by Mr Tito, but the offending overall was more serious in my view. Also, the Court of Appeal acknowledged that the starting point appeared to be influenced by Mr Singh'srecord (which it should not have been), which was even more extensive than Mr Tito's. It also appeared that Mr Singh targeted parking buildings and associated security equipment, whereas Mr Tito's offending is much lesssophisticated or systematic. A further material difference, given the approach I am taking here, is the confession by Mr Tito.19 For example, in Santamaria v Police [2016] NZHC 1369 the Judge applied an uplift of four months' imprisonment to reflect only three theft charges of considerably lesser seriousness. In Renata v Police [2017] NZHC 504, Cunningham J imposed an uplift of six to eight months for one theft from a vehicle over $1,000, theft of tools worth over $1,000, two thefts of petrol and possession of a glass pipe, as well as a modest uplift for previous offending. Alternatively, in Duxfield v Police [2015] NZHC 3018, Dunningham J upheld cumulative starting points amounting to two-and-a-half years for unlawful taking of a vehicle and theft of items worth $7,500 in close proximity.20 Singh v R [2011] NZCA 139.[23] Allowing in particular for Mr Tito's confessions leading to the additional charges, which the Police agree should be taken into account, I would not disturb the uplift of six months made by the Judge.[24] The additional six-month uplift for previous offending, given Mr Tito'sextensive criminal history, in particular his convictions for dishonesty, could also have been higher than six months.21 Mr Tito has 23 convictions for unlawful taking of, from or interference with vehicles, and another 43 dishonesty-related convictions. This indicates a clear tendency to commit a particular type of offence and therefore a particular need to consider deterrence in imposing a sentence.22 The Crown did not take specific issue with this uplift and I do not consider it appropriate on this occasion to disturb it.Result[25] As counsel for the Crown emphasises, the focus of an appeal court should be on the end sentence. For the reasons given, I am satisfied that the end sentence is manifestly excessive.[26] I allow the appeal and replace the sentence with a sentence of 19 months'imprisonment.[27] Mr Tito might choose to seize his time in prison on this occasion to make a real effort to do something about turning his life around. My reading of the file suggests he is not a fundamentally bad person. He needs, with help, to sort out his drug abuse, get some job training and do something for others, instead of stealing from them.-----------------------------------------------------------Hinton J21 Duxfield v Police, above n 19, at [24]; Singh v Police, above n 20, at [14].22 Fry v R [2014] NZCA 174 at [7].