KURA v NEW ZEALAND POLICE [2020] NZHC 939

KURA v NEW ZEALAND POLICE [2020] NZHC 939 [7 May 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000032[2020] NZHC 939BETWEEN NATHAN BRIAN KURAAppellantAND NEW ZEALAND POLICERespondentHearing: 7 May 2020Appearances: C G Nolan for AppellantJ H Whitcombe for Respondent (via VMR)Judgment: 7 May 2020JUDGMENT OF DUNNINGHAM JIntroduction[1] Nathan Kura, the appellant, was sentenced by Judge Couch on 19 March totwo years and four months' imprisonment on 10 charges. These were theft over$1,000, dishonestly using a document, driving whilst suspended, wilful damage,receiving under $500, failing to answer bail, dishonestly getting into a vehicle, failingto stop and two counts of theft under $500.1 The appellant appeals that sentence.Facts[2] The appellant had his licence suspended for three months on 1 November 2018.On 6 November 2018 he was stopped by police while driving a vehicle onBarrington Street.1 Police v Kura [2020] NZDC 5176.[3] On 4 February 2019, the appellant was arrested for breaching bail. He washandcuffed and placed in the back seat of a patrol vehicle. The appellant becameaggressive and kicked the car door multiple times, causing the top of the door to bendout and preventing it from being able to close properly.[4] On 18 February 2019, a woman lost her ASB credit card. The appellant cameinto possession of that credit card the next morning and used it to purchase $53.40 ofgrocery items at Fresh Choice Parklands.[5] A Toyota Surf vehicle was stolen from Amberley on about 23 June 2019. Inthe afternoon of 25 June, the appellant drove that vehicle into Z Energy fuel station atBelfast. The number plates were covered by cardboard. The appellant pumped $70of diesel into the vehicle while his associate went into the store, and they then leftwithout paying for the diesel. After leaving the garage the appellant took thecardboard off the plates, revealing false number plates. Police saw the vehicle turningoff State Highway 1, and indicated for the appellant to pull over with red and bluelights. The appellant drove off, and the police activated the sirens. The appellantcontinued to drive at speed, going through a stop sign. He pulled over on twooccasions before speeding off again when police approached the vehicle. Eventuallypolice ended the pursuit due to concerns for public safety.[6] At around 4.30 pm on 16 July 2019, the appellant drove into Z Energy fuelstation at Shirley and pumped $40 of diesel into his vehicle. He drove away withoutpaying.[7] In the early morning of 17 July 2019, the appellant and an associate enteredthe Christchurch International Airport arrival/departure lounge. The appellant actedas a lookout while his associate entered the Spark Kiosk and stole 13 mobile phonesand associated equipment from locked cabinets.District Court decisionSentence indication[8] Judge Couch gave the appellant a sentence indication on 28 November 2019in relation to seven charges, being all charges except those incurred on 25 June 2019when the appellant stole fuel from a petrol station and was pursued by police.2[9] The Judge took the theft (over $1,000) as the lead charge. He noted that theproperty stolen was valued at $14,000, which he considered to be a "substantialquantity". The Judge took a starting point of one year and nine months' imprisonmentfor that charge. He uplifted that starting point by six months to account for the othersix charges, leading to a starting point of two years and three months. He consideredthat appropriate for the totality of the offending.[10] The Judge found there were significant personal aggravating features. Heapplied a three month uplift for the fact that the majority of the offending wascommitted whilst on bail. The Judge noted the appellant had five convictions fordishonesty offences, as well as convictions for drug, firearm and driving offences. Heapplied an uplift of two months for previous convictions, saying that this brought thesentence to 34 months' imprisonment.[11] The Judge then reduced the sentence by four months to account for theappellant's associate having been the principal offender in the lead charge. Finally, heapplied a 20 per cent discount for guilty pleas, resulting in a sentence indication oftwo years' imprisonment. The appellant accepted that indication.Sentencing[12] By the date of sentencing on 19 March 2020, the appellant had pleaded guiltyto the three further charges. Judge Couch regarded those as relatively serious, notingthat they involved the aggravating factors of a false number plate and driving atexcessive speed, including through a red light. Allowing for the guilty pleas entered2 Police v Kura DC Christchurch CRI-2018-009-9918, 28 November 2019.in respect of those charges, the Judge applied an uplift of four months to the sentenceindication.[13] The Judge noted that after the sentence indication, counsel had agreed thatsentencing could proceed on the basis that the mobile phones stolen were valued at$7,500, being half their estimated value. The Judge had, however, received a schedulerecently provided to police that set out the actual cost of the phones as being $14,300.He considered there was therefore no basis to depart from the sentence indication forthe lead charge of theft.[14] The Judge declined to grant a discount for the fact that the defendant had notoffended since the matters arose and had ceased taking drugs, stating these were notmitigating factors but rather an absence of aggravating factors. He noted the appellantand his partner's personal circumstances. He also noted counsel's submission that theappellant had provided information to police, but given he had nothing to confirm thathaving happened he did not take it into account. Judge Couch sentenced the appellantto two years and four months' imprisonment, as well as disqualifying him from drivingfor 12 months and ordering reparation totalling $3,636.33. The reparation for themobile phones was expressly stated to be half the total value given the defendant wasone of the two persons involved in the theft.Principles on appeal[15] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".4 It is onlyappropriate for this Court to intervene and substitute its own views if the sentence3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].being appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.5SubmissionsAppellant's submissions[16] Mr Nolan, for the appellant, submits that the Judge made a calculation error inhis sentence indication. The Judge applied a two month uplift to a starting point of 30months and recorded that as bringing the sentence to 34 months, when it should insteadhave been 32 months prior to applying credit.[17] The sentence indication included a charge of receiving under $500. Mr Nolansubmits this charge had been withdrawn, and that if the Judge had not included it thena lower starting point would have been taken.[18] Mr Nolan submits that the Judge should have proceeded at sentencing on thebasis that the value of the phones was $7,500, as agreed between police and theappellant. He contends that this value would have a bearing on the overall sentencein assessing the gravity of the lead offence.[19] Judge Couch uplifted the starting point for the lead offence by six months totake account of the remaining charges at the sentence indication. He then addedfive months to reflect offending on bail and the appellant's criminal history. Mr Nolansubmits that this uplift was too high, equating to almost a 20 per cent uplift on thestarting point. Mr Nolan further submits that the Judge was wrong to uplift thesentence by four more months to reflect the three further charges at sentencing.[20] The appellant accepts that he has gambling issues, and informed thepre-sentence report writer that he attends a problem gambling service. Mr Nolansubmits the appellant has good insight into his offending and would benefit fromrehabilitation. He suggests these prospects for rehabilitation should have beenrecognised at sentencing as a mitigating factor. Furthermore, he submits that credit5 Ripia v R [2011] NZCA 101 at [15].should be given for mitigating circumstances such as the positive pre-sentence report,remorse, behaviour and time spent on bail with restrictive conditions.[21] The appellant has instructed counsel that he supplied police with the name ofhis co-offender. Mr Nolan submits this assistance to the authorities should have beentaken into account at sentencing by way of an independent credit.6 He refers to Farleyv R, where the Court allowed a discount of 20 per cent because the offender providedinformation about a conspiracy to arson, the identity of the arsonist and herwhereabouts.7[22] Finally, Mr Nolan notes that the main recommendation in the pre-sentencereport was intensive supervision due to lack of a suitable address for home detention.The sentence was recommended to allow the appellant to attend a departmentalprogramme and to engage with appropriate intervention for problem gambling.Mr Nolan submits an appropriate end sentence in the circumstances is either homedetention or a combination of intensive supervision, community work and reparation.Respondent's submissions[23] Mr Whitcombe, for the respondent, accepts the Judge made a mathematicalerror and that it should be corrected on appeal.8 However, in all other aspects he saysthe end sentence was appropriate.[24] Mr Whitcombe submits that the starting point of one year and nine monthsadopted on the lead charge was within range. He says the respondent has receivedconfirmation from the police that the value of the stolen phones was approximately$7,500, but contends that this lesser value does not materially affect the end sentenceimposed. Mr Whitcombe refers to a number of cases to support this contention:6 Citing Ong v R [2012] NZCA 258 and R v Strickland [1989] 3 NZLR 47 (CA).7 Farley v R [2017] NZCA 97.8 Citing Ferris-Bromley v R [2017] NZCA 115 at [15].(a) R v Duncan: a starting point of two and a half years was upheld by theCourt of Appeal where an offender stole approximately $16,500 incash.9(b) Ropiha v Police: a starting point of two and a half years was adoptedwhere an offender had broken into a tourist bus and stolenapproximately $5,000 of property.10(c) Falaoa v Police: an end point of 21 months for an appellant who stole$2,500 from a victim who depositing it at a bank was regarded as stern,but nonetheless upheld.11[25] In light of these cases, Mr Whitcombe submits that a starting point of two anda half years could have been justified on the lead charge given the offending waspremeditated, cabinets were broken into in order to steal property and the property wasstill of substantial value at $7,500. Furthermore, Mr Whitcombe argues that thefour-month discount that was applied because the appellant was not the principaloffender could be considered generous. He refers to Court of Appeal authority thatthose who occupy roles as lookouts do not necessarily undertake a lesser role.12 Here,the appellant drove himself and the co-offender to the airport, entered the building andacted as a lookout.[26] Mr Whitcombe accepts that the uplift of six months for other offending at thesentence indication could be regarded as stern. However, when the lower startingpoint on the lead charge is taken into account, he contends the overall starting point oftwo years and three months cannot be considered excessive. Furthermore, he submitsthe additional four-month uplift for further offending at sentencing cannot bechallenged given the serious nature of that offending.9 R v Duncan [2009] NZCA 408.10 Ropiha v Police HC Rotorua CRI-2004-463-71, 22 July 2004.11 Falaoa v Police HC Napier AP54/98, 23 September 1998.12 R v Royal [2009] NZCA 65 at [20] and Karaitiana v R [2014] NZCA 126 at [19]-[20].[27] Mr Whitcombe submits the uplifts for offending on bail and previousconvictions were appropriate, and indeed that an uplift greater than two months forprevious convictions could have been justified.[28] In regard to mitigating factors, Mr Whitcombe accepts that credit may beavailable to recognise time spent subject to restrictive bail conditions, but notes theCourt of Appeal's statement that such a discount is usually only warranted where theconditions are "very restrictive".13 He submits it would be inappropriate to give acredit in this case given the appellant continued to offend on bail.14 Mr Whitcombealso submits a discount should not be given for rehabilitation and remorse given therecidivist nature of the appellant's offending.[29] In terms of whether there should be a discount for assistance to authorities,Mr Kura supplies a job sheet from the police officer who interviewed the appellant. Itrecords that the appellant named an individual called Matt Sinclair as his co-offender,but that police decided not to charge that person because they considered theappellant's statement to be unreliable and that another known offender was more likelyto have been his co-offender. In these circumstances Mr Whitcombe submits that littleto no credit is available for assistance to the authorities.[30] Mr Whitcombe submits that imprisonment is the appropriate outcome in thiscase due to the seriousness of the offending and because the appellant was on bail atthe time. The appellant also has convictions for breaching community-basedsentences and in these circumstances protection of the community from the offendershould take precedence. However, Mr Whitcombe responsibly points out that theamount of reparation may need to be adjusted to reflect the new value of the propertystolen.Analysis[31] It is clear that the Judge made a minor calculation error in his sentenceindication. For the purpose of this appeal, I intend to repeat the sentencing exercise13 Winklemann v R [2010] NZCA 215 at [21].14 Referring to Murray-MacGregor v R [2011] NZCA 66.in a slightly different order than the District Court Judge by adopting a starting pointfor all nine offences before considering personal factors and so the calculation errorwill be corrected by my analysis.[32] The Judge was correct to take the theft of the mobile phones as the lead charge.He adopted a starting point of one year and nine months for that offence, then reducedthat by four months to account for the appellant having not been the principal offender.I therefore take the starting point as having been one year and five months.[33] The Crown has now accepted that the starting point for that offence shouldhave been adopted based on a value of $7,500 rather than $14,000. That amount isroughly half of that considered by the sentencing Judge, but as noted byMr Whitcombe, the value of property stolen is only one relevant factor in sentencingfor theft. It is also relevant that there was clear premeditation and planning involved,and that the theft involved some level of "breaking in" given the co-offender had tobreak into cabinets in order to take the property. I consider the appellant's culpabilitywas high despite him not being the principal offender given he drove the two of themto the airport and acted as a lookout, clearly understanding the nature of what he wasassisting with.[34] There is no tariff for theft. Given the value of the property stolen (albeit lowerthan the value relied on by the Judge) and the clear premeditation involved, I believethe effective starting point of one year and five months was well within range.15However, as the Judge indicated he would reduce the starting point if the value of thestolen property was less. I would reduce this to one year and four months.[35] In regard to the other charges, the Judge uplifted the starting point bysix months at the sentence indication and a further four months for the additionalJune 2019 charges faced at sentencing. He noted that the four-month uplift for theJune 2019 charges was inclusive of guilty plea discount, so I will assume thatamounted to a five-month uplift to the starting point. That makes a total of 11 months'uplift for charges beyond the lead offence. I do not see this as excessive. Those charges15 With reference to the cases cited by counsel at above n 9-11, and Aerenga v Police [2012] NZHC1375.included quite separate and relatively serious offending, especially in regard to thepolice chase on 25 June. The manner in which the appellant drove away from police,at speed and through a red light, in order to escape apprehension for theft, was verydangerous. He is lucky not to have harmed anyone. An 11-month uplift for this andthe other offending was appropriate, regardless of the fact that the charge for low-levelreceiving should not have been included.[36] The overall starting point is therefore two years and three months. I haveconsidered whether to make some allowance for totality, but on balance, I do notbelieve it is necessary to do so. In my view, totality was sufficiently taken into accountthe relatively lenient sentence for the mobile phone theft, and an overall starting pointof two years and three months is within range.[37] The uplifts applied for offending on bail and criminal history were similarlyappropriate. The substantial amount of offending on bail was a significant aggravatingfactor and warranted an uplift of three months. The appellant had a history ofdishonesty, drug, firearm and driving convictions which alone may have justified ahigher uplift than two months. Taken together, the five-month uplift for personalaggravating factors was appropriate, bringing the sentence to two years andeight months.[38] The pre-sentence report states that the appellant considers he has problematicgambling issues and has self-referred to Problem Gambling Services. He haspreviously completed the Medium Intensity Rehabilitative Programme while incustody, and was able to demonstrate some of the concepts he learned on thatprogramme to the report writer. The appellant wishes to go through that programmeagain, saying he felt that he could benefit from revisiting the concepts and applyingthem to his current situation.[39] However, despite this insight into his offending, and willingness to addressissues that may have motivated the dishonesty offending, I consider any discountshould be minimal given the appellant has had opportunities to address the causes ofhis offending in the past, and yet has continued to offend. I would allow a two monthdiscount for personal mitigating factors (roughly six per cent), bringing the sentenceto two years and six months.[40] The most significant issue is the appellant's submission that he providedassistance to police. According to the police jobsheet, the appellant went to the policestation to give an interview voluntarily because he wanted to give details about hisco-offender. The appellant did provide a name, but police did not charge that personbecause they believed the appellant was being dishonest. The officer speculated thatthe appellant may have done so because he did not want to nark on the actualco-offender, that he may have had something against the person he named, and that heknew his cooperation with police may result in a discount on his sentence.[41] Given these circumstances, it is difficult to justify a discount for providingassistance. What is clear is that police derived no value from what the appellant said,as they did not charge the person named. That tells against the policy reasons forallowing a discount. Also, such a discount recognises in part that the appellant is putat risk by naming a co-offender; but that is not relevant here because the person namedwas never charged.16[42] Based on the sentencing exercise I have undertaken, and applying a 20 per centdiscount for guilty pleas, the end sentence would be two years and one month'imprisonment.[43] I believe this is sufficiently lower than the sentence imposed of two years andfour months to allow the appeal. However, it means I do not have to consider whetherto commute the sentence to one of home detention.[44] Judge Couch ordered the appellant to pay reparation of $7,000 for the mobilephones, $526.33 for the damage to the police car and $110 for the stolen fuel. I amsatisfied the reparation for the mobile phones should be reduced to $3,750 to giveeffect to the Judge's intention that the appellant pay half their value on the basis thathe was one of two persons involved in the theft. The other reparation orders, and thedisqualification period, are undisturbed.16 Farley v R, above n 7, at [16].Conclusion[45] The appeal is allowed.[46] The sentence of two years and four months' imprisonment is quashed andreplaced with a sentence of two years one month' imprisonment. The reparation orderin respect of the stolen phones is reduced to $3,750. The other orders for reparationare unaffected.Solicitors:C G Nolan, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch