MATHIAS v NEW ZEALAND POLICE [2016] NZHC 959

MATHIAS v NEW ZEALAND POLICE [2016] NZHC 959 [12 May 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-409-000121[2016] NZHC 959BETWEEN PAUL ALURED MATHIASAppellantAND NEW ZEALAND POLICERespondentHearing: 10 May 2016Appearances: R W Maze for AppellantH F McKenzie for CrownJudgment: 12 May 2016JUDGMENT OF DUNNINGHAM J[1] Mr Mathias appeals his sentence of 22 months' imprisonment, along with an order disqualifying him from holding or obtaining a driver's licence for two yearsand confiscating his 16 year old Audi motorcar, which was imposed on a charge of burglary.[2] The initial notice of appeal was prepared by Mr Mathias himself. It alleged counsel incompetence leading to a miscarriage of justice and that the overall sentence was excessive because "mitigating factors in this case [were] notpresented".[3] In due course, new counsel was appointed for the appellant and, after receipt of the transcript of the District Court hearing, the allegation of counsel incompetence has been abandoned. The grounds of appeal which were advanced at hearing are:(a) the Judge failed to apply the principle of parity, because the sentencing indication given to his co-offender started with a sentenceof 18 months' imprisonment, whereas his starting point was20 months' imprisonment;(b) the Judge failed to expressly consider or acknowledge the mitigating factors of remorse;(c) the Judge wrongly disqualified the appellant from holding orobtaining a driver's licence;(d) the Judge wrongly ordered confiscation of his vehicle;(e) in the alternative to (c) and (d) above, the Judge failed to apply the totality principle in respect of the combination of the term of imprisonment and the punitive orders made pursuant to ss 124 and 128 of the Sentencing Act 2000.[4] As a consequence of any one or more of the above grounds being established, this resulted in a sentence that was manifestly excessive or wrong in principle, and a new sentence ought to be imposed.The background facts[5] At about 4.00 pm on 11 August 2015, Mr Mathias and his associate burgled a Christchurch house. Mr Mathias gained entry to the house through a kitchen window and let his associate in through the door. The two of them then rummaged through drawers and cupboards and took various items of value including jewellery and electronics. They packed the items into bags and left the property on foot carrying the stolen items. The items were then placed into the boot of Mr Mathias'car, which was parked a short distance away and they drove away. The two offenders were stopped nearby by police and the stolen items were recovered from the boot of the car. Mr Mathias admitted his role in the burglary saying he did it because he needed money.The appellant's circumstances[6] Mr Mathias has a number of previous convictions, including four drug related convictions, two violent offences and 15 dishonesty offences, including 13 previous burglary by day convictions. He was also subject to an order of parole when he committed this burglary. He accepts he has a gambling problem which he is trying to address.The District Court decision[7] In the District Court, Judge Garland adopted a starting point of 20 months'imprisonment for a single offence of burglary. His Honour took into account the value of the items taken and the impact on the victim. However, he recognised that no damage was done and no loss was incurred because the stolen goods were promptly returned after the offenders were caught.[8] In setting the starting point, the Judge recognised that burglary of a domestic residence is a significant aggravating feature in sentencing due to the heightened riskof confrontation and violation of the occupant's privacy.1 He also uplifted the sentence by nine months due to the appellant's previous criminal convictions butreduced the sentence by seven months for an early guilty plea. This resulted in an end sentence of 22 months' imprisonment which was imposed cumulatively on thedefendant's last conviction for drug related offences.[9] The Judge then observed that:As a motor vehicle was used in the commission of this offence you are disqualified from holding or obtaining a driver's licence for a period of two years from today. I also make an order confiscating your Audi car. It is a 2000 model. Its registration number is DDN869 and it is to be surrendered to the Registrar of the Court by 4.00 pm tomorrow.Jurisdiction on appeal[10] Mr Mathias appeals to this Court as of right.2 Under s 250 of the Criminal Procedure Act 2011, the appeal must be allowed if the Court is satisfied that, for any1 Arahanga v R [2012] NZCA 480 at [78].2 Criminal Procedure Act 2011, s 244.reason, there was an error in the sentence imposed and a different sentence should beimposed. It is well accepted that where a sentence is "manifestly excessive", that is an error which would justify allowing an appeal.3 Furthermore, whether a sentenceis manifestly excessive "is to be examined in terms of the sentence given, rather thanthe process by which the sentence is reached".4Did the Judge fail to apply the principle of parity in sentencing the appellant having regard to the sentence imposed on his co-offender?[11] The issue of parity was a point raised belatedly in oral submissions on appeal.In support of it, I was provided with the notes of Mr Mathias' co-offender'ssentencing indication hearing. In that hearing, the Judge decided to take a startingpoint of 18 months' imprisonment.[12] It is not clear to me whether that starting point was also the starting point applied in the substantive sentencing exercise, so I have no clear foundation on which to consider parity of sentencing. Furthermore, the difference between an 18 and 20 month starting point does not, in my view, engage any concerns about parity. It is very likely that when co-offenders are sentenced by different judges, that some disparity will sometimes arise. That in itself does not produce an unjustifiable sentence. It would normally only do so where the disparity could be described as"unjustifiable and gross".5[13] Furthermore, different sentences may be justified in this case, taking intoaccount each offender's role in the overall offending. Here, even if I could be surethat a slightly higher starting point was applied to Mr Mathias, I accept Ms McKenzie's submission that such a difference could be justified by his role in theoffending, including undertaking the initial break-in in the property and because it was his car that was used to transport the stolen goods from the property.[14] This ground of appeal is not upheld.3 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].4 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].5 See R v Remeka [1973] NZLR 592 (CA).Did the Judge fail to take account of evidence of the appellant's remorse?[15] This ground is advanced on the basis the Judge did not appear to have all three letters of apology which had been written by Mr Mathias6 and did not make any reference to the element of remorse in his sentencing calculations.[16] Counsel for the appellant accepts that Mr Mathias' previous lawyer broughtat least one letter of apology to the sentencing Judge's attention, as the Judge refers to that letter in his sentencing notes. However, he says two further letters which were written to the two other occupants of the house do not appear to have made it to the Court file and these reinforced the remorse expressed in the first letter. Mr Maze also points out that Mr Mathias offered to participate in the Restorative Justice process and the victim's choice not to engage with that process does not diminish theinference of remorse to be drawn from the offer.[17] As the Court is required to take remorse into account by s 9(2)(f) of the Sentencing Act 2002 to the extent that it is applicable in the case, counsel for the appellant says the Judge was in error not to do so, and an additional credit should be applied for remorse.[18] In his judgment, the Judge records that Mr Mathias "says he is remorseful"and that his lawyer asks for credit for his guilty plea. However, in deciding on the appropriate discounts on sentence, the Judge simply notes "your guilty plea does entitle you to significant credit, although in my view conviction here was inevitable.I allow a reduction of seven months for that reason". He does not expressly allow or disallow a credit for remorse.[19] I accept that the Judge should have expressly indicated his view on the claim of remorse and explained why he did or did not take that into account in the sentencing process. However, the question is whether, had the evidence as to remorse been expressly taken into account, it would have influenced the sentence in a material way. The total discount given represents a discount of almost 25 per cent. This is not a case where a 25 per cent discount for a guilty plea was inevitable. Both6 To each of the three occupants of the home.Mr Mathias and his co-offender were caught "red handed" and a lesser credit would, in my view, be warranted in this case.7[20] Given Mr Mathias' offending history, and the fact he offended when onparole for earlier offending, I consider the Judge would have been justified in placing little, if any, weight on the expressions of remorse. I do not consider that the production of three letters to the victims, as opposed to the one letter that the Judge appears to have received, materially affects the assessment of remorse. Thus, even were I to consider this issue afresh, I do not consider a significant discount was warranted for remorse and the cumulative discount for remorse and for the guilty plea would still have resulted in about a seven month reduction in sentence.[21] Thus this ground of appeal also fails.Did the Judge err in making the confiscation and disqualification orders?The appellant's position[22] In the District Court the orders for disqualification and confiscation were opposed on the grounds that the vehicle was not used to facilitate the commission of the offence but its use was merely incidental to it. That is not the ground advanced on appeal. It is accepted that, as the vehicle was used to take the stolen goods from the scene, the vehicle facilitated the offence. However, the appellant submits that the orders are discretionary. That discretion must be exercised in accordance with the principles and purposes of sentencing and the appellant argues that, as those considerations were not addressed, the Judge erred in making the orders and the proper result was that the orders ought not to have been made.Disqualification under s 124 of the Sentencing Act[23] The order disqualifying the appellant from holding or obtaining a driver'slicence for two years was made pursuant to s 124 of the Sentencing Act 2002. That section provides:7 Indeed Judge Farish in giving a sentencing indication to Mr Mathias' co-offender proposed giving only a 15 per cent credit off the starting point.124 Power of court to disqualify offenders from driving motor vehicles(1) This section applies if a person is convicted of an offence punishable by imprisonment, not being an offence against the Land Transport Act 1998.(2) A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—(a) the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or(b) a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.(3) The court may order the offender to be disqualified from holding or obtaining a driver licence within the meaning of the Land Transport Act 1998 for any period in accordance with section 125 that the court thinks fit.(4) The court may make an order under this section in addition to, or instead of, passing any other sentence or making any other order.(5) Nothing in this section limits or affects any power of the court under any other enactment to make an order disqualifying any person from holding or obtaining a driver licence.[24] While the appellant accepts there was jurisdiction to make the order because the commission of the offence was facilitated by the offender's use of a motor vehicle, that does no more than mean the threshold is met for the exercise of theCourt's discretion to disqualify.[25] The power in s 124 is, the appellant submits, not directed at issues of road safety (in contrast to s 80 of the Land Transport 1998). It is a punitive power and the decision to make an order under this must be exercised in accordance with the principles and purposes of sentencing which apply to sentencing and to "otherwisedealing with offenders".[26] The appellant says that the relevant purposes of sentencing in this case are to:88 Sentencing Act 2002, s 7.(a) hold Mr Mathias accountable;(b) deter him and others from similar offending in the future;(c) denounce his behaviour; and(d) rehabilitate and reintegrate him into the community.[27] Here, the punitive nature of the order could legitimately go to the principles of accountability, denunciation and deterrence but, Mr Maze says, the principles of rehabilitation and reintegration point against making such an order. On release fromprison, Mr Mathias' ability to attend rehabilitative programmes for his gambling addiction or to gain employment, will be hindered if Mr Mathias is subject to an order disqualifying him from driving.[28] Furthermore, Mr Maze points out that the power to disqualify is very rarely used in these circumstances. In light of the general desirability of consistency with sentencing of similar offenders committing similar offences in similar circumstances, the imposition of this further penalty meant he was treated more severely than other offenders in similar circumstances.[29] Furthermore, the appellant submits that the principle that the Court mustimpose "the least restrictive outcome appropriate in the circumstances" is infringed by the addition of these further penalties.9 The conventional sentence calculated using the starting point of 20 months' imprisonment was appropriate and sufficient in the circumstances, and the Judge did not indicate why this additional penalty was required.Confiscation under s 128 of the Sentencing Act[30] The order confiscating the appellant's motor vehicle was made pursuant tos 128 of the Sentencing Act 2002. That section relevantly provides:9 Sentencing Act 2002, s 8(g).128 Confiscation of motor vehicle(1) This section applies if a person is convicted of any of the following offences:(a) an offence punishable by imprisonment for a term of more than 12 months, or by imprisonment for life:(2) A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court by or before which the offender is convicted is satisfied—(a) that a motor vehicle—(i) was used to commit or facilitate the commission of the offence, whether or not the offender was the driver or person in charge; [and](b) that, at the time of the conviction, the offender or a substitute for the offender owns the motor vehicle or has an interest in the motor vehicle.(3) The court may order that the motor vehicle be confiscated.(4) The court may make an order under this section in addition to, or instead of, passing any other sentence or making any other order.(5) In deciding whether to make an order under this section, the court must have regard to—(a) any undue hardship that the making of the order would cause to the offender or, as the case requires, to the substitute for the offender in relation to his or her trade, business, profession, occupation, or employment:(b) any undue hardship that the making of the order would cause to any other person who would otherwise have the use or benefit of the motor vehicle on a regular basis:(c) the nature and extent of the offender's interest, or, as the case requires, the interest of the substitute for the offender, in the motor vehicle, and the nature and extent of any otherperson's interest in it:(d) any other considerations that the court thinks fit.[31] The same submissions are made in relation to the Judge exercising his discretion under s 128 to order confiscation of Mr Mathias' car, and the same arguments are advanced by the appellant to say the order should be quashed.The respondent's position[32] The respondent agreed there was jurisdiction to make the orders under both ss 124 and 128. It also accepted that there were very few cases where the powers under s 124 or s 128 had been used in cases involving this type of offending.[33] However, it was submitted that there was no evidence of why the appellant particularly needed a car and, in the absence of clear evidence, the submissions as to the inconvenience of not having a car, or not being able to drive, should assume limited weight. While it was acknowledged that confiscation and disqualification can be assumed to impose at least some additional burden on a defendant, what is relevant on appeal is whether the sentence, looked at in totality, was excessive.DiscussionDisqualification of driver licence[34] Section 124 provides a power to disqualify a driver in relation to a wider range of offences than offences under the Land Transport Act 1998. It requires a connection between the use of the motor vehicle, and the offending before it can beinvoked to disqualify an offender from holding a driver's licence for up to three years.10 However, as a matter of logic, the more critical the use of a vehicle was to the offending, the more readily the discretion may be invoked.[35] In MacDonald v Police, where the offender wound a window up on aconstable's arm, forcing the constable to use his forearm to break the window to free himself.11 The Judge held that while the offence of obstruction was facilitated by the use of a motor vehicle, it was "in that range of use of a vehicle where the Judge mustbe very careful about the exercise of the discretion as to whether or not to impose10 See s 125(1), although there is an exception if a person is convicted of manslaughter where the Court may fix any period of disqualification that it thinks fit.11 MacDonald v Police HC Invercargill CRI-2008-425-000021, 1 September 2008 at [7].disqualification". Similarly, in Leonard v Police, where a vehicle was used to store cannabis, the Judge observed:12There may well be occasions where the use of a vehicle for the transportation of prohibited substances would render it desirable that a disqualification order be made. Where, however, the transportation is merely an incident of possession, as is the case here, the circumstances must be looked at carefully to ensure that an injustice is not done either to the accused on the one hand or the interests of the community of the other.[36] In the present case the Judge has not assessed why the use of the vehicle in the burglary warranted the discretion being exercised to order disqualification.[37] I also accept the appellant's submission that, as the purposes and principles ofsentencing apply to any form of "dealing with an offender", they must apply to theexercise of the discretion under s 124. That section provides that the Court maymake an order under that section "in addition to, or instead of, passing any other sentence or making any other order". This makes it clear that an order under thissection may, in some cases, meet the purposes and principles of the Sentencing Act without the need for any other sentence.[38] An order under s 124 has both the punitive and protective purposes. The loss of a licence is a way of making the offender accountable, and of denouncing his or her behaviour and of deterring the offender and others from similar offending. Equally, though, it can provide a means of protecting the community from the offender.[39] Where the ability to drive facilitated the offence, there may be a good reason for imposing disqualification to limit the opportunity for the offender to continue offending in that way. Equally, however, I accept the appellant's submissions thatwhere the inability to drive would hinder the offender's rehabilitation and reintegration, or would mean that the totality of penalties imposed, offends the principle that the least restrictive sentence appropriate in the circumstances should be imposed, that would point against an order being made under s 124.12 Leonard v Police (1988) 3 CRNZ 208 at 209.[40] In the present case, the only consideration addressed by the Judge appears to have been whether the threshold test of the vehicle being used to facilitate an offence has been met. Once the Judge was satisfied of that, he simply imposed an order, which was two-thirds of the maximum order available.13[41] I consider that was in error. The Judge failed to provide any reasoning as to why, in the exercise of his discretion, the two year period of disqualification was required, either to protect the public or to punish the offender, in the circumstances of this case. This is particularly so when the sentence imposed to that point, was determined on standard sentencing principles for that type of offending, and considered appropriate.[42] Having regard to the purposes and principles of sentencing, including the need for consistency in sentencing cases and the fact that, for a large part of the period of disqualification, Mr Mathias is removed from the community by his term of imprisonment, I do not consider that the disqualification was warranted in the exercise of discretion and accordingly, I set it aside.Confiscation of motor vehicle[43] Turning then to consider the confiscation of the vehicle under s 128, many of the same considerations arise. However, s 128 also contains its own list of factors tobe considered in the exercise of the Judge's discretion as to whether to order confiscation. These are set out at s 128(5) and are obligatory. The Court must have regard to any undue hardship to the offender in relation to his or her trade, business, profession, occupation or employment, or to any other person who would otherwise have the use or benefit of the motor vehicle on a regular basis. The nature and extentof the offender's interest in the motor vehicle is relevant, as is any other consideration the Court thinks fit.[44] In exercising the discretion the Court must bear in mind the purposes and principles of sentencing and the fact that an order for confiscation under s 128 has both punitive elements and elements of protection of the public. If the vehicle is to13 Which pursuant to s 125, is a three year period of disqualification.be confiscated to protect the public, then I would expect that reasoning to be explained, particularly when Mr Mathias is to be imprisoned for up to 22 months, and that already achieves a measure of protection of the public.[45] It is likely that the primary reason for a confiscation order in most cases is punitive. In that regard it would be relevant to consider the value of the vehicle and the need the defendant has for the vehicle (including when released from prison). It would also be relevant to consider whether imposition of such an order offends the principles of parity, when the overall effect of the sentence is compared with that of a co-offender, or other offenders, offending in similar circumstances.[46] In this case, there is no evidence that the Judge has considered either the mandatory factors under s 128(5) or the overarching purposes and principles of sentencing. For that reason, I consider that he was in error when he imposed an order under s 128.[47] In reconsidering the sentencing exercise afresh, I do not have information on the factors set out at s 128(5). If I thought they were required, I would remit the matter back to the District Court for reconsideration with further information. However, I do not intend to do that. I am satisfied that the sentence imposed of 22 months' imprisonment is sufficient to address the purposes and principles of the Sentencing Act. The further orders made under both ss 124 and 128 are not justified, whether having regard to the gravity of the offending, the need to denounce and deter the behaviour, or the need to protect the public. For those reasons, I do not consider that, by imposing them, the Judge has provided for the least restrictive outcome that is appropriate in the circumstances.[48] Accordingly, the appeal is allowed on this ground.Totality[49] I do not need to go on to consider this ground of appeal as it is already encompassed in the decision above. However, the decision above can also be supported having consideration to the principle of totality.Outcome[50] The appeal is allowed in part. The orders for disqualification under s 124,and for confiscation of the appellant's motor vehicle under s 128, are quashed. The balance of the sentence is upheld and is unaffected by this appeal.Solicitors:R W Maze, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch