ANDERSON v R [2017] NZCA 91

ANDERSON v R [2017] NZCA 91 [28 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA329/2016[2017] NZCA 91BETWEEN PAUL CHARLES ANDERSONAppellantAND THE QUEENRespondentCA359/2016BETWEEN SHANE ANTHONY HARVEYAppellantAND THE QUEENRespondentHearing: 23 February 2017Court: French, Mallon and Duffy JJCounsel: P J Shamy for Appellant AndersonC D Eason for Appellant HarveyM L Wong for RespondentJudgment: 28 March 2017 at 2.30 pmJUDGMENT OF THE COURTThe appeals against sentence by both appellants are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Messrs Anderson and Harvey were associates in an extensive car theft operation. Mr Anderson, who committed additional offending, received a totalsentence of five years' imprisonment and Mr Harvey was sentenced totwo and a half years' imprisonment.1 Each now appeals against his sentence.Facts[2] This operation involved the theft of vehicles by Mr Anderson, Mr Harvey or both, and the provision by Mr Anderson of a market for the stolen vehicles and vehicle parts. Once the vehicles were obtained or received, they would remove andreplace the vehicles' identifiers with those from other vehicles. Distinctive features of the vehicles were removed or switched with those of other vehicles to disguise their identity. The offending involved premeditation. Sometimes the appellants would specifically target vehicles at the request of others.The charges against Mr Anderson[3] Partway through a jury trial Mr Anderson pleaded guilty to three charges of theft. The theft charges concerned a 1994 Nissan Terrano, value $7,000; a 1997 Toyota Hilux, value $4,000; and a 1987 Toyota Hilux, value $3,500.2 He also pleaded guilty to three charges of receiving stolen property. These charges concerned a 2001 Toyota Hilux, value $10,000; a 1990 Toyota Hilux, value $8,500; and a mobile cabin, which contained furniture and linen, total value $19,000.3[4] Mr Anderson was also charged with arson as a result of him and an associateintentionally setting the Nissan Terrano alight to "get rid" of it, according to textmessages obtained by police.4 The burning vehicle was parked at the start of a driveway to a residential property near the place where many of the stolen vehicles were stored. Mr Anderson pleaded guilty to this charge.1 R v Anderson [2016] NZDC 12086; and R v Harvey [2016] NZDC 12084.2 Crimes Act 1961, ss 219 and 223(b). The maximum penalty for this category of theft (propertyworth over $1,000) is seven years' imprisonment.3 Sections 246 and 247(a). The maximum penalty for this category of receiving stolen property(worth over $1,000) is seven years' imprisonment.4 Section 267(1)(b). The maximum penalty for this category of arson is 14 years' imprisonment.[5] Finally, there was a charge of obtaining by deception which arose out of a false insurance claim made by an associate of Mr Anderson.5 Together, they had agreed that the associate would claim his vehicle had been stolen when in fact hewas giving it to Mr Anderson. Police located the vehicle at Mr Anderson's address,where its number plates had been removed and replaced with plates from another vehicle. He pleaded guilty to this charge.Mr Anderson's appeal[6] On appeal Mr Anderson takes issue with the way in which Judge Kellar structured the sentences, submitting the Judge failed to recognise a discount for Mr Anderson's improved behaviour over the last 10 years and failed to consider the support from his employer. Those failures are said to have led to an end sentence that is manifestly excessive.[7] Judge Keller imposed cumulative sentences of two and a half years' imprisonment for arson, one and a half years' imprisonment for the theft offencesand one years' imprisonment for the receiving charges.6 Nothing is said in the sentencing notes about the sentence to be imposed for the obtaining by deception charge.[8] We agree it may have been better for the Judge to have taken the theft and receiving charges as the lead offences and treat the arson as an aggravating feature of that offending.7 The arson was after all intimately connected with one of the theft charges. However, on appeal our primary focus must be on the end sentence regardless of the methodology adopted to reach it. We consider that even if the sentence had been structured differently, the result would have been substantially the same.[9] A starting point of three years' imprisonment for the theft and receiving offending would be available given this was done in the context of an extensive operation that involved the premeditated theft of vehicles, and the disguise of those5 Sections 240(1)(c) and 241(a), carrying a maximum penalty of seven years' imprisonment.6 Anderson, above n 1, at [27].7 This would better reflect the gravity of the offending conduct, which is the objective of the starting point exercise; see Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [16].vehicles, for the purpose of supply to others.8 Then an uplift of 12 months could be applied for the arson offending, and a further uplift of 12 months to take account of the other dishonesty offending, which was also significant and premeditated. Thisbrings the sentence to one of five years' imprisonment without any account beingtaken of Mr Anderson's criminal history.[10] It was open to Judge Kellar to give no discount for the guilty pleas given they were not entered until the second day of the jury trial. Mr Anderson sought some recognition for the glowing testimonials he provided to the Court as well as for the fact that he had not received a sentence of imprisonment for the last 10 years. Judge Kellar noted the testimonials, but he did not address the last factor. We do not consider these matters warrant any discount. The receiving offending occurred over a period of time during which Mr Anderson stole two cars for which he wassentenced to six months' home detention. Despite the imposition of this sentence fordishonesty offending Mr Anderson went on to steal more motor vehicles, as is shown by the present offending.9 This aggravating feature cancels out any credit Mr Anderson might otherwise have received for improved conduct. Accordingly, there should be no discounts for mitigating factors.[11] We are satisfied therefore that an end sentence of five years' imprisonment for Mr Anderson's level of offending is not manifestly excessive. Accordingly theappeal against sentence should be dismissed.The charges against Mr Harvey[12] Mr Harvey was convicted at a trial of five charges of theft. There were three charges of theft of motor vehicles, one of which related to his role in the theft of the8 To our knowledge there are no directly comparable sentencing cases in the higher courts involving commercial-scale car theft. Greenwood v Police [2016] NZHC 2951 is similar: the defendant was sentenced for a raft of charges for his involvement in a car re-birthing operation. Four charges of receiving stolen property were taken as the lead offences, and the District Court Judge adopted a starting point of two and a half years' imprisonment.Justice Downs did not interfere with the sentence on appeal. Mr Anderson's offending in thepresent case could be considered slightly more serious, given the magnitude of the operation.9 Two of the receiving offences covered a period from August or September 2013 until February 2015. The theft offences for which Mr Anderson received a sentence of home detention were committed in October 2013 and he was sentenced for them on 8 April 2014. The present car theft offending included offences committed in February 2015 and August 2015. All of these demonstrate a pattern of ongoing dishonesty offending.1987 Toyota Hilux, value $3,500, which his co-offender, Mr Anderson, pleaded guilty to stealing.10 The second charge was in relation to a Toyota Hilux Surf, value$12,000. When police found the vehicle it was stripped down and "pretty much gutted". The third charge involved another Toyota Hilux, value $4,000. There wasalso a charge of theft of a trailer, value $1,500, which was parked on a driveway. Inside the trailer was $9,000 of painting equipment. The final charge was for theft of keys and a wallet from a car.11 The car was not stolen.Mr Harvey's appeal[13] Mr Harvey contends the Judge's starting point was too high and that the moreappropriate starting point is one of two years' imprisonment, which is what theCrown advocated at the sentencing. We disagree. The offending was premeditated. Mr Harvey was engaged in a criminal operation that involved stealing a particular type of motor vehicle and altering its identifying features for the purpose of supply to others. This was calculated offending for gain. Accordingly, we consider theJudge's starting point of two and a half years' imprisonment to be within the range offor this type of offending.12[14] Because he went to trial Mr Harvey was not entitled to any discounts for a guilty plea. The Judge uplifted the sentence by six months to reflect Mr Harvey'scriminal history.13 He then reduced the sentence by three months to reflect the totality principle and gave a further reduction of three months to reflect restrictive bail terms. Thus, the Judge effectively extinguished the uplift for past offending.[15] Mr Harvey has fewer relevant convictions than Mr Anderson. Mr Harvey contends the uplift of six months to reflect his criminal history was excessive. Whilst in principle that might be so, the impact of this uplift was then reduced by three months for totality. We consider the same result was open to the Judge simply by uplifting the starting point by three months to take account of the criminal history10 Crimes Act, ss 219 and 223(b). The maximum penalty for this category of theft (property worthover $1,000) is seven years' imprisonment.11 Sections 219 and 223(d), carrying a maximum penalty of three months' imprisonment.12 See Singh v R [2011] NZCA 139.13 At sentencing Mr Harvey was 30 years old. Dating from 2003, Mr Harvey's relevant criminal history includes three burglary convictions; two theft convictions; five receiving convictions and two convictions for unlawfully taking a motor vehicle.with no adjustment for totality. This would properly reflect Mr Harvey's pastoffending. Then the three month discount for restrictive bail conditions would bring the end sentence back to two years and six months' imprisonment, which is withinthe range for this offending.[16] Accordingly, we are satisfied the appeal should be dismissed.Result[17] The appeals against sentence by both appellants are dismissed.Solicitors:Crown Law Office, Wellington for Respondent