CURRIE v POLICE [2019] NZHC 1946

CURRIE v POLICE [2019] NZHC 1946 [12 August 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000085[2019] NZHC 1946BETWEEN PHILIP LEONARD CURRIEAppellantAND NEW ZEALAND POLICERespondentHearing: 8 August 2019Appearances: O K Jarvis for the AppellantJ H Whitcombe for the RespondentJudgment: 12 August 2019JUDGMENT OF NATION JIntroduction[1] Mr Currie pleaded guilty to burglary, unlawfully taking a mountain bike valuedat $8000, driving whilst disqualified third or subsequent, unlawfully taking a motorvehicle valued at $5000 and breaching release conditions. He was sentenced by JudgeGarland on 26 June 2019 to two years and six months' imprisonment.[2] Mr Currie appeals the sentence on the basis that the starting point was too high,there was no discount for remorse and there was a disproportionate uplift for MrCurrie's criminal history.FactsCharge 1: burglary[3] Between Saturday 23 March and Sunday 24 March 2019, the victims had lefttheir mountain bikes in a garage on their property. Mr Currie entered the unlockedgarage and stole a Giant mountain bike valued at $800 and GT Mountain Bike valuedat $600. Mr Currie admitted to the burglary.Charges 2 and 3: taking a motor vehicle and drove while disqualified 3rd or subsequent[4] On Sunday 24 March 2019, the victim parked her Toyota motor vehicle on herproperty. The following day, she reported the vehicle stolen. Mr Currie was founddriving that motor vehicle in Christchurch and admitted taking the vehicle.[5] Mr Currie had been disqualified from driving indefinitely by the District Courtafter being convicted of driving with excess breath alcohol in 2002. He admitted todriving while disqualified.Charge 4: unlawfully taking a bicycle[6] On 25 March 2019, Mr Currie walked past an address and noticed a mountainbike leaning against the fence on a shared driveway. He walked down the drive and,seeing that the mountain bike was not secure, rode away on the bike. The bike wasvalued at $8000. On Wednesday 27 March, the Police received information from ananonymous source that this mountain bike was at Mr Currie's address. The Policewent to his address and found the mountain bike inside the doorway of Mr Currie'shome. He admitted taking the mountain bike and said he had planned to sell it to fundhis addiction to drugs.Charge 5: Breach of release condition[7] Mr Currie was released from prison on 21 May 2018 and was subject toapproximately eight months of release conditions. He failed to report to probation asrequired three times and received two warning letters. On 14 January 2019, he againfailed to report to his probation officer as directed and was charged.District Court decision[8] The Judge noted Mr Currie is 44 years old with a long history of offending.Mr Currie has over 100 convictions that include dishonesty, driving, drug, alcohol,violence related and sexual offending along with non-compliance offending. The pre-sentence report indicated his risk of re-offending as high. It recommended a sentenceof imprisonment with release conditions to deal with his alcohol and drug dependency.[9] Dealing first with the charge of burglary, the Judge said it carried a maximumpenalty of 10 years' imprisonment. Mr Currie stole bikes to the value of $1400. TheJudge adopted a starting point of six months' imprisonment.[10] In relation to the charges of unlawful taking and driving whilst disqualified,third or subsequent, the Judge said they carry maximum penalties of seven years andtwo years' imprisonment respectively. Mr Currie took a motor vehicle valued at$5000. His Honour noted the harm to the victim, and the fact that Mr Currie was adisqualified driver and chose to ignore the Court's order not to drive. He noted thiswas Mr Currie's fourth conviction for such an offence. The overall starting point theJudge adopted for these offences was 18 months' imprisonment.[11] In relation to the charge of unlawfully taking a mountain bike valued at $8000.the Judge said there was a degree of premeditation involved in this offence becauseMr Currie had taken the bike after walking down the driveway to investigate. Headopted a starting point of nine months' imprisonment.[12] On the charge of breaching release conditions, the starting point adopted bythe Judge was three months' imprisonment.[13] The Judge took a starting point of 36 months' imprisonment. He then reducedit in light of the totality principle to an overall starting point of 30 months'imprisonment. That figure, the Judge said, reflected his overall culpability.[14] In terms of aggravating and mitigating factors personal to Mr Currie, the Judgenoted an extensive history of dishonesty. He counted 59 convictions including sevenfor burglary and many for theft. Mr Currie also has two previous convictions forbreaching his release conditions. In the Judge's view, that warranted an uplift of ninemonths' imprisonment.[15] In relation to mitigating factors, the Judge accepted that Mr Currie tookresponsibility early and entered guilty pleas on all charges except for the breach ofrelease conditions charge. For that reason, he reduced the sentence by nine months.[16] The Judge said that, on each charge of burglary and on the charges of unlawfultaking, Mr Currie was sentenced to two and a half years' imprisonment. On the chargeof driving whilst disqualified, third or subsequent, he was sentenced to six months'imprisonment. On the charge of breaching the release conditions, he was sentencedto three months' imprisonment. All of those charges were to be served concurrently,meaning the total sentence was two and half years' imprisonment.[17] Given the Judge had imposed a sentence over two years' imprisonment, he wasnot in a position to impose release conditions.Principles on appeal[18] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles".2 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.31 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].Submissions for the appellant[19] Mr Currie's appeal is based on three submissions:(a) the starting point adopted by the Judge was too high;(b) no credit was given for remorse and willingness to participate inrestorative justice; and(c) the uplift imposed for Mr Currie's criminal history wasdisproportionate[20] Ms Jarvis for Mr Currie submitted the starting points adopted were manifestlyexcessive. She submitted the starting point of six months imprisonment for theburglary charge appropriately reflected the low-level nature of the offending but thestarting point on the unlawfully taking of the motor vehicle and driving whilstdisqualified charge, set at 18 months, was manifestly excessive. She submitted theoffending was opportunistic, the vehicle was unlocked with keys already in theignition and the vehicle was returned undamaged. Mr Currie has three previousconvictions for driving whilst disqualified. She submitted it was not inevitable that asentence of imprisonment would be imposed for this type of offending, Mr Currie'slast conviction for offending of this nature was in 1998.[21] Counsel for Mr Currie submitted that these three charges should have beendealt with together by imposing a starting point on the burglary charge and thenuplifting this to reflect the following charges. She argued that Mr Currie stole thebikes and discovered the car with its keys inside while he was on the way to the pawnshop, that he put the bicycles in the vehicle and drove there. She submitted theoffending was on the same day and at a similar time and there was a clear link betweenthe offending in that Mr Currie acknowledged the reason for taking the bikes was togain money for his drug habit.[22] The $8000 bike was recovered undamaged. Counsel submitted the startingpoint of nine months' imprisonment for this offending was manifestly excessive.[23] Counsel for Mr Currie submitted the sentencing Judge failed to take intoaccount Mr Currie's remorse as required by s 9(2)(f) of the Sentencing Act 2002.[24] Mr Currie had written a letter of apology to each of the victims of his offending,and a letter to the Judge. The sentencing Judge outlined that the letters would "carrymuch more weight had they been given to the victims soon after your offending, ratherthan being handed to me in Court upon your sentencing".[25] Counsel for Mr Currie also pointed to the offer to engage in restorative justice,although the victims had declined to participate. In addition, Mr Currie expressed hisremorse to the writer of the pre-sentence report. Counsel submitted those acts shouldhave led to a separate discount.[26] Counsel submitted the sentencing Judge's uplift for Mr Currie's previousconvictions was disproportionate. After considering the principles of totality, theJudge reached an overall starting point of 30 months' imprisonment. From thatstarting point the aggravating and mitigating factors were considered. An uplift ofnine months was imposed for Mr Currie's previous criminal history.[27] Counsel submitted an uplift of approximately 30% was manifestly excessiveand disproportionate.[28] Counsel acknowledged Mr Currie's lengthy criminal history which involved58 previous convictions for dishonesty type offending including seven for burglary.She submitted however, an uplift of nine months was disproportionate and noted hislast conviction for burglary was in 2005. She argued that, while the sentencing Judgeobserved Mr Currie had seven previous convictions for burglary, the Judge did notappear to factor that three were in 1996 and three in 2000.[29] Ms Jarvis submitted the sentencing Judge's starting point of six months for theburglary charge, did not take into account that the offending was at the lower end ofthe scale for this type of offending and could be appropriately characterised asopportunistic. It was apparent Mr Currie was aiming to get some quick money to fuelhis drug addiction. This was not a case where Mr Currie is a recidivist burglar.Submissions for the respondent[30] Mr Whitcombe for the Crown emphasised in his submissions that, on appeal,the focus must be on the end sentence. He submitted the end starting point for alloffending and the uplift on account of Mr Currie's previous offending were withinrange. There had been an appropriate discount for totality. In the circumstances, theJudge was entitled to give no separate credit for remorse. Further detail in hissubmissions is reflected in the conclusions I have reached.Analysis[31] I agree with the Crown's submission that the Judge could have adopted astarting point of one year' imprisonment for the charge of burglary. The Judge himselfsaid a start point in the vicinity of 12 months could have been appropriate.[32] In R v Columbus, the Court of Appeal was concerned with an offender whofaced one charge of burglar.4 He had forced entry to a garage at a residential propertycausing $670 of damage. He took a mountain bike, together with gardening tools anda tool box. The Court of Appeal held that the burglary was at the minor end of thescale and a starting point of one year' imprisonment was appropriate for similar typeoffending.[33] Here, there was no damage to the garage, but this was not opportunistic orunpremeditated offending. Mr Currie had told the writer of the PAC report that heattributed his offending to synthetic cannabis and that similar offending occurredbecause he was out looking to "score", and had he not found items which he couldsteal when he did, then he would have carried on until he found something else. In hisletter of apology to the owners of the two bikes, Mr Currie said "I was targetingunsecured bikes and happened to come across your bike, I made the lazy and dishonestdecision to take it". He did not just come across the bikes that he stole. He enteredonto a property and entered a garage to steal them.4 R v Columbus [2008] NZCA 192.[34] In R v Columbus, the Court of Appeal considered a starting point of one year'imprisonment could be within range for the offending there which they treated as being"at the minor end of the scale". The Court of Appeal however referred to thatoffending as being "apparently opportunistic or spontaneous because Mr Columbuswanted quick money". The offending here could not be described as "apparentlyopportunistic or spontaneous".[35] The starting point sentence for the charge of driving while disqualified andassociated theft of a motor vehicle was within range. The Judge was sentencing MrCurrie for his fourth conviction for driving while disqualified. A starting pointsentence of 10 months had been considered appropriate by the High Court in Petersonv Police where the sentence was for a third or subsequent offence.5 That starting pointwas in line with the approach in sentencing in the High Court for similar offences.6[36] The car was taken at some point between 9.00 pm on Sunday 24 March 2019and 8.00 am on Monday 25 March 2019. It had been parked on the owner's propertyin Riccarton, Christchurch with the keys in it. Mr Currie was found driving the motorvehicle at 11.25 am on 25 March 2019. In the car were the two bikes he had stolen.[37] Again, the taking of the vehicle could not be considered to have beenspontaneous or opportunistic. In his letter of apology and in talking to the reportwriter, Mr Currie connected the taking of the motor vehicle with his drug addiction.He was however being disingenuous in saying "I happened to come across yourvehicle with the key in the ignition and unlocked, I decided out of laziness anddishonesty to take your car". All the information before the Judge would havesuggested that Mr Currie had gone out looking for something to steal to fund his drughabit. He had gone onto a property at night to locate the owner's car and found thathe could steal it.5 Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009.6 Stott v Police [2018] NZHC 1591; Opetaia v Police [2015] NZHC 2532; Yan v Police [2017]NZHC 1435; Keenan v Police [2014] NZHC 1894.[38] The taking of the car and his driving it were offences committed separate fromthe burglary and the taking of the two bikes days earlier. That burglary had occurredat some point between 10.00 am on Saturday 23 March 2019 and 5.00 pm on Sunday24 March 2019. The theft of the car did not occur until after 9.00 pm on 24 March2019.[39] The further offence of unlawfully taking a bike occurred on Monday 25 March2019 at about 4.00 am. In committing this offence, Mr Currie had walked down adriveway towards homes. All the information before the Judge would have suggestedthat Mr Currie was out looking for something to steal to fund his drug habit. The bikewas valuable. In his letter of apology to the owner, Mr Currie said he has been"targeting unsecured bikes". Again, in that letter, he was somewhat disingenuous insaying to the owner that he just "happened to come across your bike". He had beenout looking for such a bike to steal and walked down a drive to take it. A starting pointsentence for that offence on a standalone basis of nine months' imprisonment waswithin range.[40] All the property taken was recovered undamaged but that was fortuitous ratherthan something for which Mr Currie was responsible. He had been intending to sellthe bikes he had taken. He said he was on the way to a pawn shop with two of thebikes in the stolen car when he was stopped in that car on 25 March 2019.[41] The Judge had to sentence Mr Currie for separate offending as to the breach ofrelease conditions. Mr Currie's offence of failing to report related to a failure to reportto his probation officer on 14 January 2019. The summary of facts indicated that hehad failed to report after a number of failures to attend on other occasions and a numberof warnings. The starting point of three months' imprisonment for that offending wasappropriate.[42] The Judge appropriately considered the totality principal by stepping backfrom an overall starting point of 36 months' imprisonment that he had arrived at andadjusting that to one of 30 months' imprisonment.[43] The Crown accept the uplift of nine months' imprisonment for previousconvictions was high. Mr Currie did have extensive previous convictions fordishonesty type offending including seven for burglary. Most of the dishonestyconvictions are dated but, as was submitted for the Crown, that does have to be viewedin the context of Mr Currie serving an 11 year prison term imposed in 2006. The upliftwas justified because of the way his previous dishonest offending required a greateremphasis on deterrence and protection for the community on sentencing.[44] Mr Currie's previous dishonesty offending was associated with features of hislifestyle, attitudes and drug use, which the report writer assessed continued to leavehim and the community at a high risk of his reoffending. Having regard to the Courtof Appeal's consideration of uplift in R v Columbus, the uplift was within range.7[45] There was no error in the Judge refusing to give additional credit for remorse.[46] Sentencing Judges will give credit for remorse, over and above the remorseinherent in a guilty plea, when an offender has demonstrated a true acceptance ofresponsibility for his offending, empathy for his victims of that offending, and agenuine commitment to address whatever issues he might need to so as to reduce therisk of further offending. Such remorse will not usually be demonstrated through briefor pro forma letters of apology as Mr Currie relied on here, or offers to participate inrestorative justice meetings which are now considered as a matter of routine in theDistrict Court. Here the sentencing Judge commented on the lateness of the letters tothe victims. There was also other information which the Judge had before him whichjustified his decision not to give credit for the remorse.[47] When Mr Currie was spoken to about the valuable mountain bike, heseemingly shifted responsibility for what he had done onto the owner of the bike. Hesaid his taking the bike was "what people like him do when people leave their stuffout".7 R v Columbus, above n 4.[48] In his letters to the victims, Mr Currie described himself as a former addict,identified synthetic cannabis addiction as being the cause of his offending and said hewanted to make changes to ensure there would not be further victims. These wereadmirable sentiments but the alcohol and drug assessment report from Odyssey Houseof 11 June 2019 suggested there had to be concerns as to the genuineness of thatcommitment.[49] The PAC report writer referred to Mr Currie's statement that he was sorry forhis actions and for any impact caused to the victims, but went on to say:Despite his statement, the report writer did not assess any depth to Mr Currie'sexpression of remorse given that he was self-focused throughout the interview,he lacks the motivation to undertake treatment and work with communitycorrections, and that he does not want to distance himself from antisocialassociates.Conclusion[50] Having regard to the above, I am not satisfied there was any error in the endsentence imposed on Mr Currie or that a different sentence should be imposed.[51] The appeal is dismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch.This judgment was delivered by me on 12 August 2019 at 11.00 am.Registrar/Deputy RegistrarDate: 12 August 2019.