BANKS v NEW ZEALAND POLICE [2020] NZHC 859

BANKS v NEW ZEALAND POLICE [2020] NZHC 859 [1 May 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000036[2020] NZHC 859BETWEEN REUBEN BANKSAppellantAND NEW ZEALAND POLICERespondentHearing: 30 April 2020Appearances: C G Nolan for AppellantS L Dayal (via VMR) for RespondentJudgment: 1 May 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 1 May 2020 at 11.00 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate1 May 2020Introduction[1] The appellant, Mr Banks, was sentenced to three years and eight months'imprisonment on the following charges:(a) burglary (3);(b) obtains by deception (2);(c) theft over $1000 (2);(d) theft under $500 (2);(e) possession of methamphetamine;(f) possession of methamphetamine utensils;(g) reckless driving;(h) failure to stop for red and blue lights;(i) failing to remain stopped;(j) wilful damage;(k) failure to answer bail.Mr Banks was also disqualified from holding or obtaining a driver license for18 months and ordered to pay in $5,028 reparation.[2] Mr Banks now appeals that sentence on the grounds the sentence ofimprisonment imposed was manifestly excessive.Facts[3] Mr Banks was granted parole on 5 March 2018 while serving a four yearsentence for robbery and aggravated robbery. The current offending took place whilehe was subject to parole conditions.[4] On the night of 26 July 2019 Mr Banks went into a garage and took goodsvalued at $1,250. This led to the first charge of burglary.[5] On 30 July 2019 Mr Banks advertised a cell phone online, received paymentof $650, but then did not deliver the cell phone. On 1 August 2019 Mr Banks repeatedthis offending, receiving payment of $600. He was charged with two charges ofobtaining by deception.[6] On 2 August 2019 Mr Banks was arrested on the first burglary charge. He wasfound in possession of 0.20 of a gram of methamphetamine and a methamphetaminepipe. He was charged with possession of methamphetamine and methamphetamineutensils.[7] On 3 August 2019 Mr Banks was released on bail. That same day he stole aSamsung cell phone valued at $1,500. This led to the first charge of theft over $1,000.[8] On 6 August 2019, in the early morning, Mr Banks was stopped by police whiledriving a car in suburban Christchurch. A police car was parked in front of the vehicle.When the officer got out to speak to Mr Banks he accelerated, ramming into the policecar and pushing it out of the way. A second police car pursued Mr Banks, with redand blue lights and siren. Mr Banks drove at speeds in excess of 90 kilometresper hour without lights turned on, through suburban streets. Police eventuallyabandoned pursuit due to the dangerous speed. Mr Banks was charged with recklessdriving, failing to stop for red and blue lights, failing to remain stopped and wilfuldamage.[9] On the night of 8 August 2019, Mr Banks stole a Toyota vehicle from asuburban house. This led to the second charge of burglary.[10] On 10 August 2019 Mr Banks filled the stolen vehicle with petrol valued at$1201 at BP Bishopdale. He drove off without paying. This led to the first charge oftheft under $500.[11] On 13 August 2019 Mr Banks stole tools from a van valued at $1,400. Thisled to the second charge of theft over $1,000.1 I note the District Court decision states the value was $60, however the charging documents andpolice summary of facts state the value was $120.[12] On 16 August 2019 Mr Banks stole two seats of headphones valued at $58from the Warehouse in Eastgate. This led to the second charge of theft under $500.[13] On 17 August 2019 Mr Banks forced entry to a suburban house and took alarge amount of property valued at more than $10,000. This led to the third charge ofburglary.[14] On 26 August 2019 Mr Banks failed to appear in the District Court to answerbail for the first burglary charge.District Court decision[15] Judge Couch took the three burglary charges to be the lead offending.2 TheJudge considered the offending to be of a serious nature. All three properties weredwelling houses which is a statutory aggravating feature. He noted thefirst two offences occurred at night, which carries a real risk of confronting theoccupants. The Judge set a sentence starting point of two years and eight months'imprisonment.[16] The Judge applied the following uplifts: six months for the two charges ofobtaining by deception; nine months for the two charges of theft over $1,000;three months for the charges relating to methamphetamine and for theft under $500;two months for the failure to answer bail. This led to a combined starting point offour years and seven months' imprisonment.3[17] The Judge reduced the starting point by nine months to three years andten months' imprisonment to reflect the totality of the offending.[18] The Judge considered the personal aggravating factors to be that all theoffending occurred while Mr Banks was on parole from a lengthy sentence foraggravated robbery. In addition, the offending which occurred after 2 August 2019occurred while Mr Banks was on bail. Reflecting these factors, the Judge applied an2 Police v Banks [2020] NZDC 4040.3 I note based on the stated uplifts the combined starting point ought to have been four years andfour months' imprisonment.uplift of six months. A further uplift of three months was applied to reflect Mr Banks'criminal history.[19] The Judge then applied a discount of 20 per cent (11 months) for guilty pleas.The end sentence was three years and eight months' imprisonment. This was imposedcumulatively on Mr Banks' existing sentence. Mr Banks was also disqualified fromholding or obtaining a driver licence for 18 months. Reparation totalling $5,025 wasordered.Principles on appeal[20] 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.4 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".5 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.6SubmissionsAppellant's submissions[21] Mr Nolan, counsel for Mr Banks, submits the end sentence was manifestlyexcessive. He makes five submissions on the matter.[22] First, Mr Nolan submits the Judge erred in calculating the starting point offour years and eight months' imprisonment (although the Judge's sentencing notesactually say four years and seven months). Mr Nolan submits this should have beenfour years and four months' imprisonment.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].[23] Mr Nolan then submits the sentences ought to have been applied concurrently.He submits the offending is similar in kind in that it is predominantly dishonestyoffending and was committed over a relatively short period of time. Mr Nolan notesthis offending spree was to fund Mr Banks' methamphetamine addiction, which isdiscussed in the pre-sentence report and cultural report.[24] Thirdly, Mr Nolan submits the uplifts for offending while on bail, whilstsubject to parole, and for previous convictions were too high in the circumstances.[25] Fourthly, Mr Nolan submits the Judge erred in not applying a discrete discountfor personal mitigating factors. He submits Mr Banks' offending was due to a relapseinto his methamphetamine addiction. It is noted that Mr Banks was engaged with theOdyssey House programme when he was released on parole and was approved tore-enter the programme on release from prison. Mr Nolan submits Mr Banks has goodprospects of rehabilitation due to his relatively young age.[26] Mr Nolan points to the general hardship and deprivation in Mr Banks'upbringing as a mitigating factor that warrants a discrete discount. Mr Banks foundhis mother dead in the family home when he was 10 years old. Mr Banks' fathersubsequently became violent and Mr Banks was placed into foster and other familycare. Mr Banks has more recently lost his father and suffered a relationship breakup.Mr Nolan submits there is a nexus between the offending and the chronic traumasuffered by Mr Banks.[27] Mr Nolan submits a discrete discount for remorse, in addition to the guilty pleadiscount, is warranted. Mr Banks sought to participate in restorative justice, but thevictims did not wish to participate. Further, Mr Nolan submits a discount to reflectMr Banks youth, and his prospects of rehabilitation and reintegration, is available.[28] Finally, Mr Nolan submits that the Judge erred in not applying the leastrestrictive sentence in the circumstances. Mr Nolan submits, for the reasons outlinedabove, a sentence of two years with leave to apply for a sentence of home detentioninto a drug rehabilitation residential programme was the least restrictive sentence inthe circumstances.[29] In light of these factors, Mr Nolan submits the appropriate sentence structureis:(a) a starting sentence of two years and eight months' imprisonment for thethree burglary charges;(b) a concurrent sentence on the remaining charges;(c) an uplift of three months for offending while on parole and for previousconvictions;(d) a small reduction due to Mr Banks being recalled to prison;(e) a 30 per cent discount for youth, addiction, potential for rehabilitation;general deprivation and remorse;(f) credit for guilty plea of 20 per cent.Respondent's submissions[30] Miss Dayal, for the respondent, accepts Judge Couch made an error incalculating the starting point. However, Miss Dayal submits the end starting point of46 months was within range when taking into account the principle of totality.[31] Miss Dayal submits a higher starting point could have been adopted for thethree burglaries alone, when the aggravating factors are taken into account.[32] Ms Dayal submits all uplifts for the other charges were within range. Withrespect to the uplifts for aggravating features Miss Dayal submits an uplift of up to20 per cent is within range. Judge Couch applied an uplift of nine months, just under20 per cent. Miss Dayal considers the Judge would have been justified in adopting ahigher uplift.[33] Miss Dayal acknowledges a discount for addiction may be available. However,she points to the fact that the reports provided include a degree of self-reporting.Furthermore, Miss Dayal acknowledges a discount for social, cultural or economicdeprivation may be available if there is a demonstrative nexus with the offending.[34] Miss Dayal submits Mr Banks' age and remorse do not warrant a separatediscount.[35] Miss Dayal submits that if the calculation error is corrected, the reduction insentence would place the sentence within the lower end of the sentence range for thisoffending.AnalysisStarting point[36] I accept that Judge Couch made an error in calculating the overall sentencestarting point, before totality was applied, as four years and seven months'imprisonment. The correct calculation is four years and four months' imprisonment.[37] The Court of Appeal has said that if it is clear that a mathematical error resultedin a sentence that is more severe than that which the Judge intended to impose, it mustbe corrected, even if the end sentence imposed was still within the available range.7However, a correction of three months to a starting point will not necessarily result ina commensurate adjustment to the end sentence, particularly where, as here, there havebeen adjustments made to reflect totality, and adjustments made in percentage termsto the starting point to reflect other mitigating factors. For this reason, it is necessaryto revisit the entire sentencing exercise to determine whether the totality of the issuesraised by Mr Nolan warrant the sentence appeal being allowed.[38] I agree that the lead offending here is the burglaries, with the most seriousoffence being the burglary of 17 August 2019, where over $10,000 worth of propertywas taken.7 Ferris-Bromley v R [2017] NZCA 115 at [15].[39] Due to the varied circumstances of the offending there is no tariff case forburglary.8 A burglary of a dwelling house is a significant aggravating factor,9 as thereis a heightened risk of confrontation with the occupants.10 In Arahanga v R the Courtof Appeal suggested that burglaries of a more minor nature will tend to attract a startingpoint of between 18 months' and two years and six months' imprisonment.11[40] The following cases offer some guidance:(a) R v Harrison the appellant was convicted of four burglary charges. TheCourt of appeal upheld a starting sentence of four years'imprisonment.12(b) In Jones v R the appellant was convicted of three burglaries. A startingpoint of three years' imprisonment for the totality of the burglaryoffending was upheld.13(c) In Johnstone v Police the key features were significant financial andsentimental value of property, and entry into a dwelling-house.14However, there was limited damage to the house or premeditation. Thestarting point was two years' imprisonment.15(d) In Nelson v Police the appellant entered a residential dwelling, tookelectronics and jewellery valued at $800, the occupiers of the housewere not home.16 The starting point was 21 months' imprisonment.[41] There are a number of aggravating factors that add to the overall gravity ofMr Banks' offending: there are three charges; all involve residential dwelling houses;two of the charges involve entering at night, when there is a heightened risk of8 Arahanga v R [2012] NZCA 480; [2013] 1 NZLR 189 at [78]; R v Stepanicic [2015] NZCA 211.9 Sentencing Act 2002, s 9(1)b).10 Arahanga v R, above n 9, at [78].11 At [78].12 R v Harrison [2011] NZCA 80.13 Jones v R [2012] NZCA 73.14 Johnstone v Police [2012] NZHC 551 at [15].15 At [18].16 Nelson v Police, above n 13, at [8] and [18].confronting occupants; the property taken was of moderate value; and the offendingafter 2 August 2019 occurred while on bail. I consider the overall gravity of theoffending to be at the more serious end of the scale. The starting point of two yearsand eight months' imprisonment adopted by the District Court Judge was appropriatefor the lead offending.Further uplifts[42] The uplifts of six months on the two charges of deception, nine months on thetwo charges of theft over $1,000, and three months for the two thefts over $500, alongwith the methamphetamine charges, are all within range. I see no reason to disturbthese uplifts. It seems that the Judge then only applied an uplift for the failure toanswer bail and not for the charges of reckless operation or failure to stop. I considerthe two months uplift to reflect this offending to be appropriate. This brings the overallstarting sentence to four years and four months' imprisonment (52 months).Considering the totality of the offending, I agree that a reduction is appropriate.However, as I have reached a lower starting point, reflecting correction of thecalculation error, I would then reduce it by eight months. This brings the overallstarting sentence to three years and eight months' imprisonment (44 months).Totality[43] Mr Nolan submits concurrent sentences are appropriate as the offendingrepresents a connected series of criminal conduct. He points to the offendingoccurring over a short period of time, to fund a methamphetamine addiction.[44] However, I do not agree that the offending was sufficiently connected to justifyan overall concurrent sentence. The offending was distinct in nature and involvedmultiple victims. Where the specific offences were similar in nature, a concurrentsentence was applied by Judge Couch. Furthermore, to the extent the offending wasconnected, in that it was driven by Mr Bank's methamphetamine addiction, theadjustment for totality addresses this. I see no error in this approach.Personal aggravating factors[45] Mr Banks was on parole when this offending was committed. In addition, allthe offending after 2 August 2019 was committed while on bail. I consider an upliftof three months is within range. This is three months' less than applied byJudge Couch. There are three reasons why I have reduced the uplift. First, I note thatthis factor was taken into account as an aggravating factor when the Judge set thestarting point for the lead offending of burglary. Second, the offending while on bailalso comprised a separate charge for which he was sentenced. Finally, he was recalledto serve the balance of his existing sentence as a consequence of offending while onparole. Taking these matters into account, I consider there was a real risk of doublecounting if a six month uplift was imposed in addition to these uplifts in sentencing.I accept that a further uplift of three months for Mr Banks' criminal history waswarranted. This brings the sentence to four years and two months imprisonment(50 months).Mitigating factorsAddiction issues[46] Where there is a causal nexus between the offending and the appellant'saddiction issues, a discrete discount may be warranted.17 This ought to be based on"persuasive evidence, as opposed to mere self-reporting."18 While Miss Dayal notesthe pre-sentence report and the cultural report include a degree of self-reporting, Iaccept that they paint a clear picture of the defendant addressing a drug addictionwhich was causative of his offending.Cultural report[47] Social, cultural or economic deprivation with a clear nexus to the offendingmay also be a mitigating factor in sentencing.19 The s 27 report prepared forsentencing draws a causal nexus between the offending and the trauma Mr Bankssuffered as a result of his childhood experiences. Around May 2019 Mr Banks states17 At [147]-[148].18 At [148].19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].he started using methamphetamine to help him cope with the overwhelming emotionsaround the time of the memorial of his father's death. The drug use escalated and thereport writer concludes that the " nexus of the offending appears to be linked tochronic trauma resulting from his father's inability to cope with mother's death". Thereport goes on to account how his father engaged in daily drug use and extremeviolence against Mr Banks and his brother. While dependent on a degree ofself-reporting, I accept the report links Mr Bank's traumatic childhood to his currentoffending with sufficient cogency to take that factor into account.[48] In my view, inadequate consideration was given to the content of thepre-sentence report and the s 27 report, and the evidence provided in these reports asto the background factors which drove his offending, and his prospects forrehabilitation should have been taken into account in sentencing.[49] In my view, Mr Bank's background and upbringing was a contributing factorto his drug use and his connection with anti-social associates. The pre-sentence reportmakes it clear that he initially enjoyed a number of successes in Odyssey House andhe was reintegrated into the community with stable employment and secureaccommodation. It is only when his relationship ended, leaving him "totallydistraught" that he relapsed back into substance use. That response is explicable inthe context of a life where every meaningful relationship Mr Banks has had, has beenlost.[50] Importantly, too, Mr Banks acknowledges that he has "disappointed everyonewho supported him throughout his time in residential treatment and whilst on parole",and I accept he is remorseful for what he has done.[51] In my view, this combination of circumstances warrant a further discountwhich I set at 10 per cent discount or five months.Age[52] A discount may be provided to reflect the age of the offender.20 In this case Ido not consider such a discount is justified. Mr Banks is 21 years old and has a historyof criminal offending. Furthermore, this offending took place while he was on parole,was in breach of bail conditions and involves some degree of premeditation. Suchconduct ought to be denounced and deterred. Accordingly, no discrete discount foryouth is justified in these circumstances.Further discounts[53] I accept that a 20 per cent discount (or nine months) for his guilty pleas isappropriate.[54] Applying a 10 per cent discount for his traumatic upbringing and consequentaddiction issues, and a 20 per cent discount for guilty pleas, the final sentence isthree years' imprisonment. This is eight months less than the sentence imposed, andclearly justifies the appeal being allowed.[55] That three year sentence is to be served cumulatively on Mr Banks' currentsentence. The new sentence is to be allocated as between the charges as follows:(a) on each of the burglary charges Mr Banks is sentenced to two yearssix months' imprisonment to be served concurrently;(b) on the two charges of thefts over $1000, Mr Banks is sentenced tosix months' imprisonment, to be served cumulatively on the sentencefor the burglary charge with the CRN ending 2122, but concurrentlywith each other; and(c) on all other charges the District Court sentences, as set out at paragraph[17] of the Judge's sentencing notes, apply but they are all to be servedconcurrently with the sentence on the CRN 2122 burglary charge.20 Tahuri v R [2013] NZCA 254 at [42]-[43].Conclusion[56] The appeal is allowed.[57] The sentence of three years and eight months' imprisonment be quashed.[58] A sentence of three years' imprisonment is substituted, which is applied to thevarious charges as set out in [55] above.Solicitors:C G Nolan, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch