MCKERNAN v NEW ZEALAND POLICE [2019] NZHC 3352

MCKERNAN v NEW ZEALAND POLICE [2019] NZHC 3352 [17 December 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2019-412-000033[2019] NZHC 3352BETWEEN RIKKI ALAN MCKERNANAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: B Stephenson for AppellantR P Bates for RespondentJudgment: 17 December 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] Mr McKernan pleaded guilty to 14 charges as follows:(a) theft under $500 (3);(b) driving whilst disqualified, third or subsequent (3);(c) theft (ex car) between $500 and $1,000;(d) using a document for a pecuniary advantage (4);(e) receiving over $1,000;(f) possession of a drug utensil; and(g) breach of community work.[2] He was sentenced by Judge Phillips to three years' imprisonment.1Mr McKernan appeals that sentence on the basis that the Judge made errors whichresulted in a manifestly excessive sentence.Facts[3] On 6 March and 23 March 2018, Mr McKernan entered New World inBlenheim and stole a punnet of fruit salad, worth less than $10 on each occasion. Onone of these occasions he left the supermarket by driving a vehicle while disqualified.[4] On 10 April 2019, Mr McKernan and a co-defendant stole a wallet andbackpack from a Nissan vehicle. The backpack contained hunting equipment valuedat $1,029. Mr McKernan then used a debit card found in the wallet at Anzac MobilLtd twice, and at Regent Night and Day Store twice. These purchases totalled $175.On 11 April Mr McKernan was contacted by a relative who knew the victim, whoasked Mr McKernan to return the property. The stolen wallet and cards were returned,along with a pair of binoculars from the backpack, but the other stolen items remainmissing.[5] On 12 April 2019, police found a glass meth pipe in Mr McKernan's vehicleduring a search.[6] On 15 April 2018, Mr McKernan and a co-defendant left an address inWaikouaiti in two separate cars. Mr McKernan was disqualified from driving at thetime. The two offenders drove to a nearby address where they received possession ofa boat and trailer that had been stolen three days earlier. They were collectively valuedat $8,000.[7] On 17 April 2019 Mr McKernan drove into a Z-Energy service station inDunedin and filled his vehicle with $120.24 worth of petrol. He drove away without1 Police v McKernan [2019] NZDC 18797.attempting to pay. Later that day, Mr McKernan was found to be driving a vehiclewhilst disqualified.[8] Mr McKernan was sentenced to 150 hours' community work on 5 March 2019.On 17 April he failed, without reasonable excuse, to attend community work asdirected. He continued to disregard his sentence despite efforts to reengage him, andby November had completed only two hours' community work.District Court decision[9] Judge Phillips considered the receiving and theft charges relating to the boatand trailer to be the lead offending. He adopted a starting point of 18 months for thatoffending. He then uplifted that sentence for the other charges as follows:(a) 15 months for the theft (ex car) and using documents offending;(b) 12 months for the separate instances of driving whilst disqualified; and(c) one month for breach of community work.[10] That brought the overall starting point to 46 months, which the Judge loweredto 42 months with regard to totality.[11] Judge Phillips uplifted the sentence by three months for Mr McKernan'soutstanding fines of some $9,374.91, and a further nine months for his previousconvictions and the fact that he was on both bail and sentence during the offending.He then allowed a credit of six months for personal mitigating factors, and a full25 per cent guilty plea discount. That resulted in a sentence of three years'imprisonment.Principles on appeal[12] 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.2 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".3 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.4SubmissionsAppellant's submissions[13] Mr Stephenson, on behalf of Mr McKernan, submits that the total starting pointwas manifestly excessive. He suggests two ways in which the Judge erred in reachingthat point.[14] Firstly, Mr Stephenson says it has come to his attention that the Judge had anincorrect summary of facts in relation to the boat and trailer offending. The summarybefore the Judge stated that Mr McKernan had stolen the boat and trailer as well asreceived them, while he should only have been sentenced on the receiving charge. Hesays it is clear from the judgment that Judge Phillips proceeded on the basis thatMr McKernan was also responsible for stealing that property.5[15] Mr Stephenson submits that given this error, the starting point of 18 monthsfor that set of offending was too high. He refers to Ellis v R, where the offenderreceived $5,000 worth of stolen property a few hours after the burglary.6 The Courtof Appeal considered a starting point of 18 months to be stern but within range giventhe proximity in time of the receiving to the burglary, and therefore the closeconnection between the two. Mr Stephenson submits the Court cannot make the sameinferences about closeness in time in this case given Mr McKernan collected the boatand trailer some three days after it was stolen, and that 14 months would therefore bean appropriate starting point.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Police v McKernan, above n 1, at [2] and [7].6 Ellis v R [2012] NZCA 513.[16] Secondly, Mr Stephenson contends that the starting point of 15 months for thetheft (ex car) and using a document charges was too high. He submits it is unclearwhether the other three theft charges were taken into account in reaching this point,but assumes they were for the purpose of the appeal.[17] Mr Stephenson submits that, in relation to the theft (ex car) and using adocument offences, the starting point could not be more than 12 months. He refers inthat submission to Rako v R, where the Court of Appeal held that a starting point of 12to 18 months can be applied for multiple uses of cards at the value of $2,000 - $6,000.7In the present case, Mr McKernan caused a loss of less than $2,000, including thoseitems taken from the car. Given the offending was limited to one victim, occurredover a short period of time and involved some property being returned, Mr Stephensonsubmits that a starting point of less than 12 months is warranted for that set ofoffending.8[18] In regard to the remaining three theft charges, Mr Stephenson submits that theyinvolved low value items. He recommends an uplift of one month for thetwo shoplifting charges, and a further one month for the petrol theft. Ultimately, inregard to this second identified error, he contends that the starting point for thefour theft charges and four using a document charges should have been 12 monthsrather than 15.[19] Finally, Mr Stephenson submits that the Judge did not have sufficient regard tototality in adopting his overall starting point of 42 months. He submits that theoffending was committed under the influence of methamphetamine and alcohol, andis emblematic of a man who has lost control over his life. For those reasons, thetotality principle should be given significant weight. Mr Stephenson contends that theappropriate nominal starting point would be in the realm of two and a half years'imprisonment.[20] No issue is taken with the uplifts and discounts awarded for personal factors.7 Rako v R [2015] NZCA 463 at [9].8 With reference to the sentences imposed for similar offending in Doctor v Police [2017] NZHC1084; and Horrell v Police [2016] NZHC 820.Respondent's submissions[21] Mr Bates, for the respondent, submits that the end sentence was not manifestlyexcessive. He does not accept there was any confusion in regard to Mr McKernanbeing sentenced for receiving the boat and trailer. Based on the way the Judgedescribed the offending, Mr Bates submits the obvious inference is that Mr McKernanmay not necessarily have been involved directly in the theft of the boat but becameinvolved shortly afterwards as the receiver. He contends the Court was properly ableto infer that there was premeditation involved, and a close connection between thetheft and the receiving. On that basis, 18 months in respect of the receiving chargewas within range.[22] In response to the submission that the starting point of 15 months on thecharges of theft and using a document was too high, Mr Bates submits that argumentfails to take into account the fact that further items valued at approximately $1,000were taken from the vehicle. Because of that, the respondent contends the startingpoint in respect of those offences was within the range available to the Court.[23] Mr Bates also submits that the Judge had proper regard to totality. He says thatthe Court had a wide range of offending before it, which the Judge considered was"serious offending, aggravated by past convictions; aggravated by you being on bailat various times". This required an end sentence that properly reflected the extent ofthe criminality. Furthermore, there were no discrete uplifts given for three of the theftconvictions, and the Judge stated he was being lenient in only uplifting the sentenceby three months for outstanding fines.[24] Mr Bates submits that the final sentence of three years' imprisonment was wellwithin range and that the appeal should be dismissed.AnalysisStarting point for receiving[25] I accept that the Judge did rely on an incorrect summary of facts in relation tothe boat and trailer offending, which resulted in his belief that Mr McKernan was tobe sentenced for both theft and receiving in relation to that property. This is clear fromthe following passage of the judgment:9I consider that the receiving and theft charges, relating to the boat and trailer,are the head or lead offending for your sentencing. You, with a co-offender,stole a boat, motor and trailer from Waitati worth some $8,000. I understandthat you drove a motor vehicle (whilst disqualified) to take possession of theboat and took it through to a property at Waikouaiti where it was hidden fromview. All that occurred on 12 April. It was found on 16 April.[26] Based on the updated summary of facts to which Mr McKernan pleaded guilty,he should only have been sentenced on the basis that he and an associate received astolen boat and trailer on 15 April.[27] However, in determining whether 18 months was an appropriate starting pointfor that offending, I have regard to the following cases:(a) Ellis v R, referenced by counsel: the defendant was found with stolenproperty worth $5,000 a few hours after the burglary.10 The Court ofAppeal declined to interfere with the starting point of 18 months.(b) R v Collier: the defendant received a stolen car worth $14,000 the dayafter it had been stolen.11 The Court of Appeal adopted a starting pointof 18 months.(c) Small v Police: the defendant received a stolen van and firearms worth$7,200.12 The Judge appeared to accept the receiving was opportunistic,and adopted a starting point of 18 months.(d) Ali v Police: the defendant received a car worth $8,800 betweenone and three weeks after it was stolen.13 The High Court upheld astarting point of 15 months.9 Police v McKernan, above n 1, at [2].10 Ellis v R, above n 6.11 R v Collier CA170/03, 21 August 2003.12 Small v Police HC Hamilton AP29/99, 30 March 1999.13 Ali v Police [2017] NZHC 2869.[28] Based on these cases, I do not consider the starting point of 18 months was outof range for the charge of receiving. It is therefore irrelevant that the Judge may haverelied on an incorrect summary of facts.Starting point for theft (ex car) and dishonestly using a document[29] Mr Stephenson argues that the starting point of 15 months was excessive forthe four charges of dishonestly using a document at a value of $175 and for theft froma car at a value of just over $1,000. I agree that that starting point would be too highif it were for the using a document charges alone, given the small value of the lossfrom that offending. While there is no tariff for such offending, Mr Stephenson iscorrect that starting points of more than 12 months seem to be applied where theamount at issue is more than $2,000; here it was only $175.[30] Even with the added charge of theft (ex car), it is difficult to see how 15 monthscould be reached. That is especially so given some of the property was returned to thevictim. I would see a starting point of 12 months as more appropriate for this set ofoffending.Totality[31] I am not satisfied that the Judge had insufficient regard to totality in loweringthe overall starting point from 46 months to 42 months. The offending involved alarge number of charges committed on multiple occasions. As is accepted byMr Stephenson, the other uplifts and discounts imposed were reasonable. The Judgedid not adopt discrete uplifts for three of the theft charges, which further allowed fortotality. He also made a relatively small increase for outstanding fines compared towhat he could have. Taking those matters into account, I consider there was anappropriate discount for totality, and that also went some way to making up for thehigh starting point on the theft (ex car) and document charges.[32] Standing back and looking at the end sentence, I do not consider it wasmanifestly excessive in the circumstances. Mr McKernen was sentenced for asignificant number of offences against the background of a significant criminal record.Three years' imprisonment is an appropriate end sentence in light of all relevantmatters.Conclusion[33] The sentence was not manifestly excessive. The appeal is dismissed.Solicitors:Public Defence Service, DunedinRPB Law, Dunedin