TURNBULL v NEW ZEALAND POLICE [2021] NZHC 828

TURNBULL v NEW ZEALAND POLICE [2021] NZHC 828 [20 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-43[2021] NZHC 828BETWEEN RYAN ROBERT TURNBULLAppellantAND NEW ZEALAND POLICERespondentHearing: 12 April 2021Counsel: E Kim and C A Oxnam for appellantH J Bell for respondentJudgment: 20 April 2021JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 20 April 2021 at 10.00am.Registrar/Deputy RegistrarDate:Solicitors:Public Defence Service, AucklandCrown Solicitor, AucklandIntroduction[1] Ryan Turnbull pleaded guilty to the following offending:(a) two charges of possession of utensils for the consumption of prohibiteddrugs;1(b) one charge of cultivating cannabis;2(c) one charge of breach of community work;3(d) one charge of male assaults female;4(e) five charges of theft under $500;5(f) one charge of unlawfully taking a motor vehicle;6(g) one charge of receiving stolen property;7(h) one charge of burglary;8(i) one charge of possession of ammunition;9(j) one charge of failing to comply with the direction of a medical officer,which was a breach of the COVID-19 lockdown rules;10 and(k) one charge of possession of offensive weapons.111 Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3). Maximum penalty one year's imprisonment and$500 fine.2 Section 9(1). Maximum penalty seven years' imprisonment.3 Sentencing Act 2002, s 71(1)(a). Maximum penalty three months' imprisonment or a $1,000 fine.4 Crimes Act 1961, s 194(b). Maximum penalty two years' imprisonment.5 Sections 219 and 223(d). Maximum penalty three months' imprisonment.6 Section 226(1). Maximum penalty seven years' imprisonment.7 Section 247. Maximum penalty three months' imprisonment.8 Section 231(1)(a). Maximum penalty 10 years' imprisonment.9 Arms Act 1983, s 45(1). Maximum penalty four years' imprisonment and a $5,000 fine.10 Health Act 1956, s 72(d). Maximum penalty six months' imprisonment and a $4,000 fine.11 Crimes Act 1961, s 202A(4)(a). Maximum penalty three years' imprisonment.[2] The offending took place on discrete occasions over a long period betweenMarch 2019 and June 2020. Almost all of the offending, with the exception of thetheft of the sunglasses, the 18 March drug-utensil offending, and the 20 March breachof community work, took place while Mr Turnbull was on bail for the other offending.[3] On 7 January 2021 in the Auckland District Court, Judge Collins sentencedMr Turnbull to two years and nine months' imprisonment.12 Mr Turnbull appeals onthe basis that the Judge erred by not making adjustments in accordance with theprinciple of totality and by applying insufficient credit for Mr Turnbull's guilty pleas,which led to a manifestly excessive sentence.The offendingDrug offences[4] On 18 March 2019, the Police searched a car driven by Mr Turnbull. Theyfound a methamphetamine pipe and two cannabis bongs. Mr Turnbull admitted thatthey belonged to him. On 11 November 2019 the Police searched Mr Turnbull'sresidence. They found seven cannabis plants and 18 cannabis seedlings. Mr Turnbullsaid that he was looking after them for a friend.Breach of community work[5] On 20 March 2019, Mr Turnbull was sentenced to 80 hours of communitywork for six counts of theft under $500. He failed to report for community work asdirected by a Probation Officer. He later completed the sentence.Male assaults female[6] Mr Turnbull and the victim had been in a relationship for some time and havean infant child. At about 11.15 am on 30 August 2019, his partner got out of thevehicle they were sitting in. Mr Turnbull followed her and punched her with a closedfist. There is no further information about this offending, other than that Mr Turnbull12 Police v Turnbull [2021] NZDC 94.initially denied it, but, through counsel, communicated on 3 November 2020 his intentto plead guilty.Theft[7] Between 8 and 9 November 2019, Mr Turnbull filled his car with petrol at fourdifferent petrol stations and drove off without paying. The total cost of the petrolstolen was $471.50. The fifth charge relates to the shoplifting of a pair of sunglassesvalued at $300 from a store on 12 March 2019.Unlawfully taking a motor vehicle[8] On 6 June 2020 Mr Turnbull leased a Toyota Vitz from a rental company fortwo days. He did not return the car on time. On 17 June 2020, he was found drivingthe car but claimed he was on his way to return it to the car rental company.Receiving stolen property[9] When the Police stopped Mr Turnbull on 17 June 2020, they searched the carand found a set of stolen number plates. Mr Turnbull claimed that he was given themby a friend and was to put them on another car, which he was to take from Aucklandto Gisborne.Burglary[10] Between 11.30 pm on 22 April 2020 and 2.00 am on 23 April 2020,Mr Turnbull, together with a co-offender, burgled a holiday home in Mahia.13 A largenumber of goods were taken, including televisions, diving equipment, power tools,and a rifle. The goods were loaded into a utility vehicle that was brought to the scene.The pair attempted to take a ride-on lawnmower and a quad bike but failed to do so:the quad bike was located a short distance up the road without its key. Atapproximately 1.00 pm on 1 May 2020, the Police executed a search warrant and13 There was some dispute in the District Court as to whether it was a holiday home or a primaryresidence. The District Court Judge considered it to be a holiday home, and I understand thisfinding of fact is not contested on appeal.located many, but not all, of the stolen goods. Mr Turnbull admitted the offendingwhen confronted.Unlawful possession of ammunition[11] As part of that same search, the Police found five rounds of ammunition.Mr Turnbull admitted ownership of the ammunition.Breach of the COVID-19 lockdown rules[12] At 11.59 pm on Wednesday 25 March 2020, New Zealand entered a "Level 4"lockdown to deal with the spread of COVID-19. The lockdown received extensivepublicity. On 27 March, 29 March, and 13 April 2020, Mr Turnbull was warned forfailing to adhere to the guidelines. On 27 April 2020 New Zealand moved to "Level3". The restrictions – lawfully imposed pursuant to s 70 of the Health Act 1956 by anorder issued by the Director-General of Health on 3 April 2020 – required NewZealanders to remain at their current place of residence except as permitted foressential personal movement. At 1.05 am on 9 May 2020, Mr Turnbull was thepassenger of a vehicle stopped by Police. He had no lawful excuse.Possession of an offensive weapon[13] On 17 June 2020, a car driven by Mr Turnbull was searched. A tomahawk wasfound on the floor of the driver's seat, positioned so as to allow easy access to thedriver. Mr Turnbull claimed it was to loosen the wheel nuts of the car.Mr Turnbull[14] Mr Turnbull had 49 prior convictions, dating back to 2001 when he arrived inNew Zealand from Canada. All are relatively minor. He has served one term in prison,when he was sentenced to nine months' imprisonment for poisoning with intent toinconvenience as a family violence charge.[15] Mr Turnbull has long-standing drug abuse problems. He has lived a transientlifestyle for at least the last 20 years, although within that period there have been timesof stability and employment. He was last employed in 2018. His pro-social supportsare limited to his mother, partner and infant son, all of whom currently reside inGisborne. Mr Turnbull is also dyslexic, but not severely so. He has been assessed asbeing at a moderate risk of reoffending.The District Court decisionThe offending[16] Judge Collins took the burglary as the lead charge. He adopted an adjustedstarting point of 18 months to recognise the seriousness of that offending. This is notappealed. The Judge then applied a series of uplifts. He observed that "if theseoffences stood on their own, a sentence of imprisonment would be considerablymore".14 I adopt a version of Ms Kim's helpful chart summarising the uplifts JudgeCollins imposed to reflect the other offending:Charge Maximum penalty/imprisonmentUpliftLead offenceBurglary 10 years 18 months (startingpoint)Dishonesty-related offencesUnlawfully takes motor vehicle 7 years 4 monthsReceiving under $500 3 months 2 monthsTheft under $500 3 months 3 monthsDrug-related offencesCultivation of cannabis 7 years 3 monthsPossession of pipe/utensils 1 year, $500 fine 1 monthWeapons-related offencesUnlawful possession of explosive(ammunition)4 years, $5,000 fine 2 monthsPossession of offensive weapon(tomahawk)3 years 2 monthsViolent offencesMale assaults female 2 years 2 monthsOther offencesFailing to comply with direction of amedical officer6 months, $4,000 fine 2 monthsBreaching community work 3 months, $1,000 fine 1 month[17] The aggregate global adjusted starting point, therefore, was 40 months'imprisonment. The Judge noted that much of the offending was on bail; he applied a14 Police v Turnbull, above n 12, at [17].further three-month uplift to account for that. Judge Collins considered that the list ofprevious convictions was serious, so he added a four-month uplift to reflect the needfor a greater level of personal deterrence. This brought the total uplift to 29 monthson a sentence of 18 months, for a total end sentence of 47 months before considerationof personal factors. The transcript of the oral judgment records that this came to49 months but the Judge seems to have misspoken; he used the correct figure of47 months in his later calculations.Personal factors[18] Judge Collins then considered Mr Turnbull's personal circumstances. In theaggregate, he considered that a 15 per cent discount was appropriate for personalfactors. This is not challenged on appeal. He then considered the guilty plea thatMr Turnbull had entered and decided – taking into account the number of pleas andthe time that they took – that a discount around 15 per cent would be appropriate. Heapplied these factors but said that he would allow discounts of eight months for eachof the personal circumstances and guilty plea factors. Applying two eight-monthdiscounts from an adjusted starting point of 47 months should have resulted in an endsentence of 31 months' imprisonment (two years seven months) based on the Judge'sstarting point, rather than the two years and nine months' imprisonment the Judgeimposed.The appellant's submissions[19] For Mr Turnbull, Ms Kim accepts that the burglary starting point wasappropriate, as was the discount for personal circumstances. She submits, however,that the Judge made no adjustments to accord with the principle of totality; that thetotal of the uplifts for the other offending ought to have been around 13 months insteadof 22 months and that he applied an insufficient guilty plea discount.Uplifts[20] In relation to the unlawful taking of a motor vehicle, Ms Kim points out thatMr Turnbull paid for all the additional days and relevant penalty costs. Moreover, hehad provided his personal details to the rental company at the time of the hire. Assuch, she submits the offending was at the very lowest end of the spectrum ofculpability for that charge, and any uplift should have been minimal. Likewise, thereceiving of the stolen licence plates was of minimal significance, since the value ofthe plates was so small. For the dishonesty charges, including the five charges of theft,Ms Kim suggests that a total uplift of four months would be appropriate.[21] Given that only a small quantity of drugs and drug utensils were found,Ms Kim suggests that this would fall within band one of R v Terewi and only aone-month uplift would be appropriate.15[22] Ms Kim takes no issue with either the uplift for weapons-related offences orthe uplift on the charge of male assaults female. Ms Kim submits that a two-monthuplift for the breach of the COVID-19 lockdown rules is at the upper end of thespectrum but does not expressly challenge it. She submits that no uplift for thecommunity work breach is appropriate, given that the sentence was subsequentlycompleted without issue.[23] Ms Kim further suggests that the three-month uplift for offending while on bailwas inappropriate.[24] Given that the previous convictions do not include burglary and are relativelyminor, she submits that no uplift was appropriate.[25] Looking at the offending overall, Ms Kim directs the Court's attention toStridom v Police,16 where the appellant was sentenced on two charges of burglary thatare each at least superficially similar to that here, as well as one charge of theft between$500 and $1,000, one charge of receiving over $1,000, one charge of unlawfully takinga motor vehicle during a burglary, one charge of driving while disqualified, one chargeof possession of a methamphetamine pipe, two charges of using a document forpecuniary advantage, and one charge of possession of an offensive weapon. The HighCourt adopted a two-year starting point for the two burglary charges and imposed a10-month uplift for the other offending.15 R v Terewi [1999] 3 NZLR 62 (CA) at [4].16 Stridom v Police [2019] NZHC 354.[26] Ms Kim further suggests that the guilty pleas took some time, but were allsignalled at the time of the sentence indication hearing. She suggests that a 20 per centdiscount would be appropriate.[27] In aggregate, Ms Kim submits that an appropriate sentence would havecomprised 18 months as a starting point with a 13-month uplift for the other chargesand a two-month uplift for offending on bail (making a global adjusted starting pointof 33 months), and allowing a total 35 per cent discount (12 months rounded up) forpersonal circumstances and guilty plea. This would result in an effective end sentenceof 21 months, which would put Mr Turnbull in the range where home detention mightbe considered.Approach on appeal[28] An appeal against sentence must be allowed only if the Court is satisfied thatthere has been an error in the sentence imposed for any reason and that a differentsentence should be imposed.17 A material error requiring correction will be establishedif the sentence is manifestly excessive or wrong in principle, or if there are exceptionalcircumstances.18[29] In a case such as this the real question is whether the effective end sentencewas manifestly excessive. Whether a sentence is manifestly excessive is to beexamined in terms of the sentence given, rather than the process by which the sentenceis reached.19 An appellate court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles. It is importantto note that the type of offending that occurred here is dealt with daily by District Courtjudges. Without needing to refer to legal authorities, they are familiar with, and haveregard to, the sentences routinely imposed for what may be seen as relatively low-level offending. In my view, a judge of this Court should not lightly interfere with theexercise of discretion by an experienced District Court judge in addressing appropriatelevels of uplift for that type of offending.17 Criminal Procedure Act 2011, s 250.18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30] and [31].19 Larkin v Ministry of Social Development [2015] NZHC 670 at [26], applying Ripia v R [2011]NZCA 101 at [15].The first ground of appeal: the uplifts[30] There is no merit in the argument that the Judge ignored totality principles; henoted them at [17], [18], [19], [20], and [22] and I am satisfied he applied the correctapproach.Dishonesty offending[31] Judge Collins observed that, in serious cases, unlawfully taking a motor vehiclecould attract sentences of up to 18 months' imprisonment. At the time Mr Turnbullwas stopped by the Police he was driving away from the car rental location and hadbeen using the vehicle for nine days illegally without showing any intention to returnit. I accept that he paid the late fees but that does not diminish his culpability at thetime of the offending. A four-month uplift was within the range available to the Judge.[32] Judge Collins was right to conclude that receiving stolen licence plates hassignificance out of proportion to the mere cost of the plates. Since Mr Turnbull hadgiven his name and other identifying details to the rental company, the inference thathe may have intended to affix the stolen plates to the rental car may be over-reaching,but stolen licence plates are almost inescapably intended for use in criminal activity.Adjusted for totality, a two-month uplift was within range.[33] Ms Kim does not contest the uplift for the five charges of theft. I consider thatthe total uplift for the dishonesty offending of nine months was appropriate.Drug offending[34] Offending in category one of R v Terewi is almost invariably dealt with by wayof a fine, supervision, or community service.20 As the Judge noted, however, giventhat this offending was not being approached independently, that is not determinative.In general, the Crown does not seek an uplift for this kind of offending.21 Accordingly,20 For example, Walters v Police [2021] NZHC 63; Marshall v Police [2019] NZHC 2304; andMerriman v Police [2019] NZHC 2079.21 For example, R v Sinclair [2021] NZHC 569 and R v Hayman [2021] NZHC 642.I consider a four-month uplift for the drug offending to have been excessive; a two-month uplift would have been sufficient.Assault[35] A two-month uplift for assaulting a female was appropriate.COVID-19 lockdown rules breach[36] Judge Collins took into account that Mr Turnbull's lockdown breach was thelatest of a series of four breaches, after he had received three warnings. Although thefirst two incidents occurred at a time the High Court subsequently determined therewas no lawful authority for the purported mandatory requirement for New Zealandersto stay at home in their "bubbles",22 a two-month uplift for the breach for whichMr Turnbull was prosecuted was appropriate in this case.23Weapons-related[37] The uplifts of two months' imprisonment for each of the weapons charges(ammunition and the tomahawk) were unexceptional.Breach of community work[38] There is some force in Ms Kim's proposition that, having regard to the overalloffending, an uplift of one month's imprisonment for a breach of a community worksentence that was ultimately completed was not really called for. I do not regard theuplift, however, as outside the proper exercise of the Judge's discretion.Uplift for offending while on bail[39] Almost all of this offending took place while Mr Turnbull was on bail for otheroutstanding charges. That is a significant factor that is reflected in s 9(1)(c) of the22 Borrowdale v Director-General of Health [2020] NZHC 2090.23 Tuhi v R [2021] NZHC 459.Sentencing Act 2002.24 Judge Collins imposed a three-month uplift. That is analogousto other cases and within the proper exercise of his discretion.25Uplift for previous convictions[40] As the Judge pointed out, there is a strong nexus between the offending inMr Turnbull's past and the instant offending; it is of a similar nature and quality. Thelarge number of previous convictions goes to his likelihood of re-offending, meaningthat there is an enhanced need for deterrence and incapacitation to protect the safetyof the public. The four-month uplift the Judge imposed was reasonable.Were the uplifts excessive?[41] Judge Collins reached an adjusted starting point of 47 months. As I haveindicated, the uplifts for the drug offending were too high; I would have reduced thestarting point by two months to 45 months.The second ground of appeal: the guilty plea[42] Mr Turnbull's guilty pleas were given at variable times. Some were givenalmost immediately, such as his guilty plea to the lead charge of burglary. Some weregiven only after a long delay, after initially indicating that he would proceed to adefended trial, such as the charge of male assaults female. The Judge, as he observed,was required to assess the real quality of the guilty plea. I am mindful of Judge Collins'advantages as the Court of first instance to make that assessment. Further, his decisionto grant a 15 per cent discount is not out of keeping with other analogous cases.26 Iwould not usually consider I should interfere with it but, having said that he wouldallow discounts of eight months for personal factors and the guilty plea, the Judgeought to have done that rather than apply a less generous 15 per cent or seven-monthdiscount for each.24 Clunie v R [2013] NZCA 110 at [22].25 It constitutes a 7.5 per cent uplift. This is generous in comparison to cases like Wilson v Police[2021] NZHC 402, where an eight per cent uplift was given for a smaller percentage of theoffending happening on bail and Davies v New Zealand Police [2019] NZHC 3081 at [21], wherea 25 per cent uplift was given.26 Such as R v Kalepo [2021] NZHC 578 and Bogue v Police [2021] NZHC 487.Result[43] Although I accept that methodology is less significant than final outcome, inthe particular circumstances of this case I am satisfied that a four-month reduction inthe sentence is appropriate.[44] The appeal is allowed in part. The sentence of two years nine months'imprisonment on the burglary charge is quashed and a sentence of two years fivemonths' imprisonment imposed. All other concurrent sentences and the order for theremission of the fines remain undisturbed. The total effective end sentence, therefore,will be two years five months' imprisonment.Toogood J