CURLE v POLICE [2017] NZHC 1194

CURLE v POLICE [2017] NZHC 1194 [2 June 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000098[2017] NZHC 1194BETWEEN SAMUEL CURLEAppellantAND NEW ZEALAND POLICERespondentHearing: 30 May 2017Appearances: C Watkins for AppellantJ Bull for RespondentJudgment: 2 June 2017JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 2 June 2017 at 3.30pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:C Watkins, Barrister, AucklandCrown Solicitor, AucklandIntroduction[1] The appellant, Mr Curle, appeals a sentence of three years' imprisonmentimposed by Judge Ronayne in the District Court at Auckland after Mr Curle hadpleaded guilty to nine offences.1 The offences were unlawfully getting into a motorvehicle,2 unlawfully taking a motor vehicle,3 possession of instruments forconversion,4 receiving (property valued at over $1,000),5 theft (property valued atless than $500),6 possession of utensils for use with methamphetamine,7 dangerousdriving,8 failing to stop for red and blue flashing lights,9 and possession ofcannabis.10[2] Mr Curle contends that the sentence is manifestly excessive. He says thatboth the starting points and the end sentence adopted by Judge Ronayne were toohigh, that the sentencing should not have been approached on a cumulative basis,that the discount for the guilty pleas was too low, and that the Judge gave insufficientconsideration to his rehabilitative prospects.[3] The respondent maintains that the Judge did not err in the approach he tookto the sentencing, and that the end sentence is within the appropriate range for theoffending here in issue, given Mr Curle's criminal history.Factual background[4] There were four separate episodes of offending.[5] On 11 February 2006, a vehicle that had been parked on a street was taken.The vehicle was later found by the police. A DNA profile from gloves found in the1 Police v Curle [2017] NZDC 4863.2 Crimes Act 1961, s 226(2); maximum term of imprisonment – two years.3 Crimes Act 1961, s 226(1); maximum term of imprisonment – seven years.4 Crimes Act 1961, s 227; maximum term of imprisonment – one year.5 Crimes Act 1961, ss 246 and 247(a); maximum term of imprisonment – seven years.6 Crimes Act 1961, ss 219 and 223(d); maximum term of imprisonment – three months.7 Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3); maximum term of imprisonment – one year.8 Land Transport Act 1998, ss 35(1)(b) and 35(2); maximum term of imprisonment – threemonths.9 Land Transport Act 1998, ss 52(1)(c) and 52(4); maximum term of imprisonment – three monthsor a $10,000 fine.10 Misuse of Drugs Act 1975, s 7(1)(a); maximum term of imprisonment – three months or a finenot exceeding $500, or both.car matched Mr Curle's DNA. Mr Curle was spoken to about the theft of thevehicle. He said that he had been directed to get into it. This resulted in the chargeof unlawfully getting into a motor vehicle (CRN 16004007948).[6] Mr Curle was granted bail in relation to this offending, and all subsequentoffending occurred whilst he was on bail.[7] On 18 August 2016, Mr Curle was stopped by police while driving. Theofficers discovered that the vehicle had been stolen. This is the basis for the chargeof receiving property worth over $1,000 (CRN 16004011170). Mr Curle wassubsequently searched at a police station. The police found on his person a brokenglass pipe and two straws, both cut halfway, with their ends shaped as spades. Thisis the basis for the charge of possession of utensils for use with methamphetamine(CRN 16004011172).[8] On 9 October 2016, a car valued at $10,000 was stolen in the course of aburglary in Auckland. This is the basis for the charge of unlawfully taking a motorvehicle (CRN 16004014697).[9] On 20 October 2016:(a) registration plates valued at $30 were stolen from a parked car. Thisis the basis for the charge of theft from a car (under $500)(CRN 16004014698);(b) Mr Curle was seen by the police driving the car that had been stolenon 9 October 2016. The stolen number plates were attached to the car.The police saw the vehicle make an emergency stop and then anillegal right turn. Mr Curle travelled at speeds in excess of100 kilometres an hour, and later 120 kilometres an hour, in areas witha speed limit of 50 kilometres an hour. He proceeded through a redtraffic signal without slowing down, and later two more red signals.He turned off the vehicle's lights (it was approximately 10.20pm) anddrove on the wrong side of the road. He abandoned the vehicle andran onto a property, where he was ultimately stopped by the police.This offending is the basis of the dangerous driving charge (CRN16004014692);(c) Mr Curle failed to stop when followed by the police. The police hadactivated their red and blue flashing lights (CRN 16004014691);(d) the police found two screwdrivers, a hammer and a pair of gloves inthe vehicle. This is the basis for the charge of possession ofinstruments for conversion (CRN 16004014694);(e) the police searched Mr Curle, and located 0.8 gram of cannabis on hisperson. This is the basis for the charge of possession of cannabis(CRN 16004014695).District Court sentencing[10] Judge Ronayne's sentencing notes are brief. The notes have been signed bythe Judge, but he has added an addendum to his signature stating that he is notsatisfied that the transcript is complete.[11] That this is the case is readily apparent from the notes. Counsel advise theyhave attempted to locate a complete copy of the sentencing notes. They wereunsuccessful. That is unfortunate but there is sufficient record of the sentencing todisclose the approach taken.[12] The Judge noted one of the two pre-sentence reports, which said thatMr Curle was ambivalent and naive about his continuing involvement with criminalassociates, and which assessed him as having a high likelihood of reoffending.[13] The Judge identified several aggravating features to Mr Curle's offending –namely:(a) repetitive multiple offending;(b) most of the offending was committed while Mr Curle was on bail andsubject to a sentence of intensive supervision;(c) the offending was planned and premeditated;(d) the dangerous driving was particularly serious; and(e) the effect on the victims was significant.The Judge expressed the view that the only option was a sentence of imprisonment.[14] The Judge stated as follows:[5] I take these starting points. For CRI number ending 7948 a startingpoint of nine months. For CRI numbers ending 1170 and 72, that wasoffending taking place at a different time and in different circumstances, Itake a starting point of 10 months for those two combined. For CRI numberending 4692, the car conversion, I take a starting point of two years. ForCRI numbers ending 4691, 92, 94, 95 and 98, that is dangerous driving,possession of instruments, theft and the cannabis, I take a combined startingpoint, for the dangerous driving of three months, for the instruments ninemonths, for the theft two months, a total of 14 months' imprisonment.[6] All of that totalled up comes to four years and nine months. I makean adjustment for totality and reduce that down to three years and ninemonths. I give you 20 percent discount for your guilty plea and all of thecircumstances in which the guilty pleas have been entered. That reducesthree years and nine months by nine months, in other words down to threeyears' imprisonment.The Judge then imposed individual sentences on each charge. He did not expresslyrecord that he did so concurrently, but he must have proceeded on this basis, becausehe imposed a sentence of three years' imprisonment on the unlawful taking charge –CRN 16004014697 – as well as discrete sentences for each of the other charges.Approach to appeal[15] There is a general right of appeal against either conviction or sentence,pursuant to s 244 of the Criminal Procedure Act 2011. In this case, this Court is thefirst appeal Court. The approach to be taken to the appeal is set out in s 250 of theAct. This Court must allow the appeal if it is satisfied that there is an error in thesentence imposed and that a different sentence should have been imposed. In anyother case the appeal must be dismissed.[16] The Court of Appeal in Tutakangahau v R11 confirmed that s 250 was notintended to change the previous approach taken to sentence appeals by the Courtsunder the Summary Proceedings Act 1957. Although s 250 makes no expressreference to the words "manifestly excessive", that principle is well ingrained in theapproach the Courts take to sentence appeals.12[17] Under the Summary Proceedings Act there had to be an error vitiating thelower Court's original sentencing discretion, and appeals against sentence proceededon an error principle. To establish an error in sentencing, it had to be shown that theJudge in the lower Court made an error whether intrinsically or as a result ofadditional materials submitted to the appeal Court.13[18] The focus is on the end sentence, and not on the process adopted in reachingthat end sentence. If a Judge's analysis was incorrect, but the end sentence wasnevertheless within the appropriate range, the appellate Court should not "tinker"with the sentence imposed.14Analysis[19] Ms Watkins, appearing for Mr Curle, was critical of the Judge's approach tothe sentencing. She argued that there was a lack of clarity in the Judge's startingpoints for each charge and in some of the end sentences.[20] The Judge's approach to the sentencing is difficult to follow from theincomplete sentencing notes that are available. It is clear, however, that in fixing hisstarting points, the Judge considered that the February 2016 offending should beconsidered on a discrete basis from the August 2016 offending. It is implicit that hetook the same approach with the other offending, although he did treat all of the20 October 2016 offending on a concurrent basis. He did not explain why, with11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].12 At [33] and [35].13 R v Shipton [2007] 2 NZLR 218 (CA) at [138].14 Ripia v R [2011] NZCA 101 at [15].many of the sentences, there was a difference between the starting points adoptedand the end sentences imposed. Nor did he explain that the individual finalsentences he imposed for each offence were to be served on a concurrent basis.Further, some of the CRN numbers were muddled. In particular, the Judge did notrefer to CRN 16004004697. Rather, he referred twice to CRN 16004004692. Itappears that this must have been a typographical error. It can readily be inferred thatthe Judge meant to refer to CRN 16004004697 when taking a starting point of twoyears for that charge. There is still, however, confusion, because the Judge adopted astarting point on the charge of two years' imprisonment, but then imposed an endsentence on the charge of three years' imprisonment, all without explanation.[21] The Judge's overall approach was to fix starting points for the offencesinvolved in each discrete episode of the offending, to then reach a total starting pointby adding these various starting points together, and then to adjust downwards toreflect the totality of the offending. In fixing his starting points he treated eachepisode of offending on a cumulative basis. When imposing his final sentence, hesentenced on a concurrent basis. The final sentence was based on the car conversioncharge, which had a maximum sentence of seven years' imprisonment. A sentence ofthree years was imposed for that offence, and it seems that the Judge intended that allother sentences were to be served concurrently with this sentence.[22] The Judge's switch from cumulative sentences to concurrent sentences,without explanation, and the unexplained change from the starting point sentence tothe final sentence imposed for the car conversion charges has produced theconfusion. It does not, however, follow that the Judge erred. Rather, it seems that hewas invoking s 85(4) of the Sentencing Act 2002.[23] Both counsel accepted that the proper focus of this appeal is whether the finalsentence imposed was manifestly excessive.[24] The offending on 11 February 2016 stands alone from the other offending. Itis discrete in time, and it is not part of a connected series of offences. The offence ofunlawfully getting into a vehicle is subject to a maximum term of imprisonment oftwo years. Without explanation, the Judge imposed a starting point of nine months'imprisonment for this offence. In my view, that starting point was excessive. Therewere no aggravating features to this offending and the starting point adopted is out ofline with that adopted in similar cases. For example, in Hoey v Police,15 theappellant got into a vehicle that had been stolen. This charge was grouped with othercharges, all of which attracted a sentence of three months' imprisonment. Thatsentence is three times less than the starting point adopted for Mr Curle. In myjudgment, a starting point sentence of three months' imprisonment is appropriate forthis offence.[25] The offending in August 2016 also stands alone. Further the two offences,receiving and possession of utensils for use with methamphetamine, are different inkind and they are not part of a connected series of offences. The Judge adopted astarting point of ten months for both of these offences. There was no expresscriticism of this starting point and I therefore do not alter it. I would, however, treatboth offences on a cumulative basis, and adopt a starting point of eight months'imprisonment for the receiving charge and two months' imprisonment for thepossession of utensils charge.[26] The car conversion (CRN 16004014697) also stands alone and falls to beconsidered on a cumulative basis. The Judge adopted a starting point of two years.In my view, this was too high.[27] There is no tariff case for this type of offending. Ms Watkins sought to drawan analogy with sentences imposed for burglary. I do not consider that this is eithernecessary or appropriate. There are a number of cases in this court where sentenceshave been imposed in relation to the conversion of motor vehicles. Assistance canreadily be derived from them. For example in Muir v Police,16 the Court adopted astarting point of 15 months' imprisonment for conversion of a single car. InAffleck v R,17 the Court upheld a starting point of two years' imprisonment. In thiscase, the vehicle which was stolen was a commercial van. It was targeted, due to thepotential for large gain from theft of its contents. In Duxfield v Police,18 a starting15 Hoey v Police [2015] NZHC 2816.16 Muir v Police [2015] NZHC 1425.17 Affleck v R [2015] NZHC 1741.18 Duxfield v R [2015] NZHC 3018.point of 12 months' imprisonment in relation to the conversion of a motor vehiclewas upheld on appeal. Similarly in Gideon v Police,19 a starting point of 12 months'imprisonment was upheld for the same offence. In Kushell v Police,20 a startingpoint of 18 months' imprisonment was upheld on appeal. In Riini v Police,21 theCourt accepted that a 12 month starting point was available for conversion of amotor vehicle.[28] Ms Bull, for the respondent, referred me to a number of other authorities.22 Ido not consider that these cases were particularly helpful. Some could bedistinguished on the basis that more vehicles were stolen and others on the basis ofthe particular facts involved in them. In my judgment, the case law suggests that inthe case of a single conversion, a starting point of between 12 and 18 months willgenerally be appropriate.[29] There are no aggravating features to Mr Curle's offending. In my view, theappropriate starting point for the car conversion charge was one of 15 months'imprisonment.[30] The offending on 20 October 2016 should also be dealt with on a cumulativebasis, but each of the offences committed on that day can be dealt with on aconcurrent basis, given that they were part of a connected series of offences. In myview, the appropriate starting points for each offence committed in this episode ofoffending is as follows:(a) one month's imprisonment for theft of the licence plates;19 Gideon v Police [2014] NZHC 1065.20 Kushell v Police [2012] NZHC 2380.21 Riini v Police [2016] NZHC 2218 at [16].22 Black v Police [2012] NZHC 1507 (end sentence of three years and five months – four vehicleson four different occasions); Graham v Police HC Auckland CRI-2006-404-258, 12 October2006 – four year starting point – three charges of taking a motor vehicle, burglary and otheroffending; Taki v Police HC Rotorua CRI-2010-470-25/26, 2 July 2010 – one charge ofunlawfully taking a motor vehicle, a starting point of three years, but this starting pointincorporated starting points for other offending on a concurrent basis; Bell v Police HC NapierAP58/97, 11 September 1997 – one car, a sentence of three years upheld, but extensive criminalbackground and other offending.(b) three months' imprisonment for the dangerous driving and for failingto stop. I agree with Judge Ronayne. It was an appalling case ofdangerous driving;(c) two weeks' imprisonment for possession of cannabis;(d) two months' imprisonment for possession of instruments forconversion.This produces a total of six months and two weeks' imprisonment for all of theoffending on 20 October 2016.[31] My overall starting point for all offending is therefore two years, ten monthsand two weeks' imprisonment. I round that to two years and ten monthsimprisonment.[32] I now turn to consider Mr Curle's personal circumstances. There are bothaggravating and mitigating features.[33] First, the starting point needs to be uplifted to recognise Mr Curle's prioroffending. Mr Curle has some 50 prior convictions, including a number for offencessimilar to those in respect of which he is being sentenced. They include convictionsin 2012 and 2014 for dangerous driving, convictions in 2008, 2012 and 2014 forfailing to stop for police, a conviction in 2012 for unlawfully taking a motor vehicle,convictions in 2006 and 2012 for receiving property over the value of $1,000,convictions in 2012 and 2015 for procuring or being in possession ofmethamphetamine, convictions in 2012 and 2015 for being in possession of utensilsfor use with methamphetamine and convictions in 2010 and 2012 for shop lifting. Inmy judgment, an uplift of three months is appropriate given Mr Curle's prioroffending. These previous convictions go to Mr Curle's character and they indicatehis predilection to commit these types of offences. Mr Curle has failed to address hisoffending, notwithstanding frequent appearances before the Courts. Publicprotection was very much a live issue.2323 Cooper-Siggleko v R [2012] NZCA 580 at [15] – [18].[34] Secondly, the Judge was required to take into account that the majority of theoffending occurred while Mr Curle was on bail and serving a sentence ofsupervision. In my view, a two month uplift is appropriate to recognise this.[35] This takes the total sentence to one of three years and three months'imprisonment.[36] Turning to mitigating factors, Ms Watkins argued that the Judge should havemade an allowance for efforts Mr Curle has made to rehabilitate himself. She notedthat Mr Curle endeavoured to seek treatment for his methamphetamine addiction,that he had applied for entry to the Odyssey House programme in November 2016,and that he had been accepted for that programme in December 2016. She noted thathe had applied for EM bail while waiting for a bed at Odyssey House, and thatalthough that application was declined, Judge Simpson, who dealt with theapplication, did say that Mr Curle should enter Odyssey House as soon as a bed wasavailable.24 She noted that Mr Curle was told in February 2017 that a bed would beavailable on 28 February 2017, but that bail was declined by Judge Ryan on24 February 2017, because Odyssey House was unable to take Mr Curle when hewas subject to a 24 hour curfew.25 Ms Watkins also noted that a second pre-sentencereport had noted that Mr Curle was to seek treatment for his drug addiction. Asagainst this, it appears that Mr Curle previously sought treatment at Odyssey House,but that he walked out of the course. Although there is an explanation in a letterfrom his mother, it is also of concern that one of the pre-sentence reports records thatMr Curle refuses to accept that he is addicted to methamphetamine. Further, thewriter of the pre-sentence report recorded that Mr Curle's associates were a verystrong contributing factor in his offending. It seems that Mr Curle is associated withthe Mongrel Mob, and that he is a patched member of that gang. The report recordsthat he shows a continuing desire to be involved with the gang, and that it is thatinvolvement which is likely to lead to further offending.[37] Judge Ronayne did not allow any discount for rehabilitation, although he did,albeit succinctly, deal with the issue.24 Police v Curle [2017] NZDC 2668.25 Police v Curle, hearing record sheet 24 February 2017.[38] I am not persuaded that the Judge erred in this regard. It is difficult to seethat Mr Curle has done much to rehabilitate himself to date. Further, he is notprepared to confront what appears to be the major cause of his offending – namelyhis gang associations.[39] I now turn to the other mitigating factor - the guilty pleas. Judge Ronayneallowed a 20 per cent reduction for Mr Curle's guilty pleas. Ms Watkins argued thatthe Judge should have allowed a greater discount for these pleas. Ms Bull respondedby stating that the case, particularly for the offending which occurred on 20 October2016, was strong.[40] The guilty pleas were entered promptly once the facts were resolved. TheSupreme Court in Hessell v R26 observed that the Court should not be overly rigidand reduce discounts otherwise available for guilty pleas, where the pleas are onlyentered after resolution of the relevant facts.27 However it is left to sentencingJudges to assess the value of the plea in the circumstances of any particular case, andthere is no requirement that discounts be rigidly and arithmetically applied. In thepresent case, the police case, particularly in regard to the 20 October 2016 offending,was very strong. I cannot conclude that the 20 per cent reduction allowed byJudge Ronayne was wrong. Applying a 20 per cent reduction results in an endsentence of just over two years and seven months' imprisonment for all of theoffending. I round that sentence to one of two years and seven months'imprisonment.[41] This sentence is well above the two year threshold where home detentionwould be open for consideration. In any event, given the spree of offending,Mr Curle's criminal history, the premeditation involved and the high risk takingdisplayed, particularly on 20 October 2016, a sentence emphasising denunciation,deterrence and community protection was clearly warranted and it was open toJudge Ronayne to conclude that imprisonment was necessary and that homedetention would have been inappropriate.26 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.27 At [61].[42] In imposing the final sentence, in my judgment, it is appropriate to do so on aconcurrent basis, and to adopt the sentence which I consider appropriate for thetotality of the offending – two years and seven months' imprisonment - for the mostserious offence, conversion of a motor vehicle. I rely on s 85(4) of the SentencingAct.[43] The appeal is allowed. The sentence imposed by Judge Ronayne is quashed,and I substitute the following sentences:(a) in respect of the charge of unlawfully getting into a motor vehicle –three months' imprisonment;(b) in respect of the charge of receiving – eight months' imprisonment;(c) in respect of the charge of being in possession of utensils for use withmethamphetamine – two months' imprisonment;(d) in respect of the charge of unlawfully taking a motor vehicle –two years and seven months' imprisonment;(e) in respect of the charge of theft – one months' imprisonment;(f) in respect of the charge of dangerous driving – two months'imprisonment, and in respect of the charge of failing to stop for redand blue lights – one months' imprisonment – a total of three months'imprisonment;(g) in respect of the charge of possession of cannabis – two weeks'imprisonment; and(h) in respect of the charge of possession of instruments for conversion –two months' imprisonment.[44] All of the sentences are to be served concurrently.[45] The other orders made by Judge Ronayne are to remain in place – namelyMr Curle is disqualified from driving for a period of six months. The order for thedestruction of the cannabis and the utensils for use in relation to methamphetamineare to stand. The sentence of intensive supervision which Mr Curle was previouslysubject to is cancelled, and the order that Judge Ronayne made remitting all of thefines, offender's levy, enforcement fees and court costs to which Mr Curle wassubject is also to remain in place.__________________________Wylie J