MOKA v NEW ZEALAND POLICE [2017] NZHC 2177

MOKA v NEW ZEALAND POLICE [2017] NZHC 2177 [8 September 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-419-000053CRI-2017-419-000057CRI-2017-419-000058[2017] NZHC 2177BETWEEN SANTANA BREEZE MOKAAppellantAND NEW ZEALAND POLICERespondentHearing: 8 September 2017Appearances: M N Sturm for the AppellantM L Dillon for the RespondentJudgment: 8 September 2017JUDGMENT OF PALMER JCounsel/Solicitors:M N Sturm, Barrister, HamiltonCrown Solicitor, HamiltonFacts[1] Ms Santana Moka, aged 21, was charged with an array of offences in 2016 and 2017.[2] Judge Lynch imposed an initial set of sentences on 21 February 2017 for five charges:(a) Ms Moka breached a nine month supervision sentence imposed on 12 May 2016, carrying a maximum penalty of three months'imprisonment, which had in turn been imposed for breach of a community work sentence.1(b) At 4.35 am on 19 January 2017, while driving a car, she was signalled, with flashing lights, to stop when travelling well above the speed limit on Te Rapa Rd. She evaded police. They deployed a tyre deflation device, one tyre blew but she kept on going and went around a roundabout the wrong way. She was eventually stopped, 38 kilometres after being told to stop. On more than one occasion she travelled at an estimated speed of 160 km/h in a 100 km/h zone. This resulted in charges of failing to stop when followed by flashing lights, carrying a maximum penalty of a $1000 fine and disqualification from driving,2 and dangerous driving, carrying a maximum penalty of threemonths' imprisonment.3(c) Following arrest Ms Moka was required to undergo a search. She refused and pulled away, hitting the officer on the arm. That formed the basis of a charge of resisting police, carrying a maximum penaltyof three months' imprisonment.4(d) When searched pursuant to arrest, Police located 0.1 g of methamphetamine and for that she was charged with possession of1 Sentencing Act 2002, s 70(b).2 Land Transport Act 1998, ss 114 and 52A3 Land Transport Act, s 35(1)(b).4 Summary Offences Act 1981, s 23(a).methamphetamine, carrying a maximum penalty of six months'imprisonment.5 She admitted being under the influence of methamphetamine and was lucky not to receive a charge for that.[3] Judge Lynch noted that Ms Moka did not have a big criminal history, to that point, and had lost her way with a methamphetamine problem. For all those charges,Judge Lynch sentenced Ms Moka to three months' community detention and 12 months intensive supervision and disqualified her from driving for a total of nine months.[4] Then Ms Moka appeared before Judge Connell for sentencing on eight further charges on 21 July 2017.(a) She was charged with theft of a motor vehicle, carrying a maximumpenalty of seven years' imprisonment.6 She took a car from the Hamilton Centre Place Mall carpark when she noticed its keys in the door. She sold it on to a friend for $1,000, though Mr Sturm on her behalf says that was at the direction of a friend who pocketed the money.(b) She was also charged possession of 0.44g methamphetamine, 31g cannabis, 0.15g of LSD and drug utensils. The two class A drugscharges carry maximum penalties of six months' imprisonment,7 the cannabis possession, three months,8 and possession of utensils, one year imprisonment.9(c) She was charged with possession of ammunition, a .22 bullet, with amaximum penalty of four years' imprisonment;10 and5 Misuse of Drugs Act 1975, s 7(1)(a) and 92).6 Crimes Act 1961, s 223.7 Misuse of Drugs Act 1975, s 7.8 Misuse of Drugs Act 1975, s 7.9 Misuse of Drugs Act, ss 13(a) and 13(3).10 Arms Act 1983, s 45.(d) she faced two charges for failing to comply with the sentences imposed by Judge Lynch – breach of conditions of communitydetention, with a maximum penalty of six months' imprisonment,11and breach of conditions of intensive supervision, carrying the same penalty.12Pre-sentence Report[5] The Department of Corrections recommended imprisonment. It said she could not come up with any reasonable excuse for breaching her sentences and said that she was going through a tough time with her partner. She was assessed as being a high risk of re-offending, but a low risk of harm due to the absence of violent offences.[6] Key factors contributing to Ms Moka's offending included a lack ofconsequential thinking, substance abuse, and anti-social peers. She told Corrections she started using cannabis when she was 17 and methamphetamine when she was 19 but is not a strong user. Ms Moka also reported that she suffers from Bipolar Disorder but is no longer taking her prescribed medication.District Court Decision[7] Judge Connell sentenced Ms Moka to 14 months' imprisonment, withstandard and special release conditions.13 The Judge started with the later drug-related offending imposing concurrent sentences of three months' imprisonment forpossession of methamphetamine, one month for possession of LSD and one month for possession of cannabis. He convicted and discharged her on the utensils charge. So altogether that resulted in a three-month term of imprisonment.[8] For theft of a motor vehicle, Judge Connell used a starting point of eight months, and reduced it by two months for her guilty plea, resulting in a sentence ofsix months' imprisonment. He imposed that cumulatively on top of the drugs charges at sentence.11 Sentencing Act 2002, s 69G(a).12 Sentencing Act 2002, s 70A(a).13 Police v Moka [2017] NZDC 16026.[9] In relation to possession of the bullet Judge Connell imposed a two-monthterm, again, cumulatively. He stated he "[took] account of the issue of totality". Hewas then required to substitute Judge Lynch's earlier sentence of intensivesupervision and community detention. He replaced that with another sentence of three months, cumulative, and added one month for each of the breaches, concurrently. That took him to an end sentence of 14 months.Submissions[10] Mr Sturm, for Ms Moka, submits she has a very limited criminal history and good support from her family. He acknowledges she was largely, if not entirely the cause of her own predicament and that sentences for this sort of offending can vary hugely. That she was sentenced to imprisonment is not appealed but the length of sentence is.[11] First, Mr Sturm submits the starting points were too high. He says fourmonths' imprisonment for possession of a very small quantity of methamphetamineis excessive, as is two months for the possession of the bullet, and the eight month term for theft of a vehicle, which is Ms Moka's first such offence, although he acknowledges it is serious. He submits for breach of offending she should have received one to two months', rather than three months' imprisonment.[12] Second, Mr Sturm submits the sentences were inappropriately cumulative, because the theft and possession of the bullet were sufficiently connected to the possession of drugs that concurrent sentences ought to have been imposed and he says the two months for the bullet was excessive.[13] Third Mr Sturm submits the Judge failed to take into account totality on sentencing by standing back and considering the sentence, which he says wasdisproportionate to Ms Moka's wrongdoing as a broad value judgment. Ultimately he says the sentence should have been rather less, a sentence of six to eight monthswould be in range and 14 months' was manifestly excessive. He submits, at least, a two month reduction would be justified.[14] Mr Dillon, for the Crown, submits no such errors were made. As to the starting points, Mr Dillon says the starting points are not determinative of whether the end sentence is manifestly excessive, in terms of Tutakangahau v R.14 Mr Dillon takes us through each of the sentences given and justifies each. As to totality, he submits it is clear from his remarks the Judge had the totality principle in mind when he was coming to a starting point on the ammunition charge. And, as to the cumulative sentences, he submits the charges spanned six different periods of time or events and can be categorised into five different species of offending. He says the offending is distinct in time and kind.[15] Overall, the Crown says the sentence of 14 months was not light and was not stern but that it was a fitting sentence. Mr Dillon submits that, if even a slightly sentence may have been appropriate, this sentence was within acceptable range.LawSentence Appeal[16] Under s 250 of the Criminal Procedure Act 2011 I am required to allow the appeal if I am satisfied that for any reason, there is an error in the sentence imposed; and a different sentence should be imposed. Otherwise, I must dismiss the appeal. The High Court does not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. I am guided by the purposes and principles of sentencing identified by ss 7 and 8 of the Sentencing Act 2002.[17] In relation to cumulative or concurrent sentences, s 84 of the Act provides that cumulative sentences are "generally appropriate" if the offences are "different in kind, whether or not they are a connected series of offences". Concurrent sentences are appropriate if the offences are of a similar kind and a connected series of offence.[18] In relation to the totality of sentencing, under s 85 of the Act the total periodof end sentence of the accumulated sentences of imprisonment must not be "wholly14 Tutakangahau v R [2014] NZCA 279.out of proportion to the gravity of the overall offending",15 while each sentence must reflect the seriousness of each offence.Decision[19] I have considered all of Ms Moka's, and the Crown's, submissions.[20] I start with the question of cumulative sentencing, because that informs the other matters at issue in this appeal. I note first that appellate courts will not insist on a particular approach being taken to sentencing.16 There is no one way in which a sentence should be arrived at. The Court of Appeal has said construction of a sentence is a matter of individual judicial discretion.17 In terms of the guidanceprovided in the Act, I am satisfied the Judge's approach was correct.[21] It may have been possible to view possession of a bullet as of a similar kind of offending as the drugs since they were located in the same search, if their possession was connected. But although they were found in the same search they were not in the same place. There appears to be no evidence they were connected and given the differences and nature of a bullet and drugs I do not consider it is an error to regard them as different in kind. Aside from that, the car theft charge is distinct in both time and circumstance from the drug and ammunition offending.[22] In terms of starting points I consider eight months for the car theft is within range, if not generous. The Court of Appeal in Arahanga v R has held that an 18 –30 month starting point is appropriate for relatively minor dwelling house burglaries. That has been used in cases dealing with the theft of motor vehicles worth more than this one and where the car was damaged.18[23] I consider the higher starting point on the methamphetamine charge is justified on the basis that Ms Moka had a recent previous conviction for possession15 Ashcroft v R [2014] NZCA 551 at [32].16 R v Xie [2007] 2 NZLR 240 (CA), (2006) 22 CRNZ 949.17 At [16], citing R v Williams CA91/00 31 May 2000.18 For example in Duxfield v Police [2015] NZHC 3018 at [19]. And see Muir v Police [2015] NZHC 1425.of methamphetamine. I do not consider that double counts the sentence breaching the sentence imposed for the earlier offending.[24] The starting point on the ammunition charge may be viewed as steep. So may the substituted sentence for the earlier offending, considering the community detention sentence that had initially been imposed had itself been for three months.[25] But, as the Crown submits, the starting points for each offence are less important when considering the matter of totality, which is the real crux of this appeal. The issue is whether the total sentence reflects the overall criminality of the offending and the offender.[26] I consider a sentence in the range proposed by Mr Sturm would be overly optimistic. Ms Moka appeared for sentence on a raft of charges of different natures. The second set all occurred while she was subject to sentences for earlier offending and the Judge was right to regard that as a serious concern. Judge Connell mentioned totality, as he was setting a starting point for the ammunition charge, which indicates he considered it.[27] I consider the sentence was within the range warranted for such persistent offending, of a variety of different kinds, over a prolonged period and where the majority of offending occurred while subject to sentences.[28] Ms Moka does need to get her life back on track, whether that be by dealing with her methamphetamine problem or changing her friends, or both. Otherwise she is looking at following a familiar pattern of increasingly serious offending and increasingly long sentences of imprisonment. I am sure she can avoid that with herfamily's support, if she wants to.[29] Judge Lynch gave her that chance by imposing a lenient sentence of community detention and intensive supervision. Her further offending while serving that sentence indicated that the leniency was not appreciated or deserved. Perhaps a prison sentence will bring home to Ms Moka that she needs to get her life back on track. I hope so.[30] I do not consider Judge Connell's sentence was manifestly excessive or a different should be imposed. I decline the appeal...................................................................Palmer J