WHITTAKER v POLICE [2017] NZHC 2747

WHITTAKER v POLICE [2017] NZHC 2747 [9 November 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-125[2017] NZHC 2747BETWEEN SHANE GEORGE WHITTAKERAppellantAND NEW ZEALAND POLICERespondentHearing: 9 November 2017Appearances: M Cole for the AppellantS Dayal for the RespondentJudgment: 9 November 2017JUDGMENT OF MANDER JIntroduction[1] Mr Whittaker was sentenced to 16 months imprisonment after being foundguilty after a Judge alone trial on one charge of receiving.1 Mr Whittaker pleadedguilty to other unrelated charges of failing to answer bail, possession of a knife, andunlawfully possessing a prescription medicine. On each of these charges he wassentenced to concurrent sentences of one month imprisonment.[2] Mr Whittaker appeals his sentence alleging it to be manifestly excessive.The offending1 Police v Whittaker [2017] NZDC 18072; Police v Whittaker [2017] NZDC 21618.[3] In August last year, Mr Whittaker purchased a $10,000 to $13,000 vehicle for$5,000. It had been stolen a day or two previously. He told Police that he had boughtthe car from a friend of a friend and paid cash. While he did not know it was stolen,he checked online with a website to see if it had been reported. It had not. JudgeCouch convicted Mr Whittaker on the basis he had been reckless as to whether or notthe vehicle had been stolen, and had taken insufficient steps to ensure that it was not,particularly having regard to its cheap price.[4] While bailed on the receiving charge Mr Whittaker failed to appear. Thisresulted in the charge of failing to answer District Court bail. The remaining chargesarose from an incident when Mr Whittaker was spoken to by Police on an unrelatedmatter and found to be in possession of a flick knife and Codeine tablets that had notbeen prescribed to him.The sentencing[5] In sentencing Mr Whittaker, Judge Couch noted the maximum penalty on thereceiving charge was seven years imprisonment. He characterised the gravity of theoffending as "moderate". The Judge said the vehicle had "clearly" been stolen andthat the measures Mr Whittaker had taken to ascertain the legitimacy of the sale were"far from sufficient given the highly suspicious circumstances".[6] Taking into account the fact that Mr Whittaker lost the $5,000 he paid for thevehicle, Judge Couch applied a starting point of 12 months imprisonment. This wasuplifted by four months to reflect Mr Whittaker's "appalling history of seriousoffending" which included 68 previous convictions for dishonesty offences. However,the Judge noted that Mr Whittaker's offending had reduced significantly in the last 10years.[7] Judge Couch found there were no mitigating features. A final sentence of16 months was imposed with leave to apply to substitute a sentence of home detention.Jurisdiction and approach to appeal[8] An appeal may only be allowed if there is an error in the sentence imposed andthat an alternative sentence should be imposed.2 If the sentence under appeal canproperly be justified having regard to relevant sentencing principles, this Court willnot substitute its own views for those of the sentencing Judge.[9] To interfere with the Judge's sentencing discretion the sentence must be foundto be either manifestly excessive or inappropriate. The focus is on the sentenceimposed rather than the process by which it was reached, or its component parts.3Submissions[10] Mr Whittaker's counsel, Ms Cole, submitted that, having regard to all thecircumstances, the gravity of the offending should have been assessed as at the lowestend of the range. She emphasised that Mr Whittaker did make enquiries about the carand had satisfied himself that its purchase would be legitimate. Unlike in some cases,he made no modifications to the car and had been prepared to drive the vehicle aroundin public.[11] She submitted imprisonment was inappropriate because there was no need toprotect the community from his behaviour. However, because Mr Whittaker hasalready served four months in prison, she submitted the sentence should be reduced totime served.[12] Ms Dayal for the Police referred to a number of cases which she submittedsupported the sentence imposed by the District Court. Ms Cole maintains these casesare distinguishable and concern more severe offending. In Ellis v R a starting point of18 months and an uplift for previous convictions of 12 months was upheld on appealwhere stolen goods to the value of $5,000 had been received.4 Ms Cole submitted theoffender in that case had a close connection with the person who had stolen theproperty, whereas here Mr Whittaker had no such connection.2 Criminal Procedure Act 2011, s 250.3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ellis v R [2012] NZCA 513.[13] In R v Taiepa a starting point of nine months with an uplift of three months wasupheld on appeal where the appellant received a stolen car and removed the interiorof the vehicle and installed it in his own.5 Ms Cole submitted this, too, was moreserious offending, as the appellant knew the vehicle had been stolen.[14] In R v Collier the appellant received a vehicle valued at $14,000.6 It was clearit had been stolen as there was no key, the vehicle had been wired and the doorsremained locked. Based on a finding that the defendant was part of a car theft ring orsolely responsible for trading dishonestly in vehicles, the sentencing Judge adopted astarting point of three years and a final sentence of two years nine months. The Courtof Appeal held such an inference was not available and reduced the overall sentenceto one of 12 months. Again, Ms Cole submitted that in that case the indications thecar had been stolen were much clearer.[15] Finally, Ms Dayal referred to Drake v Police, where a starting point of 15months was upheld on appeal although Gendall J noted it was somewhat stern.7 Therethe vehicle was worth $11,000 and the license plates had been changed.[16] Ms Dayal submitted Mr Whittaker's offending was moderately serious becauseof the high value of the vehicle, the signs it had been stolen, and the fact the appellanthad failed to adequately act on his suspicions. Ms Dayal submitted the Judgeappropriately turned his mind to alternative sentences and gave the appellant theopportunity to have his sentence substituted with one of home detention. Shesubmitted Mr Whittaker's attitudes of resentment towards the system and his non-compliance at the time he was interviewed for his pre-sentence report suggested hewould be unresponsive to a community-based sentence, and that he remained at a highrisk of reoffending.Analysis[17] I accept the offending in R v Ellis was more serious than in the present case.There, the appellant received the property immediately after it had been stolen in a5 R v Taiepa [2009] NZCA 120.6 R v Collier CA170/03, 21 August 2003.7 Drake v Police [2015] NZHC 2252.burglary. The sentencing Judge drew the inference that either the appellant was knownto the thief as being amenable to receiving stolen property, or that he was part of a planwaiting to receive the stolen goods, and could even have arranged for the burglary totake place. No similar inference is available here. The Court of Appeal in Ellisobserved that a starting point of between 12-18 months would have been in range.[18] The case of R v Collier is more analogous, although in that case there wereclearer indications at the time the car was received that it had been stolen. Theoffending in Taiepa was comparable to the present case but, again, was more seriousbecause of the aggravating features of the removal of the interior of the stolen vehicleand its instalment in the appellant's car.[19] A further case for comparison is Williams v Police.8 There the appellantapproached a vehicle, opened it with a key which was similar, but not identical, to theoriginal key, drove off, and later removed the registration plates. When confronted hesaid he was doing it on the request of a friend. On that basis he was charged withreceiving rather than theft. The vehicle was worth $3000 and had "thousands ofdollars worth" of tools in it. The sentencing Judge adopted a starting point of 18months, which also took into account previous convictions. On appeal this wasreduced to nine months, with a six month uplift for significant previous dishonestyoffending. A total sentence of 15 months.[20] Drake v Police is an analogous case. In earlier cases the proximity of thereceiving to the unlawful taking of the property was close, and treated by thesentencing Judges as an aggravating feature. In Drake, there was six months betweenthe offending and the vehicle being found in the appellant's possession. Afterreviewing the authorities extensively Gendall J held that:[23] A review of the authorities, in my view, leads inevitably to theconclusion that a starting point of 15 months' imprisonment for receiving avehicle worth $11,000 was within the available range. Admittedly, there may nothave been the temporal immediacy between theft and receipt in this case, but thatdoes not alter the fact that the starting point was within range. I concede it might8 Williams v Police [2015] NZHC 3285.be considered to be a slightly harsh starting point, but it was nonetheless clearlyavailable.[21] It appears that it was the value of the vehicle that influenced Gendall J toconsider the starting point was appropriate.[22] Ms Cole sought to distinguish Mr Whittaker's offending from that disclosed inthe cases reviewed, on the basis he did not actually know the vehicle was stolen andthat he was convicted only because he was reckless as to that possibility. I accept thatis a material factor to be taken into account when assessing the seriousness of theoffending. However, recklessness does require the defendant to have had a consciousappreciation of the risk the vehicle may have been stolen. While Judge Couch in hissentencing remarks expressly acknowledged the limited basis upon which he foundthe charge against Mr Whittaker proved, I do not consider his assessment of theoffending as moderate was erroneous. Ms Cole contended it should be categorised atthe lowest end. But when regard is had to the value of the vehicle and its relativelyrecent theft, the Judge's description was not inaccurate.[23] Inevitably, each case turns on its own particular facts and circumstances.However, the decisions to which I have referred fairly represent the range the Courtshave tended to apply for offending of this kind. Taken together, the case law revealsthere to be a moderately wide sentencing range for offending of this type.[24] While the value of the vehicle was comparable to the value of the stolenproperty the subject of earlier sentencing decisions, the Court's findings that there wasno evidence that Mr Whittaker actually knew the property was stolen, and that he tooksome steps, albeit inadequate steps, to determine if the car was stolen, I accept aredistinguishing features of the present offending. I note the Judge also took intoaccount that Mr Whittaker lost the $5,000 he paid for the vehicle.[25] When compared with other cases, the 12 month starting point applied by theDistrict Court is difficult to reconcile with the Judge's specific finding of recklessness,which was the express basis upon which Mr Whittaker was convicted. I also note theJudge's finding of steps, albeit limited, that were undertaken by Mr Whittaker to verifywhether the car was stolen. I consider an eight month starting point would have beenmore consistent with the relatively unusual features of Mr Whittaker's offending.[26] While Ms Cole questioned the size of the four month uplift to mark MrWhittaker's extensive history of dishonesty offending, I do not consider anyrecalibration of that uplift is required, particularly when regard is had to the impositionof concurrent sentences for the entirely unrelated offences of failing to answer bail,possession of a knife, and breach of the Medicines Act.9[27] The appeal is allowed. The sentence of 16 months imprisonment is quashedand substituted with a sentence of 12 months imprisonment. Leave to apply tosubstitute a sentence of home detention is carried over from the original sentence, asare the special release conditions imposed by the District Court.Solicitors:Moana Cole Barrister, ChristchurchRaymond Donnelly & Co, Christchurch9 Medicines Act 1981.