EPERE v NEW ZEALAND POLICE [2019] NZHC 336

EPERE v NEW ZEALAND POLICE [2019] NZHC 336 [5 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-420[2019] NZHC 336BETWEEN TEUA EPEREAppellantAND NEW ZEALAND POLICERespondentHearing: 4 March 2019Appearances: K S Holden for AppellantB Charmley for RespondentJudgment: 5 March 2019JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 5 March 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Epere pleaded guilty in the District Court to 18 charges involving differenttypes of offending. On 20 November 2018 Judge Cocurullo sentenced him to aneffective term of 18 months imprisonment.1 He appeals against sentence on the basisthat the Judge erred in applying uplifts to the initial starting point for the sentence, andthis led to an end sentence that was too high. He also argues the Judge ought to haveconverted the sentence to one of home detention.Background[2] Mr Epere was sentenced on the following charges:(a) Receiving stolen property (a motor vehicle);2(b) Unlawful taking of a motor vehicle (x 2);3(c) Unlawful getting into a motor vehicle (x 5);4(d) Driving whilst disqualified, third or subsequent (x 4);5(e) Possession of methamphetamine;6(f) Failing to attend court x 2;7 and(g) Breach of release conditions x 3.8[3] The charges reflected a raft of offending committed by Mr Epere between Mayand September 2018. For the most part it involved him unlawfully taking or gettinginto motor vehicles belonging to others. Mr Epere was disqualified from driving1 New Zealand Police v Epere [2018] NZDC 24004.2 Crimes Act 1961, ss 246 & 247. Maximum penalty seven years imprisonment.3 Crimes Act 1961, s 226(1). Maximum penalty seven years imprisonment.4 Crimes Act 1961, s 226(2). Maximum penalty two years imprisonment.5 Land Transport Act 1998, ss 32(1)(a) & 32(4). Maximum penalty two years imprisonment or afine not exceeding $6,000.6 Misuse of Drugs Act 1975, ss 7(1)(a) & 7(2)(a). Maximum penalty six months imprisonmentand/or a fine not exceeding $1,000.7 Bail Act 2000, s 38(a). Maximum penalty one year imprisonment or a fine not exceeding $2,000.8 Sentencing Act 2002, s 96(1). Maximum penalty one year imprisonment or a fine not exceeding$2,000.during this period so he also committed the offence of driving whilst disqualified whenhe unlawfully took the vehicles. After he had been arrested, he failed to attend Courton two occasions. On three occasions he also breached prison release conditions byfailing to report as required. The charge of being in possession of methamphetaminewas laid after the police searched Mr Epere on 28 May 2018 after they were called tohis address to deal with an unrelated matter. They found a plastic bag containing .1 ofa gram of methamphetamine in his jeans pocket.The sentence[4] The Judge took the lead charges as being those relating to the unlawful takingof motor vehicles. He selected a starting point on those charges of 18 monthsimprisonment. He then added uplifts of six months in relation to the five charges ofunlawfully getting into motor vehicles and three months to reflect the charges ofdriving whilst disqualified and breaching bail and release conditions. This resulted inthe end starting point of 27 months imprisonment. The Judge declined to reduce thatsentence to reflect totality principles.[5] The Judge deducted three months to reflect remorse and rehabilitative stepstaken by Mr Epere whilst awaiting sentence. He then applied a further discount of sixmonths, or 25 per cent, to reflect guilty pleas. This produced the end sentence of 18months imprisonment.[6] Turning to the issue of home detention, the Judge observed:9[16] The factors that would weigh in support of, for example, therecommendation of the report home detention would be your age, the hopethat you could be rehabilitated and the programmes that could be put in placewith a degree of compliance whilst under a bracelet. The factors on the otherside would be the multitude of the offending, the seriousness particularly ofthe taking of the motor vehicles, your not good previous breach of Courtorders list and the difficulty I sense in you being able to comply with Courtorders, together with aspects of deterrence and denunciation. Essentially,what I mean by that is to send a message to those persons who want to embarkupon offending like you, that they do that at the peril of imprisonment.[17] Pivotally and I give significant weight to your breach history. I knowthat you want to portray a sense to me that you will faithfully comply with ahome detention sentence. Every time in the past that you breached a Court9 New Zealand Police v Epere, above n 1.order by way of release conditions and or driving whilst disqualified and orfailing to appear, what you are doing was you were building up a list of thingsfor which a judge would then have to assess whether if you received anothercommunity based sentence, you would comply with it at all.[18] I regret to advise you that on balance, I clearly come to the view thatyou would not cope on home detention. There would be problems. Therewould be breaches of it and in my view, particularly given that issue, I electnot to deal with you by home detention and so the sentence will be one ofimprisonment.Arguments on appeal[7] On Mr Epere's behalf Ms Holden does not challenge the starting point of 18months imprisonment the Judge selected on the charges of unlawfully taking motorvehicles. She submits, however, that the Judge should not have applied an uplift onthe charges of driving whilst disqualified because this conduct formed an integral partof the charges of unlawfully taking motor vehicles. Ms Holden also contends theJudge should not have applied an uplift on the five charges of unlawfully getting intoa motor vehicle. In the alternative, she submits that an uplift of six months was toohigh to reflect these charges, and that an uplift of no more than three months could bejustified. Finally, and this is really the thrust of the appeal, Ms Holden submits theJudge ought to have imposed a sentence of home detention rather than imprisonment.DecisionUplift for the charges of driving whilst disqualified[8] I do not accept Ms Holden's submission relating to the uplift the Judge appliedto reflect the charges of driving whilst disqualified. Those charges were quite differentin character from the charges of unlawfully taking, or getting into, motor vehicles.They reflect the fact that, in choosing to drive a vehicle away, Mr Epere breachedCourt orders that prohibited him from driving motor vehicles. It is now wellestablished that charges of driving whilst disqualified are distinct from charges ofdriving with excess blood or breath alcohol even though the two offences may becommitted at the same time. For the same reason, I am satisfied the Judge was entitledto add a separate uplift in relation to the charges of driving whilst disqualified.Uplift for the charges of unlawfully getting into motor vehicles[9] I accept Ms Holden's submissions that these charges reflected an ongoingseries of offences, and that they were similar in character to the charges of unlawfullytaking motor vehicles. I do not accept, however, her submission that no uplift shouldhave been applied to reflect these charges. They relate to separate and quite differentinstances on which Mr Epere unlawfully got into another person's motor vehicle.[10] It is certainly arguable that an uplift of six months to reflect these charges wasoutside the available range. However, it needs to be remembered that they representfive separate occasions on which Mr Epere was prepared to unlawfully get into a motorvehicle. Furthermore, another Judge may have applied a significantly greater uplift toreflect the charges of driving whilst disqualified and those of breaching bail and prisonrelease conditions. In addition, the Judge did not apply any uplift to reflect the chargeof being in possession of methamphetamine.[11] It is now well understood that the manner in which a sentence is constructed isof little relevance. The ultimate issue is whether the end sentence is wrong in principleor manifestly excessive. In the present case Mr Epere had pleaded guilty to 18 separatecharges, each of which reflected a discrete incident involving unlawful conduct. Hehas numerous previous convictions for previous offending. Regardless of how thisparticular sentence was constructed, I do not consider an end sentence of 18 monthsimprisonment to be outside the available range.Home detention[12] The imposition of a sentence of home detention is the exercise of a sentencingdiscretion. That discretion is fettered, however, by the purposes and principles ofsentencing contained in the Sentencing Act 2002.[13] I consider the passage set out above at [6] demonstrates the Judge took intoaccount relevant considerations both for and against a sentence of home detention. Heultimately decided such a sentence was inappropriate because he did not considerMr Epere had the ability to successfully complete a sentence of home detention. Thatconclusion was open to the Judge notwithstanding the fact that Mr Epere does not havea history of breaching electronically monitored bail or sentences. Notwithstandingthis, he has a history of breaching prison release conditions and driving whilstdisqualified. This fact, together with the duration and nature of the conduct givingrise to the present charges, means he is likely to find it very difficult to comply with asentence of home detention.[14] I am therefore satisfied the Judge did not err in exercising his discretion againsta sentence of home detention.Result[15] The appeal against sentence is dismissed.Lang JSolicitors:Kayes Fletcher Walker, Manukau