GEORGE v NZ POLICE [2020] NZHC 1725

GEORGE v NZ POLICE [2020] NZHC 1725 [16 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000170[2020] NZHC 1725BETWEEN TYRONE GEORGEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 July 2020Appearances: J Corby for the AppellantE Maiden for the RespondentJudgment: 16 July 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 16 July 2020 at 2:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: J Corby, Auckland[1] On 25 February 2020, Tyrone Marvin George pleaded guilty to unlawfullyusing a motor vehicle,1 driving while disqualified (third or subsequent)2 andintentionally damaging a police cell mattress while in custody.3[2] On 15 May 2020, Judge K J Glubb convicted and sentenced Mr George to20 months' imprisonment for the unlawful use of a motor vehicle, 10 months'imprisonment for driving while disqualified and two months' imprisonment fordamaging police property. All sentences are to be served concurrently. Mr Georgewas also disqualified from holding or obtaining a driver's licence for a period of12 months and one day. He now appeals against the sentence of 20 months'imprisonment.Factual background[3] On Monday 9 September 2019, Mr George appeared in the Auckland DistrictCourt and was disqualified from driving for six months from that date. At 6.30 pm onTuesday 8 October 2019, the owner of a Honda Civic parked and secured his motorvehicle on Cook Street in the Auckland CBD. At 9.00 am on Wednesday 9 October2019, the car owner returned to his vehicle and saw it was gone. At approximately1.08pm on Thursday 10 October 2019, Mr George drove the stolen motor vehicle intoa carpark outside Briscoes, Westgate, and parked the car, before walking into Briscoes.He did not have authority from the car owner to use the vehicle. In explanation,Mr George stated that he did not take the vehicle.District Court decision[4] After reciting the factual background, the Judge looked at the aggravatingfactors of the offending. First, the vehicle was valued at $5,000. Secondly, there wasa degree of planning and premeditation. Thirdly, there had been some impact on thecar owner. As far as personal aggravating factors were concerned, the Judge referredto Mr George's extensive list of previous convictions, together with the fact that hehad offended while subject to a sentence. He noted that Mr George had only just been1 Crimes Act 1961, s 226(1).2 Land Transport Act 1998, ss 32(1)(a) and 32(4).3 Summary Offences Act 1981, s 11.released from prison and that he was back offending again. The Judge saw nomitigating factors in the offending.[5] The Judge then referred to the contents of a pre-sentence report in which therisk of harm towards others was assessed as high and the risk of reoffending assessedas very high. The writer also noted that Mr George had an entrenched lifestyleconducive to criminal offending. The report writer observed that it is doubtful thatMr George's offending behaviour would change without significant efforts on hispart. It was noted that neither prison nor community-based sentences had acted asdeterrent.[6] The Judge then referred to a report prepared pursuant to s 27 of the SentencingAct which traversed Mr George's early life and the circumstances which had led to hisoffending. He was disconnected from Te Ao Māori. The Judge said he did notunderestimate the impact that his pervasive history had had on Mr George and whathas led to him offending in this way.[7] The Judge then referred to Mr George's letter of remorse together with a letterof support written by his partner, Ms Love, who is raising their two children. TheJudge also recognised the work that Mr George had been doing while in custody,having attended a Community Alcohol and Drug Service (CADS) course, a parentingcourse and also starting a Thinking Hats course.[8] After noting the submissions of the police and Mr George's counsel as to theappropriate starting point, the Judge adopted a starting point of 14 months'imprisonment for the unlawful use of a motor vehicle. He then uplifted the startingpoint by eight months for driving while disqualified. That led to an adjusted startingpoint of 22 months. The Judge then uplifted the adjusted starting point by a furthersix months for Mr George's extensive conviction history. This led to the Judgearriving at a final start point of 28 months' imprisonment. From that he gaveMr George a 10 per cent discount for the personal circumstances outlined in the s 27report which brought the start point of 28 months down to 25.2 months. He then gaveMr George a 20 per cent discount for his pleas of guilty, which brought the sentenceof imprisonment down to 20 months. He therefore sentenced Mr George to 20 months'imprisonment for the lead offence of unlawfully using a motor vehicle, a concurrentterm of 10 months' imprisonment for driving while disqualified and a concurrent termof two months' imprisonment for damaging police property.Appellant's submissions[9] Counsel for Mr George submits that the sentence imposed was manifestlyexcessive, primarily because a greater discount should have been given for the factorsoutlined in the s 27 report.[10] The report discloses that Mr George was largely raised by his mother – hisfather had never been in his life. He was expelled from school in the 4th form. He hadvarious stints in boys homes where he was regularly exposed to violence and sexualabuse. He started smoking dope and drinking alcohol from 11 years old. He triedmethamphetamine at the age of 18 and had used it on and off over the last 17 years.He became associated with the Bloods gang.[11] The report notes that Mr George's extensive offending history over many yearsdemonstrates a clear pattern of behaviour centred around property-related offending,including shoplifting, theft and robberies. When asked about the nature of hisoffending, Mr George says when he was younger it was to help his mother, and now,it appears there is a correlation to unemployment as he is welfare dependant.[12] Mr George identifies as Māori, but has failed to maintain a meaningfulrelationship with his culture, whānau and prosocial members of society.[13] He did, however, have the support of his partner, with whom he has twochildren aged six and two years. She advised that Mr George would steal so that theyhad money for the kids, despite her disapproval. She said she would encourage himto make more appropriate choices in the future.[14] Counsel submits that the Judge erred in not giving Mr George a larger discountthan 10 per cent for the personal factors disclosed in the s 27 report. He notes thecomments in Solicitor-General v Heta,4 that:An argument might be made that 30 per cent was warranted as a discount forhardship in Ms Heta's case because of the need to recognise Māori post-colonial experience and to meet the Parliamentary intention underlying s 27.DiscussionStarting point[15] At sentencing, counsel for Mr George submitted that the appropriate startingpoint for the lead offence of unlawful use of a motor vehicle was 12 months'imprisonment. The Judge adopted a starting point of 14 months' imprisonment. Onappeal, neither Crown counsel nor counsel for Mr George challenge the starting point.Totality of offending[16] Turing then to the uplift for the offence of disqualified driving, s 85 of theSentencing Act provides that if only concurrent sentences are to be imposed, the mostserious offence must, subject to any maximum penalty provided for that offence,receive the penalty that is appropriate for the totality of the offending and each of thelesser offences must receive the penalty appropriate to that offence.[17] In the present case, the Judge reasonably did not uplift the 14 months' startingpoint for the charge of intentionally damaging a police cell mattress while in custody.He did, however, uplift the 14 months' starting point by eight months for driving whiledisqualified.[18] The offences of unlawful use of a motor vehicle and disqualified driving were,however, committed through exactly the same actions by Mr George. Atapproximately 1.08pm on Thursday, 10 October 2019, Mr George parked a stolenHonda Civic in the carpark at Briscoes, Westgate. He did not have authority from thecar's owner to use the vehicle. He was also disqualified from driving by Court order.4 Solicitor-General v Heta [2018] NZHC 2453 at [2].His actions in driving the car into the carpark and parking it that afternoon constitutedtwo offences.[19] In those circumstances, an uplift of eight months' imprisonment to reflect thetotality of the offending was excessive. This can be compared to two previoussentences imposed on Mr George on 25 October 2011 and 28 April 2014.[20] On 25 October 2011, Mr George was sentenced to 15 months' imprisonmenton three charges of unlawfully getting into a motor vehicle, one charge of drivingwhile disqualified, and two charges of receiving property valued at more than $1,000and concurrent terms of three months' imprisonment on three charges of breach ofprison release conditions and one charge of possession of drug utensils. He was alsoconvicted and discharged on charges of careless use of a motor vehicle and failing tostop – 12 offences committed over a four-month period.[21] On 28 April 2014, Mr George was again sentenced to 15 months' imprisonmenton two charges of unlawfully taking a motor vehicle, and one charge of unlawfullyinterfering with a motor vehicle and concurrent terms of imprisonment for one chargeof driving while disqualified, and one charge of receiving property valued at over$1,000, two charges of receiving property valued at between $500 and $1,000, onecharge of breach of prison release conditions, one charge of theft ex car and one chargeof obtaining by a deception (less than $500). He was also convicted and dischargedon a charge of being an unlicensed driver and failing to comply with a prohibition –11 offences committed over a six-week period.[22] I am therefore of the view that the addition of eight months' imprisonment fordisqualified driving to the starting point of 14 months' imprisonment for unlawfullyusing a motor vehicle is excessive. The addition of no more than two months'imprisonment was required to reflect the totality of the offending at 1.08pm onThursday, 10 October 2019. That would bring the adjusted starting point to 16 months'imprisonment rather than 22 months' imprisonment.Previous convictions[23] It is a long-standing principle that a sentencing Judge should not increase thesentence that would otherwise be imposed merely because of the offender's previousconvictions, since that would result in a further sentence for a crime for which theoffender had already been punished.5[24] They are, however, now statutorily recognised as aggravating factors.Section 9(1)(j) of the Sentencing Act provides that in sentencing an offender the Courtmust take into account as an aggravating factor the number, seriousness, date,relevance and nature of any conviction.[25] Previous convictions are, therefore, taken into account in three ways: as anindicator of character and culpability; because they show the need for a greaterdeterrent response; and as an indicator of risk of reoffending.6[26] In the present case, the Judge apparently relied on the last two factors when hesaid:7I then turn to your previous conviction history. I have already teased that out,it is troubling and you continue to come back before the Courts, you have gotto stop doing that, there is only one person who can make that happen. I upliftby six months for that, it gets me to 28 months.[27] Any uplift applied for previous convictions must, however, be proportionate inthe circumstances. First, the uplift should bear a reasonable relationship to thesentence imposed for the previous offence. Secondly, the uplift should bear areasonable relationship to the starting point that is appropriate for the circumstancesof the present offending.[28] Mr George has never received more than 15 months' imprisonment forunlawful interference, getting into, taking or using a motor vehicle. The two 15 monthterms have been imposed when Mr George was being sentenced for multiple andvaried offending.5 R v Casey [1931] NZLR 594 (CA) at 597.6 Reedy v Police [2015] NZHC 1069 at [19].7 New Zealand Police v George [2020] NZDC 9013at [22].[29] The proper adjusted starting point in this case is a term of 16 months'imprisonment. The uplift of six months adopted by the Judge is, therefore, 37.5 percent. The learned authors of Adams on Criminal Law opine that uplifts of up to 25 percent are common. I am of the view that uplifts of more need some justification. InReedy, an uplift of 37 per cent in the context of drug offending was reduced to 25 percent for 17 prior drug-related convictions. A similar reduction is called for here nowthat the starting point has been adjusted. An uplift of 25 per cent of four months, ratherthan six months is all that is warranted.[30] That brings the adjusted starting point down from 28 months' imprisonment to20 months' imprisonment.Section 27 report[31] The purpose of a s 27 report is to inform the sentencing Judge as to theoffender's background. As described Whata J in Solicitor-General v Heta:8 the evident legislative policy of s 27 is that background factors, such as thepresence of systemic deprivation, may be relevant to individualised justice. Iagree however that the presence of deprivation, systemic or otherwise, in thelives of all Māori offenders cannot be assumed. This brings back into focusthe significance of s 27. It mandates and enables Māori (and other) offendersto bring to the Court's attention information about, among other things, thepresence of systemic deprivation and how this may relate (if at all) to theoffending, moral culpability and rehabilitation. Thus, the cogency of any s 27information, and the likely presence of systemic deprivation and strength ofthe linkages between (among other things) that deprivation, the offender andthe offending, together with the availability of rehabilitative measures tospecifically address the effects of systemic deprivation, will be critical to theassessment.The evidence of the presence of systemic deprivation (or social disadvantagemore generally) on an offender need not be elaborate. The symptoms ofsystemic Māori deprivation are reasonably self-evident, including (amongother things) intergenerational social and cultural dislocation of the whanau,poverty, alcohol and or drug abuse by whanau members and by the offenderfrom an early age, whanau unemployment and educational underachievement,and violence in the home. Evidence from whanau about the offender's life isenough. But there must be some evidence identifying the presence ofsystemic deprivation in the offender's background and linkage to theoffending.8 Solicitor-General v Heta, above n 1, at [49] - [50].[32] In the present case, I consider that the presence of systemic deprivation inMr George's background is not sufficiently linked to the offending for the Court toconclude that the Judge was in error in only giving a 10 per cent discount for thosepersonal factors to Mr George.[33] The offences to which Mr George has pleaded guilty of unlawful use of a motorvehicle, disqualified driving and wilful damage of police property, are not directlylinked to Mr George's drug addiction or the violence and sexual abuse he was exposedto in boys homes during his formative years. There is no doubt that Mr George isalienated from Te Ao Māori and would benefit from intensive residential and otherprogrammes designed to address the drivers of his offending. To that end, the specialrelease conditions imposed by the Judge included attending a psychologicalassessment and completing any treatment and/or counselling as recommended by suchan assessment, as well as attending and completing an appropriate alcohol and drugtreatment programme to the satisfaction of a probation officer.[34] In all the circumstances, I am of the view that the Judge was not wrong to giveonly a 10 per cent discount for such personal factors.Result[35] The appeal is allowed. The sentence of 20 months' imprisonment imposed onthe charge of unlawful use of a motor vehicle is quashed. In its place, a sentence of14 months' imprisonment is imposed. This is calculated on the basis of a starting pointof 20 months' imprisonment less 10 per cent (or two months) for personal factorsdisclosed in the s 27 report and a further 20 per cent (or 3.6 months) for the pleas ofguilty. This takes the final sentence to be imposed to 14.4 months, which is roundeddown to 14 months' imprisonment. All other sentences and the period ofdisqualification remain the same.________________________________Woolford J