KNOCK v NEW ZEALAND POLICE [2016] NZHC 1643

KNOCK v NEW ZEALAND POLICE [2016] NZHC 1643 [20 July 2016]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2016-443-17CRI-2016-443-18[2016] NZHC 1643IN THE MATTER OF an appeal against sentence pursuant tos 244 of the Criminal Procedure Act 2011BETWEEN WESLEY JOSEPH KNOCKAppellantAND NEW ZEALAND POLICERespondentHearing: 19 July 2016 via AVLCounsel: M S Boyd for AppellantJ E Bourke for RespondentJudgment: 20 July 2016JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is4 pm on the 20th day of July 2016[1] Mr Knock is 22 years old. He appeals his sentence of a total of 15 months'imprisonment on the following charges:(a) unlawfully taking a motor vehicle;(b) escaping lawful custody;(c) unlawfully interfering with a motor vehicle x2; and(d) driving while disqualified.1Facts[2] The events leading to the unlawful interfering charges occurred on 27 December 2015. He went into a motel car-park, and unsuccessfully tried to get into a van that was parked there. He then succeeded in getting into a nearby car and searched the glove box.[3] On 9 January 2016, Mr Knock was a passenger in a vehicle that was stopped by Police. He was wanted by Police at the time and was told he was under arrest. He ran away.[4] On 24 January 2016 Mr Knock got into a car that had been parked outside theowner's house in New Plymouth and drove it away. During the drive, the car was damaged: the bull bar was pushed in, and the rear bumper and left side quarter light were damaged. He left the vehicle in Waitara. He was disqualified from driving at the time. This gave rise to the unlawful taking charge.[5] Mr Knock subsequently pleaded guilty to all charges.Sentencing in the District Court[6] The sentencing Judge noted:21 He was also convicted and discharged on charges of shoplifting a singlet worth $45 and failing to answer Police bail.2 New Zealand Police v Knock [2016] NZDC 7429.(a) that Mr Knock had convictions from 2014 including common assault, driving with excess blood alcohol, and breach of release conditions. There were 27 previous convictions in total, mostly for dishonesty and driving related offences;(b) the influence of alcohol, poor impulse control, and the effect on Mr Knock of the recent loss of his grandmother and the rest of his family moving to Australia; and(c) that he was identified as at high risk of reoffending and medium risk of harm to others.[7] The Judge noted that Mr Knock had said he was sorry for what he had done, that he did not think highly of himself and that he had "sabotaged" himself.[8] The Judge also noted that Mr Knock had:(a) engaged with restorative justice;(b) offered a verbal apology to the owner of the car that was taken;(c) written the owner a letter of apology;(d) committed to paying reparation for repairs to the car; and(e) met with Tui Ora before going to prison who had agreed to work with him after his release.[9] The Judge said that a letter written by Mr Knock to the Court saying that he wanted to turn his life around was "commendable", but said that because the remorse shown by him had come after pleading guilty to seven charges, it was "too little too late".[10] As to the sentence, the Judge took the car conversion as the lead offence, and adopted a starting point of 12 months. He added an uplift of eight months for "thenumber of other charges involved" and also Mr Knock's previous convictions. He gave a discount of 25 per cent for the guilty pleas, bringing the total to 15 months. He did not discount separately for remorse, on the basis that it was included "to a certain extent" in the guilty plea discount and also, as noted, that it had come too late.[11] On the other charges the Judge imposed concurrent sentences as follows:(a) twelve months' imprisonment for the charge of escaping lawfulcustody;(b) three months' imprisonment on the two charges of unlawfullyinterfering with a motor vehicle; and(c) one month's imprisonment for driving while disqualified.The appeal[12] There are three grounds of appeal, namely that:(a) the starting point on the lead charge was manifestly excessive;(b) the uplift for totality and prior convictions was excessive and unprincipled; and(c) the Court wrongly failed to give separate credit for remorse.[13] As to the first ground, Ms Boyd submitted that nine months would have been the appropriate starting point. She referred me to other cases. Notably, in O'Rourkev Police, a starting point of nine months was said by Mallon J on appeal to be"towards the high end" of the range for one charge of unlawful taking, when thevehicle was taken for a short time and not damaged.3 Ms Boyd contrasted that withthe 12 months' starting point in Gideon v Police where the offender's intention was3 O'Rourke v Police [2016] NZHC 273 at [8].to take the vehicle to another area and use it permanently.4 In that appeal Mander J said that the predetermination involved distinguished the case from one involving "ajoyrider".5[14] In the present case, Ms Boyd emphasised that the car was only taken for around 15 minutes, after which Mr Knock assisted the authorities to return the keys. Although relatively minor damage to the car was caused, she said that his case is otherwise similar to O'Rourke, and that nine months is appropriate here.[15] In terms of the uplift, Ms Boyd said that the methodology adopted by the Judge was not appropriate, particularly because the concurrent sentences imposed bore no resemblance to the uplift. She said that a more appropriate methodology would be to consider what appropriate cumulative sentences would be, and then make any necessary reduction for totality. More specifically, she said:(a) the charge of driving while disqualified was effectively included in the unlawful taking charge and should receive either a concurrent sentence or conviction and discharge;(b) the facts of the escaping custody charge were placed at the lowest level, and warranted a cumulative sentence of only one month'simprisonment; and(c) the unlawful interference charges were also at the lowest level of gravity, and one month is also appropriate.[16] Ms Boyd said that this approach would result in an additional two months'imprisonment, and no totality reduction would be required. And at most, (she said) there should only have been a two months' uplift for previous convictions because they were for charges of a (somewhat) different kind and the highest sentence he had previously received for dishonesty offending was one of eight months'imprisonment.64 Gideon v Police [2014] NZHC 1065.5 At [16]-[17].6 On Ms Boyd's analysis, the sentence before discounts for guilty pleas and remorse (if any) should be one of 13 months imprisonment.[17] And lastly, as far as the issue of remorse is concerned Ms Boyd referred me to Mr Knock's pre-sentence report and the very positive restorative justice report, which recorded that the victim has not only forgiven Mr Knock but has gone so far as to offer to mentor him on his release and to explore employment opportunities with him. Mr Knock expressed a commitment to repaying the victim for the damage to the car in whatever way he could. A certificate recording his completion of an alcohol programme was also before the sentencing Judge. Ms Boyd submitted thatthe Judge's approach to the issue was wrong in two respects, namely:(a) in disregarding or downplaying the remorse shown by Mr Knock because it was not expressed until after his guilty pleas; and(b) in considering that, to the extent a discount for remorse was warranted, it was included in the discount for the guilty pleas.7[18] Ms Boyd said that Mr Knock's remorse had been clearly and convincinglyexpressed and demonstrated and an additional discount of 10 per cent would be appropriate.Discussion[19] I agree with Ms Boyd that taking into account the matters recorded above and looked at in the round, the end sentence was manifestly excessive.[20] In reaching that conclusion I accept that, based on other cases to which Mr Bourke referred me it could not be said that the 12 month starting point was outside the available range. However, it was, in my view, at the stern end.[21] As far as the uplift of eight months (or two thirds of the starting point) is concerned, the Judge did not articulate which portion of the uplift was for the other offending and which portion was for historic convictions. The uplift is therefore a little difficult to unpack.7 The proposition that remorse must be considered separately is based on Hessell v R [2010] NZSC 135 at [64].[22] In terms of the other charges I acknowledge that it may have been open to the Judge to impose concurrent rather than cumulative sentences; the issue was not addressed by the Judge but it is arguable that the offences were sufficiently connected in time and circumstance. But it is beyond argument that the othercharges were at the lowest level of seriousness and I accept Ms Boyd's assessment ofwhat cumulative sentences for those charges should have looked like. And I also agree that considering the appropriate uplift through a cumulative sentence lens provides a useful benchmark in this case. It is certainly unappealing that, on a concurrent approach, Mr Knock may have received an end sentence that is higher than he would have received from a cumulative approach.[23] As far as the uplift for criminal history is concerned I acknowledge that for someone who is only 22, Mr Knock does have a regrettable history of dishonesty which may be indicative of some broad predilection warranting an uplift. But given that his history of dishonesty offending is at a low level (for which the highest sentence he received was eight months in prison) I also think that there is a real risk of the uplift constituting a double punishment here.[24] My concerns about the level of uplift are amplified when considered against the background of a within range, but severe, starting point on the lead charge.[25] As to remorse, I also agree with Ms Boyd that there was a relevant error in Mr Knock's case. The Judge seems to have accepted that Mr Knock's remorse was genuine and on my reading of the material I would agree with that assessment. Thisis not a case of mere lip service being paid for sentencing purposes; Mr Knock'sactions – which relate not only to making amends but also to addressing the causes of his offending – speak much more loudly than that.[26] Once that point is reached, I am unable to see that timing is particularly relevant. It cannot be right that engaging in a fruitful restorative justice exercise after a guilty plea but prior to sentence can be put to one side as "too late". And, in any event, it seems to me that the assistance Mr Knock provided to the Police immediately after his offending seem to me to be a much earlier indication of remorse. His subsequent actions are consistent with, and reinforce, that point.[27] Accordingly I consider that a discrete discount was, indeed, both warranted and required.[28] As I have said, and for the reasons just given, I consider that Mr Knock'ssentence was excessive and his appeal should be allowed. In determining what sentence should be substituted, I would not interfere with the 12 month starting point on the lead offence but consider that the eight month uplift should, as Ms Boyd submitted, be reduced to four months. From the resulting total of 16 months a discount of 25 per cent (four months) for guilty pleas is appropriate but I would add a further discrete one month discount for remorse. That would result in an end sentence of 11 months' imprisonment. Ms Boyd advised that that may well mean that Mr Knock has now served his time.[29] In any event, and in formal terms, the appeal is allowed. The sentence of 15 months' imprisonment is quashed and a sentence of 11 months' imprisonment substituted."Rebecca Ellis J"Solicitors: Hannam & Co Lawyers Ltd, New Plymouth, for AppellantCrown Solicitor, New Plymouth, for Respondent