LOWE v NEW ZEALAND POLICE [2018] NZHC 282

LOWE v NEW ZEALAND POLICE [2018] NZHC 282 [1 March 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2017-488-000039[2018] NZHC 282BETWEEN ZEKE JAMES LOWEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 February 2018Appearances: David Niven for the AppellantJames Eng for the Respondent (via AVL from Wellington)Judgment: 1 March 2018JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 1 March 2018 at 10:00 ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Zeke Lowe, the appellant, pleaded guilty to a range of dishonesty charges on11 May 2017.[2] The pleas were entered following protracted discussions between the Crownand his counsel. He was sentenced to two years and eight months' imprisonment.1[3] Mr Lowe now appeals that sentence on the basis the summary of facts reliedon for sentencing purposes did not properly reflect the plea arrangement reached withthe Crown and, as a consequence, a manifestly excessive sentence was imposed.Factual background[4] On 29 September 2015 the Whangarei Police terminated search warrants inrelation to an operation codenamed "Farm". This was an investigation into dishonestyoffending involving Mr Lowe and associates. Three search warrants were executed ataddresses known to be used by Mr Lowe and as a result stolen property and vehicleswere located.[5] A further search warrant was executed on 1 October 2015 at an address inWaipu, also connected to Mr Lowe. There two stolen vehicles and stolen propertywere recovered.[6] As a consequence the Police laid a large number of property/dishonesty-relatedcharges against Mr Lowe.[7] Between May and June 2016 discussions were had between Crown counseland Mr Lowe's previous counsel, Mr Day. Mr Day was Mr Lowe's fourth counsel inrelation to these matters.[8] According to Mr Day, who filed an affidavit for the appeal, he was assigned toMr Lowe on 21 April 2017.2 By that time resolution discussions involving Mr Lowe's1 R v Lowe [2017] NZDC 14938.2 Prior to the hearing I convened a telephone conference to discuss with counsel the status ofMr Day's affidavit. It seems Mr Day filed the affidavit without consulting Mr Niven who acts forprevious three counsel had resulted in what Mr Day describes as "a path to settlement".It is not necessary to discuss the detail of the proposed settlement at this point otherthan observe that discussions continued until 4 May 2017 when Mr Day's proposalwas accepted.[9] Under the terms of the agreement Mr Lowe would plead guilty to eight charges.For the purposes of the present discussion three particular charges assume specialrelevance. These are charges 12, 18 and 23. Significantly for sentencing purposes,these two charges of unlawfully getting into a motor vehicle and one charge of theftwould be amended to unlawful interference with or getting into a motor vehicle. MrDay says that his proposal to the Crown was that if these charges were amended tounlawfully getting into a motor vehicle Mr Lowe would plead guilty. The Crownaccepted this offer on 4 May 2017.[10] As a consequence of the agreement, Mr Lowe pleaded guilty to the followingcharges:3(a) Charge 12 – unlawfully interfering with and getting into a motorvehicle. Between 15 and 16 September 2015 a Mitsubishi L300 vanworth approximately $10,000 was taken from commercial premises. Itwas located at the Waipu address frequented by Mr Lowe. He was inthe process of transferring parts from it to a lawfully purchasedMitsubishi L300. ESR analysis indicated the chassis in the lawfullypurchased vehicle was taken from the stolen vehicle.(b) Charge 15 – burglary. Between 12 and 13 September 2015 Mr Lowejemmied five windows at the rear of a property in Kamo, breaking thelatches. By entering each room via the windows he avoided setting offthe alarm. No property was taken.Mr Lowe on his appeal. Despite no application for leave being made both parties agreed theevidence could be admitted on the appeal. I agreed because the evidence is relevant, cogent andfresh.3 The summaries that follow are draw from the Crown summary of facts which Mr Lowe pleadedguilty to.(c) Charge 16 – receiving. Police located fishing rods and tools atMr Lowe's home address and the address where the Mitsubishi L300was stored. The fishing rods alone have an estimated value in excess of$25,000. They had been taken from a property in Whangārei.(d) Charge 18 – unlawfully interfering with and getting into a motorvehicle, being an Isuzu Bighorn worth approximately $7,000. Mr Lowewas seen on surveillance footage jemmying the car door open andstarting the vehicle. When the vehicle was found on a propertyMr Lowe was cleaning up for a friend the licence plates and roof andlicence plates had been removed.(e) Charge 20 – receiving tools valued at $16,000, including a Dewaltangle grinder. The tools had been stolen from a property in Whangārei.(f) Charge 22 – theft of two powertools and a lawnmower from a propertyhe had arranged to maintain for the victim.(g) Charge 23 – unlawfully interfering with and getting into a motorvehicle, being a Mitsubishi L300 van which had recently beenpurchased for $10,500. It contained approximately $15,000 ofequipment for a catering business. It was found at the address of anassociate of Mr Lowe's, and a range of property from inside the vanwas found at Mr Lowe's address.(h) Charge 25 – receiving a Nissan Civilian motor home valued at $40,000.[11] It appears that no application for leave to amend the charges was made beforeMr Lowe entered his pleas of guilty on 11 May 2017. Nor was such an applicationmade at sentencing.District Court sentencing[12] Mr Lowe was sentenced by Judge Davis on 7 July 2017. The Judge had beforehim an agreed summary of facts.[13] Judge Davis adopted a starting point of 18 months' imprisonment for the leadcharge of burglary. He then uplifted this by 12 months for charge 12 and by a furthersix months for charges 18 and 23. Further uplifts were given of 12 months, for thereceiving and theft charges, and six months for previous relevant offending. Inclusiveof these uplifts, the sentence totalled 54 months, before discounts for time spent onelectronically monitored bail (three months), participation in counselling (threemonths), resolving the charges without the need for a trial (three months), and guiltypleas (seven months, or 15 per cent) were quantified.[14] The Judge then arrived at an end sentence of 32 months' imprisonment, whichhe considered was appropriate on a totality basis. This figure was reached by virtue ofan arithmetical error. Adopting the Judge's figures the end sentence was in fact 38months' imprisonment, or three years and two months' imprisonment.[15] Due to this error the Crown applied for the sentence to be recalled. Judge Davisacknowledged the error in a further judgment of 3 August 2017, but concluded:4" Here is a situation where the maths, as I have indicated, is clearly wrong.However, I take the view that given Mr Lowe is now a sentenced prisoner andentitled to settle into his sentence for the duration, it is not in the interests ofjustice that the matter be reheard simply for the purposes of increasing that bya further six months. It will be a matter for the Parole Board when Mr Loweis released on parole. The Crown have quite properly brought the applicationin my view, it is quite properly drawn to the Court's attention, but when onesteps back and looks at this from the overall totality perspective on the onehand and the interests of justice, I do not take the view that it would be in theinterest[s] of justice to have the sentence put back before the Court to increaseit by the six months that I have made reference to."Grounds of appeal[16] Mr Niven, for Mr Lowe, submits Judge Davis erred in imposing a combineduplift of 18 months for the three charges of unlawfully getting into or interfering witha motor vehicle. Relatedly, he submits the end sentence was not calculated inaccordance with the plea arrangement between the Crown and Mr Lowe, and thereforethat it is manifestly excessive.4 R v Lowe [2017] NZDC 17117 at [6].Jurisdiction[17] This is a first appeal against sentence. The appeal must be allowed if the Courtis satisfied that for any reason there is an error in the sentence imposed, and a differentsentence should be imposed.5 The touchstone is whether the sentence imposed ismanifestly excessive.6 The focus is on the sentence imposed, rather than the processby which it was reached.7AnalysisWas there an error in the sentence imposed?[18] As noted this appeal focuses on charges 12, 18 and 23. Charges 12 and 18 weredisputed by Mr Lowe, and were set down for hearing. Originally these were chargesof unlawful taking and theft respectively. They involved, among other things,allegations Mr Lowe broke down the cars for parts over a period of time. They werethen amended to charges under s 226(2) of the Crimes Act 1961 which provides:"(2) Every one is liable to imprisonment for a term not exceeding 2 yearswho attempts to commit the offence in subsection (1) or who,dishonestly and without claim of right, interferes with, or gets into orupon, any vehicle, ship, or aircraft."[19] This arrangement was by agreement between the Crown and Mr Day. Mr Dayhelpfully attached the relevant portion of his letter to the Crown. It is set out below:"I confirm the Crown will accept pleas to the following charges,Charge 12 CRN3976Unlawfullygets intomotor vehicleMitsubishiL300BLA674Charge 15 CRN3980Burglary 15 RoydenDriveCharge 16 CRN3981Receiving 165TutukakaBlock Rd5 Criminal Procedure Act 2011, s 250(2).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].7 At [36].Charge 18 CRN4646Unlawfullygets intomotor vehicleIsuzuBighornBZP113Charge 20 CRN4648Receiving 583OrmistonRoadCharge 22 CRN4651Theft 12 MulberryLaneCharge 23 CRN4653Unlawfullygets intomotor vehicleMitsubishiL300CNK301Charge 25 CRN4656Receiving NissanCivilianWI5130"[20] In accepting Mr Day's proposal the Crown attached a summary of facts whichit advised Mr Lowe would be required to accept. The email then added:"I have not substantially amended the summaries in relation to charges 12 or18 from when the theft and receiving charges were proposed. Paragraph 18.8of the Solicitor General's Prosecution Guidelines reads,'Plea discussions will often encompass discussions about the factualbasis of sentencing. Any document on the nature of a summary of factsshould contain a full account of the charges filed on the basis of thosefacts that could have been proved by admissible evidence if the matterwent to trial. It should not omit any material fact for the purposes ofany plea arrangement with the defendant, and in particular should notoutline facts to the court which are misleading or, when measuredagainst the essential elements of the offence to which the defendanthas pleaded guilty, would cause the court to reject the plea in favourof a plea of not guilty. Facts that should not be omitted include theextent of the injury or damage suffered by a victim.'The summaries for those charges include the material facts that the Crowncould have proven by admissible evidence at trial. It will then be up to theCourt to grant the Crown leave to amend the charges to unlawful interference,or not."[21] Those summaries refer to three charges of "unlawfully interferes with and getsinto a motor vehicle". They also include facts which amount to theft.[22] Guilty pleas were duly entered on 11 May 2017. Mr Niven submits theamendment of charges 12, 18 and 23 to unlawfully getting into motor vehiclesrepresented a significant reduction in Mr Lowe's alleged culpability, with the onlyremaining allegations being that he used the vehicles on the nominated dates. He saysthe Crown in its sentencing submissions, as well as the Judge, acknowledged thisreduction, but that:(a) Mr Lowe was nevertheless sentenced on the basis of the originalallegations; and(b) the Judge appeared to sentence on the basis of unlawful interferencerather than unlawfully getting into a motor vehicle.[23] This, he submits, constituted a reviewable error which gave rise to a manifestlyexcessive sentence. This dispute hinges on the wording of s 226(2) which creates dualoffences of interfering with or getting into a vehicle, both punishable by up to twoyears' imprisonment.[24] Mr Niven is correct that Judge Davis referred to unlawful interference inrespect of charges 12, 18 and 23. The question before me is whether that constitutedan error. Competing positions are available on the material before me. The emailattached to Mr Day's affidavit indicates the agreement was that the charges would beamended to unlawfully getting into motor vehicles. It also stated it would be up to theCourt to grant leave to amend the charges to unlawful interference, or not. Thosematters support Mr Niven's submission. But the email also attached a summary offacts which referred to unlawful interference. The charge list the Judge had before himalso referred to unlawful interference. Mr Lowe must be taken to have agreed to thatsummary, as he accepted the plea agreement, and did not object to its contents or thecharge notice either at the entry of his pleas or at sentencing. The salience of any failureby the Crown to seek amendment of the charges was overtaken by Mr Lowe'ssubsequent acceptance of them. In that context, it is hard to see how Judge Davis erredin proceeding to sentence Mr Lowe on the basis he did.[25] Mr Niven is also correct that the Judge made findings that, among other things,charge 18 "has all the hallmarks of a vehicle that was stolen."8 But in compliance withcl 18.8 of the Crown Prosecution Guidelines, the Crown prosecutor was required toinclude a full account of the charges filed on the basis of those facts that could havebeen proved by admissible evidence at trial. Judge Davis' findings accord with thefacts included in the agreed summary of facts. Mr Day could have objected to theinclusion of facts which elevated the seriousness of the unlawful interferences. He didnot, and in my view it is now too late to object.[26] I turn now to consider the Judge's methodology and the uplifts and discountshe gave. I accept the 18 month uplift for three unlawful interference charges was stern.In Webster v Police, Brewer J uplifted the starting point by 12 months to account fora number of driving charges including nine charges of unlawfully getting into a motorvehicle and one of unlawful interference.9 In that case however, the total value/costof offending was $10,781.87. There were also other charges of demanding withmenaces and theft. In contrast, the value of the vehicles taken and interfered with incharges 12, 18 and 23 was approximately $27,000. In Kara-Newcombe v Police,Collins J, having conducted a review of authorities, imposed a seven month startingpoint for one charge of unlawfully getting into a motor vehicle.10 In Singh v R, astarting point of two and a half years was endorsed by the Court of Appeal for onecharge of unlawfully taking a motor vehicle, three charges of unlawfully getting intoa motor vehicle, and three charges of theft.11 The Court did, however, comment thatthe starting point was near the top of the available range.[27] Against that background, an uplift of 18 months for three charges of unlawfulinterference with or getting into a motor vehicle was stern, even accounting for thehigh value of the goods taken. Without concluding that uplift constituted an error, acloser look at the sentence imposed is called for.8 R v Lowe, above n 1, at [34].9 Webster v Police [2017] NZHC 2685 at [28].10 Kara-Newcombe v Police [2018] NZHC 25 at [15].11 Singh v R [2011] NZCA 139 at [11].Should a different sentence have been imposed?[28] In my view the end sentence of 32 months was not manifestly excessive for thereasons which follow. First, Mr Lowe's offending included a residential burglary,receipt of significant amounts of stolen property, theft of power tools and dealing withother people's vehicles in a way which was consistent with theft or conversion. Intotal a starting point of four years, excluding the uplift for prior convictions, wasavailable. In Kaihau v R, a case with striking parallels to the present facts, the Courtof Appeal endorsed a total starting point of four years' imprisonment forproperty/dishonesty offending in which the appellant was "operating as a professionalor commercial thief at a very high end of dishonesty".12 An uplift of 18 months forseven charges of theft, receiving stolen property and interfering with a motor vehiclewas imposed on a starting point of two and a half years for burglary. By comparison,the combined uplift for Mr Lowe's receiving, theft and unlawful interference chargeswas 30 months, on top of an 18 month starting point for burglary. In Kaihau v R, theCourt commented that had the starting point been lower, a larger uplift would havebeen justified, as the total starting point of four years was appropriate.13 Thereforeeven if the uplift for the unlawful interference offending was stern, it did not result ina starting point that was out of range.[29] Secondly, as Mr Eng for the Crown submits, numerous aspects of the sentencewere generous to Mr Lowe.[30] For example, on Judge Davis' count, Mr Lowe has 282 prior convictions fordishonesty offending, and he was either on parole or subject to release conditions foran earlier burglary when some of the index offending was committed. In Ellis v R, theappellant had over 40 convictions for dishonesty and had committed the indexoffending while on parole.14 The Court of Appeal considered an uplift of 12 monthsfor both factors (or two thirds of the starting point), while at the top end of what could12 Kaihau v R [2015] NZCA 40 at [7].13 A similarly stern global starting point was imposed in Taylor v R [2012] NZCA 329 forproperty/dishonesty offending on a commercial scale. See also Singh v R, above n 10, and thereceiving cases cited by Judge Davis: Clapham v R [2012] NZCA 130 and Sinclair v Police [2014]NZHC 1332.14 Ellis v R [2012] NZCA 513.properly be given, was within range in the circumstances.15 Equally in Stevens v R theappellant had some 60 previous dishonesty offences (but only three for burglary), andwas subject to a sentence of intensive supervision at the time of the burglaryoffending.16 The Court of Appeal concluded an uplift of 12 months on a starting pointof 18 months was within range.17 As the exact date of the index offending is uncertain,it is not clear whether Mr Lowe was subject to parole or release conditions at thematerial time. Nevertheless, the extent of his prior dishonesty convictions dwarfs thatof Mr Ellis and Mr Stevens. In this regard his case is more similar to R v Van Wakeren,where a 12 month uplift was given to reflect 160 previous dishonesty convictionsspanning 20 years.18 Like the offending in that case, Mr Lowe's can be seen as "justone more chapter in a lengthening history" of dishonesty offending including takingand possession of stolen property. In those circumstances, a six month uplift forrelevant prior convictions (which equated to one eighth of the cumulative startingpoint) was unduly generous to Mr Lowe.[31] Furthermore, while discounts for time spent on EM bail are at the Judge'sdiscretion,19 a discount of three months for the three months spent on restrictive bailconditions, is more than what is typically afforded.20[32] Another example of the Judge's generous approach is the three month discountapplied for "saving the justice system a two week Judge alone trial". This allowance,which sits alongside a 15 per cent discount for guilty plea, is irreconcilable with theSupreme Court's statements in Hessell v R:21"In the administration of criminal justice, courts give credit in sentencing fora guilty plea principally for policy reasons. The policy expressed in s 9(b)reflects the benefits that a guilty plea delivers to the administration of justiceand to those who otherwise must participate in the trial process. Avoiding theneed for a trial saves the government costs associated with the judiciary and15 At [10]-[11].16 Stevens v R [2009] NZCA 190.17 At [15].18 R v Van Wakeren [2008] NZCA 492 at [17].19 Chea v R [2016] NZCA 207 at [109].20 See, for example, Chea v R, above n 20, where a discount of four months was allowed for a periodof 13 months on restrictive bail conditions. In Schuster v R [2011] NZCA 343, a discount of threemonths for eight months spent on EM bail was applied. Finally, in Beckham v R [2012] NZCA603, [2013] 1 NZLR 613, where the appellant had been detained on 24-hour EM bail for almosteight months, a six month discount was given.21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]. The Court of Appeal made commentsto this effect in Ratu v R [2016] NZCA 97 at [26].providing prosecution and defence services (the latter most often through legalaid). There are also savings in fees paid to witnesses and jurors and in costsassociated with the use of court facilities. Another benefit is the reduction inthe back-log of trials. The number and length of criminal trials has increased,with consequent delays in persons charged facing trial. This impedes theeffective operation of the system in the interests of justice. As well as suchsavings in public expenditure and demands on state resources, the social utilityof guilty pleas includes benefits for witnesses and, in particular, victims whoare spared the stress of giving evidence in the adversarial context of a criminaltrial. A guilty plea often also assists victims and their families through itsacknowledgement of responsibility for the offending. Even very late pleas willusually generate some of these systemic and social benefits. Theseconsiderations are based on expediency and social utility but are of importanceto the effective operation of the criminal justice system. In consequence, it isnow generally recognised that providing encouragement for guilty persons toadmit their guilt is a necessary incident of criminal justice."[33] This additional discount contradicts the rationale which underpins allowancesfor guilty pleas, and equates to a double-counting in Mr Lowe's favour.[34] Additionally, the six month reduction for totality adequately neutralised anyerror in the uplift for the unlawful interference charges, and arguably resulted in anunduly generous end sentence.[35] Accounting for those factors, an end sentence of 32 months' imprisonment wasnot out of range given the nature of the offending and Mr Lowe's personalcircumstances. He is a recidivist offender with an appalling criminal history. The mostrecent spate of offending is simply the latest in an unenviable catalogue of seriousproperty and dishonest criminal conduct. A different sentence should not be imposed.Result[36] The appeal is dismissed.Moore JSolicitor/Counsel:Mr Niven, AucklandCrown Law Office, Wellington