Affleck v R
[2015] NZHC 1741
•28 July 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2015-412-000018 [2015] NZHC 1741
BETWEEN DYLAN WILLIAM AFFLECK
Appellant
AND
THE QUEEN Respondent
Hearing: 27 July 2015 Appearances:
A Dawson for Appellant
R D Smith for RespondentJudgment:
28 July 2015
JUDGMENT OF GENDALL J
Introduction
[1] The appellant was sentenced to a total period of two years and four months’ imprisonment in the District Court on 20 March 2015 with respect to five separate charges. Those charges were two of driving while disqualified (both in the aggravated form), one of unlawfully taking a motor vehicle, and two of theft.
[2] The appellant now appeals against his sentence on the basis that it is manifestly excessive.
[3] The appellant also seeks leave to bring this appeal out of time, being approximately five weeks late. So far as the leave application is concerned, the appellant says the delay arose because he wished to carefully consider counsel’s initial advice and seek further advice before electing to appeal. He contends there has been no prejudice to the Crown here as a result of this short delay and the appeal
has merit.
AFFLECK v THE QUEEN [2015] NZHC 1741 [28 July 2015]
[4] The application for leave to appeal out of time is not opposed by the respondent. In all the circumstances here, I am of the view that it is appropriate for leave to be granted to bring this appeal out of time in terms of s 248(4)(a) Criminal Procedure Act 2011 and I now so order.
[5] Turning now to the grounds for the substantive sentence appeal, the appellant’s contention that the sentence imposed is manifestly excessive is advanced for two reasons:
(a) The starting point adopted in the District Court for the most serious charges was too high; and
(b)Judge Crosbie in the District Court made an error in calculating the quantum of the appellant’s sentence at an important point in the sentencing exercise.
Legal principles on appeal
[6] Section 250(2) of the Criminal Procedure Act 2011 applies here and provides:
250 First appeal court to determine appeal
…
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[7] It is clear too that the appellant is able to appeal the sentence imposed as of right.1 This Court, as first appeal court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed. The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 remains the same as that
under the predecessor regimes in the Crimes Act 1961, s 385(3), and the Summary
1 Section 244 Criminal Procedure Act 2011.
Proceedings Act 1957, s 121(3).2 Toogood J recently captured the essence of the test in Larkin v Ministry of Social Development3 citing Ripia v R.4
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
Was the starting point adopted too high?
[8] Judge Crosbie in the District Court adopted a starting point for the lead offences taken together of two years’ imprisonment. The appellant’s contention is that the starting point ought to have been closer to 14 months, a reduction of some
10 months.
[9] Clearly in this case, Judge Crosbie properly approached the sentencing exercise by isolating what he correctly determined to be the most serious of the charges faced by the appellant, being unlawfully taking the courier van and the theft of the packages from inside the van (both seven year maximum penalty offences), in establishing the starting point. He then applied uplifts to that starting point for the other offending and for personal aggravating factors.
[10] In setting a starting point, as I have noted, Judge Crosbie adopted the point of two years’ imprisonment for the unlawfully taking the courier van and theft offences taken together. Before me counsel for both parties acknowledged that there is no tariff decision for this type of offending. A starting point must therefore be set with regard to the overall culpability for the two offences. In this regard, Mr Dawson for the appellant submitted that the appellant’s offending was opportunistic and spur of the moment, it involved no forced entry, nor entry into a residential property and it was quite quickly discovered and halted. He contended that the decision in Matika v
Police5 provides some assistance here. This case involved an appeal against a
sentence of two years and two months’ imprisonment imposed on charges of
2 Tutakangahau v R [2014] NZCA 279.
3 Larkin v Ministry of Social Developments [2015] NZHC 680.
4 Ripia v R [2011] NZCA 101 at [15].
5 Matika v Police [2013] NZHC 2806.
burglary and unlawfully taking a vehicle. There was other offending sentenced cumulatively in the District Court which was not complained against.
[11] In Matika the incident in question related to the appellant and his brother entering a speedway track (by simply climbing under a fence and not breaking into the premises) and accessing a vehicle with its keys in the ignition to “joyride” it around the track. The vehicle was then crashed, damaging it, and the offenders poured petrol onto the crashed vehicle to try and conceal any forensic evidence.
[12] The District Court Judge in Matika had adopted a starting point of two years’ imprisonment for the two offences. On appeal, when reconsidering the sentence Lang J in this court noted that many of the aggravating factors present in the burglary of residential and commercial premises was absent, and he said:6
I consider that a starting point of no more than 12 months’ imprisonment would ordinarily have been warranted on the charges of burglary and unlawfully taking the vehicle.
[13] A discrete uplift of some nine months was then imposed by Lang J for the
$9500 -$14,500 damage caused to the vehicle and the track. This meant the end
starting point was therefore 21 months’ imprisonment.
[14] The appellant contends that the present case at worst is no more serious than Matika, particularly given that in the other case there was a more serious charge (burglary), significant damage was caused, and attempts were made to cover up the offending.
[15] Counsel for the appellant also referred me to Tito v Police.7 Again, this involved the application of principles relevant to burglary and the entry of a residential address which is generally seen as a significant aggravating feature, given the potential for confrontation. In Tito, an overall starting point of 26 months’ imprisonment was adopted. There, the appellant together with two friends,
committed a burglary when the owner of the residential property was home, taking
6 At [18].
7 Tito v Police [2014] NZHC 3283.
items valued at $6625. They then left the address but returned shortly thereafter and unlawfully took a vehicle valued at $40,000.
[16] On appeal, Thomas J adopted a starting point of 20 months’ imprisonment for the burglary and uplifted that by six months for the taking of the vehicle. The appellant contends that Tito is a significantly more serious case than the present one, given that it involved entry into a residential dwelling with a possible confrontation with the owner. It also involved two discrete acts of offending in the present case against the same victim. Thus the appellant contends that the starting point for his offending in the present case should fall well short of that in Tito.
[17] Two other cases were referred to by Mr Dawson, counsel for the appellant, but throughout he acknowledged that none of the cases in question were on all fours with the present case. Nevertheless, Mr Dawson submitted that all these cases indicate that the starting point adopted for the two lead offences in the present case was too high and should be revisited.
[18] With respect, I disagree. Looking to the Matika decision, in essence this involved a true starting point of 21 months. And, regarding Tito, the Court’s concern there with a burglary of residential premises, which entailed a risk of confrontation, in my view is not particularly far removed from the circumstances prevailing in the present case. Here the appellant, having seen a courier leave his van open with the engine running across the road, chose the opportunity to take the van with the clear risk that a confrontation might occur if the courier was to return, which he was likely to do at any moment. The risk of confrontation in the present case, in my view, arises almost in the same way in the situation where an appellant might enter a residential property for theft or burglary purposes.
[19] There is an additional aggravating feature in the present case. This is something which is not always present in the targeting of residential premises. It is the obvious potential windfall to the appellant and the targeting of a commercial vehicle which would be known as likely to contain items of property and potentially of substantial value.
[20] Importantly, Judge Crosbie noted in his decision at [16]:
…But what is the gravamen of the offending? The gravamen of the offending is you took a motor vehicle, a commercial one, granted only for a short distance, but you were found in the process of emptying it. There has been a $5000 loss in relation to it. It is not an incidental. It is not a trifling offence. There is not a tariff case on this type of offending. There is not a tariff case on burglary. However, what the Court is directed to do with the maximum penalty in mind is to fix a starting point that accurately reflects the seriousness of the offending before making any other adjustments and uplifts…
[21] Although it involves a burglary charge, a useful comparison of the circumstances prevailing in the present case might be made to the Court of Appeal decision in Arahanga v R.8 There the Court of Appeal recognised that typical starting points for low end residential burglaries should be in the order of eighteen months to two and a half years.9 And, in Columbus v R10 the Court of Appeal considered a starting point of 12 months’ imprisonment appropriate where the appellant had forcibly entered a detached garage and removed a lawn mower and mountain bike which were both recovered.
[22] On the basis of these decisions, it might be considered that the starting points adopted in both Matika and Tito were in some respects generous. Lang J in Matika, however, clearly placed some weight on the target premises being a property which was absent a risk of confrontation and the appellant’s objectives in committing the burglary which were essentially a joyride around a race track.
[23] Turning now to the unlawful taking cases which were referred to me by counsel, in the decision in Kushell v Police11 a starting point of 18 months’ imprisonment was adopted, although the focus of the appeal appeared to relate to the uplift that had been applied. And, in Gideon v Police and Corrections12 a starting point of 12 months’ imprisonment was adopted for unlawfully taking a motor vehicle with the intention of deliberately using it to travel a large distance. On appeal, this
starting point was confirmed.
8 Arahanga v R [2012] NZCA 480.
9 At [78].
10 Columbus v R [2008] NZCA 192.
11 Kushell v Police [2012] NZHC 2380.
12 Gideon v Police and Corrections [2014] NZHC 1065.
[24] In the present case, in my view the true purpose behind the offending needs to be considered. Although the vehicle in question was taken for only a short distance, the appellant here had targeted that commercial vehicle, no doubt with a vision of a large potential gain from the theft of its contents. Given that the motor of the vehicle was running at the time and the courier had presumably left it momentarily to make an immediate delivery, a real potential risk of confrontation arose as well. I am satisfied therefore that the present case is a more serious one than those identified by counsel for the appellant. If the present situation was compared to a burglary, I am satisfied it would sit appropriately at the upper end of the range identified in R v Arahanga (of eighteen months to two and a half years for a low end residential burglary). With all these considerations in mind, Judge Crosbie’s starting point of two years’ imprisonment, in my judgment, was within range, particularly in light of the maximum penalty of seven years’ imprisonment for the unlawful taking and theft of property of a value over $1000. For these reasons, this aspect of the appeal must fail.
Error in calculating the quantum of sentence
[25] Turning now to the second ground of appeal noted at [5](b) above, before me counsel for both the appellant and the respondent acknowledged that Judge Crosbie had made a mathematical error in calculating the overall quantum of the sentence imposed here. This related to uplifting the appellant’s starting point for the disqualified driving.
[26] As to these aspects, counsel for the appellant confirmed that no issue is taken with the approach taken by the sentencing Judge when he addressed the balance of the sentencing exercise.
[27] But, in the calculations at issue here, the overall adjusted starting point adopted by Judge Crosbie was three years, three months’ imprisonment (39 months). After allowing for the credits which were outlined, both counsel before me agreed this left an end sentence in the range of two years, two months (26 months) to two years, three months (27 months). This is instead of the sentence actually imposed of two years, four months (28 months).
[28] Although counsel has properly noted that an adjustment of this level might simply be seen as tinkering in many other contexts, given that it is correct to say that in essence this was an unintentional mathematical error that has had a negative impact on the appellant’s sentence, it is appropriate here to make an adjustment to reduce his sentence accordingly.
[29] For all these reasons I am satisfied that, although the sentence imposed by Judge Crosbie was not manifestly excessive and generally should not be revisited by this Court, a small adjustment to take into account the mathematical error made to reduce the final sentence to two years, two months’ (26 months) should be made.
Conclusion
[30] To this extent the appeal against sentence succeeds. The sentence of two years, four months’ imprisonment is quashed and in its place a sentence of two years, two months’ imprisonment is substituted.
...................................................
Gendall J
Solicitors:
Public Defence Service
RPB Law, Dunedin
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