Banks v Police
[2020] NZHC 859
•1 May 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000036
[2020] NZHC 859
BETWEEN REUBEN BANKS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 April 2020 Appearances:
C G Nolan for Appellant
S L Dayal (via VMR) for Respondent
Judgment:
1 May 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 1 May 2020 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date…1 May 2020
Introduction
[1] The appellant, Mr Banks, was sentenced to three years and eight months’ imprisonment on the following charges:
(a)burglary (3);
(b)obtains by deception (2);
BANKS v NEW ZEALAND POLICE [2020] NZHC 859 [1 May 2020]
(c)theft over $1000 (2);
(d)theft under $500 (2);
(e)possession of methamphetamine;
(f)possession of methamphetamine utensils;
(g)reckless driving;
(h)failure to stop for red and blue lights;
(i)failing to remain stopped;
(j)wilful damage;
(k)failure to answer bail.
Mr Banks was also disqualified from holding or obtaining a driver license for 18 months and ordered to pay in $5,028 reparation.
[2] Mr Banks now appeals that sentence on the grounds the sentence of imprisonment imposed was manifestly excessive.
Facts
[3] Mr Banks was granted parole on 5 March 2018 while serving a four year sentence for robbery and aggravated robbery. The current offending took place while he was subject to parole conditions.
[4] On the night of 26 July 2019 Mr Banks went into a garage and took goods valued at $1,250. This led to the first charge of burglary.
[5] On 30 July 2019 Mr Banks advertised a cell phone online, received payment of $650, but then did not deliver the cell phone. On 1 August 2019 Mr Banks repeated
this offending, receiving payment of $600. He was charged with two charges of obtaining by deception.
[6] On 2 August 2019 Mr Banks was arrested on the first burglary charge. He was found in possession of 0.20 of a gram of methamphetamine and a methamphetamine pipe. He was charged with possession of methamphetamine and methamphetamine utensils.
[7] On 3 August 2019 Mr Banks was released on bail. That same day he stole a Samsung cell phone valued at $1,500. This led to the first charge of theft over $1,000.
[8] On 6 August 2019, in the early morning, Mr Banks was stopped by police while driving a car in suburban Christchurch. A police car was parked in front of the vehicle. When the officer got out to speak to Mr Banks he accelerated, ramming into the police car and pushing it out of the way. A second police car pursued Mr Banks, with red and blue lights and siren. Mr Banks drove at speeds in excess of 90 kilometres per hour without lights turned on, through suburban streets. Police eventually abandoned pursuit due to the dangerous speed. Mr Banks was charged with reckless driving, failing to stop for red and blue lights, failing to remain stopped and wilful damage.
[9] On the night of 8 August 2019, Mr Banks stole a Toyota vehicle from a suburban house. This led to the second charge of burglary.
[10]On 10 August 2019 Mr Banks filled the stolen vehicle with petrol valued at
$1201 at BP Bishopdale. He drove off without paying. This led to the first charge of theft under $500.
[11] On 13 August 2019 Mr Banks stole tools from a van valued at $1,400. This led to the second charge of theft over $1,000.
1 I note the District Court decision states the value was $60, however the charging documents and police summary of facts state the value was $120.
[12] On 16 August 2019 Mr Banks stole two seats of headphones valued at $58 from the Warehouse in Eastgate. This led to the second charge of theft under $500.
[13] On 17 August 2019 Mr Banks forced entry to a suburban house and took a large amount of property valued at more than $10,000. This led to the third charge of burglary.
[14] On 26 August 2019 Mr Banks failed to appear in the District Court to answer bail for the first burglary charge.
District Court decision
[15] Judge Couch took the three burglary charges to be the lead offending.2 The Judge considered the offending to be of a serious nature. All three properties were dwelling houses which is a statutory aggravating feature. He noted the first two offences occurred at night, which carries a real risk of confronting the occupants. The Judge set a sentence starting point of two years and eight months’ imprisonment.
[16] The Judge applied the following uplifts: six months for the two charges of obtaining by deception; nine months for the two charges of theft over $1,000; three months for the charges relating to methamphetamine and for theft under $500; two months for the failure to answer bail. This led to a combined starting point of four years and seven months’ imprisonment.3
[17] The Judge reduced the starting point by nine months to three years and ten months’ imprisonment to reflect the totality of the offending.
[18] The Judge considered the personal aggravating factors to be that all the offending occurred while Mr Banks was on parole from a lengthy sentence for aggravated robbery. In addition, the offending which occurred after 2 August 2019 occurred while Mr Banks was on bail. Reflecting these factors, the Judge applied an
2 Police v Banks [2020] NZDC 4040.
3 I note based on the stated uplifts the combined starting point ought to have been four years and four months’ imprisonment.
uplift of six months. A further uplift of three months was applied to reflect Mr Banks’ criminal history.
[19] The Judge then applied a discount of 20 per cent (11 months) for guilty pleas. The end sentence was three years and eight months’ imprisonment. This was imposed cumulatively on Mr Banks’ existing sentence. Mr Banks was also disqualified from holding or obtaining a driver licence for 18 months. Reparation totalling $5,025 was ordered.
Principles on appeal
[20] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Submissions
Appellant’s submissions
[21] Mr Nolan, counsel for Mr Banks, submits the end sentence was manifestly excessive. He makes five submissions on the matter.
[22] First, Mr Nolan submits the Judge erred in calculating the starting point of four years and eight months’ imprisonment (although the Judge’s sentencing notes actually say four years and seven months). Mr Nolan submits this should have been four years and four months’ imprisonment.
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
[23] Mr Nolan then submits the sentences ought to have been applied concurrently. He submits the offending is similar in kind in that it is predominantly dishonesty offending and was committed over a relatively short period of time. Mr Nolan notes this offending spree was to fund Mr Banks’ methamphetamine addiction, which is discussed in the pre-sentence report and cultural report.
[24] Thirdly, Mr Nolan submits the uplifts for offending while on bail, whilst subject to parole, and for previous convictions were too high in the circumstances.
[25] Fourthly, Mr Nolan submits the Judge erred in not applying a discrete discount for personal mitigating factors. He submits Mr Banks’ offending was due to a relapse into his methamphetamine addiction. It is noted that Mr Banks was engaged with the Odyssey House programme when he was released on parole and was approved to re-enter the programme on release from prison. Mr Nolan submits Mr Banks has good prospects of rehabilitation due to his relatively young age.
[26] Mr Nolan points to the general hardship and deprivation in Mr Banks’ upbringing as a mitigating factor that warrants a discrete discount. Mr Banks found his mother dead in the family home when he was 10 years old. Mr Banks’ father subsequently became violent and Mr Banks was placed into foster and other family care. Mr Banks has more recently lost his father and suffered a relationship breakup. Mr Nolan submits there is a nexus between the offending and the chronic trauma suffered by Mr Banks.
[27] Mr Nolan submits a discrete discount for remorse, in addition to the guilty plea discount, is warranted. Mr Banks sought to participate in restorative justice, but the victims did not wish to participate. Further, Mr Nolan submits a discount to reflect Mr Banks youth, and his prospects of rehabilitation and reintegration, is available.
[28] Finally, Mr Nolan submits that the Judge erred in not applying the least restrictive sentence in the circumstances. Mr Nolan submits, for the reasons outlined above, a sentence of two years with leave to apply for a sentence of home detention into a drug rehabilitation residential programme was the least restrictive sentence in the circumstances.
[29] In light of these factors, Mr Nolan submits the appropriate sentence structure is:
(a)a starting sentence of two years and eight months’ imprisonment for the three burglary charges;
(b)a concurrent sentence on the remaining charges;
(c)an uplift of three months for offending while on parole and for previous convictions;
(d)a small reduction due to Mr Banks being recalled to prison;
(e)a 30 per cent discount for youth, addiction, potential for rehabilitation; general deprivation and remorse;
(f)credit for guilty plea of 20 per cent.
Respondent’s submissions
[30] Miss Dayal, for the respondent, accepts Judge Couch made an error in calculating the starting point. However, Miss Dayal submits the end starting point of 46 months was within range when taking into account the principle of totality.
[31] Miss Dayal submits a higher starting point could have been adopted for the three burglaries alone, when the aggravating factors are taken into account.
[32] Ms Dayal submits all uplifts for the other charges were within range. With respect to the uplifts for aggravating features Miss Dayal submits an uplift of up to 20 per cent is within range. Judge Couch applied an uplift of nine months, just under 20 per cent. Miss Dayal considers the Judge would have been justified in adopting a higher uplift.
[33] Miss Dayal acknowledges a discount for addiction may be available. However, she points to the fact that the reports provided include a degree of self-reporting.
Furthermore, Miss Dayal acknowledges a discount for social, cultural or economic deprivation may be available if there is a demonstrative nexus with the offending.
[34] Miss Dayal submits Mr Banks’ age and remorse do not warrant a separate discount.
[35] Miss Dayal submits that if the calculation error is corrected, the reduction in sentence would place the sentence within the lower end of the sentence range for this offending.
Analysis
Starting point
[36] I accept that Judge Couch made an error in calculating the overall sentence starting point, before totality was applied, as four years and seven months’ imprisonment. The correct calculation is four years and four months’ imprisonment.
[37] The Court of Appeal has said that if it is clear that a mathematical error resulted in a sentence that is more severe than that which the Judge intended to impose, it must be corrected, even if the end sentence imposed was still within the available range.7 However, a correction of three months to a starting point will not necessarily result in a commensurate adjustment to the end sentence, particularly where, as here, there have been adjustments made to reflect totality, and adjustments made in percentage terms to the starting point to reflect other mitigating factors. For this reason, it is necessary to revisit the entire sentencing exercise to determine whether the totality of the issues raised by Mr Nolan warrant the sentence appeal being allowed.
[38] I agree that the lead offending here is the burglaries, with the most serious offence being the burglary of 17 August 2019, where over $10,000 worth of property was taken.
7 Ferris-Bromley v R [2017] NZCA 115 at [15].
[39] Due to the varied circumstances of the offending there is no tariff case for burglary.8 A burglary of a dwelling house is a significant aggravating factor,9 as there is a heightened risk of confrontation with the occupants.10 In Arahanga v R the Court of Appeal suggested that burglaries of a more minor nature will tend to attract a starting point of between 18 months’ and two years and six months’ imprisonment.11
[40]The following cases offer some guidance:
(a)R v Harrison the appellant was convicted of four burglary charges. The Court of appeal upheld a starting sentence of four years’ imprisonment.12
(b)In Jones v R the appellant was convicted of three burglaries. A starting point of three years’ imprisonment for the totality of the burglary offending was upheld.13
(c)In Johnstone v Police the key features were significant financial and sentimental value of property, and entry into a dwelling-house.14 However, there was limited damage to the house or premeditation. The starting point was two years’ imprisonment.15
(d)In Nelson v Police the appellant entered a residential dwelling, took electronics and jewellery valued at $800, the occupiers of the house were not home.16 The starting point was 21 months’ imprisonment.
[41] There are a number of aggravating factors that add to the overall gravity of Mr Banks’ offending: there are three charges; all involve residential dwelling houses; two of the charges involve entering at night, when there is a heightened risk of
8 Arahanga v R [2012] NZCA 480; [2013] 1 NZLR 189 at [78]; R v Stepanicic [2015] NZCA 211.
9 Sentencing Act 2002, s 9(1)b).
10 Arahanga v R, above n 9, at [78].
11 At [78].
12 R v Harrison [2011] NZCA 80.
13 Jones v R [2012] NZCA 73.
14 Johnstone v Police [2012] NZHC 551 at [15].
15 At [18].
16 Nelson v Police, above n 13, at [8] and [18].
confronting occupants; the property taken was of moderate value; and the offending after 2 August 2019 occurred while on bail. I consider the overall gravity of the offending to be at the more serious end of the scale. The starting point of two years and eight months’ imprisonment adopted by the District Court Judge was appropriate for the lead offending.
Further uplifts
[42] The uplifts of six months on the two charges of deception, nine months on the two charges of theft over $1,000, and three months for the two thefts over $500, along with the methamphetamine charges, are all within range. I see no reason to disturb these uplifts. It seems that the Judge then only applied an uplift for the failure to answer bail and not for the charges of reckless operation or failure to stop. I consider the two months uplift to reflect this offending to be appropriate. This brings the overall starting sentence to four years and four months’ imprisonment (52 months). Considering the totality of the offending, I agree that a reduction is appropriate. However, as I have reached a lower starting point, reflecting correction of the calculation error, I would then reduce it by eight months. This brings the overall starting sentence to three years and eight months’ imprisonment (44 months).
Totality
[43] Mr Nolan submits concurrent sentences are appropriate as the offending represents a connected series of criminal conduct. He points to the offending occurring over a short period of time, to fund a methamphetamine addiction.
[44] However, I do not agree that the offending was sufficiently connected to justify an overall concurrent sentence. The offending was distinct in nature and involved multiple victims. Where the specific offences were similar in nature, a concurrent sentence was applied by Judge Couch. Furthermore, to the extent the offending was connected, in that it was driven by Mr Bank’s methamphetamine addiction, the adjustment for totality addresses this. I see no error in this approach.
Personal aggravating factors
[45] Mr Banks was on parole when this offending was committed. In addition, all the offending after 2 August 2019 was committed while on bail. I consider an uplift of three months is within range. This is three months’ less than applied by Judge Couch. There are three reasons why I have reduced the uplift. First, I note that this factor was taken into account as an aggravating factor when the Judge set the starting point for the lead offending of burglary. Second, the offending while on bail also comprised a separate charge for which he was sentenced. Finally, he was recalled to serve the balance of his existing sentence as a consequence of offending while on parole. Taking these matters into account, I consider there was a real risk of double counting if a six month uplift was imposed in addition to these uplifts in sentencing. I accept that a further uplift of three months for Mr Banks’ criminal history was warranted. This brings the sentence to four years and two months imprisonment (50 months).
Mitigating factors
Addiction issues
[46] Where there is a causal nexus between the offending and the appellant’s addiction issues, a discrete discount may be warranted.17 This ought to be based on “persuasive evidence, as opposed to mere self-reporting.”18 While Miss Dayal notes the pre-sentence report and the cultural report include a degree of self-reporting, I accept that they paint a clear picture of the defendant addressing a drug addiction which was causative of his offending.
Cultural report
[47] Social, cultural or economic deprivation with a clear nexus to the offending may also be a mitigating factor in sentencing.19 The s 27 report prepared for sentencing draws a causal nexus between the offending and the trauma Mr Banks suffered as a result of his childhood experiences. Around May 2019 Mr Banks states
17 At [147]-[148].
18 At [148].
19 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].
he started using methamphetamine to help him cope with the overwhelming emotions around the time of the memorial of his father’s death. The drug use escalated and the report writer concludes that the “… nexus of the offending appears to be linked to chronic trauma resulting from his father’s inability to cope with mother’s death”. The report goes on to account how his father engaged in daily drug use and extreme violence against Mr Banks and his brother. While dependent on a degree of self-reporting, I accept the report links Mr Bank’s traumatic childhood to his current offending with sufficient cogency to take that factor into account.
[48] In my view, inadequate consideration was given to the content of the pre-sentence report and the s 27 report, and the evidence provided in these reports as to the background factors which drove his offending, and his prospects for rehabilitation should have been taken into account in sentencing.
[49] In my view, Mr Bank’s background and upbringing was a contributing factor to his drug use and his connection with anti-social associates. The pre-sentence report makes it clear that he initially enjoyed a number of successes in Odyssey House and he was reintegrated into the community with stable employment and secure accommodation. It is only when his relationship ended, leaving him “totally distraught” that he relapsed back into substance use. That response is explicable in the context of a life where every meaningful relationship Mr Banks has had, has been lost.
[50] Importantly, too, Mr Banks acknowledges that he has “disappointed everyone who supported him throughout his time in residential treatment and whilst on parole”, and I accept he is remorseful for what he has done.
[51] In my view, this combination of circumstances warrant a further discount which I set at 10 per cent discount or five months.
Age
[52] A discount may be provided to reflect the age of the offender.20 In this case I do not consider such a discount is justified. Mr Banks is 21 years old and has a history of criminal offending. Furthermore, this offending took place while he was on parole, was in breach of bail conditions and involves some degree of premeditation. Such conduct ought to be denounced and deterred. Accordingly, no discrete discount for youth is justified in these circumstances.
Further discounts
[53] I accept that a 20 per cent discount (or nine months) for his guilty pleas is appropriate.
[54] Applying a 10 per cent discount for his traumatic upbringing and consequent addiction issues, and a 20 per cent discount for guilty pleas, the final sentence is three years’ imprisonment. This is eight months less than the sentence imposed, and clearly justifies the appeal being allowed.
[55] That three year sentence is to be served cumulatively on Mr Banks’ current sentence. The new sentence is to be allocated as between the charges as follows:
(a)on each of the burglary charges Mr Banks is sentenced to two years six months’ imprisonment to be served concurrently;
(b)on the two charges of thefts over $1000, Mr Banks is sentenced to six months’ imprisonment, to be served cumulatively on the sentence for the burglary charge with the CRN ending 2122, but concurrently with each other; and
(c)on all other charges the District Court sentences, as set out at paragraph
[17] of the Judge’s sentencing notes, apply but they are all to be served concurrently with the sentence on the CRN 2122 burglary charge.
20 Tahuri v R [2013] NZCA 254 at [42]-[43].
Conclusion
[56]The appeal is allowed.
[57]The sentence of three years and eight months’ imprisonment be quashed.
[58] A sentence of three years’ imprisonment is substituted, which is applied to the various charges as set out in [55] above.
Solicitors:
C G Nolan, Barrister, Christchurch Raymond Donnelly & Co., Christchurch
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