Candler v Police

[2018] NZHC 1414

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-000027

[2018] NZHC 1414

BETWEEN

HAYDEN CANDLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

12 June 2018

Appearances:

N Dutch for the Appellant

S J P Davison E F Collis for Respondent

Judgment:

14 June 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 14 June 2018 at 10.00am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Crown Solicitor, Tauranga N Dutch, Tauranga

CANDLER v NEW ZEALAND POLICE [2018] NZHC 1414 [14 June 2018]

Introduction

[1]    On 21 February 2018, the appellant, Hayden Candler, was sentenced in the Tauranga District Court by Judge Ingram to 12 months’ imprisonment on the following charges:1

(a)driving while suspended (third or subsequent) x 2;2

(b)theft;3 and

(c)dishonestly using a document.4

[2]    On 21 March 2018, Mr Candler filed a notice of appeal. He alleges that the sentence was manifestly excessive, that the Judge erred in not addressing the pre- sentence report, that the starting point should have been lower, that there should have been a full credit of 25 per cent for the guilty pleas which he entered, and that the Judge was wrong not to grant him an electronically monitored sentence in the community.

[3]The appeal is opposed by the respondent.

Relevant facts

[4]    The charges to which Mr Candler pleaded guilty arise out of a number of separate events. I deal with them as follows:

Driving related charges

[5]    On 11 July 2017, Mr Candler was suspended from driving for a period of three months for excess demerit points. Notwithstanding this suspension:

1      Police v Candler [2018] NZDC 3119.

2      Land Transport Act 1998, s 32(1)(c). The maximum penalty is imprisonment for a term not exceeding two years or a fine not exceeding $6,000. The court must also order the person to be disqualified from holding or obtaining a driver licence for one year or more.

3      Crimes Act 1961, s 223(c). The maximum penalty is imprisonment for a term not exceeding one year.

4      Crimes Act, s 228(1)(b). The maximum penalty is imprisonment for a term not exceeding seven years.

(a)At around 7:10 pm on 2 August 2017, Mr Candler was driving a Toyota surf vehicle on Christopher Street in Tauranga. The police pulled Mr Candler over because the vehicle had false licence plates. Mr Candler said in explanation that he did not know he was suspended from driving.

(b)At around 12:30 pm on 4 October 2017, Mr Candler was driving a Hino light truck on Cameron Road in Tauranga. As a result of police inquiries relating to that vehicle, Mr Candler was spoken to by police at the Tauranga Police Station the following day. Mr Candler admitted to being a suspended driver. He said in explanation that he needed to work to earn a living.

Theft

[6]    At around 4:19 pm on 21 December 2017, Mr Calder was inside a retail store in Katikati. A female associate reversed a Toyota station wagon into a parking spot outside the store. The hatch back door was open. Mr Candler uplifted a large box with a portable swimming pool in it from the store and placed the box inside the rear of the station wagon. This was recorded on CCTV security footage. Mr Candler and the female associate then left in the station wagon. Mr Candler had stolen the swimming pool. It was valued at $800. It was subsequently recovered undamaged.

Using a document

[7]    Mr Candler purchased a Toyota surf vehicle with the licence plate number HCH207. He registered it in his name on 16 February 2017.

[8]    Between 24 March 2017 and 26 July 2017, Mr Candler displayed the licence plate number JFS498 on the front and back of that vehicle while driving it. That licence plate belonged to a similar Toyota surf vehicle owned by another person in the South Island. On 15 separate occasions over the period noted above, Mr Candler passed through toll gates. He avoided $27 worth of road tolls, which were attributed to the registered owner of the vehicle in the South Island.

District Court decision

[9]    After setting out the factual background to the offending, Judge Ingram focused on the charge of driving while suspended (Mr Candler’s third such conviction).5 He adopted a starting point of six months’ imprisonment for this offending.6 He then allowed a two-month discount for Mr Candler’s guilty plea, convicting and sentencing Mr Candler to four months’ imprisonment on this charge.7 The Judge stated that leave to apply for substitution of the sentence was declined.8

[10]   Judge Ingram then focused separately on the second driving while suspended charge (Mr Candler’s fourth such conviction) which occurred on 4 October 2017. The Judge noted that this occurred while Mr Candler was on bail on the first charge of driving while suspended, commenting that it was “simply a case of Mr Candler continuing to thumb his nose at Court orders”.9 The Judge adopted a starting point of 12 months’ imprisonment for this offence.10 As for Mr Candler’s guilty plea, the Judge stated:

[3]    … Any credit for plea would be more than taken up by the necessity  for an uplift to cover his prior history and the fact that this occurred whilst he was on bail. Accordingly, on the second charge he will be convicted and sentenced to imprisonment for a period of 12 months. Again, leave to apply for substitution of sentence is declined with standard release conditions until six months after his sentence expiry date.

Judge Ingram then, as required, disqualified Mr Candler from holding or obtaining a driver’s licence for 12 months on a concurrent basis for these two charges.11

[11]   Turning to the using a document charge, Judge Ingram took a starting point of three months’ imprisonment.12 He gave Mr Candler a one-month discount for his guilty plea.13 The Judge, therefore, convicted and sentenced Mr Candler to two months’ imprisonment.

5      Police v Candler, above n 1, at [2].

6 At [2].

7 At [2].

8 At [2].

9 At [3].

10 At [3].

11 At [4].

12 At [5].

13 At [5].

[12]   Lastly, as to the charge of theft, Judge Ingram took a starting point of three months’ imprisonment and then gave Mr Candler a one-month discount for his guilty plea.14 The Judge convicted and sentenced Mr Candler to two months’ imprisonment.

[13]   Judge Ingram stated that all these sentences were to run concurrently.15 Therefore, the Judge sentenced Mr Candler to an end sentence of 12 months’ imprisonment.16

Approach on appeal

[14]Section 250(2) of the Criminal Procedure Act 2011 provides:

(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.

In any other case, the court must dismiss the appeal.17

[15]   A sentence may be set aside where it is manifestly excessive.18 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached. The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.19

Analysis

[16]   Both counsel submitted that Judge Ingram applied an unorthodox approach to sentencing, in particular in the way in which he dealt with the second charge of driving while suspended (Mr Candler’s fourth conviction for that or similar offences). Both counsel submitted that it was unclear how the various discounts allowed by the Judge

14 At [6].

15 At [7].

16 At [8].

17     Criminal Procedure Act 2011, s 250(3).

18     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

19     Tutakangahau v R, above n 18, at [30].

had been factored into the end sentence, although Mr Davison, for the Crown, argued that it made no difference.

[17]   I agree that the sentencing process adopted by Judge Ingram is unusual, but that is not the critical question. What is in issue is rather whether or not the end sentence imposed by the Judge is manifestly excessive.

[18]   Judge Ingram approached the charges of driving while suspended (third or subsequent) as the lead offending. Both counsel accepted that that was appropriate. I agree.

[19]   Under the Land Transport Act 1998, driving while suspended and driving while disqualified attract the same maximum penalties.20 The Courts have treated the offences as being the same for the purposes of assessing starting points.21

[20]   There is no tariff case, but it is clear that the number of previous convictions for driving while disqualified or driving while suspended is strongly and directly relevant in assessing the starting point for this kind of offending.22 The fact that multiple convictions are sentenced together will inevitably justify the imposition of a harsher sentence.23

[21]   There are various cases where similar offending has been considered by this Court:

(a)In Muhinda v Police,24 the appellant was found guilty of seven charges, including a charge of driving while disqualified. It was the appellant’s fourth conviction for this type of offending. Dunningham J upheld a starting point of eight months’ imprisonment in respect of this charge.25

20     See Land Transport Act, s 32(1) and (4).

21     See Cadle v Police [2017] NZHC 30242; Opetaia v Police [2015] NZHC 2532.

22     Opetaia v Police, above n 21, at [38].

23     Opetaia v Police, above n 21, at [38].

24     Muhinda v Police [2015] NZHC 2024.

25 At [27].

(b)In Townshend v Ministry of Health,26 the appellant had pleaded guilty to 129 charges under the Medicines Act 1981, and two charges of driving while disqualified – his fourth and fifth such offences. Gendall J upheld a cumulative sentence of nine months’ imprisonment for these two charges.27 The Judge noted as follows:

[30] Neither do I accept that a cumulative nine-month sentence for the driving while disqualified offences was manifestly excessive. I do not consider that there is any significance in the fact that this is only the appellant's second appearance for this kind of offending. The important factor is not the number of appearances, but the number of convictions. Judge Saunders here was correct to impose a sentence in keeping with third and fourth offences. The maximum sentence for third and subsequent offences of this kind is two years imprisonment, and a review of the case law in my judgment indicates that nine months in the circumstances was within range.

(Citations omitted)

(c)In Fox v Police,28 the appellant was found guilty of several charges, including two charges of driving while disqualified (his fourth and fifth such convictions). Downs J held that a starting point of 14 months’ imprisonment, taken in relation to these two charges, was “towards, and possibly at, the bottom end of the available range for that offending”.29

[22]   In Apiata v Police,30 Clifford J set out a table which, inter alia, noted the degree of recidivism of each offender. He observed that relevant factors include the gap between the defendant being sentenced and previous like offending, and the period of time over which all of the offending has occurred.31

[23]   There are no cases directly on point in Clifford J’s table. It does, however, refer to the case of Finch v R.32 In that case, the appellant was convicted of one charge of attempting to pervert the course of justice and three charges of driving while

26     Townshend v Ministry of Health [2017] NZHC 1993.

27 At [30].

28     Fox v Police [2017] NZHC 573.

29 At [6].

30     Apiata v Police [2016] NZHC 3119 at [19].

31 At [19].

32     Finch v R [2012] NZCA 446.

disqualified (his fifth to seventh such convictions). On appeal, the Court of Appeal upheld a starting point of 14 months’ imprisonment in relation to the three charges of driving while disqualified.33

[24]   The previous authorities are of some limited assistance because each case necessarily turns on its individual circumstances and on the circumstances of the offender.34

[25]   Here, Mr Candler was being sentenced in respect of his third and fourth driving while suspended/disqualified offences. In my judgment, it is appropriate to approach the offending on a concurrent basis – it was the same in kind. Having considered the authorities, a starting point of nine months’ imprisonment is appropriate for both offences. I would uplift that starting point by one month to take into account the fact that the second offence (Mr Candler’s fourth such offence) was committed while Mr Candler was on bail in relation to the first offence.

[26]   Both of the remaining offences were low-level. They were discrete offences, different in kind and unrelated in time. They should be dealt with on a cumulative basis. The starting points of three months’ imprisonment each adopted by Judge Ingram were within the available range and, in my view, appropriate.

[27]This takes my starting point to one of 16 months’ imprisonment.

[28]I now turn to Mr Candler’s personal circumstances.

[29]   In my view, Judge Ingram should have considered whether or not an uplift was required because of Mr Candler’s previous record. He should then have considered whether any discounts were required to recognise any mitigating factors personal to Mr Candler, and then finally considered Mr Candler’s guilty pleas.

[30]   As I have noted, Mr Candler has a lengthy criminal record. His offending goes back to 2008. It continued on a regular basis through to 2012. Thereafter, Mr Candler

33 At [6].

34     Harris v Police [2017] NZHC 3224 at [22].

was not convicted of any further offending until February 2018, when he was convicted of a dishonesty related offence which occurred in March 2017.

[31]   Judge Ingram did not uplift the sentence to recognise Mr Candler’s previous history. That course was open to him. Mr Candler’s criminal history was interrupted by a long period where no offending occurred. Mr Candler is entitled to point to that. I do not disturb the approach applied by Judge Ingram.

[32]   Judge Ingram refused to give Mr Candler a discount for his guilty plea in relation to the second driving while suspended charge (the fourth such offence for Mr Candler). He noted that Mr Candler had committed the offence while he was on bail and that he had a lengthy list of previous convictions.

[33]   In my judgment, Judge Ingram erred in his approach to this issue. A guilty plea is conceptually different to an uplift or a discount for a defendant’s personal circumstances.35

[34]   Mr Candler is entitled to a discount from the overall sentence imposed to recognise his guilty pleas.

[35]   The pleas were entered at an early stage. Mr Candler is entitled to a full discount of 25 per cent. This would take the end sentence to one of 12 months’ imprisonment. Judge Ingram imposed the same sentence, albeit by a different route.

[36]   It is asserted that Judge Ingram did not take into account the pre-sentence report. I accept that he did not expressly refer to it, but he will have had it before him. I am not prepared to infer that he ignored it.

[37]   Judge Ingram’s (and my) end sentence is a short term of imprisonment.36 Section 15A(1) of the Sentencing Act 2002 required Judge Ingram to consider a sentence of home detention. The Judge did not expressly do so. He should have.

35     R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [57]-[60].

36     Parole Act 2002, s 4(1).

[38]   The writer of the pre-sentence report noted that electronic monitoring enquiries were requested by the Court. The report writer also noted that the address provided was suitable, and that there were no objections by the occupants.

[39]   Mr Candler has convictions for breach of community work orders – one in 2009, one in 2010 and three in 2011. Further, Mr Candler has flouted other Court orders as shown by his convictions for driving while suspended/disqualified. As Judge Ingram noted, his second offence of driving while suspended (his fourth such conviction), in respect of which he was being sentenced, was committed while he was on bail. As the Judge noted, it was very much a case of Mr Candler “continuing to thumb his nose at Court orders”.37

[40]   It is also relevant that Mr Candler is facing another charge. That was referred to by the report writer, and on the same day as he sentenced Mr Candler, Judge Ingram declined Mr Candler bail on that charge.38 Insofar as I am aware, there has been no appeal against that decision.

[41]   In my view, there was accordingly a proper basis for refusing Mr Candler leave to apply for a substituted community based sentence. The Judge should have explicitly articulated why he reached a decision in this regard. While he did not do so, it cannot be said that the ultimate decision was in error.

[42]It follows that the appeal is dismissed.

Wylie J

37     Police v Candler, above n 1, at [3].

38     Police v Candler [2018] NZDC 3104.