Cross v Police
[2020] NZHC 3474
•22 December 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-129
[2020] NZHC 3474
BETWEEN KYLE CROSS
Appellant
AND
NZ POLICE
Respondent
Hearing: 7 December 2020 Appearances:
K Hadaway for the Appellant O M Salt for the Respondent
Further submissions:
11 December 2020
Judgment:
22 December 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 22 December 2020 at 3.30 pm Registrar/Deputy Registrar
Date:
CROSS v NZ POLICE [2020] NZHC 3474 [22 December 2020]
[1] Kyle Cross has appealed a sentence of two and half years’ imprisonment imposed by Judge T R Ingram.1
[2] Mr Cross had pleaded guilty to failing to answer bail; burglary; assaulting a Police Officer; driving while disqualified; reckless driving; shoplifting; theft; and two charges of receiving. Mr Cross appeals his sentence on the basis Judge Ingram:
(a)adopted a starting point that was manifestly excessive;
(b)failed to adequately take account of relevant mitigating factors; and
(c)imposed a disqualification period that was manifestly excessive.
District Court decision
Judge Ingram set out that the following facts gave rise to Mr Cross’ offending:
(a)On 23 December 2019 Mr Cross breached bail.2
(b)On 10 March 2020 Mr Cross took a caravan from a local caravan yard and drove away with it attached to his car. The Police pursued Mr Cross with activated red and blue flashing lights for approximately 70 kilometres. During this pursuit Mr Cross drove whilst disqualified, drove in excess of the speed limit, drove recklessly causing the caravan to detach from his vehicle, and failed to stop. Mr Cross eventually crashed his vehicle and was located by Police. In his attempt to resist arrest he assaulted a Police Officer.3
(c)On 20 June 2020 Mr Cross stole clothing from a Farmers retail store.4
1 Police v Cross [2020] NZDC 20613.
2 At [2].
3 At [2], [4] and [5].
4 At [3] and [9].
(d)On 19 June 2020 Mr Cross drove away from a petrol station without paying.5
(e)On 2 September 2019 Mr Cross came into the possession of a stolen fibre gun and in January 2020 he was stopped by Police driving a vehicle that had been stolen from a car yard.6
[4] Judge Ingram did not accept Mr Cross’ explanation that he was unduly influenced to engage in this offending by his friends,7 but was satisfied that methamphetamine had “been a significant problem” for Mr Cross that had “caused [him] to offend in this way”8 and acknowledged that the pre-sentence report recommended a sentence of home detention to allow Mr Cross to receive help for his addiction.9 Judge Ingram, however, concluded “there [was] no sentence which could [ever] be appropriate [for this offending] except a sentence of imprisonment”.10
[5] Judge Ingram then proceeded to address the starting point for the offending, noting:11
Having reflected on the matter I have come to the view that an appropriate starting point for the event of 10 March could not be any less than 18 months’ imprisonment. There would need to be a further uplift in relation to the other offending, the receiving matters in my view, are substantial and would require a further uplift of at least 12 months and then there is the petrol drive off and the stealing clothing from a local shop. When I put all those together it seems to me that a high point of 30 months’ imprisonment would be appropriate.
[6] Having completed this analysis Judge Ingram imposed a sentence of 18 months’ imprisonment on the lead burglary charge,12 a cumulative sentence of 12 months’ imprisonment on the two charges of receiving13 and deducted a discrete
5 At [3].
6 At [3], [7] and [9].
7 At [11].
8 At [10].
9 At [11].
10 At [12].
11 At [13].
12 Mr Cross was also sentenced to pay reparations of $2,780 in relation to this offending.
13 The following sentences were imposed concurrently. Assaulting a constable: 12 months’ imprisonment. Driving while disqualified: three months’ imprisonment. Reckless driving: three months’ imprisonment. Failing to answer bail: two months’ imprisonment. Shoplifting: two months’ imprisonment and reparations totalling $294. Theft: two months’ imprisonment and reparations of $82.61.
discount of six months for Mr Cross’ guilty pleas.14 Judge Ingram then advised the “net result … is a sentence of two and a half years’ imprisonment”.15 Mr Cross was also disqualified from holding or obtaining a driver’s licence for a total period of 18 months. This included a 12 months’ disqualification for each of the charges of driving whilst disqualified and reckless driving imposed concurrently from the date of conviction, and six months’ disqualification for failing to stop, which was imposed cumulatively on the other two periods of disqualification.
[7] Following the sentencing, counsel for Mr Cross queried the sentencing figures with his Honour as based on the figures it appeared that an end sentence of two years had been imposed. Judge Ingram advised counsel that although it may not have been clear in the sentencing notes, he had applied a further six month uplift to reflect the theft and shoplifting offending, resulting in an adjusted starting point of 36 months’ imprisonment which following deductions gave an end sentence of two and half years’ imprisonment.16
The appeal
[8] Ms Hadaway, on behalf of Mr Cross, submitted that Judge Ingram erred in three respects. First, that his Honour adopted a starting point that was too high as it failed to take into account the principle of totality. Secondly, that Judge Ingram failed to give adequate credit for Mr Cross’ personal mitigating factors. Lastly, that the period of disqualification imposed was excessive.
[9] Overall, Ms Hadaway submitted that if this Court accepted the error asserted, the sentence of two and a half years should be quashed and replaced with a sentence of 21 months’ imprisonment. At that point Ms Hadaway submitted home detention was the most appropriate sentence and sought leave for Mr Cross to apply to substitute his sentence for one of home detention once a suitable address had been located.
14 At [14].
15 At [18].
16 This sequence is not recorded in the decision, but there is no dispute that this is how the end sentence was determined.
The respondent’s position
[10] Opposing the appeal, Mr Salt on behalf of the Police, submitted the starting point adopted by Judge Ingram accurately reflected the gravity of the offending and that there was no need to make an adjustment for totality. Mr Salt initially relied upon the decisions in Paikea v Police17 and Taiatu v Police18 as evidence that the starting point was in line with analogous cases, but accepted at the hearing that it was necessary to look more closely at the component parts of the offending given that in both the Paikea and Taiatu decisions the ‘omnibus’ approach incorporated significantly more serious offending.19
[11] In those supplementary submissions Mr Salt submitted that with regard to a number of stand-alone burglary cases the starting point on the burglary offending remained 18 months. On the receiving charges Mr Salt submitted a stand-alone starting point could have been up to 18 months,20 making a combined starting point for both the receiving and other offending in Mr Cross’ case well within range.
[12] Mr Salt likewise submitted that there was similarly no error in Judge Ingram’s refusal to provide a discount for personal mitigating factors. He submits that pursuant to Zhang, persuasive, objective evidence of addiction is necessary and that in this case Mr Cross’ self-report of addiction recorded in the Provision of Advice to the Courts Report (“PAC report”) was inadequate. He further submits that Mr Cross’ rehabilitative efforts were minimal and did not warrant a deduction.
17 Paikea v Police [2017] NZHC 1286. Mr Paikea engaged in four sets of offending, the most serious of which involved burglary, unlawfully taking a motor vehicle, reckless driving, driving while disqualified and injuring with intent to injure. Mr Paikea entered a garage and stole a vehicle. He was then pursued by Police driving at excess speeds, into oncoming traffic and through red lights. When apprehended he punched a Police Officer in the face. On appeal a global starting point of three years and six months’ imprisonment was said to have been within the available range.
18 Taiatu v R [2014] NZHC 1787: Mr Taiatu was charged with burglary, theft, reckless driving, unlawfully taking a motor vehicle, failing to stop and two breaches of release conditions. Mr Taiatu had broken into a garage and stolen a car. He subsequently drove off without paying for petrol and was the subject of a Police chase where he drove at excess speeds. Courtney J found that a starting point of 18 months for the burglary charge was appropriate and that this ought to be uplifted by four months for previous convictions and a further two months for totality.
19 In Paikea the offending involved a charge of injuring with intent to injure, an offence with a much higher maximum penalty than assault (being the charge Mr Cross was convicted on), and a more serious burglary, being a burglary of a residential property whilst the owner was near by, risking a confrontation. Similarly, Taiatu involved the burglary of a residential address. In comparison Mr Cross’ offending involved a commercial caravan yard in the early hours of the morning where there was no such risk of confrontation.
20 Inamata v Police [2014] NZHC 3099.
[13] Mr Salt further submitted the 18 months’ disqualification was appropriate, given the seriously aggravating features of the offending, and that such a period is consistent with that imposed in other cases, including Paikea.
[14] In the event the appeal is successful and home detention is available, Mr Salt submitted that such a sentence is not appropriate. He submits that Mr Cross has a substantial criminal history, has previously received the benefit of a sentence of home detention, and has a poor record of compliance, thereby rendering him an inappropriate candidate for home detention.
Discussion
[15] Mr Cross’ appeal against sentence is governed by the Criminal Procedure Act 2011 (“CPA”), and s 250(2) provides that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed, and a different sentence should be imposed. In any other case, the Court must dismiss his appeal.21 In this case, Mr Cross must show that Judge Ingram erred by adopting a starting point that was too high; failing to give credit for personal mitigating factors; or imposing an excessive period of disqualification. I shall address each of these alleged errors in turn.
[16] As it is clear that Judge Ingram adopted an effective starting point of 36 months’ imprisonment, the question is whether or not this is excessive. Ms Hadaway initially accepted that the starting point of 18 months’ for the offending of 10 March,22 and the 12 month uplift for the receiving charges, although stern, was appropriate,23 but submitted the additional six month uplift imposed meant the adjusted starting point was out of all proportion to the gravity of the offending. Following receipt of Mr Salt’s
21 Section 250(3).
22 Ms Hadaway states that burglary was the lead charge in this set of offending. The burglary occurred in a commercial premise and involved brief entry at night meaning there was little chance of confrontation. She acknowledges that there was an element of premeditation as the vehicle driven by Mr Cross during the burglary had false number plates. She noted that the value of the item taken, the caravan, was high, but that it was later recovered. It is on this basis that she accepts the 18 month starting point was appropriate.
23 Ms Hadaway refers to Gray v Police [2018] NZHC 103 where an uplift of six months was given for a charge of receiving, reckless driving, failing to stop, possession of an instrument for conversion, and disqualified driving (third or subsequent) in support of the proposition that the 12 month uplift is stern.
supplementary submissions Ms Hadaway undertook her own analysis of the relevant cases and submitted that a starting point of 15 months was in fact appropriate for the burglary by itself or alternatively that 18 months’ imprisonment was appropriate for all of the offending on 10 March 2020. Ms Hadaway did not take issue with 12 months for the two receiving charges, again resulting in a total starting point of 30 months’ imprisonment for all of the offending. I agree with these submissions. Whether considered on a totality basis or from stand-alone starting points, a total starting point of 36 months was not warranted. Because of the low level of imprisonment available for the driving offences which were in many ways the most serious aspect of Mr Cross’ offending, a 36-month starting point effectively required not only imposing a stern sentence on the receiving charges but near maximum sentences on the remaining charges with no consideration of totality, resulting in a starting point that was not warranted.
[17] With regard to personal circumstances, as noted by Judge Ingram, although finding Mr Cross possessed a methamphetamine addiction that had caused him to engage in this offending and for which he requires treatment, nonetheless, declined to provide a deduction for this factor as addiction could not “excuse” his offending.24 His Honour also declined to provide any deduction for remorse or rehabilitative efforts. A letter from the Hanmer Clinic illustrates Mr Cross has in fact gone beyond a motivation to engage with addiction services noted in the PAC report, and has self- referred to such services, and is now scheduled to undertake various addiction programmes when permitted to do so. The PAC report, although reporting that Mr Cross has a tendency to blame his associates for getting him involved in the offending, also notes remorse on the part of Mr Cross, and in particular a wish to apologise face to face and offer reparations. This is echoed in the letter he prepared for the Court which was not put before Judge Ingram. Finally, I note Mr Cross also completed what is called “the out of gate” workshop which although minor was available to him on remand. With this background in mind I am satisfied that a deduction of 10 per cent is warranted to reflect Mr Cross’ addiction concerns, remorse and rehabilitative efforts to date.
24 At [12].
[18] As Ms Hadaway has not challenged the six-month deduction for guilty pleas, which is equivalent to approximately 20 percent when applied to a 30 month starting point, I see no reason to upset that deduction. This results in total deductions of 30 per cent from the start point of 30 months’ imprisonment, giving rise to an end sentence of 21 months. As this is a short-term sentence, home detention is available.
[19] With regard to the appropriateness of home detention I note Mr Cross has only a limited recent history of offending, with the bulk of his offending and compliance issues arising prior to 2011 when he was still a youth. Accordingly, I do not accept that Mr Cross is an inappropriate candidate for home detention. Rather, I am of the view that Mr Cross ought to be given an opportunity to engage with the type of rehabilitation services he needs to prevent any future offending of this kind. Although Judge Ingram declined to impose a sentence of home detention, his Honour recognised that rehabilitation is in fact appropriate given he invited “the Parole Board to at least consider granting [Mr Cross] parole to a suitable rehabilitation facility as soon as one [could] be organised, if it [could] be organised”.25 Thus, leave is granted for Mr Cross to substitute his sentence for one of home detention if and/or when he is able to find an appropriate address, preferably one that can provide appropriate rehabilitation.
[20] Lastly, Ms Hadaway submits that the disqualification of 18 months was manifestly excessive and that a total of 12 months’ disqualification was appropriate. I cannot accept that. While not subject to a substantial tariff of imprisonment Mr Cross’ driving-related offending was extremely serious and placed the community in significant danger and as a result a lengthy period of disqualification is appropriate. As Mr Salt pointed out, such periods of disqualification have previously been found to be appropriate in cases involving offending of this severity and I can see no reason why such a period should not be imposed here.
Conclusion
[21]The appeal is allowed in part.
25 At [20].
[22] The sentence of 18 months’ imprisonment on the burglary charge is quashed and in its place a sentence of 12 months’ imprisonment is imposed.
[23] The sentence of 12 months’ imprisonment on the two receiving charges is quashed and sentences of 9 months’ imprisonment are imposed. These sentences are imposed cumulatively on the sentence for burglary, resulting in a total end sentence of 21 months’ imprisonment.
[24] Mr Cross is granted leave to apply to substitute this sentence for one of home detention.
[25]The remainder of the sentence remains unchanged.
Powell J
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