Cullen v Police

[2013] NZHC 969

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-81 [2013] NZHC 969

WILSON CULLEN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 May 2013

Counsel:         M Kan for the Appellant

W N Fotherby for the Respondent

Judgment:      6 May 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr M Kan, Michael Kan Law, Solicitors, Auckland

Mr W N Fotherby, Meredith Connell, Office of the Crown Solicitor, Auckland

CULLEN V POLICE HC AK CRI-2013-404-81 [6 May 2013]

[1]      This is an appeal against sentence of 3 years and 5 months imposed on 12

March 2013 for offences of receiving, two other property offences and four driving offences.

[2]      There were two property offences which occurred between 3 and 4 December

2012.  One was dishonestly interfering with a motor vehicle.  This has a maximum penalty of 2 years imprisonment.  The other was theft from this vehicle, with a maximum penalty of 3 months imprisonment.   The appellant smashed the rear window of a car, got into it and stole a GPS and a jacket.

[3]      The other offences occurred on 14 December 2012.  There was one offence of  receiving  a  car  worth  $2,000  which  had  been  stolen  the  day  before.    The maximum penalty is 7 years imprisonment.   The four driving offences occurred when the appellant was driving this car early in the morning of 14 December.  Police attempted to stop the car on Te Atatu Road.  The appellant drove away at high speed. He drove from Te Atatu West through central Auckland to Tamaki Drive and then to Orakei before being stopped by road spikes in Meadowbank.   He fled the car and was tracked by a police dog and arrested shortly afterwards.  He drove at speeds up to 150 kilometres per hour.  It is unclear whether this was on the motorway, but it is apparent that he got up to speeds of at least 130 kilometres an hour through suburban or city streets where the limit was 50 kilometres per hour.  There is a description of the appellant driving along Karangahape Road at 80 kilometres per hour swerving over the road into oncoming traffic.  He had not stopped initially, in spite of flashing lights from the police car, and he did not stop although the police helicopter was overhead.

[4]      The driving offences are:

(a)      A third or subsequent offence of driving with excess breath or blood alcohol with a maximum penalty of 2 years.  This was the fourth offence.  The level was 496 micrograms.  It is relevant in this regard that the appellant is still only 21 years old.

(b)There was an offence of failing to stop, being a third or subsequent occasion.   This was the fourth.   The maximum penalty is 3 months imprisonment.

(c)      An offence of reckless driving with a maximum penalty of 3 months imprisonment.

(d)An  offence  of  driving  while  disqualified,  also  with  a  maximum penalty of 3 months imprisonment.

[5]      The  appellant’s  previous  offences  are  of  significance  in  relation  to  this appeal.  As noted he was 21 years old when these offences occurred.  At that date he already had a total of 48 previous offences dealt with in the District Court and 28 offences dealt with in the Youth Court.

[6]      The previous offences may be summarised as follows:

(a)       Three of driving with excess breath or blood alcohol. (b)       Three of failing to stop.

(c)      Six  offences  of  operating  a  vehicle  recklessly,  dangerously  or carelessly.  Three of those are reckless driving and two dangerous driving.

(d)      Three offences of receiving.

(e)      35   other   types   of   property   offences   including   theft,   burglary, interfering with vehicles and taking vehicles.  I have included in this total broadly similar offences such as trespass or being unlawfully on property.

(f)       There are 15 offences of failing to comply with sentences or other

Court orders.

[7]      It is also relevant to note some previous sentences that have been imposed, starting with the most recent:

(a)      On 23 March 2012 the appellant was sentenced to imprisonment for a total of 1 year 6 months.  This was for nine offences including excess alcohol driving and receiving, with those two offences each resulting in concurrent sentences of 1 year 6 months.  Eight of these offences were committed on 4 January 2012.  It is apparent that there was the same  pattern  of  offending  as  occurred  with  the  offending  on  14

December 2012 now being dealt with.  It will also be apparent that the current offending occurred when the appellant was still subject to parole on the sentences imposed on 23 March 2012.

(b)On 9 December 2011 the appellant was sentenced to a total of 3 months imprisonment for six offences.  Again, there was one offence of driving with excess alcohol and one offence of receiving.

(c)      On   12   July   2011   the   appellant   was   sentenced   to   9   months imprisonment  for  eight  offences.     This  included  excess  alcohol driving, theft and three offences of unlawfully taking or interfering with vehicles.

(d)      On 14 February 2011 – 5 months before the offending just referred to

– the appellant was sentenced to a total of 8 months imprisonment for

13 offences.  The longest sentences were imposed for one offence of burglary and four offences of taking cars.

The District Court sentence

[8]      The  Judge  rejected  a  submission,  which  had  support  from  the  probation officer, that there should be a sentence of intensive supervision.  Understandably Mr Kan  has  not  sought  on  appeal  to  argue that  such a sentence should  have been imposed. The Judge said:

[8]      I am urged to sentence him to intensive supervision, which is the recommendation in the pre-sentence report, on the basis that he wishes now to try and take some steps to put his life in order and go to Whangarei to support his family.  Well that is a commendable goal, and it will open to you in the future, but the purposes of sentencing require me to impose sentences that denounce your conduct, act as deterrence and your driving was utterly reprehensible and put the lives of other persons at danger.

[9]       I have to also impose a sentence that protects the community and installs responsibility in you and to release you on intensive supervision does not even remotely meet the purposes of sentencing for your case.   The starting point must, of course, be imprisonment.

[9]      The Judge took the receiving offence as the lead offence.  He referred to a decision on appeal of this Court in Rarere v Police.1    He fixed a starting point for receiving offences of 3 years on the basis that that had been the starting point in Rarere.  The Judge then increased this by 9 months for all of the other offending and added a further 6 months for the previous offences.  There was a reduction of 20% for guilty pleas.  This resulted in the end sentence of 3 years 5 months, which was the sentence imposed for receiving.   There were sentences of between 1 and 3 months imprisonment for the other offences.  3 months was imposed for the excess

breath alcohol offence with shorter periods for the other offences.   There was indefinite disqualification for the breath alcohol offence and fixed periods of disqualification for the other driving offences.   There is no appeal against the disqualifications.

The appeal

[10]     The appeal is advanced on six broad grounds:

(a)       The starting point of 3 years imprisonment was manifestly excessive and resulted from a misunderstanding of Rarere.

(b)As a result an uplift of 9 months for all of the other offending was excessive.

(c)       A further  uplift  of  6  months  for  previous  offending  was  in  turn excessive.

1 Rarere v Police HC Napier CRI-2012-441-9, 26 April 2012.

(d)The uplifts involved an element of double counting.  This was in part because, as I will come to, Rarere involved an uplifted starting point. There was also an element of double counting because some of the offences are offences which include previous offending as part of the offence.

(e)      There  was  no  allowance  for  the  appellant’s  youth;  this  was  not considered.

(f)       An allowance of 20% for the guilty pleas was too low given that the pleas on all offences were entered on the first appearance on the charges.

[11]     For the respondent, Mr Fotherby submitted in broadest terms that although there may have been a misunderstanding as to what had been said in Rarere, when regard is had to the totality of the offending, a prison sentence of between 4 years to

4 years 3 months for all of this offending, together with allowance for the significant previous offending, and before considering any reductions for personal factors, could not be said to be manifestly excessive.

[12]     In respect of the submissions from Mr Fotherby and from Mr Kan I note that they were developed with care and with more detail than I have summarised.  I have been materially assisted by the submissions of both counsel.

Discussion

[13]     It is apparent that the Judge misunderstood what had been said in Rarere.  In that case there were offences of burglary, unlawfully taking a vehicle and dangerous driving.  The District Court Judge in Rarere took an uplifted starting point of 2 ½ years for the burglary and the unlawful taking and added 3 months for the dangerous driving.  There was an end sentence of 2 ½ years for the burglary and the unlawful taking and a cumulative sentence of 3 months for the dangerous driving.

[14]     Rarere  did  not  and  could  not  justify a  starting  point  of  3  years  for  the receiving offence in this case.  It does appear that this did result in error in fixing a starting point.  However, the question is whether the end sentence is manifestly excessive notwithstanding some error in the process.

[15]     Because the Judge did fix a true starting point of 3 years for the receiving charge, and did so because of an apparent misapprehension as to the findings in Rarere, it is appropriate to reassess the sentence.   This must be done while recognising that this is not a general appeal requiring the appellate court to come to an independent original conclusion.

[16]    Both counsel referred me other cases in addition to Rarere.  These are of assistance.   I will note the names without reciting the facts.   These are:   Bell v Police,2  Graham v Police,3  Taki v Police,4  Black v Police,5  and Selwyn v Police.6

The last is concerned specifically with receiving.  Reference might also be made to two other cases: Manuel v R7  and R v Taiepa.8    Bell and Graham in particular are relevant and helpful, and especially Bell.  Bell involved broadly similar offending. On appeal the Judge concluded that there should be what I call an uplifted starting point of 4 years.  The offending in this case could reasonably be described as more serious than the offending in Bell.  Mr Fotherby submitted that the offending in this

case may be seen as possibly sitting between the offending in Bell and the offending in Black.

[17]     Because of the nature of the offending, I consider it is appropriate to assess sentencing in a broad way.

[18]     In my judgment, and with respect to the Judge’s approach, the receiving offence probably should not have been taken as the lead offence.  In relative terms it might  be  described  as  significantly  less  serious  than  the  driving  offences,  and

notwithstanding the fact that the maximum penalty for receiving is 7 years compared

2 Bell v Police HC Napier AP58/97, 11 September 1997.

3 Graham v Police HC Auckland CRI-2006-404-258, 12 October 2006.

4 Taki v Police HC Rotorua CRI-2010-470-25/26, 2 July 2010.
5 Black v Police [2012] NZHC 1507.
6 Selwyn v Police [2013] NZHC 107.
7 Manuel v R HC Wellington AP299/96, 13 November 1996.

8 R v Taiepa [2009] NZCA 120.

with  the  maximum  penalty of 2  years  for the  drink  driving offences.    But  the property offences can be looked at in a global way.  There is the further offence of dishonestly interfering with a car on 3-4 December.  This has a maximum penalty of

2 years.  Adopting this broad approach (rather than trying to fix a true starting point for a lead offence) regard should also be had to the fact that there have been 21 previous convictions for unlawfully taking, interfering with, or getting into a vehicle and three previous receiving convictions.

[19]     At least one way of determining whether the uplifted starting point in this case of 4 years and 3 months was manifestly excessive would be to consider the uplifted starting point for the property offences now subject to this appeal – two property offences on 3-4 December and receiving a car on 14 December.  Given the previous offences this could have justified 2 to 3 years imprisonment before reductions for guilty pleas and youth, if youth is a factor warranting reduction.

[20]     There are the separate driving offences.   As already noted, the maximum penalty for the driving with excess alcohol offence is 2 years and this was the fourth offence.  There had been 12 previous convictions for serious driving offences.  There were the three other offences on this occasion.  The reckless driving was appalling driving.  And I must say that it surprised me to note that the maximum penalty for this driving is no greater than the maximum penalty for driving while disqualified. The driving offences, if dealt with separately, could have justified a sentence of imprisonment in excess of 2 years before considering any reduction for personal factors, including the guilty pleas.

[21]     To all of this needs to be added what seems to be complete indifference on the part of this appellant to sentences and other Court orders.  He seems hell-bent on pursuing his lifestyle of offending, come what may.   What is apparent from the history  of  offending  is  given  real  emphasis  by  the  fact  that  the  same  type  of offending is repeated while still subject to earlier sentences.

[22]     In the end Mr Kan submitted that he could not argue that what I refer to as an uplifted starting point of 3 years and 9 months would be excessive.   Mr Fotherby submitted that the uplifted starting point of 4 years and 3 months that was arrived at

by the Judge is not manifestly excessive and in particular when assessed in relation to the other cases I have mentioned.

[23]     Standing back, to an extent, and assessing all of this offending overall, and including an assessment that takes account of the repeated pattern of offending by this offender, I consider that an uplifted starting point of 4 years imprisonment, before  considering  reductions  for  personal  factors,  would  not  be  manifestly excessive.

[24]     That leaves for consideration the two matters referred to by Mr Kan – youth and a discount for the guilty pleas.

[25]     The  question  whether  any  allowance  should  have  been  made  for  the appellant’s youth was not addressed by the Judge.  With respect, there should have been some consideration of the point.  Reference in this regard may be made to the decisions of the Court of Appeal in Churchward v R9 and Pouwhare v R.10   Because the point was not considered it does need to be addressed on appeal.  I emphasise that  the  need  is  to  give  at  least  some  consideration  to  the  point.    It  is  not  a proposition that there must inevitably be some allowance.

[26]     It is apparent that the Judge considered questions of deterrence, denunciation and holding this appellant accountable were dominant considerations.  That is, with respect, entirely understandable.  And the mere fact of youth needs to be put into its context.    The  context  of  particular  relevance  here  is  the  number  of  previous occasions on which this young man has offended in this way.   As Mr Fotherby pointed out, there are some types of offending which are typical of young men.  On the other hand, and without wanting to overstate this, there is some justification in Mr Kan’s submission that at least some aspects of this offending can be seen as arising from the impulsiveness of relative youth and lack of judgment.  Mr Kan referred to the comment the appellant made on being arrested.  He said he had not stopped because he had been drinking and he was driving a stolen car and he did not

want to be imprisoned over Christmas. An assessment of the situation without much

9 Churchward v R [2011] NZCA 531, (2010) 25 CRNZ 446.

10 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 (CA).

more mature consideration would have meant that he did not flee and some of the very  serious  aspects  of  this  would  not  have  arisen.    I  do  consider  that  some allowance should have been made for youth notwithstanding it should be relatively limited.  Coupled with this there is in my judgment the need to seek to ensure that the overall sentence is not crushing when the length of the sentence is assessed having regard to previous sentences and age.

[27]     In relation to the guilty pleas, if an assessment of the percentage reduction was made based solely on the time at which the pleas were entered, then the maximum of 25% might be justified.  As earlier noted the Judge allowed 20%.  The difficulty with the Judge’s assessment is that he did not indicate why he had arrived at that particular percentage.  As Mr Fotherby pointed out, the Supreme Court in R v

Hessell11 makes clear that the allowance for the guilty pleas is not to be based solely

on the time at which the plea is entered.   Considering the 20% discount in that context may suggest that there was no error of principle in the allowance made.  On the other hand it does become a little speculative as to what factors may have warranted something less than 25%.  Certainty of conviction may be one factor.

[28]     Assessing the  question  of the  guilty pleas  and  youth  in  a  global  way,  I consider that the appropriate allowance would be 25%.  That would result in an end sentence for all of the offending of 3 years imprisonment.

[29]     I consider that that is the end sentence that should be imposed so that the appeal should be allowed to that extent.  This is a difference of 5 months in the end sentence compared with the sentence imposed by the Judge.   I am satisfied that 5 months  when  related  to  the  total  sentence  is  a  significant  period  of  time  and sufficient to indicate that a sentence of 3 years and 5 months would be manifestly excessive.

Result

[30]     The appeal is allowed.  The sentence of 3 years and 5 months for receiving is quashed.    Given  that  the  Judge  imposed  the  longest  sentence  for  the  receiving

11 R v Hessell [2010] NZSC 135; [2011] 1 NZLR 607 (SC); (2010) 24 CRNZ 966 (SC).

offence it is appropriate to do the same on this appeal.  Consequently, the sentence for the receiving offence is 3 years imprisonment.

[31]     The other sentences imposed and the periods of disqualification from holding

or obtaining a driver’s licence are unaltered.

Woodhouse J