Curle v Police

[2017] NZHC 1194

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000098

[2017] NZHC 1194

BETWEEN

SAMUEL CURLE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 May 2017
Appearances:	C Watkins for Appellant J Bull for Respondent
Judgment:	2 June 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 2 June 2017 at 3.30pm

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

Date:…………………………

Solicitors/Counsel:

C Watkins, Barrister, Auckland Crown Solicitor, Auckland

CURLE v POLICE [2017] NZHC 1194 [2 June 2017]

Introduction

[1]    The appellant, Mr Curle, appeals a sentence of three years’ imprisonment imposed by Judge Ronayne in the District Court at Auckland after Mr Curle had pleaded guilty to nine offences.1 The offences were unlawfully getting into a motor vehicle,2 unlawfully taking a motor vehicle,3 possession of instruments for conversion,4 receiving (property valued at over $1,000),5 theft (property valued at less than $500),6 possession of utensils for use with methamphetamine,7 dangerous driving,8 failing to stop for red and blue flashing lights,9 and possession of cannabis.10

[2]    Mr Curle contends that the sentence is manifestly excessive. He says that both the starting points and the end sentence adopted by Judge Ronayne were too high, that the sentencing should not have been approached on a cumulative basis, that the discount for the guilty pleas was too low, and that the Judge gave insufficient consideration to his rehabilitative prospects.

[3]    The respondent maintains that the Judge did not err in the approach he took  to the sentencing, and that the end sentence is within the appropriate range for the offending here in issue, given Mr Curle’s criminal history.

Factual background

[4]There were four separate episodes of offending.

[5]    On 11 February 2006, a vehicle that had been parked on a street was taken. The vehicle was later found by the police. A DNA profile from gloves found in the

1      Police v Curle [2017] NZDC 4863.

2      Crimes Act 1961, s 226(2); maximum term of imprisonment – two years.

3      Crimes Act 1961, s 226(1); maximum term of imprisonment – seven years.

4      Crimes Act 1961, s 227; maximum term of imprisonment – one year.

5      Crimes Act 1961, ss 246 and 247(a); maximum term of imprisonment – seven years.

6      Crimes Act 1961, ss 219 and 223(d); maximum term of imprisonment – three months.

7      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3); maximum term of imprisonment – one year.

8      Land Transport Act 1998, ss 35(1)(b) and 35(2); maximum term of imprisonment – three months.

9      Land Transport Act 1998, ss 52(1)(c) and 52(4); maximum term of imprisonment – three months or a $10,000 fine.

10     Misuse of Drugs Act 1975, s 7(1)(a); maximum term of imprisonment – three months or a fine not exceeding $500, or both.

car matched Mr Curle’s DNA. Mr Curle was spoken to about the theft of the  vehicle. He said that he had been directed to get into it. This resulted in the charge  of unlawfully getting into a motor vehicle (CRN 16004007948).

[6]    Mr Curle was granted bail in relation to this offending, and all subsequent offending occurred whilst he was on bail.

[7]    On 18 August 2016, Mr Curle was stopped by police while driving. The officers discovered that the vehicle had been stolen. This is the basis for the charge of receiving property worth over $1,000 (CRN 16004011170). Mr Curle was subsequently searched at a police station. The police found on his person a broken glass pipe and two straws, both cut halfway, with their ends shaped as spades. This  is the basis for the charge of possession of utensils for use with methamphetamine (CRN 16004011172).

[8]    On 9 October 2016, a car valued at $10,000 was stolen in the course of a burglary in Auckland. This is the basis for the charge of unlawfully taking a motor vehicle (CRN 16004014697).

[9]On 20 October 2016:

(a)registration plates valued at $30 were stolen from a parked car. This is the basis  for  the  charge  of  theft  from  a  car  (under  $500) (CRN 16004014698);

(b)Mr Curle was seen by the police driving the car that had been stolen on 9 October 2016. The stolen number plates were attached to the car. The police saw the vehicle make an emergency stop and then an illegal  right  turn.   Mr  Curle  travelled  at  speeds  in  excess  of   100 kilometres an hour, and later 120 kilometres an hour, in areas with a speed limit of 50 kilometres an hour. He proceeded through a red traffic signal without slowing down, and later two more red signals. He turned off the vehicle’s lights (it was approximately 10.20pm) and drove on the wrong side of the road. He abandoned the vehicle and

ran onto a property, where he was ultimately stopped by the police. This offending is the basis of the dangerous driving charge (CRN 16004014692);

(c)Mr Curle failed to stop when followed by the police. The police had activated their red and blue flashing lights (CRN 16004014691);

(d)the police found two screwdrivers, a hammer and a pair of gloves in the vehicle. This is the basis for the charge of possession of instruments for conversion (CRN 16004014694);

(e)the police searched Mr Curle, and located 0.8 gram of cannabis on his person. This is the basis for the charge of possession of cannabis (CRN 16004014695).

District Court sentencing

[10]   Judge Ronayne’s sentencing notes are brief. The notes have been signed by the Judge, but he has added an addendum to his signature stating that he is not satisfied that the transcript is complete.

[11]   That this is the case is readily apparent from the notes. Counsel advise they have attempted to locate a complete copy of the sentencing notes. They were unsuccessful. That is unfortunate but there is sufficient record of the sentencing to disclose the approach taken.

[12]   The Judge noted  one  of  the  two  pre-sentence  reports,  which  said  that  Mr Curle was ambivalent and naive about his continuing involvement with criminal associates, and which assessed him as having a high likelihood of reoffending.

[13]The Judge identified several aggravating features to Mr Curle’s offending –

namely:

(a)repetitive multiple offending;

(b)most of the offending was committed while Mr Curle was on bail and subject to a sentence of intensive supervision;

(c)the offending was planned and premeditated;

(d)the dangerous driving was particularly serious; and

(e)the effect on the victims was significant.

The Judge expressed the view that the only option was a sentence of imprisonment.

[14]The Judge stated as follows:

[5]        I take these starting points. For CRI number ending 7948 a starting point of nine months. For CRI numbers ending 1170 and 72, that was offending taking place at a different time and in different circumstances, I take a starting point of 10 months for those two combined. For CRI number ending 4692, the car conversion, I take a starting point of two years. For  CRI numbers ending 4691, 92, 94, 95 and 98, that is dangerous driving, possession of instruments, theft and the cannabis, I take a combined starting point, for the dangerous driving of three months, for the instruments nine months, for the theft two months, a total of 14 months’ imprisonment.

[6]        All of that totalled up comes to four years and nine months. I make an adjustment for totality and reduce that down to three years and nine months. I give you 20 percent discount for your guilty plea and all of the circumstances in which the guilty pleas have been entered. That reduces three years and nine months by nine months, in other words down to three years’ imprisonment.

The Judge then imposed individual sentences on each charge. He did not expressly record that he did so concurrently, but he must have proceeded on this basis, because he imposed a sentence of three years’ imprisonment on the unlawful taking charge – CRN 16004014697 – as well as discrete sentences for each of the other charges.

Approach to appeal

[15]   There is a general right of appeal against either conviction or sentence, pursuant to s 244 of the Criminal Procedure Act 2011. In this case, this Court is the first appeal Court. The approach to be taken to the appeal is set out in s 250 of the Act. This Court must allow the appeal if it is satisfied that there is an error in the

sentence imposed and that a different sentence should have been imposed. In any other case the appeal must be dismissed.

[16]   The Court of Appeal in Tutakangahau v R11 confirmed that s 250 was not intended to change the previous approach taken to sentence appeals by the Courts under the Summary Proceedings Act 1957. Although s 250 makes no express reference to the words “manifestly excessive”, that principle is well ingrained in the approach the Courts take to sentence appeals.12

[17]   Under the Summary Proceedings Act there had to be an error vitiating the lower Court’s original sentencing discretion, and appeals against sentence proceeded on an error principle. To establish an error in sentencing, it had to be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional materials submitted to the appeal Court.13

[18]   The focus is on the end sentence, and not on the process adopted in reaching that end sentence. If a Judge’s analysis was incorrect, but the end sentence was nevertheless within the appropriate range, the appellate Court should not “tinker” with the sentence imposed.14

Analysis

[19]   Ms Watkins, appearing for Mr Curle, was critical of the Judge’s approach to the sentencing. She argued that there was a lack of clarity in the Judge’s starting points for each charge and in some of the end sentences.

[20]  

The Judge’s approach to the sentencing is difficult to follow from the incomplete sentencing notes that are available. It is clear, however, that in fixing his starting points, the Judge considered that the February 2016 offending should be considered on a discrete basis from the August 2016 offending. It is implicit that he took the same approach with the other offending, although he did treat  all of the    20 October 2016 offending on a concurrent basis. He did not explain why, with

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

12     At [33] and [35].

13     R v Shipton [2007] 2 NZLR 218 (CA) at [138].

14     Ripia v R [2011] NZCA 101 at [15].

many of the sentences, there was a difference between the starting points adopted and the end sentences imposed. Nor did he explain that the individual final  sentences he imposed for each offence were to be served on a concurrent basis. Further, some of the CRN numbers were muddled. In particular, the Judge did not refer to CRN 16004004697. Rather, he referred twice to CRN 16004004692. It appears that this must have been a typographical error. It can readily be inferred that the Judge meant to refer to CRN 16004004697 when taking a starting point of two years for that charge. There is still, however, confusion, because the Judge adopted a starting point on the charge of two years’ imprisonment, but then imposed an end sentence on the charge of three years’ imprisonment, all without explanation.

[21]   The Judge’s overall approach was to fix starting points for the offences involved in each discrete episode of the offending, to then reach a total starting point by adding these various starting points together, and then to adjust downwards to reflect the totality of the offending. In fixing his starting points he treated each episode of offending on a cumulative basis. When imposing his final sentence, he sentenced on a concurrent basis. The final sentence was based on the car conversion charge, which had a maximum sentence of seven years’ imprisonment. A sentence of three years was imposed for that offence, and it seems that the Judge intended that all other sentences were to be served concurrently with this sentence.

[22]   The Judge’s switch from cumulative sentences to concurrent sentences, without explanation, and the unexplained change from the starting point sentence to the final sentence imposed for the car conversion charges has produced the confusion. It does not, however, follow that the Judge erred. Rather, it seems that he was invoking s 85(4) of the Sentencing Act 2002.

[23]   Both counsel accepted that the proper focus of this appeal is whether the final sentence imposed was manifestly excessive.

[24]   The offending on 11 February 2016 stands alone from the other offending. It is discrete in time, and it is not part of a connected series of offences. The offence of unlawfully getting into a vehicle is subject to a maximum term of imprisonment of two years. Without explanation, the Judge imposed a starting point of nine months’

imprisonment for this offence. In my view, that starting point was excessive. There were no aggravating features to this offending and the starting point adopted is out of line with that adopted in similar cases. For example, in Hoey v  Police,15  the appellant got into a vehicle that had been stolen. This charge was grouped with other charges, all of which attracted a sentence of three months’ imprisonment. That sentence is three times less than the starting point adopted for Mr Curle. In my judgment, a starting point sentence of three months’ imprisonment is appropriate for this offence.

[25]   The offending in August 2016 also stands alone. Further the two offences, receiving and possession of utensils for use with methamphetamine, are different in kind and they are not part of a connected series of offences. The Judge adopted a starting point of ten months for both of these offences. There was no express criticism of this starting point and I therefore do not alter it. I would, however, treat both offences on a cumulative basis, and adopt a starting point of eight months’ imprisonment for the receiving charge and two months’ imprisonment for the possession of utensils charge.

[26]   The car conversion (CRN 16004014697) also stands alone and falls to be considered on a cumulative basis. The Judge adopted a starting point of two years.  In my view, this was too high.

[27]   There is no tariff case for this type of offending. Ms Watkins sought to draw an analogy with sentences imposed for burglary. I do not consider that this is either necessary or appropriate. There are a number of cases in this court where sentences have been imposed in relation to the conversion of motor vehicles. Assistance can readily be derived from them. For example in Muir v Police,16 the Court adopted a starting point of 15 months’ imprisonment for conversion  of  a  single  car. In Affleck v R,17 the Court upheld a starting point of two years’ imprisonment. In this case, the vehicle which was stolen was a commercial van. It was targeted, due to the potential for large gain from theft of its contents. In Duxfield v Police,18  a starting

15     Hoey v Police [2015] NZHC 2816.

16     Muir v Police [2015] NZHC 1425.

17     Affleck v R [2015] NZHC 1741.

18     Duxfield v R [2015] NZHC 3018.

point of 12 months’ imprisonment in relation to the conversion of a motor vehicle was upheld on appeal. Similarly in Gideon v Police,19 a starting point of 12 months’ imprisonment was upheld for the same offence. In Kushell v Police,20  a starting  point of 18 months’ imprisonment was upheld on appeal. In Riini v Police,21 the Court accepted that a 12 month starting point was available for conversion of a  motor vehicle.

[28]   Ms Bull, for the respondent, referred me to a number of other authorities.22 I do not consider that these cases were particularly helpful. Some could be distinguished on the basis that more vehicles were stolen and others on the basis of the particular facts involved in them. In my judgment, the case law suggests that in the case of a single conversion, a starting point of between 12 and 18 months will generally be appropriate.

[29]   There are no aggravating features to Mr Curle’s offending. In my view, the appropriate starting point for the car conversion charge was one of 15 months’ imprisonment.

[30]   The offending on 20 October 2016 should also be dealt with on a cumulative basis, but each of the offences committed on that day can be dealt with on a concurrent basis, given that they were part of a connected series of offences. In my view, the appropriate starting points for each offence committed in this episode of offending is as follows:

(a)one month’s imprisonment for theft of the licence plates;

19     Gideon v Police [2014] NZHC 1065.

20     Kushell v Police [2012] NZHC 2380.

21     Riini v Police [2016] NZHC 2218 at [16].

22   Black v Police [2012] NZHC 1507 (end sentence of three years and five months – four vehicles on four different occasions); Graham v Police HC Auckland CRI-2006-404-258, 12 October 2006 – four year starting point – three charges of taking a motor vehicle, burglary and other offending; Taki v Police HC Rotorua CRI-2010-470-25/26, 2 July 2010 – one charge of unlawfully taking a motor vehicle, a starting point of three years, but this starting point incorporated starting points for other offending on a concurrent basis; Bell v Police HC Napier AP58/97, 11 September 1997 – one car, a sentence of three years upheld, but extensive criminal background and other offending.

(b)three months’ imprisonment for the dangerous driving and for failing to stop. I agree with Judge Ronayne. It was an appalling case of dangerous driving;

(c)two weeks’ imprisonment for possession of cannabis;

(d)two months’ imprisonment for possession of instruments for conversion.

This produces a total of six months and two weeks’ imprisonment for all of the offending on 20 October 2016.

[31]   My overall starting point for all offending is therefore two years, ten months and two weeks’ imprisonment. I round that to two years and ten months imprisonment.

[32]   I now turn to consider Mr Curle’s personal circumstances. There are both aggravating and mitigating features.

[33]   First, the starting point needs to be uplifted to recognise Mr Curle’s prior offending. Mr Curle has some 50 prior convictions, including a number for offences similar to those in respect of which he is being sentenced. They include convictions in 2012 and 2014 for dangerous driving, convictions in 2008, 2012 and 2014 for failing to stop for police, a conviction in 2012 for unlawfully taking a motor vehicle, convictions in 2006 and 2012 for receiving property over the value of $1,000, convictions in 2012 and 2015 for procuring or being in possession of methamphetamine, convictions in 2012 and 2015 for being in possession of utensils for use with methamphetamine and convictions in 2010 and 2012 for shop lifting. In my judgment, an uplift of three months is appropriate given Mr Curle’s prior offending. These previous convictions go to Mr Curle’s character and they indicate his predilection to commit these types of offences. Mr Curle has failed to address his offending, notwithstanding frequent appearances before the Courts.  Public protection was very much a live issue.23

23     Cooper-Siggleko v R [2012] NZCA 580 at [15] – [18].

[34]   Secondly, the Judge was required to take into account that the majority of the offending occurred while Mr Curle was on bail and serving a sentence of supervision. In my view, a two month uplift is appropriate to recognise this.

[35]   This takes the total sentence to one of three years and three months’ imprisonment.

[36]   Turning to mitigating factors, Ms Watkins argued that the Judge should have made an allowance for efforts Mr Curle has made to rehabilitate himself. She noted that Mr Curle endeavoured to seek treatment for his methamphetamine addiction, that he had applied for entry to the Odyssey House programme in November 2016, and that he had been accepted for that programme in December 2016. She noted that he had applied for EM bail while waiting for a bed at Odyssey House, and that although that application was declined, Judge Simpson, who dealt with the application, did say that Mr Curle should enter Odyssey House as soon as a bed was available.24 She noted that Mr Curle was told in February 2017 that a bed would be available on 28 February  2017,  but  that  bail  was  declined  by  Judge  Ryan  on  24 February 2017, because Odyssey House was unable to take Mr Curle when he was subject to a 24 hour curfew.25 Ms Watkins also noted that a second pre-sentence report had noted that Mr Curle was to seek treatment for his drug addiction. As against this, it appears that Mr Curle previously sought treatment at Odyssey House, but that he walked out of the course. Although there is an explanation in a letter  from his mother, it is also of concern that one of the pre-sentence reports records that Mr Curle refuses to accept that he is addicted to methamphetamine. Further, the writer of the pre-sentence report recorded that Mr Curle’s associates were a very strong contributing factor in his offending. It seems that Mr Curle is associated with the Mongrel Mob, and that he is a patched member of that gang. The report records that he shows a continuing desire to be involved with the gang, and that it is that involvement which is likely to lead to further offending.

[37]   Judge Ronayne did not allow any discount for rehabilitation, although he did, albeit succinctly, deal with the issue.

24     Police v Curle [2017] NZDC 2668.

25     Police v Curle, hearing record sheet 24 February 2017.

[38]   I am not persuaded that the Judge erred in this regard. It is difficult to see  that Mr Curle has done much to rehabilitate himself to date. Further, he is not prepared to confront what appears to be the major cause of his offending – namely his gang associations.

[39]   I now turn to the other mitigating factor - the guilty pleas. Judge Ronayne allowed a 20 per cent reduction for Mr Curle’s guilty pleas. Ms Watkins argued that the Judge should have allowed a greater discount for these pleas. Ms Bull responded by stating that the case, particularly for the offending which occurred on 20 October 2016, was strong.

[40]   The guilty pleas were entered promptly once the facts were resolved. The Supreme Court in Hessell v R26 observed that the Court should not be overly rigid and reduce discounts otherwise available for guilty pleas, where the pleas are only entered after resolution of the relevant facts.27 However it is left to sentencing  Judges to assess the value of the plea in the circumstances of any particular case, and there is no requirement that discounts be rigidly and arithmetically applied. In the present case, the police case, particularly in regard to the 20 October 2016 offending, was very strong. I cannot conclude that the 20  per  cent  reduction allowed  by  Judge Ronayne was wrong. Applying a 20 per cent reduction results in an end sentence of just over two years and seven months’ imprisonment for all of the offending. I round that sentence to one of two years and seven months’ imprisonment.

[41]   This sentence is well above the two year threshold where home detention would be open  for  consideration.  In  any  event,  given  the  spree  of  offending, Mr Curle’s criminal history, the premeditation involved and the high risk taking displayed, particularly on 20 October 2016, a sentence emphasising denunciation, deterrence and community protection was clearly warranted and it was open to  Judge Ronayne to conclude that imprisonment was necessary and that home detention would have been inappropriate.

26     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

27 At [61].

[42]   In imposing the final sentence, in my judgment, it is appropriate to do so on a concurrent basis, and to adopt the sentence which I consider appropriate for the totality of the offending – two years and seven months’ imprisonment - for the most serious offence, conversion of a motor vehicle. I rely on s 85(4) of the Sentencing Act.

[43]   The appeal is allowed. The sentence imposed by Judge Ronayne is quashed, and I substitute the following sentences:

(a)in respect of the charge of unlawfully getting into a motor vehicle – three months’ imprisonment;

(b)in respect of the charge of receiving – eight months’ imprisonment;

(c)in respect of the charge of being in possession of utensils for use with methamphetamine – two months’ imprisonment;

(d)in respect of the charge of unlawfully taking a motor vehicle –

two years and seven months’ imprisonment;

(e)in respect of the charge of theft – one months’ imprisonment;

(f)in respect of the charge of dangerous driving – two months’ imprisonment, and in respect of the charge of failing to stop for red and blue lights – one months’ imprisonment – a total of three months’ imprisonment;

(g)in respect of the charge of possession of cannabis – two weeks’

imprisonment; and

(h)in respect of the charge of possession of instruments for conversion – two months’ imprisonment.

[44]All of the sentences are to be served concurrently.

[45]   The other orders made by Judge Ronayne are to remain in place – namely  Mr Curle is disqualified from driving for a period of six months. The order for the destruction of the cannabis and the utensils for use in relation to methamphetamine are to stand. The sentence of intensive supervision which Mr Curle was previously subject to is cancelled, and the order that Judge Ronayne made remitting all of the fines, offender’s levy, enforcement fees and court costs to which Mr Curle was subject is also to remain in place.

Wylie J