Daniels v Police

[2017] NZHC 3070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-359 [2017] NZHC 3070

BETWEEN

LORENZO GENE DANIELS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 December 2017
Counsel:	P I Pati (on instructions from J Johnson-Aufaʼi) for Appellant F E Gourlay for Respondent
Judgment:	11 December 2017

JUDGMENT OF BREWER J

Solicitors:

Public Defence Service (Auckland) for Appellant

Kayes Fletcher Walker (Auckland) for Respondent

DANIELS v POLICE [2017] NZHC 3070 [11 December 2017]

Introduction

[1]     Mr Daniels appeals against his sentence of two years and six months’ imprisonment handed down against him by Judge GA Andrée Wiltens in the District Court at Manukau on 14 September 2017.1  The submission made on his behalf is that the sentence is manifestly excessive, should have been two years or less, and should have been commuted to a sentence of home detention.

[2]      Mr Daniels is a man of 26 years.  He has a problem with gambling and with drug taking. He comes from a good family and he has a partner and children. It is the intense desire of his family to assist with his rehabilitation, which I suspect provides much of the motivation for today’s appeal.

[3]      Mr Daniels does not have an extensive criminal record as these things go. However, on 2 May 2016 he was sentenced on nine charges of dishonesty involving multiple thefts and shoplifting.   He was given a very significant chance on that occasion because he was convicted and discharged on all of those charges.   The offending for which he was sentenced by Judge Andrée Wiltens commenced three months later.

[4]      My task on an appeal against sentence is to look at what the District Court Judge did and see whether he was in error to such an extent that a different sentence should be imposed.  The position is different when considering home detention.  If a sentencing Judge decides that the appropriate sentence is one of imprisonment of a period of two years or less, then the sentencing Judge may commute the sentence to one of home detention.  That is a matter for the discretion of the Judge.   I would overturn such an exercise of discretion only if I were to decide that the Judge had committed some error in the exercise of it. In this case, the Judge did not turn his mind to home detention because the end sentence was greater than two years. Accordingly, if I find that the sentence should have been one of two years or less, I would have to

exercise that discretion myself.

1      Police v Daniels [2017] NZDC 20747.

Background

[5]      I turn now to the factual background.

[6]      Mr Daniels came before Judge Andrée Wiltens for sentencing on 12 separate charges which can be grouped into three parts.

[7]      The first part was this. On 14 August 2016, 16 September 2016 and 12 October

2016, Mr Daniels filled his car with petrol at petrol stations and then drove off without paying.  He was apprehended by the Police on 21 October 2016 because he had a dispute with his partner during which he took out a hunting knife and threatened to slash the tyres of the vehicle that she was in.  For this offending he was charged with three charges of theft under $500 and possession of an offensive weapon.  He was released on bail.

[8]      The next offending was that in February 2017, Mr Daniels went to a swimming pool changing room, found a woman’s handbag and stole it and its contents valued at around $2,000.  For this he was charged with theft over $1,000.  Inside the handbag were keys to the victim’s car.   Mr Daniels stole the car, although the charge was unlawful taking of a motor vehicle.  He obtained stolen number plates and replaced the legitimate number plates with the stolen number plates.  For this he was charged with receiving. When he was caught some three days later, he was carrying something called an extendable baton which he said he needed for self-protection.  For this he was charged again with possession of an offensive weapon.

[9]      The third group of offending occurred in May 2017.  On 7 May 2017, there was a theft from someone’s car. Mr Daniels obtained a BNZ credit card and used it to obtain some hundreds of dollars worth of goods.   He also took an iPad and other clothing and items valued at $770 from that vehicle.  He was charged with theft from a car and using a document for that offending. Ten days later he failed to turn up to a Court hearing and was charged with failure to answer District Court bail.  Finally, on

20 May 2017, there was a further theft of clothing and footwear, this time from a shop. This resulted in a charge of theft over $1,000.

District Court

[10]     Faced with this offending, the Judge adopted as the lead offence the second group of offences involving the stealing of the handbag from the changing sheds, its contents, the unlawful taking of the car and the receiving charge in respect of the number plates.  For all that offending together, the Judge assessed a starting point of two years’ imprisonment.

[11]     For the next most serious offending, being the use of the credit card and the theft of items from the second car, the Judge assessed a global starting point of six months’ imprisonment. He then considered the rest of the offending as follows:

•    Possession of the hunting knife, four months’ imprisonment;

•    Possession of the extendable baton, six months’ imprisonment;

•    The    final    charge   of   theft   over    $1,000,    three   months’

imprisonment; and

•Breach  of  bail  and  each  of  the  petrol  thefts,  one  month imprisonment

[12]     The arithmetic total of these starting points was 45 months’ imprisonment. The Judge then stood back and looked at the totality of the offending and reduced the overall starting point to 40 months’ imprisonment.

[13]     The Judge then looked at mitigating factors and considered that the only factor that merited a reduction was the entry of the plea of guilty to all 12 charges.  His Honour also took into account Mr Daniels’s personal circumstances, particularly the fact that his family was going to be deprived of his company and, therefore, support. The Judge gave the maximum discount available, being 25 per cent, and that reduced the end point to two years and six months’ imprisonment.

Appeal

[14]     Mr Pati has appeared today for Mr Daniels and has spoken to the written submissions filed in support of the appeal.

[15]     Initially the thrust of the appeal was that the starting point of two years’ imprisonment on the second group of charges was too high. However, that was based on the misapprehension that the starting point related only to the unlawful taking of the car. It did not. Mr Pati, as he must, acknowledges that for all that group of charges, two years as a starting point was not manifestly excessive.

[16]     Mr Pati has spoken of the starting points adopted for the other groups of charges, but, really, he has had to grapple with whether the end point of two years six months’ imprisonment was manifestly excessive taking into account the totality of all of the offending.

[17]     Mr Pati has had the difficulty that Judge Andrée Wiltens did not give specific uplifts for Mr Daniels’s previous offending (although he did mention it in fixing the two years starting point), and nor did he give a specific uplift for the fact that the second and third groups of offending were committed while Mr Daniels was on bail.

[18]     The thrust of Mr Pati’s submissions to me is that Judge Andrée Wiltens should have given much greater weight to Mr Daniels’s personal circumstances.  These are the circumstances I mentioned at the outset of this Judgment. A relatively young man overtaken by gambling and drug problems, but coming from a respectable family with real family support.   The least restrictive sentence would have been one of home detention and that allows for the fact that the writers of two pre-sentence reports considered a lesser community-based sentence to be appropriate. Implicit in Mr Pati’s submission is the acknowledgement of the anguish of Mr Daniels’s family and their intense desire to assist him.

Decision

[19]     The problem for Mr Daniels is that his offending was so serious that it did not and could not bring him within the range of sentences which would allow home detention to be considered. I have done my own analysis of the sentencing and, in my view, the two years and six months reached by Judge Andrée Wiltens was at the lower end of the range available to him.  If the end sentence had been one of three years’ imprisonment, I doubt if that would be challengeable on appeal.

[20]     There is, given the range and number of charges to which Mr Daniels pleaded guilty, no prospect of the end sentence being close to two years’ imprisonment.  On

that basis, I have no alternative other than to dismiss the appeal and I do so accordingly.

Brewer J