Davies v Police

[2019] NZHC 3081

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-390

CRI-2019-404-391 [2019] NZHC 3081

BETWEEN

BRONSON DAVIES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing:	25 November 2019
Appearances:	A R Naseri and C Sigamoney for the appellant S A Rankin for the respondent
Date of judgment:	25 November 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:

Public Defence Service, Waitākere Meredith Connell, Auckland

DAVIES v NEW ZEALAND POLICE [2019] NZHC 3081 [25 November 2019]

[1]    Bronson Davies appeals his sentence of 19 months’ imprisonment imposed by Judge B A Gibson in the District Court at Waitākere on 7 August 2019,1 on Mr Davies’ guilty pleas to two charges of theft (over $1000),2 three charges of theft (between $500 and $1,000),3 one charge of breach of community work,4 and one charge of breaching his sentence of intensive supervision.5

Background

—offending

[2]    Mr Davies’ lead convictions arose from his thefts in November last year and June this year. He had been sentenced to 100 hours community work on 19 October 2018 for previous dishonesty offending. On  four  occasions  in  November  2018, Mr Davies stole power tools from retailers. The tools respectively were valued at $938,

$997, $1038, and $1388. He failed to report to Community Work on multiple occasions. He had not completed the community work to which he was sentenced. On 29 June 2019, Mr Davies stole jackets valued at $932 from another retailer, this time using tools to remove price and security tags. He was on bail at the time, and subject to the sentence of community work and supervision imposed on 19 October 2018.

—District Court decision

[3]    The Judge characterised Mr Davies’ offending as  “fairly  brazen”,6  noting Mr Davies’ previous 25 convictions, and his “guarded” interactions with probation officers. As “electronically monitored options [were] not available … inevitably a sentence of imprisonment ha[d] to be imposed”.7

[4]    A global starting point of two years’ imprisonment was adopted, with a two- month uplift for Mr Davies’ previous convictions. A further uplift of two months was applied, given he offended while on bail and under sentence. A four-month discount

1      Police v Davies [2019] NZDC 15455.

2      Crimes Act 1961, ss 219 and 223(b). Maximum penalty is seven years’ imprisonment.

3      Sections 219 and 223(c). Maximum penalty is one years’ imprisonment.

4      Sentencing Act 2002, s 71(1)(a). Maximum penalty is three months’ imprisonment or a fine not exceeding $1000.

5      Section 70(A)(a). Maximum penalty is six months’ imprisonment or a fine not exceeding $1500.

6      Police v Davies, above n 1, at [2].

7 At [3].

applied in light of Mr Davies’ youth (he was aged 20 at the time), bringing the sentence back to two years’ imprisonment. From that, a discount of 20 per cent was given for Mr Davies’ guilty plea, which brought the end sentence to 19 months’ imprisonment.

[5]    The Judge then “apportion[ed] the sentences”, noting all would be concurrent.8 Sentences of 19 months’ imprisonment were imposed on three of the theft charges (exceeding the maximum penalty for one charge), six months’ imprisonment on the remaining theft charges, two months’ imprisonment for the breach of community work, and three months’ imprisonment for the breach of intensive supervision.

Approach to appeals against sentence

[6]    I must allow the appeal only if satisfied there is an error in the sentence, and a different sentence should be imposed.9 In any other case, I must dismiss the appeal.10 The approach previously taken by courts on sentencing appeals continues to apply,11 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.12 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.13

Issues on appeal

[7]    Mr Davies’ counsel, Alofa Naseri, says the Judge’s two-year starting point was too high. She says the five theft charges should be treated alike, as they were all about the $1,000 threshold. Six months’ imprisonment for stealing tools worth $997 she says is grossly disproportionate to 19 months’ imprisonment for stealing tools worth only a few dollars more at $1038. With reference to comparable case law and the principle of totality,14 Ms Naseri contends for a global starting point of nine months’ imprisonment. Only a month was justified she says in uplift for previous convictions.

8 At [5].

9      Criminal Procedure Act 2011, s 250(2).

10     Section 250(3).

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

12     At [33] and [35].

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

14     Henry v Police [2016] NZHC 800; and Samuels v Police [2019] NZHC 694.

And she says Mr Davies should have the full 25 per cent discount for his guilty plea. Thus an end sentence of eight to nine months’ imprisonment is appropriate.

[8]    The Crown accepts the end sentence was manifestly excessive, as the global starting point was too high. But it submits the two-month uplift for previous offending was appropriate, and the 20 per cent discount for Mr Davies’ guilty plea was “generous”. It contends for an end sentence of 12 months’ imprisonment.

Discussion

—starting point

[9]The 19-month sentence imposed for one of the theft charges (between $500 to

$1000) exceeds the prescribed maximum penalty by seven months. It has no effect on the end sentence, given the sentences were imposed concurrently. But it is an error nonetheless; Mr Davies’ sentence at least requires restructuring.15

[10]   The ‘infinite variety’ of theft’s circumstances mean there can be no tariff case; instead, the statute’s staggered approach to sentencing applies.16 The “difference in penalties” turns on the value of the item stolen, indicating “the importance of value to sentencing”.17 So, while the value of the goods stolen on two occasions might have been “barely” over $1000 (although one exceeds it by more than one-third), the threshold remains an important differentiation. Repeated thefts at or about the threshold might easily attract the lower charge’s maximum 12-month sentence.

[11]   The Judge did not adopt the orthodox approach of identifying a lead charge, uplifted to reflect the totality of the offending. Neither did he cite any comparable authority. This does not mean his end sentence necessarily is manifestly excessive.18 But his 24-month starting point seems to exceed the justifiable range.19

15     See R v Henderson CA86/05, 17 October 2005 at [9] and [21].

16 At [32].

17     R v Duncan [2009] NZCA 408 at [7].

18     Ripia v R, above n 13, at [15]; and McMurtrie v Police [2015] NZHC 1031 at [17].

19 See for example Faben v R HC Hamilton CRI 2007-419-109, 26 September 2007. A starting point of 18 months’ imprisonment was held appropriate for 10 shoplifting charges (one of which was for the theft of items valued at over $1000), one of theft from a vehicle, one of trespass and one of breach of bail. The offending was comparably worse than that of Mr Davies, but Randerson J considered a lower starting point appropriate.

[12]That is confirmed by adopting the orthodox approach to sentencing. Taking the

$1388 theft as the lead charge at least by value, comparable authority suggests a starting point of eight months’ imprisonment is appropriate for Mr Davies’ premeditated and non-opportunistic offending, uplifted by two months to reflect the circumstances of the offending while on bail and under sentencing.20 A further uplift of four months to reflect the totality of the offending would bring the adjusted starting point to 14 months’ imprisonment.21 By comparison, while using the same uplifts, the Judge’s 24-month starting point is manifestly excessive.

—two-month uplift for previous convictions

[13]   Mr Davies has nine previous convictions for shoplifting, seven burglary- related convictions, and two convictions for receiving property. He further has three previous convictions for breaching court release conditions and one conviction for breach of conditions of supervision. All have occurred in the past four years. His previous convictions show a predilection to commit dishonesty offences and to fail to comply with court orders. Previous sentences have failed to deter him.

[14]   Far more dishonesty convictions over a longer period have warranted a two- month uplift.22 But Mr Davies’ previous convictions are closely connected in time to his current offending (all having occurred in the last four years) and, as the pre- sentence report notes, he has displayed “a developing pattern of offending”. The Judge did not err in applying the uplift, which serves to address those additional concerns. Applying the uplift of two months brings the sentence to 16 months’ imprisonment.

[15]   I take no issue with the discount applied for Mr Davies’ youth, which amounted to approximately 15 per cent. It could even be considered generous, balancing out

20 Renata v Police [2017] NZHC 504 at [24]; Samuels v Police, above n 14, at [22].

21  For comparison see Asres v Police [2019] NZHC 2760 at [8] (two charges of theft over $1000, one charge of theft of goods valued $500 to $1000; a starting point of nine months’ imprisonment was not disturbed on appeal; a further three months was added for the breach of intensive supervision and bail breaches before a deduction of two months was made for totality); and Samuels v Police, above n 14 (one charge of theft over $1000, seven charges of theft under $500 and four charges of trespass (total value of goods taken less than $2000); the lead charge of theft over $1000 warranted a six-month starting point, with a five-month uplift to reflect the remaining charges and the fact the offending occurred while on release conditions; equalled an 11-month starting point).

22 Henry v Police, above n 14, at [7].

what may have been a stern uplift for previous convictions. Applying a 15 per cent discount results in a sentence of 14 months’ imprisonment.

—guilty plea discount

[16]   There is some uncertainty as to the timing of entry of various guilty pleas, which earlier indications are relied on by Ms Naseri to afford Mr Davies the full discount. The record before me only shows a guilty plea at Mr Davies’ seventh appearance, a case review hearing in May 2019. I acknowledge there was a dispute over the value of goods relating to one of the theft charges which was resolved late with amendment to the summary of facts relating to the charge in question. But its resolution should not have prevented Mr Davies’ earlier guilty plea to the other charges. Mr Davies is not entitled to the full 25 per cent discount. The Judge did not err in allowing a 20 per cent discount, which with respect in the circumstances, is generous.

[17]   Applying the guilty plea discount of 20 per cent brings the end sentence to 11 months’ imprisonment, which I formulate as:

(a)eight months’ imprisonment for each of the theft (over $1000) charges to be served concurrently with one another;

(b)six months’ imprisonment on each of the remaining theft charges, to run concurrently;

(c)three months’ imprisonment for the breach of intensive supervision, to be served cumulatively; and

(d)two months’ imprisonment for the breach of community work, to be served concurrently.

But the individual sentences imposed are “not terribly important”; what matters is an end sentence matching the totality of the offending.23

23     R v Xie [2007] 2 NZLR 240 (CA) at [38].

Result

[18]The appeal is allowed.

[19]   The Judge’s sentence of 19 months’ imprisonment is quashed, and replaced with a sentence of 11 months’ imprisonment.

—Jagose J