Do Santos v The King
[2024] NZHC 2480
•30 August 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000264
[2024] NZHC 2480
DANIEL DO SANTOS v
THE KING
Hearing: 1 July 2024 Appearances:
J Yi for the Appellant
P McNabb for the Respondent
Judgment:
30 August 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 30 August 2024 at 12 pm Registrar/Deputy Registrar
Solicitors:
J Yi, Barrister, Auckland
P McNabb, Meredith Connell, Auckland
DO SANTOS v R [2024] NZHC 2480 [30 August 2024]
Introduction
[1]Mr Do Santos pleaded guilty to 11 charges made up of:
(a)three charges of burglary;1
(b)four charges of driving whilst disqualified, three of those in the aggravated form of third and subsequent;2
(c)one charge of theft (under $500);3 and
(d)three charges of failing to answer District Court bail.4
[2] On 27 May 2024, he was sentenced by Judge P J Sinclair to nine months’ home detention and 80 hours’ community work in lieu of disqualification from driving.5
[3] Mr Do Santos appeals his sentence on the basis that nine months’ home detention is manifestly excessive.
The facts
[4] On 20 February 2022, Mr Do Santos and an accomplice went to a construction site in Grey Lynn. They forced their way through a section of fencing surrounding the property and uplifted five pieces of plywood. They placed the plywood into their van and drove off. The plywood belonged to Ockham Construction and was valued at
$400. This formed the basis of the theft charge.
1 Crimes Act 1961, s 231: maximum penalty of ten years’ imprisonment. One of the charges was representative.
2 Land Transport Act 1998, s 32: maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 for a first or second offence and maximum penalty of six month’s imprisonment or a fine not exceeding $6,000 for a third or subsequent offence. The Court also must order the person to be disqualified from driving for at least six months for a first or second offence and at least one year for a third or subsequent offence.
3 Crimes Act, ss 219 and 223: maximum penalty of three months’ imprisonment.
4 Bail Act 2000, s 38: maximum penalty of one year imprisonment or a fine not exceeding $2,000.
5 R v Do Santos [2024] NZDC 12383.
[5] On 19 March 2022, Mr Do Santos and an accomplice hired a white Ford Transit Box Truck. They drove it to a construction site in Orewa. Mr Do Santos entered the fully fenced site and stole GIB board to a value of $7,000 from the garage area on the property and loaded it into the truck.
[6] A representative charge resulted from conduct between 19 and 22 March 2022. During this time Mr Do Santos visited two additional construction sites in Orewa surrounded by temporary fencing. Mr Do Santos gained access to the sites and removed GIB plasterboard and timber. The stolen items had a combined value of
$34,903.
[7] Finally, at approximately 3.30 am on 22 March 2022, Mr Do Santos and an associate drove to another construction site in Orewa. Mr Do Santos and his associate entered the site by cutting through the fence surrounding it. They took a DeWalt drop saw, a Festool grinder and a Makita drill. The estimated value of the items is $3,300. This led to the final burglary charge.
[8] On 22 January 2021, Mr Do Santos was convicted of two charges of driving while his license was suspended, and he was disqualified from driving for six months. He was subsequently caught driving without a license by police on 12 April 2021, 4 May 2021, and 7 June 2021. These incidents led to the third and subsequent driving offences. An additional charge appears to have arisen from a second incident on 12 April 2021, but this is not clear from the record before the Court. It is not material in the appeal.
[9] Finally, there were three charges of breach of bail or failing to answer District Court bail.
District Court decision
[10] The Judge adopted a global starting point of two years and three months’ imprisonment on the three burglary charges, noting that these were construction site rather than dwelling house burglaries. That starting point is not challenged. It is unimpeachable given that there was planning and premeditation through the targeting
of fully fenced or enclosed building sites, use of a hired vehicle for the purpose and the items stolen were of considerable value.
[11] She uplifted the starting point by three months for the four driving while disqualified charges and theft as well as Mr Do Santos’s previous convictions for driving while disqualified.
[12] The Judge imposed a further uplift of two months for offending whilst on sentence and in recognition of five previous theft convictions. This brought the starting point to two years and eight months’ imprisonment.
[13] The Judge then turned to personal circumstances and mitigating factors. As this is the focus of the appeal, I set out that part of the judgment appealed from which encapsulates the Judge’s reasoning:
[16] I turn to your personal circumstances and mitigating factors. A pre-sentence report has been prepared. A recommendation of community detention and intensive supervision has been made. You are now 24 years old of Middle Eastern ethnicity but born in New Zealand. You seek discounts for personal circumstances, your young age at the time of offending, remorse, time spent on EM bail and guilty pleas.
[17] With regard to your personal circumstances, you advise in a letter you have provided me today that you have had some real challenges in your life which has impacted on your thinking and behaviour. You have sought the assistance of a psychiatrist through your GP to address some of those issues and you expect to engage with that psychiatrist in the very near future. You are receptive to rehabilitation and changing your thinking and actions. Moreover, it does appear you have placed yourself in a much more positive trajectory. You are in a stable relationship with your partner who supports you in Court today. You have a young baby. I am sure you want to be a good role model for your young child. You do not want your young child to be in the position you are in today in terms of sentencing. You have returned to the workforce as a plasterer after a period of time off after being seriously assaulted. From the contents of that letter, it appears you are a valued and productive employee.
[18] As mentioned, you seek a discount for youth. You were 21 years old at the time of the burglaries. The higher courts have recognised that youth can provide a discount in some instances. However, I do note that although you have no previous convictions for burglary, you have accumulated a number of convictions [despite] your young age. Furthermore, you are not particularly young in terms of the youth discount. Given those circumstances I consider a very modest discount could be contemplated in your circumstances.
[19] Thirdly, you state you are remorseful. It is always very difficult ascertain whether remorse is genuine and sincere when someone is facing a
term of imprisonment. In my view simple expressions of remorse are not sufficient. However, you have spent time on EM bail – almost one year. You have incurred two breaches, but otherwise it appears you have been largely compliant. It is recognised that EM bail does impose a restriction on your liberty.
[20] So, taking into account your personal circumstances and the efforts you have made to place yourself in a positive place in your life, plus the time you have spent on EM bail, I allow a discount of 20 per cent.
[14] In addition, the Judge gave a discount of 15 per cent for guilty plea discounts although they were not entered at the earliest opportunity. The burglary charges were resolved on the morning of trial.
[15] Those assessments led to an end sentence of around 21 months, commuted to a sentence of home detention of nine months on the burglaries and three months on the other matters (concurrently). The difference between the term of imprisonment and period of home detention took into account a period of one and a half months of custodial remand.
[16] Finally, the Judge granted Mr Do Santos’s application for a community sentence in lieu of disqualification from driving.6 The Judge recognised that Mr Do Santos has work as a plasterer, has obtained a learner’s license, has been driving to work on a moped and had booked a restricted licence test. The Judge acknowledged the difficulty Mr Do Santos may face in getting to work if he is disqualified from driving and the fact that he is the family bread winner, supporting a partner and child.
Law on appeal
[17] This Court must allow the appeal if there is a material error in the sentence imposed and a different sentence should be imposed.7 Otherwise, the Court must dismiss the appeal.8 The appeal Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9
6 Land Transport Act, s 94.
7 Criminal Procedure Act 2011, s 250(2).
8 Section 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.10
Grounds of appeal
[18] Mr Do Santos advances two grounds of appeal. The first is that the Judge erred by giving an insufficient discount for time spent on EM bail, time spent in custody and co-operation with the police in relation to an unrelated prosecution. The second ground is that the Judge erred in uplifting for the driving whilst disqualified charges and imposing community work for those sentences under s 94 of the Land Transport Act 1998.
[19] The respondent opposes the appeal. It says that the discounts for the combined factors including personal circumstances and time spent on EM bail was sufficient.
Discussion
[20] The second ground of appeal can be disposed of in short order. Section 94 of the Land Transport Act relevantly provides:
94 Substitution of community-based sentences
(1)This section applies if—
(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
(b)the court, having regard to—
(i)the circumstances of the case and of the offender; and
(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii)the likely effect on the offender of a further order of disqualification; and
(iv)the interests of the public,—
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
10 Ripia v R [2011] NZCA 101 at [15].
(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
(2)Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection
(3) if this section applies.
(3)If the court sentencing an offender determines under this section not to make an order of disqualification,—
(a)the court must impose a community-based sentence on the offender; and
(b)the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and
(c)in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
[21] Subsection (3)(b) makes it clear that the imposition of a sentence under this section does not affect the power of the court to impose any other sentence for that offending. The community work sentence is expressly imposed in lieu of disqualification. The uplift is notably modest and inclusive of a theft charge and prior relevant history. There is no discernible error. I reject this ground of appeal.
[22] On the first ground of appeal, Mr Yi, counsel for Mr Do Santos, submits that the following factors are relevant to the assessment of personal circumstances:
(a)Mr Do Santos has spent almost 12 months (11.5 months) on EM bail and a further 12 months on a night-time curfew only.11
(b)Three noted bail breaches/failure to answer bail were explained and were minor infractions.12
11 Mr Yi referred to a period of night-time curfew of nine months but based on the timeline in his submission, it appears that it was 12 months. The respondent also referred to 12 months.
12 The first on 3 February 2023 was to drop off groceries to his newborn daughter’s house as the mother was unwell; the second on 25 September 2023 was to purchase a bottle of water at a nearby
(c)Mr Do Santos’s personal circumstances (youth and background) and efforts to rehabilitate alone warranted a 20 per cent discount.
(d)A separate and discrete discount is required for the time spent on EM bail.
(e)Mr Do Santos should receive some credit for his cooperation in relation to another unrelated police prosecution.
[23] The 20 per cent deduction allowed by the Judge for personal circumstances equated to a six-month discount. Court of Appeal guidance suggests that discounts to account for time spent on EM bail range between 30 per cent and 50 per cent of the time spent under EM conditions.13 That equates to a range between around three months and just over five months in this case, consistent with Mr Yi’s submission. I pause to note that the precise conditions associated with Mr Do Santos’s EM bail are not clear on the material before the Court. In my view, Mr Do Santos’s relative youth is relevant when considering the impact of EM bail strictures.
[24] Discounts for time spent on night-time curfew vary considerably. However, viewed this way, it becomes apparent that very little account was taken of Mr Do Santos’s age and personal circumstances. The Judge suggested this was because Mr Do Santos was 21 at the time of offending and had already amassed a conviction history. The Judge was also understandably cautious about the genuineness of Mr Do Santos’s expressions of remorse.
[25] I have seen correspondence from Mr Do Santos’s employer who speaks of Mr Do Santos’s background and struggles due to economic deprivation as a child of immigrant parents. His employer speaks well of him and his “willingness to rehabilitate and move away from people and situations which led to past offending”. If that is an accurate picture, then Mr Do Santos is to be commended.
petrol station after being discharged from hospital; the third on 29 August 2023 for failure to present at the door, claiming that he had been at the address asleep due to exhaustion from taking care of his newborn daughter.
13 C v R [2023] NZCA 99 at [41].
[26] With the benefit of greater reflection than is available to a District Court Judge in a busy sentencing list, these matters together would have justified further reductions of up to two months. But, in the end, I agree with Ms McNabb that the guilty plea discount was very generous in view of the timing of the pleas. The question is whether the end sentence is manifestly excessive when standing back and looking at the overall picture. The answer is no. It was within the available range.
[27] For completeness, I do not consider that “assistance” in an unrelated trial has any relevance to Mr Do Santos’s sentence given that he was compelled by a summons to attend Court.
[28]Despite Mr Yi’s forceful submissions, I find no error in the sentence imposed.
Result
[29]The appeal is dismissed.
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Walker J
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