Doidge v Police
[2021] NZHC 2256
•30 August 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000067
[2021] NZHC 2256
BETWEEN JORDAN MARK DOIDGE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 August 2021 (via VMR) Appearances:
K Basire for Defendant
S M H McManus for Respondent
Judgment:
30 August 2021
JUDGMENT OF GENDALL J
This judgment was delivered by me on ………………… at pursuant to Rule 11.5
of the High Court Rules Registrar/Deputy Registrar Date:
Introduction
[1] Jordan Doidge was sentenced to two years and four and a half months’ imprisonment by Judge Couch on 18 May 2021 on four charges of stealing motor vehicles1 and three charges of receiving stolen motor vehicles.2 Four hundred dollars’ reparation was also ordered.
[2] Mr Doidge appeals that sentence. He contends that the sentence is manifestly excessive and that he should have been sentenced to home detention.
1 Crimes Act 1961, ss 219 and 223(b): maximum penalty of seven years’ imprisonment.
2 Crimes Act, ss 246 and 247(1): maximum penalty of seven years’ imprisonment.
DOIDGE v NEW ZEALAND POLICE [2021] NZHC 2256 [30 August 2021]
Facts
[3] Around 15 December 2019, the first victim listed his Toyota Surf on Trade Me. On 29 December Mr Doidge contacted the first victim inquiring about the vehicle. The first victim mentioned he would be on holiday from 31 December until mid- January. On 30 December Mr Doidge went to the first victim’s house ostensibly to test drive the vehicle. While test driving, he stopped at an associate’s address where they removed the driver’s door lock to obtain the vehicle key code. This e abled them to have a key cut for the vehicle Between 31 December 2019 and 1 January 2020, Mr Doidge used the key to enter and start the vehicle. He drove away. This comprised the first theft charge.
[4] This vehicle was “rebirthed” to a different registration under the name of Mr Doidge’s partner. It was used as a personal vehicle for about nine months. To “rebirth” a vehicle is to change its identity into that of another. The rebirthing process involves the removal of the VIN and manufacturer’s plates as well as having the stamped chassis on the vehicle frame cut out. Once removed, these identifying features are attached to a second vehicle.
[5] Police enquiries revealed the Toyota Surf vehicle was sold for $7,200 around 25 September 2020. The vehicle was recovered, and Mr Doidge returned the sale proceeds to the dispossessed new owner.
[6] The second count of theft occurred between 15 and 16 July 2020. Mr Doidge used a Mazda key to jig the lock of a Mazda Bounty Ute. He entered the vehicle and used the same jigging technique to start and drive the vehicle away. An associate, Caleb Goodwin, was present. Together they dumped the vehicle in a paddock. They received a cash reward for the theft. The Ute was valued at approximately $10,000 and has not been recovered by police.
[7] The third count of theft occurred between 26 and 27 July 2020. Like the previous charge, Mr Doidge used a Mazda key to jig the lock and ignition of a Mazda Bounty Ute worth $10,000. He drove it to a paddock where it was dumped. He and an associate received a cash reward for the theft. When the vehicle was located it was in the process of having its identifying tags removed.
[8] As to the first receiving charge, on 27 July 2020 a Mazda Bounty and an Elite 8x4 trailer were stolen. On or about 28 July 2020, Mr Doidge received the trailer from an associate. The trailer was located with new registration labels attached in Mr Doidge’s name.
[9] The fourth and final count of theft occurred on 5 August 2020. Mr Doidge broke a window of a Toyota Land Cruiser worth $30,000, entered the vehicle and attempted to start the ignition. He failed, so he and an associate towed the vehicle away. On 6 August 2020, Mr Doidge dumped the vehicle after receiving threatening messages from the owner. When police located it, a “rebirthing” process had begun.
[10] As to the second receiving charge, on 7 September 2020 a Ford Courier Ute was stolen. Between 7 and 9 September 2020, Mr Doidge received it from an associate. The Ute was located with no identifying tags attached. That comprised this receiving charge.
[11] As to the third receiving charge, between 4 and 5 August 2020, a Toyota Surf was stolen. Mr Doidge was present when the vehicle was stolen and was aware a roof top tent was attached to the vehicle. He received the tent between 5 August and 9 September 2020.
[12] The total value of the property stolen or received was $73,500. All but one of the vehicles, however, has been recovered.
[13] When spoken to, Mr Doidge said he was glad to have been caught. He made full and candid admissions.
District Court decision
[14] In his decision in the District Court, Judge Couch began with the charges.3 He set out the facts and explained the “rebirthing” process. Then he turned to the aggravating factors.
3 Police v Doidge [2021] NZDC 9459.
[15] The Judge found there was a high degree of premeditation and a significant degree of sophistication. He also found the first theft involved a breach of trust. Judge Couch considered the value of the property stolen and the duration of the offending. He also took into account the fact it appeared Mr Doidge intended to continue offending before he was caught.
[16] The Judge referred to Anderson v R and Greenwood v Police.4 The Judge considered the offending a little more serious than Anderson, and considerably more serious than Greenwood. A starting point of three years and two months’ imprisonment was adopted. There was no uplift for previous convictions, although the Judge noted Mr Doidge had been convicted of unlawfully taking a motor vehicle in 2014.
[17] As to mitigating factors, the Judge allowed a 20 per cent discount for Mr Doidge’s guilty plea, citing a slight delay. The Judge also granted a five per cent discount for Mr Doidge’s remorse.
[18] That led to the imposition of an overall sentence of two years’ and four and a half months’ imprisonment. The Judge also ordered $400 reparation to cover an insurance excess.
Principles on appeal
[19] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence
4 Anderson v R [2017] NZCA 91; and Greenwood v Police [2016] NZHC 2951.
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
Appellant’s submissions
[20]Ms Basire, for Mr Doidge, says the sentence was manifestly excessive because:
(a)the starting point was too high as excessive emphasis was placed on the value of vehicles taken, most of which have now been recovered;
(b)the Judge failed to consider the disparate sentence of Mr Doidge’s co- offender;
(c)no discount was granted for time spent on restrictive bail conditions;
(d)a full 25 per cent guilty plea discount should have been available as the brief delay was due to charges being withdrawn;
(e)the Judge did not consider Mr Doidge’s attempts at rehabilitation; and
(f)the least restrictive outcome in the circumstances here was home detention.
[21] Ms Basire raises several further points based on information unavailable to either Mr Doidge’s counsel or the Judge at sentencing. She says Mr Doidge assisted the police in recovering property, identifying owners of vehicles taken and identifying other offenders. She submits this would have been considered if the Judge was aware of it. In addition, she says Mr Doidge’s cultural background was not put before the court. She submits the trauma associated with his childhood as a Jehovah’s Witness had a direct link to his offending. To this end, Ms Basire has filed updated submissions together with an expert psychologist’s report and a sworn affidavit from Mr Doidge,
7 Ripia v R [2011] NZCA 101 at [15].
which she says outline his family background and childhood trauma, as well as what she contends is the considerable assistance Mr Doidge gave to authorities.
[22] Ms Basire also provided to the Court a letter from Mr Doidge’s employer, who confirms their support for him, and from the father of Mr Doidge’s partner, who says his partner has suffered hardship while Mr Doidge has been incarcerated.
[23] In her updated submissions, Ms Basire further notes the claim in the respondent’s submissions that Mr Doidge offended on bail is incorrect. This, she says, is apparent from the summary of facts.
Respondent’s submissions
[24] Ms McManus, for the respondent, maintains the starting point adopted by the Judge was appropriate. She refers to the decisions in Anderson v R and Greenwood v Police noted above.8 She submits the Judge was right to consider the premeditation and sophistication in this offending, the breach of trust in respect of the Toyota Surf in particular, the total value of the property stolen or received, the impact on the victims and the fact the offending occurred over nine months (or more). Ms McManus does not accept the gravity of the offending was reduced by the fact all but one of the vehicles had been recovered.
[25] As to the guilty plea discount, Ms McManus submits the 20 per cent discount afforded by the Judge was appropriate.
[26] Ms McManus says there should be no discount for Mr Doidge’s assistance to authorities. She has provided a letter from Constable Power, who interviewed Mr Doidge. Both Ms McManus and Constable Power accepted that Mr Doidge had provided some information to police, but they say police derived little use from it as the information was also provided from another source.
[27] Similarly, Ms McManus submits there should be no discount for the time Mr Doidge spent on what Ms Basire says were restrictive bail conditions. She says
8 Anderson v R, above n 4; and Greenwood v Police, above n 4.
there is no requirement that a sentencing Judge take into account the time an offender has spent on ordinary bail.
[28] Ms McManus also says some of the offending occurred whilst Mr Doidge was on bail. She notes Mr Doidge first appeared in court on 16 September 2020 and that new charges were laid during the process.
[29] Ms McManus contends the Judge did not need to afford credit for Mr Doidge’s rehabilitative steps or his personal and cultural background. Ms McManus says in the absence of further information it is difficult to determine whether any credit in this area is appropriate. Ms McManus has not opposed the further evidence filed by Mr Doidge.
[30] Finally, Ms McManus notes Mr Doidge’s co-defendant was sentenced on a lesser number of charges so there can be no expectation of parity here.
Analysis
[31] I accept Judge Couch’s assessment of aggravating factors here. Mr Doidge’s offending was premeditated and sophisticated. It involved a breach of trust and, due to the value and importance of vehicles to people, would have seriously impacted the victims.
[32] In Anderson v R the defendant pleaded guilty to three charges of stealing motor vehicles and three charges of receiving stolen motor vehicles, among other things. The Court of Appeal found a starting point of three years’ imprisonment would have been available for the theft and receiving offending.9 In Greenwood v Police the defendant was charged with receiving four vehicles for the purpose of rebirthing them. Downs J did not disturb a starting point of two years and six months’ imprisonment for the receiving charges.10
[33] In my judgment, Judge Couch was right to find Mr Doidge’s offending was more serious than the offending in each of these cases. Mr Doidge’s offending
9 Anderson v R, above n 4.
10 Greenwood v Police, above n 4.
involved more charges, it accrued over a longer period, and it involved similar levels of premeditation and sophistication. There was also a significant breach of trust involved in the first theft. The starting point of three years and two months’ imprisonment was appropriate and, as I see the position, perhaps even merciful.
[34] I also reject Ms Basire’s submission that the starting point should be reduced because all but one of the vehicles was recovered. The value and number of the vehicles stolen is indicative of the extent and gravity of Mr Doidge’s thefts. Reducing the starting point because some had been recovered in large measure would be to reward Mr Doidge for good policing and recovery work. The extent to which he assisted authorities in locating and recovering the vehicles is a separate factor the Court may consider later in the sentencing process.
[35] Similarly, I find there can be no expectation of sentence parity between Mr Doidge and his co-offender given the different numbers of charges each faced.
[36]I turn now to personal mitigating factors.
[37] Initially, Mr Doidge was charged on 16 September 2020 with two charges of receiving and three charges of unlawfully taking vehicles. On 28 October 2020, he was charged with three further charges of theft, one charge of burglary and the three unlawful taking charges were amended to theft. He was remanded without plea. His counsel at the time, Ms Lee, attempted to start discussions with a senior prosecutor who was unable to look at Mr Doidge’s file before his next appearance on 18 November. The prosecutor assigned on 18 November was also unable to review the file. The first case review hearing was on 18 January 2021.
[38] After that hearing, further disclosure was provided, and an additional charge of receiving was laid. A further case review hearing was set down for 23 February 2021. Discussions at that hearing led to three charges being withdrawn and the burglary charge being amended to one of theft. The amended and agreed summary of facts was presented to court. Mr Doidge then pleaded guilty.
[39] Given these circumstances, Ms Basire says Mr Doidge should have received a full 25 per cent guilty plea discount.
[40] And, given the incremental way in which charges had been laid and disclosure provided, the procedural issues, and the fact the delay led to charges being withdrawn and amended, I consider Mr Doidge could well have received the full discount for his guilty plea. It will have reduced the cost and duration of proceedings.11 In making this finding I also consider the fact Mr Doidge acknowledged his part in the theft operation when he was first interviewed by police.
[41] The Judge granted a five per cent discount for Mr Doidge’s remorse. In my view, this might be seen as generous. The only overt evidence of remorse was a statement in the pre-sentence report that Mr Doidge was “very remorseful and embarrassed for having committed the offences”. However, Mr Doidge’s genuine remorse might arguably be inferred from the rehabilitative steps he has taken since being convicted of this offending.
[42] The pre-sentence report and Mr Doidge’s affidavit set out Mr Doidge’s explanation for why he offended. He says he was unemployed and had allowed himself to be convinced to commit the offences as a way of getting by financially and to maintain what was for him a rare close friendship. Clearly then, a lack of financial freedom in part was causative of the offending and would therefore be relevant to the likelihood Mr Doidge might offend in the future. He has addressed this, having returned to full-time employment as an apprentice drainlayer. His employers wrote a letter in support. This stated Mr Doidge was punctual, hard-working and reliable relating to the period from 29 March to 19 May 2021. The employers confirm they would be happy to re-employ him full-time once again.
[43] On balance, I accept that these steps, together with Mr Doidge’s asserted remorse, justify the five per cent discount granted by Judge Couch.
[44] Ms Basire then went on to submit Mr Doidge’s cultural background justifies a further discount. Ms Basire has now filed a sworn affidavit of Mr Doidge describing
11 Sentencing Act 2002, s 9(2).
his upbringing and a report by a clinical psychologist, Mr Paul Neilson. The Crown indicated it was willing to acknowledge a discount may be appropriate when proper evidence was provided.
[45] In Mr Doidge’s affidavit, he describes a difficult upbringing dictated by his family’s financial hardship and their strict religious practices and moral code as Jehovah’s Witnesses. Due to his parents’ beliefs, Mr Doidge was not allowed to celebrate Christmas or attend his peers’ birthday parties or events, and he struggled emotionally with the “doomsday doctrine” they subscribed to that predicted the world would imminently end. His family also required him to go door knocking to “witness” the Jehovah faith to others and prohibited him from having romantic partners, all of which contributed to him being ostracised, bullied, feeling alienated from his peers and struggling to maintain relationships. He deposes that, because of this traumatic upbringing, he persists in toxic relationships, which led him to associate with people involved in drugs and criminal activity.
[46] Mr Neilson’s psychological report confirms Mr Doidge’s evidence about his childhood’s lasting effect on him and its causal link to the offending. Mr Neilson explains:
In summary, the critical links between Mr Doidge’s dysfunctional early background and his recent offending have been his years of toxic experience producing an ostracised outsider, needing to be accepted, with no learning in how to connect skilfully with good influences. That has meant that in early childhood he has made poor decisions, motivated by the desire to please and for instant gratification with those who would take advantage of him and have him offend for them.
[47] Mr Neilson observes Mr Doidge’s traumatic childhood experiences, during which “he had no capacity to defend himself … in what was the most powerful learning period of his life”, have had an enduring and pervasive influence on him such that they have “come to form the bases of personality patterns” including elements of Avoidant Personality Disorder and Post-Traumatic Stress Disorder.
[48]Mr Neilson concludes that Mr Doidge’s:
… early developmental years were influenced by unwitting but emotional, neglectful parenting heavily influenced by the father’s close association and
interpretation of Jehovah’s Witness doctrine in the JW Church and Mr Doidge’s strong negative response to that.
…
Again, it is believed by the writer that a key causative feature in Mr Doidge’s recent offending has been his disadvantaged complex childhood where he battled with an alternative authoritative doctrine of Jehovah’s Witness church
… Unwittingly his desperate needs to connect and belong served instead to push others away and isolate him even more. In rejecting what his father represented he lurched into another setting of criminality, always wanting to please and be accepted.
[49] Although I do not consider the evidence before the Court demonstrates Mr Doidge has faced systemic deprivation, it is possible for direct cultural factors to provide an explanation for the offending or to mitigate culpability, provided the offender’s cultural upbringing has impaired their choice and diminished their moral culpability so as to establish a causal contribution to the offending.12
[50] Having carefully considered all the evidence in this matter and in particular the extensive new evidence recently put before this Court which the District Court did not have the benefit of, I am satisfied Mr Doidge’s particularly stringent and isolated religious upbringing has had a causal contribution to his present offending. In my view, Mr Doidge’s choice has been impaired by his formative childhood experiences to the extent he was deprived of the opportunity to develop interpersonal skills enabling him to extricate himself from negative relationships. This socially impoverished upbringing affected his personality so that, when Mr Doidge developed a friendship, he does almost anything to maintain it. This desperation to connect unfortunately escalated to the point that, when Mr Doidge recently met a new associate, a car dismantler, he acquiesced to his demands and committed the car theft and receiving offences in order to please him.
[51] For these reasons, I consider Mr Doidge’s cultural background justifies a further discount of eight per cent. I am of the view this moderate discount is appropriate, having also taken into account the evidence demonstrating Mr Doidge’s capacity to sustain relationships without resorting to criminality.
12 Zhang v R [2019] NZCA 507 at [162]; Carr v R [2020] NZCA 357 at [64]-[65]; and Sentencing Act, s 8(i).
[52] Mr Doidge’s assistance to authorities is a different matter. It is common ground between counsel that Mr Doidge offered information to the police. Where they disagree is the usefulness of that information. Ms Basire says Mr Doidge provided information that led police to the owners of three stolen vehicles and the names of persons involved. In addition, he gave full details of the stolen vehicles he was involved with, including information the police would not have had if he had not told them. Ms Basire says this discussion was between Mr Doidge and one Constable Jeffs. In his affidavit, Mr Doidge deposes he engaged in off-the-record discussions with police on three occasions and was as helpful and cooperative as he could have been. On the first occasion, he claims to have spoken to police for about an hour and provided information about the car “rebirthing” scene, including names and locations in relation to it. On the second occasion, Mr Doidge says he spoke to Constable Power about the three vehicles. He cannot recall specifics of the third discussion.
[53] Constable Power has provided a statement detailing the information Mr Doidge gave him on 30 September 2020. He appears to acknowledge Mr Doidge’s approximate advice assisted police in locating the Toyota Surf and two Toyota Prado vehicles, although he says Mr Doidge was very vague on the details. Ms McManus advised the Court this information was also obtained from another source.
[54] Neither Ms McManus nor Constable Power has confirmed the police position on Mr Doidge’s apparent discussion with Constable Jeffs. That would have occurred before Mr Doidge gave information to Constable Power. I do not consider Mr Doidge’s affidavit provides any further relevant information in this regard.
[55] I consider the principles articulated in R v Hadfield, that the value of assistance to authorities is a function of quality and quantity, are apposite.13 Given the lack of specificity and conflicting evidence that has been provided, any discount given here, in my view, should be minimal. In cases where large discounts have been given, the offender has assisted the authorities to their own detriment or gone as far as giving evidence against co-defendants.14 Mr Doidge did not do that here.
13 R v Hadfield CA337/06, 14 December 2006 at [28], citing R v A [1999] 1 Cr App R (S) 52 (CA) at 56.
14 R v George [2016] NZHC 2067; R v Burns [2014] NZHC 2278; and R v Bettle [2013] NZHC 2096.
[56] On the face of it, however, Mr Doidge appears to have at least endeavoured to assist police. Constable Power does concede they obtained some, albeit limited, benefit. I would set the discount at two per cent.
[57] I agree with Ms McManus that a discount for time spent on bail is inappropriate here. The conditions were not particularly onerous nor comparable to an electronically monitored alternative. Mr Doidge’s good compliance, however, does indicate he may be a good candidate for a community-based sentence.
[58] Having settled the discounts available, I now deduct these discounts totalling 40 per cent from the starting point of three years and two months’ imprisonment. That leaves an end sentence of 22.8 months’ imprisonment, which is below the two-year period where this Court can consider commuting the sentence to one of home detention.15 Because this is not a situation where no suitable residence has been identified as available, leave to apply for home detention is not necessary.16
[59] In all the circumstances of this case, and taking into account particularly the difficult position being experienced by Mr Doidge’s partner and his family (details of which have only been provided latterly to this Court), I am satisfied it is appropriate to commute Mr Doidge’s sentence of imprisonment to one of home detention. Mr Doidge has served over three months in custody, which have been very challenging for his partner who is experiencing substantial health issues, and also his young family. Mr Doidge’s partner reports having suffered from significant physical and mental illness since the birth of their second child. Home detention would allow Mr Doidge to provide support to his partner and two young children, which I consider will assist in his rehabilitation.
[60] Further, the pre-sentence report did not indicate any barriers were present to a sentence of home detention. Mr Doidge is a young man with a limited criminal history. He only has a few generally minor previous convictions and has not previously been subject to a custodial sentence. As mentioned, Mr Doidge had recently returned to full-time employment as an apprentice drainlayer, and it appears he no longer spends
15 Sentencing Act, ss 4(1) and 15A(1)(b).
16 Sentencing Act, s 80I.
time with criminal associates. The report writer and psychologist both assessed Mr Doidge as posing a low risk of reoffending and as having demonstrated remorse. Importantly, the report writer also assessed Mr Doidge’s proposed address with his partner as suitable for home detention and that there are no concerns for his partner’s or children’s safety. Nonetheless, I am satisfied the general purposes of sentencing here cannot be achieved by any less restrictive sentence, having regard to the gravity of Mr Doidge’s offending and the need for deterrence and denunciation.17
[61] In addition to the standard conditions Mr Doidge must be subject to under a sentence of home detention18 I would impose a special condition regarding the undertaking of psychological treatment directed by Mr Doidge’s probation officer as was recommended in Mr Neilson’s psychologist’s report.19 Accordingly, I impose a special condition that Mr Doidge, as directed by his probation officer, is to undertake a course of offence-related cognitive treatment for his offending and to address the negative effects of his childhood upbringing generally.
[62] As the sentence I would have imposed as a result of the new evidence this Court has had the advantage of is almost six months less than that imposed in the District Court (a court which did not have the benefit of that new evidence) I conclude the sentence imposed in that Court was manifestly excessive.
Result
[63]This appeal is therefore allowed.
[64] I quash the sentence imposed in the District Court of two years and four and a half months’ imprisonment and substitute in its place an electronically monitored sentence of 11 months’ home detention.
[65]In terms of that sentence of home detention I make the following directions:
17 Sentencing Act, s 15A(1)(a).
18 Sentencing Act, s 80C.
19 Sentencing Act s 80D.
(a)Given the exigencies of Covid-19 Level 4 Lockdown which this country is under at present, appropriate arrangements are to be made by the authorities as soon as may be reasonably practicable, for Mr Doidge to be released and collected from prison and to travel directly to 44 Burnett Street, Oxford, Waimakariri District, and there to await the arrival of a probation officer and/or such other security officer/s for electronic monitoring purposes.
(b)Mr Doidge is to reside at that address for the duration of his home detention sentence.
(c)As a special condition under s 80D Sentencing Act Mr Doidge is to undertake and complete psychological treatment (as noted above at [61]) and as directed by and to the satisfaction of his probation officer, this to be in line with the treatment recommended in Mr Neilson’s report referred to earlier in this judgment.
(d)Mr Doidge is otherwise to serve this sentence of home detention under all standard home detention conditions that apply under s 80C Sentencing Act.
...................................................
Gendall J
Solicitors:
Katherine Basire, Barrister, Christchurch
Crown Solicitors, Raymond Donnelly & Co, Christchurch
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