Duncan v Police

[2013] NZHC 1053

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2013-412-0006 [2013] NZHC 1053

BETWEEN  NATHAN AARON DUNCAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 May 2013

Counsel:         B Farnan for Appellant

R D Smith for Respondent

Judgment:      10 May 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 10 May 2013 at 3.45pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Farnan Garthwaite Law, PO Box 1440, Dunedin

Crown Solicitor, PO Box 803, Dunedin

DUNCAN V NEW ZEALAND POLICE HC DUN CRI 2013-412-0006 [10 May 2013]

The appeal

[1]      Mr Duncan appeals against an effective sentence of two years and six months imprisonment imposed following his guilty plea to six charges involving theft of a motor vehicle, unlawfully taking a motor vehicle, theft (from a vehicle) of property over $1000 and theft (from a vehicle) of property under $500 (x3).1

[2]      Ms Farnan, for Mr Duncan, submits that the sentencing Judge adopted a starting point that was too high and also calculated an uplift which had the effect of double counting aggravating factors.

Facts

[3]      In the period between September and December 2012, Mr Duncan engaged in the conduct that gave rise to the charges.  While only 20 years of age, he had accumulated some 59 convictions in the District Court beforehand.  Many of his convictions were for offences involving dishonesty, particularly theft of motor vehicles and taking property from them.  Mr Duncan had also been dealt with in the Youth Court on similar charges.

[4]      Following the entry of guilty pleas Mr Duncan came up for sentence before Judge Flatley on 7 February 2013, in the District Court at Dunedin.  The Judge expressed understandable concerns about Mr Duncan’s prior criminal history, particularly  those  involving  property  offending.    He  described  that  history  as

“appalling” and “extremely relevant ... [to] this type of offending”.2

[5]      The Judge summarised the nature of the offending:

[4]      As far as the facts are concerned, the unlawfully taking the motor vehicle and theft of items from the motor vehicle relates to the Toyota van. It contained personal effects and equipment used by the owner in her work as a gardener.  You took the van.  You then disposed of a number of items from the van, lawn mower, weed eater, chainsaw, hedge cutter and other items.  Then you emptied the rest of the victim’s belongings onto your back

1      Police v Duncan DC Dunedin CRI 2012-012-4202, 7 February 2013 at para [3].

2 Ibid, at para [3].

yard.  You then went to the New Zealand Post Shop and changed the ownership of the vehicle into your name and then you went to Otago Metal Industries and sold the van for $400.

[5]       You were then confronted by the victim  I am not quite sure how that happened but you were and you gave the cash back and you fled.  The gardening equipment used by the owner in her business and other personal items, including the fishing rods, were never located.  The victim did get her vehicle back but it had a significant amount of damage to the engine and external panel.

[6]       In relation to the theft of a motor vehicle, you and an associate stole the victim’s vehicle which was parked outside the victim’s home address You picked up another associate and you all drove to Christchurch where the vehicle was disposed of.  It has not been recovered. That vehicle was valued at $3500.

[7]       As far as the other thefts from vehicles were concerned, you entered the Strathallan Street Toll Tranzlink yard on three occasions, broke into a truck by lifting the secure flap on the side of the truck and stole quantities of alcohol on those three occasions, which you then on-sold.  The value of the alcohol taken was around $650.

[6]      The Judge was alive to “difficulties” to which a pre-sentence report had referred.  These included “early attention deficit, learning difficulties, impulsiveness and mood variability” exacerbated by “early on-set of alcohol and substance abuse”.3

Mr Duncan was considered to be ‘at very high risk of reoffending”.4     The one

support person in Mr Duncan’s life, his mother, had moved to Auckland.  That been left him without meaningful support in Dunedin.

[7]      Judge Flatley considered that imprisonment was inevitable.  He had regard to the nature of the offending and to the effects upon the victim.  The Judge had regard to a number of authorities.5    In determining the appropriate sentence, Judge Flatley said:

[18]     As far as a starting point is concerned, I have to take into account aggravating and mitigating features, and I need to tell you what those are. The aggravating features are that there are a number of offences here.  You took items that were of significant value, not only the vehicles but the items in  them,  particularly the  van  with  the  gardening equipment,  so that  the victims have suffered significant loss. Those items have not been recovered and that victim particularly was not insured.  You emptied that van of those

3 Ibid, at para [9].

4      Ibid.

5      Bell v Police HC Napier AP58/97, 11 September 1997 (Gendall J), Graham v Police HC Auckland CRI 2006-404-258, 12 October 2006 (Randerson J) and Taki v Police HC Rotorua CRI 2010-470-25, 2 July 2010 (Joseph Williams J).

items and then you changed the ownership on the van in an attempt to sell it so thus you extended the deception beyond simply taking the van.   It was calculated, planned and devious and your actions significantly aggravate matters in my view.  As I said, it was not just one offence.  You then took another vehicle which has not been recovered.  As far as the other thefts are concerned, there are three charges.  You offended on one occasion, realised you could get away with it and you returned on two further occasions so repeated offending.

[19]      Given all of those aggravating features, it is my view that I must start with a sentence of imprisonment well in excess of what Ms Farnan has submitted.  I have to say that I see few if any mitigating features of the offending.  My starting point, Mr Duncan, is a sentence of three and a half years’ imprisonment and I need to uplift that sentence having regard to your prior offending.  You have similar prior offences as I have articulated when considering your history.  I increase that starting point by three months.

[20]     I could break my starting point down to cover each of the offences separately and if I was to do so, I would be starting at around two to two and a half years for the theft of the motor vehicle and the unlawfully taking of the motor vehicle and that would be aggravated by the other offending of the theft of items from the vehicle and the other thefts, bring me to a starting point of three and a half years’ imprisonment.

[21]      You are entitled to credit for your guilty pleas which came relatively soon after you were apprehended and charged, and you are young.  I accept that  and  I  am  concerned  about  that  and  I  am  concerned  about  the background and your life as it has been to date.  I am going to give you a credit of one third, which takes me to an end sentence of 30 months’ imprisonment, which is an end sentence in years of two and a half years.

(emphasis added)

Reparation was also ordered.

Analysis

[8]      Ms Farnan submits that the starting point taken by the Judge was clearly excessive.   She submitted that for offending of this type a starting point of three years six months imprisonment was too high.

[9]      The addition of an uplift of three months to reflect prior offending is the subject of the “double counting” complaint; namely that the Judge took account of Mr Duncan’s criminal history both when assessing culpability and as an aggravating personal factor.

[10]     No complaint is made about the credit for the guilty plea.  Indeed, the Judge gave a credit of one-third, considerably higher than the 25% maximum identified by the Supreme Court in Hessell v R.6   Even having regard to the additional factors of youth and a difficult background, to which the Judge referred, a total crdedit of one third can be seen as generous.7

[11]     It is open to debate whether a starting point of three years six months was too high.  The authorities to which Ms Farnan referred suggested that in cases such as this a starting point of over two years8 is normally appropriate.  In that context, the term “starting point” simply represents the sentence that reflects the culpability of the offender for the particular offending and does not take account of prior history or recidivism.

[12]     The differing approaches to the assessment of aggravating factors in a case such as this were discussed by the Court of Appeal in R v Columbus,9 in the context of a recidivist burglar.  Delivering the judgment of the Court of Appeal, Harrison J said:

[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss

8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community  protection  (s  7(f)  and  (g)). The  justification  for  this  greater

weighting for prior offending is explained in  Senior v Police (2000) 18

CRNZ 340 at [27]-[30] (HC).

[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior  at  [30].  The  principal  inquiry  must  be  undertaken  into  the relationship between the nature of persistent offending and the crime itself.

6      Hessell v R [2011] 1 NZLR 607 (SC) at para [75].

7      Police v Duncan DC Dunedin CRI 2012-012- 4202, 7 February 2013 at para [21], set out at para

[7] above.

8      For example, see McCormack-Cameron v Police [2012] NZHC 3586 (Clifford J).

9      R v Columbus [2008] NZCA 192.

[16]  Applying  those  principles  here,  the  burglary  committed  by  Mr Columbus was as the Judge noted “at the minor end of the scale”. It was apparently opportunistic or spontaneous because Mr Columbus wanted quick money. The mountain bike was later recovered. The owner suffered a natural sense of emotional violation and distress and limited financial loss. While we do not in any way diminish the effect on the victim, the circumstances of the burglary would not themselves justify a starting point of more than one years imprisonment.

[17] The Judge was entitled to adjust the starting point upwards by applying the totality principle. Mr Columbus committed multiple offences shortly after the burglary. His theft of petrol and a lawnmower, and possession of a cannabis pipe and leaf, though minor in themselves, were committed while on bail. That component would justify adding another six months imprisonment to the starting point.

[18] A further increase is appropriate to recognise Mr Columbus’ previous dishonesty offences. He was 35 years of age when he committed these offences. Ms Edwards for the Crown advises that he had 89 previous convictions, of which 13 were for burglary and another 34 for property related offences. He has been sentenced to imprisonment on 15 occasions since 1989, most recently for two years for burglary and related offences in January 2003.

[19] The nature and extent of Mr Columbus’ dishonesty history relates directly to his burglary. Previous sentences of imprisonment have not served to deter Mr Columbus. The community requires continued protection from him. However, it is relevant that Mr Columbus’ offending was of a spontaneous nature and his habitual or recidivist tendencies do not suggest a professional disposition to burglary, although they still reflect a significant degree of culpability. His history shows a risk of re-offending at the same reasonably minor end of the scale that characterised this crime. That is the risk of prevention to which past offending is relevant.

(emphasis added)

[13]     A person who has accumulated some 59 prior convictions, most of which involve various types of dishonesty, requires the imposition of a significant uplift to reflect prior offending.   In this particular case, a relatively lenient approach could have seen a starting point of two years six months taken for the actual offending with a one year uplift for aggravating factors.  That would have resulted in a total starting point of three years six months imprisonment, the precise starting point used by the Judge.

[14]    When one factors in the generous credit for mitigating factors that went considerably beyond what the Judge could have allowed in terms of  Hessell, it cannot be said that the sentence is clearly excessive.   Nor, taking that approach, could it be said that there was any double counting of the type against which the

Court of Appeal warned sentencing Judges to guard, in Columbus.10    The end sentence of two years and six months imprisonment can properly be seen as an appropriate sentencing response to the totality of Mr Duncan’s offending.

Result

[15]     For those reasons, the appeal against sentence is dismissed.

P R Heath J

Delivered at 3.45pm on 10 May 2013.

10     Ibid, at para [15], set out at para [12] above.