Durbin v Police
[2023] NZHC 2450
•1 September 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-112
[2023] NZHC 2450
BETWEEN BENJAMIN JOHN DURBIN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 31 August 2023 Counsel:
H L Beaven and O K Jarvis for Appellant G E R Alloway for Respondent
Judgment:
1 September 2023
JUDGMENT OF CHURCHMAN J
Introduction
[1] Benjamin Durbin, aged 42, appeals his sentence of three years’ imprisonment in respect of two charges of driving whilst disqualified, third or subsequent, to which he pleaded guilty.
[2]Judge Couch, in the Christchurch District Court convicted him of:1
(a)two counts of driving whilst disqualified, third or subsequent;2
1 Police v Durbin [2023] NZDC 11674.
2 Land Transport Act 1998, s 32(1)(a) and (4). The maximum penalty is two years’ imprisonment or a fine not exceeding $6,000.
BENJAMIN DURBIN v NEW ZEALAND POLICE [2023] NZHC 2450 [1 September 2023]
(b)two counts of obtaining by deception under $500;3
(c)five counts of theft of goods valued between $500 and $1000;4
(d)14 counts of theft under $500;5
(e)one count of possession of a cannabis plant;6
(f)one count of possession of methamphetamine;7 and
(g)one count of possession of methamphetamine utensils.8
Background
The offending
Driving whilst disqualified
[3] The District Court disqualified Mr Durbin from driving for two years from 16 February 2021. Mr Durbin drove on 27 April and 30 May 2022. He was convicted of two counts of driving whilst disqualified, third or subsequent, because he had a history of similar offending.
[4] In April 2022, he was towing a loaded tandem trailer which only had three wheels. The singular wheel on one side came off the trailer and collided with two oncoming cars.
[5] In May 2022, he was stopped by Police for using a mobile phone whilst driving.
3 Crimes Act 1961, ss 240(1)(a) and 241(c). The maximum penalty is three months’ imprisonment.
4 Section 223(c). The maximum penalty is one year imprisonment.
5 Sections 219 and 223(d). The maximum penalty is three months’ imprisonment.
6 Misuse of Drugs Act 1975, s 7(1)(a) and (2). The maximum penalty is three months’ imprisonment or a fine not exceeding $500.
7 Section 7(1)(a) and (2). The maximum penalty is six months’ imprisonment and a fine not exceeding $1,000.
8 Section 13(1)(a) and (3). The maximum penalty is one year imprisonment and a fine not exceeding
$500.
Obtaining by deception
[6] On 11 July 2022, the appellant advertised firewood for sale on Facebook Marketplace. The victim transferred $360 for the firewood into the appellant’s account but the appellant did not deliver the firewood as agreed or refund the victim’s money. The appellant repeated this deception to a second victim on 13 July 2022. He was convicted of two counts of obtaining by deception.
Theft and shoplifting
[7] On 1 November 2022, the appellant stole grocery items valued at $110.80 from Countdown supermarket in Hornby, Christchurch.
[8] On 2 November 2022, the appellant stole grocery items valued at $180.90 from Countdown supermarket on Moorhouse Avenue in Christchurch.
[9] On 3 November 2022, he stole grocery items valued at $388.68 from the same Moorhouse Avenue Countdown supermarket.
[10] On 4 November 2022, the appellant left the Pak n Save supermarket on Moorhouse Avenue, Christchurch without paying for a can of beer valued at $4.99. Later that day, he stole grocery items valued at $498.80 from the same supermarket.
[11] On 15 November 2022, the appellant stole grocery items valued at $395.18 from the New World supermarket in Marshlands, Christchurch.
[12] On 21 November 2022, the appellant stole grocery items valued at $268.09 from the New World supermarket in St Martins, Christchurch.
[13] On 22 November 2022, the appellant stole liquor valued at $110.52 from the New World supermarket in Ilam, Christchurch.
[14] On 28 November 2022, the appellant stole grocery items valued at $342.40 from the Countdown supermarket in Avonhead, Christchurch. On 1 December 2022, the appellant stole grocery items valued at $505.19 from the same supermarket.
[15] On 29 November 2022, the appellant stole grocery items valued at $426.98 from the Fresh Choice supermarket in Merivale, Christchurch.
[16] On 28 January 2023, the appellant stole grocery items valued at $49.99 from the Pak n Save supermarket in Riccarton, Christchurch.
[17] On 30 January 2023, the appellant stole $899.48 worth of items from the Mitre 10 Mega store in Ferrymead, Christchurch.
[18] On 31 January 2023, the appellant stole grocery items valued at $169.98 from the Pak n Save supermarket in Riccarton, Christchurch.
[19] On 2 February 2023, the appellant stole grocery items valued at $563.89 from the Countdown supermarket in Kaiapoi, Christchurch. On 9 February 2023, the appellant stole grocery items valued at $622.32 from the same supermarket.
[20] On 14 February 2023, the appellant stole items valued at $368.33 from the Mitre 10 Mega store in Ferrymead, Christchurch. He returned on 6 March 2023, stealing additional items valued at $79.98.
[21] On 19 March 2023, the appellant stole grocery items valued at $500 from the Fresh Choice supermarket in Parklands, Christchurch.
Possession of drugs and drug paraphernalia
[22] When the Police searched the appellant upon his arrest, he had a glass pipe commonly used for consuming methamphetamine in his pocket. He also had
0.09 grams of methamphetamine and 0.61 grams of cannabis in his pocket.
Criminal history
[23] As the District Court noted, the appellant has a history of criminal offending, beginning in 1999 and continuing through to the present offending. By the District Court’s count, he has 33 convictions for offences of dishonesty; 18 drug-related convictions; and numerous driving offences. The driving offences include 15 previous
convictions for driving while disqualified or suspended and 12 other driving-related offences.
Procedural history
[24] On 9 June 2032, Judge Couch sentenced Mr Durbin to three years’ imprisonment.
[25] The Judge regarded the driving whilst disqualified charges as the lead charges.9 The Judge regarded each of these charges as a separate offence unconnected with the other and adopted a separate starting point for each charge.10 The Judge took a starting point of 18 months’ imprisonment.11
[26]As regards the other charges, the Judge said:12
[9] Given the amounts of money involved, the two charges of obtaining by deception each have only a maximum penalty of three months’ imprisonment. The repetition of an identical method of offending, however, clearly indicates premeditation, and the amount involved in each case, while less than $500, was not trivial. For these two charges together, I take a starting point of three months’ imprisonment.
[10] I turn, then, to the thefts. Again, these were clearly premeditated and, as you admitted to police, were to get goods to sell for cash. This is consistent with the pattern of offending which I note included five separate thefts from supermarkets in four days, totalling $1,300 worth of goods. In total, you stole
$6,486.5 worth of goods over those 19 occasions. For the totality of your offending involved in the 19 charges, I take a starting point of 12 months’ imprisonment.
[11] The final three charges under the Misuse of Drugs Act are very much towards the low end of the scale and I apply an uplift of one month for them.
[27] The Judge therefore arrived at a combined starting point of four years and four months’ imprisonment.13 However, the Judge recognised the significant degree of overlap involved in the offending and reduced the starting point to 40 months’ imprisonment.
9 Police v Durbin, above n 1, at [6].
10 At [8].
11 At [8].
12 At [9]–[11].
13 At [12].
[28] The Judge considered there were two aggravating factors. The Judge applied a 10 per cent uplift because the two charges of driving while disqualified arose while the appellant was on bail. The Judge applied a further 10 per cent uplift in respect of the appellant’s criminal history.
[29] The Judge considered there were two mitigating factors. First, the appellant entered guilty pleas on all charges. The Judge applied a 25 per cent discount. Second, in respect of the dishonesty offending but not the lead offending, the appellant was motivated by his methamphetamine habit to offend in order to maintain his habit. Applying Zhang,14 the Judge applied a five per cent discount.
[30] The Judge arrived at an end sentence of 36 months’ imprisonment. The Judge applied the sentence as follows:15
(a)On each of the charges of driving whilst disqualified, third or subsequent, you will be sentenced to imprisonment for one year and six months. Those sentences will be cumulative.
(b)On each of the charges of theft between $500 and $1,000, you will be sentenced to three months’ imprisonment.
(c)On each of the other charges, except the possession of cannabis, you will be sentenced to imprisonment for one month.
(d)On the charge of possession of cannabis, you will be convicted and discharged.
(e)On each of the driving charges, you will be disqualified from holding or obtaining a driver licence for one year and six months from today.
(f)On CRN ending 6608, there will also be an order for confiscation of the Nissan motor vehicle (registration AHR764). That is confiscated pursuant to s 129 of the Sentencing Act. I note that you have told the Court that this vehicle has been stolen and it is no longer in your possession. That does not affect the operation of s 129. If the police are able to locate the vehicle, then it will be confiscated.
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
15 Police v Durbin, above n 1, at [20].
Submissions
For the appellant
[31] Ms Beaven, for the appellant, submits the end sentence was manifestly excessive and that the appellant should have received a shorter sentence of imprisonment. In particular, the starting point of 18 months’ imprisonment for each charge of driving while disqualified was submitted to be too high when compared to other cases for similar offending. The Judge applied insufficient discounts for addiction and personal background factors.
[32] Counsel notes there are two approaches the courts may take to assessing the starting point for recidivist disqualified driver offences. The Court may either refer to the index offending and then uplift for any prior offending,16 or it may consider the total combined effect of the driving while disqualified charges and the defendant’s recidivism.17 In this case, the District Court adopted the second approach, considering previous driving while disqualified convictions when setting the starting point.
[33] Counsel submits that because of the Court’s approach to setting the starting point, Mr Durbin was not fully informed of the extent to which his previous convictions were accounted for in his sentence. In any event, counsel submits the starting points were manifestly excessive, particularly when taken cumulatively.
[34] Counsel properly acknowledges that in this case the driving offences were temporally separated by approximately one month and this may appropriately attract a cumulative approach where the individual starting points frame the culpability of the offending. However, counsel submitted the cumulative starting point for the lead offending of 36 months fell outside of the available range, by reference to four cases which were submitted to be similar:
16 Peterson v Police [2009] BCL 223 (HC); and Keenan v Police [2014] NZHC 1894.
17 Maxwell v Police [2013] NZHC 3172; and Drinkwater v Police [2013] NZHC 1036.
(a)In O’Donnell v Police, the High Court found the starting point for an offender’s fifteenth conviction should be no more than 15 months’ imprisonment.18
(b)In Stacey v Police, the High Court upheld a starting point of 20 months’ imprisonment for the appellant’s twenty-first conviction.19
(c)In Brown v Police, the High Court adopted a starting point of 18 months’ imprisonment for three charges of driving while disqualified and other charge, which the appellant committed while serving a sentence for a previous driving conviction.20 Those three convictions were the appellant’s sixth, seventh and eight for that offence.
(d)In Wilson v Police, the appellant was sentenced on his thirteenth to sixteenth convictions for driving whilst disqualified, three of which were committed whilst on bail and subject to release conditions for similar offending.21 The High Court upheld a starting point of nine months’ imprisonment for each charge. The Court imposed the starting point cumulatively, which it noted was appropriate because the offences took place on separate occasion between September and February.22 The starting point encompassed the appellant’s previous convictions.
[35] The appellant seeks to adduce new evidence by way of a cultural report under s 27 of the Sentencing Act 2002. No such report was before the District Court. The reason for the commissioning of a s 27 report was that Mr Durbin shared information to his counsel after his sentencing about events in his childhood that may have contributed to his offending.
[36]Counsel refers to Mark v R, where the Court of Appeal said:23
18 O’Donnell v Police [2012] NZHC 997 at [16].
19 Stacey v Police [2018] NZHC 3280.
20 Brown v Police [2017] NZHC 1039.
21 Wilson v Police [2016] NZHC 506.
22 At [19].
23 Mark v R [2019] NZCA 121 at [16].
[16] The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
[37] Counsel accepts that the evidence is not fresh because it could have been obtained before sentencing but submits it is credible, cogent and will assist this Court on appeal because it shows a causal connection between Mr Durbin’s background circumstances and his offending.
[38] Counsel submits the Judge applied an insufficient discount for the factors outlined in the Provision of Advice to Courts (PAC) report. The PAC report describes how the appellant’s offending was influenced by his methamphetamine use, and subsequent addiction, which caused a fast descent into criminal behaviour. Counsel refers to Zhang which found that offending committed under the influence of a methamphetamine addiction, when that addiction is causative of the offending, can justify discounts of up to 30 per cent.
[39] Counsel notes the appellant’s background factors include cultural and economic deprivation. Applying Berkland v R, counsel says these background factors have a demonstrated nexus to the offending which reduce the appellant’s culpability.24 The cultural report notes the appellant was sexually assaulted as a child. His sexual abuse has had lasting repercussions on his decision-making. It details that there is a strong link between childhood sexual abuse and future alcohol and substance use. Counsel submits the appellant’s sentence should have been discounted by between 15 and 20 per cent for his addiction and personal background factors.
24 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
For the respondent
[40] Mr Alloway, for the respondent, submits the cumulative sentence for driving while disqualified was appropriate because the two offences were not a connected series of events.
[41] Counsel refers to Hingaia v Police where the appellant was sentenced according to two cumulative starting points for two offences of driving whilst disqualified on two separate days.25 The cumulative starting point was 21 months’ imprisonment. The High Court dismissed an argument on appeal that the sentencing Judge had not accounted for the totality principle because the cumulative starting point was close to the maximum sentence, noting there were two separate events of driving whilst disqualified.
[42] Counsel also refers to R v Borland where the High Court imposed a cumulative sentence for two charges of driving while disqualified.26 The appellant faced other charges arising from the first incident of driving while disqualified, and just the driving charge in the second incident.
[43] Counsel submits the 18-month starting point for each driving offence was within range when considering the appellant was appearing for his 16th and 17th convictions for driving while disqualified, that the offending involved poor driving, and two similar cases. In Stacey v Police, the appellant appealed his sentence for his 21st conviction of driving while disqualified, the High Court upheld a starting point of 18 months’ imprisonment, noting it was within range.27 Garlick v Police, the appellant appeared on his 18th conviction for driving while disqualified, and the High Court upheld a starting point of 20 months’ imprisonment.28
[44] The respondent opposes the appellant’s application to adduce the s 27 cultural report on appeal. Counsel notes the evidence is not fresh because it could have been obtained in advance of sentencing and submits that it is not cogent because the report
25 Hingaia v Police HC Auckland AP/124/99, 13 August 1999.
26 R v Borland HC Christchurch CRI-2007-009-1461, 8 November 2007.
27 Stacey v Police, above n 19.
28 Garlick v Police [2016] NZHC 572.
only provides insight into the appellant’s drug addiction. Evidence of his addiction is already before the Court.
[45] As regards the mitigating factors, counsel submits that the dishonesty offences only accounted for 15 months’ imprisonment of a 52-month starting point of imprisonment, or 25 per cent of the total starting point. A five per cent discount in that circumstance was adequate.
[46] In the respondent’s view, the sentence was within range and the Court should dismiss the appeal.
Relevant law
Approach to sentencing
[47] The appellant’s right of first appeal against his sentence is under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against the Judge’s discretion. Under s 250 of the Criminal Procedure Act, the appeal court must allow the appeal if it is satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[48] Despite the statute making no express reference to “manifestly excessive”, this principle is well-established in the court’s approach to sentence appeals.29 An appeal court must not tinker with the end sentence if the end sentence is within range30 as it must be shown that the sentence was manifestly excessive or wrong in principle.31 The focus is more upon the end sentence than the process by which the Judge reached that end sentence.
29 Ripia v R [2011] NZCA 101 at [15].
30 At [15].
31 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
[49] In Moses v R, the Court of Appeal introduced a general two-step approach to sentencing.32
[50] The first step requires the Court to calculate the starting point incorporating the aggravating and mitigating factors of the offence, considering consistency between similar offending.
[51] At the second step, the starting point is then adjusted to incorporate the aggravating and mitigating factors personal to the offender, including any guilty plea discount. The end sentence should reflect the totality of the offending and, barring other considerations, be the least restrictive outcome that is appropriate in the circumstances.
Analysis
Sentencing test: stage one
[52] Having considered the precedent cases referred to by both parties and the seriousness of the offending, I conclude the District Court’s cumulative adjusted starting point of 40 months’ imprisonment (three years and four months’ imprisonment) was appropriate. This starting point is within range. I note the original starting point was reduced to avoid double-counting the overlapping offences. This starting point reflects the fact that the appellant has 15 previous offences for driving while disqualified.
Sentencing test: stage two
[53] I accept the District Court’s conclusion that two aggravating factors were present here. First, the offending occurred when the appellant was on bail for previous offending. Secondly, he has an extensive, 24-year criminal history with high degrees of recidivism for driving offences, dishonesty offences, and shoplifting and other theft.
[54]Mr Durbin was entitled to the full 25 per cent discount for entering guilty pleas.
32 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[55] As regards personal background factors, I note that although it is general practice not to submit s 27 reports for the first time on appeal,33 in Clarke v R, the Court of Appeal admitted a s 27 report for the first time.34 There had been uncertainty between the parties as to which party was ordering the report. The Court found that, against the “somewhat unusual background circumstances”, the report was “clearly relevant” to the issues on appeal, and it was “in the interests of justice to admit the report.”35 The question is whether a similarly unusual background is present in this appeal. Mr Durbin had not disclosed the information about his childhood sexual abuse at sentencing — he provided details to his counsel afterwards. It is submitted that, without this knowledge, counsel would not have had a basis for obtaining a cultural report any sooner than in between sentencing and this appeal.
[56] There is no dispute that the report is not fresh evidence given counsel for the appellant, with reasonable diligence, could have obtained a report and submitted it in evidence before sentencing.36 I find the cultural report is not credible and cogent in relation to the issues raised in this appeal.37 It was argued that its particular relevance arises because the report explains the link between the appellant’s background and personal circumstances, and his offending. However, the fact that the appellant was addicted to methamphetamine and, as a result of a relapse into drug use, had descended rapidly into criminal behaviour, was clearly known to the District Court.
[57] The cultural report states that Mr Durbin was the victim of grooming and sexual offending when he was aged approximately seven.
[58] The report writer refers to research suggesting there are strong links between childhood sexual abuse and future alcohol and substantive abuse. But the report does not examine in any detailed way the connection between childhood sexual abuse and the offences for which the appellant was sentenced. The lead offences are the two driving while disqualified offences. There is no obvious connection between these offences and childhood sexual abuse.
33 Carroll v R [2019] NZCA 172 at [8].
34 Clarke v R [2021] NZCA 96 at [14].
35 At [16].
36 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120] and [124]–[125].
37 Clarke v R, above n 34, at [14].
[59] The judge did acknowledge that there was some causative connection between the dishonesty offending and the appellant’s drug addiction in that, while some of that offending was for the purpose of obtaining funds to keep the appellant’s firewood supply business afloat, some was to get money to buy drugs to feed his addiction.38 The judge allowed a five per cent discount from the starting point. As counsel for the respondent notes, given that the dishonesty offences only accounted for 25 per cent of the starting point, a five per cent reduction in the overall starting point was generous.
Outcome
[60]Because the s 27 report is not fresh or cogent in relation to the issues on appeal,
I decline to admit it.
[61] The end sentence arrived at was within range. The judge made an appropriate allowance for personal factors. There is no basis to disturb the decision.
[62]The appeal is dismissed.
Churchman J
Solicitors:
Public Defence Service, Christchurch for Appellant Crown Solicitor, Christchurch for Respondent
38 Police v Durban above n 1 at [19].
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