Duxfield v Police

[2015] NZHC 3018

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000036 [2015] NZHC 3018

BETWEEN

MICHAEL JAMES CYRIL DUXFIELD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 November 2015
Appearances:	S Saunderson-Warner for the Appellant R Bates for the Crown
Judgment:	1 December 2015

JUDGMENT OF NATION J

[1]      On 16 July 2015, Mr Duxfield was sentenced to two years’ imprisonment and disqualified from driving for two years after pleading guilty to unlawfully taking a motor vehicle, theft and driving while disqualified.1    He has appealed an effective sentence of two years’ imprisonment.

[2]      Mr Duxfield was late in filing his notice of appeal.   He explained in his notice appeal that this was because of his initially sending the notice of appeal to Legal Aid.  He then sent a further notice of appeal to his original lawyer rather than the Court and then experienced delays in his arranging for a lawyer in Dunedin to assist him.  The Crown does not oppose the application for leave to file the appeal out of time.  There is no suggestion of prejudice.  I accordingly grant leave and deal

with the appeal on its merits.

1      Police v Duxfield [2015] NZDC 13965.

Approach on appeal

[3]      This appeal can succeed and I can vary the sentence imposed only if I am satisfied there was, firstly, an error in the sentence imposed and, secondly, that a different sentence ought to be imposed.2    I should not change the sentence unless I am satisfied that it was manifestly excessive.

The facts

[4]      On  30  March  2015,  Mr  Duxfield  was  driven  by  an  associate  to  the Tournament carpark building in Marion Street, Wellington.  Mr Duxfield used a tool to punch the lock on the driver’s door to gain access to a Suzuki Vitara motor vehicle parked in the building.  He then took from that vehicle Olympus and Nikon cameras worth around $7,500.

[5]      At about 12.00 pm on 3 April 2015, Mr Duxfield went to the carpark outside the Michael Fowler Centre in Wellington.   He used a screwdriver to pry open the driver’s side window and opened the vehicle’s door locks.  Once inside the vehicle, he used the screwdriver to remove the ignition barrel, started the vehicle and drove away in it. A short time later, after the vehicle had been reported stolen, Mr Duxfield was stopped by police in Wellington.  At this time, he was disqualified from driving until 4 June 2015.

[6]      While he had the Subaru, Mr Duxfield went to the Lombard carpark building on Bond Street, Wellington. There he used a tool to force the front left door-lock and gain access to a “Mini” campervan parked in that building.  The vehicle had been rented by tourists from the United Kingdom.   Mr Duxfield took from that vehicle three backpacks, a cooler bag, a Kindle e-reader and a quantity of alcohol.   The backpacks contained the personal items of the victims, such as clothing, wallets, toiletries and travel documents, valued at approximately $500.  The items taken were found by the police in the boot of the Subaru except for two bottles of beer which were on the front passenger seat and one bottle which Mr Duxfield was consuming

when stopped by the police.  The property taken was returned to the tourists.  The

2      Criminal Procedure Act 2011, s 250.

Subaru motor vehicle required extensive repairs to its ignition system but could be returned to its owner.

Sentencing in the District Court

[7]      Judge Crosbie noted that there were no guideline decisions for sentences for unlawfully taking a motor vehicle or thefts.  He had noted the maximum penalty for the theft in  respect of  the cameras  was  seven  years, in respect  of the personal property worth around $500 was three months, and for unlawfully taking a motor vehicle was seven years.

[8]      The Judge noted that, in accordance with the judgment of R v Taueki, he had to take into account the totality principle to arrive at a sentence which he considered appropriate when looking at the matter from an overall point of view.3

[9]      The Judge referred to the premeditated nature of the offending, as indicated by  the  similar  modus  operandi  in  the  way  Mr  Duxfield  targeted  and  accessed vehicles in car parks.  He noted the potential for both the taking of the vehicle and the taking of property from the vehicles to seriously disrupt the lives of the owners of both the vehicles and property.   The Judge referred to the way the taking of property that had belonged to holiday-makers or tourists had the potential to affect New Zealand’s reputation as a tourist destination but also noted the tourists had been fortunate to get their property back.

[10]     He considered the starting point for the theft involving $7,500 of camera equipment from a car should be twelve months’ imprisonment and for the unlawful taking of a motor vehicle the starting point should be 18 months cumulative.  With a starting point of two years and six months’ imprisonment for those two charges, the Judge did not consider that there should be any uplift for the driving while disqualified and theft of the tourists’ property from their car.  His starting point for

all offences was thus two years and six months.

3      R v Taueki [2005] 3 NZLR 372 (CA).

[11]   The Judge then referred to Mr Duxfield’s 112 previous convictions for dishonesty.  He uplifted the starting point by a further six months on account of that criminal offending, bringing him to a starting point of three years’ imprisonment but then  adjusted  that  to  two  years  and  nine  months  having  regard  to  the  totality principle.  Judge Crosbie gave Mr Duxfield a 25 per cent credit for guilty pleas and remorse.   Strictly, that would have led to a little over two years.   He rounded the sentence down to two years.

[12]     Judge Crosbie did not consider home detention was appropriate given the need to focus on deterrence and denunciation of Mr Duxfield’s conduct in fixing the sentence. There is no appeal against his decision in that regard.

[13]     The Judge noted that the minimum period of disqualification was one year and one day because Mr Duxfield had three previous convictions for driving while disqualified.  He imposed a two year period of disqualification because Mr Duxfield was liable to disqualification, not just for driving while disqualified, but also because he had driven a car in association with unlawfully taking the Subaru and then using that car when committing the theft from the tourists car.

Submissions for the appellant

[14]     Ms Saunderson-Warner, for Mr Duxfield, submitted that the overall sentence was manifestly excessive because the starting point for the unlawful taking of a motor vehicle at 18 months was manifestly excessive.  She submitted that, given the totality principle, the starting point for all offending should not have exceeded two years’ imprisonment.  She submitted that the Judge’s adjustments on account of the totality principle and for guilty pleas were appropriate but should have been applied proportionately to a lesser starting point.  On that basis, she suggested that, with an uplift for his previous criminal offending, the starting point should have been two years and four and a half months (28.5 months), that there should have still been a reduction of three months for the totality principle, reducing the starting point to 25.5 months on which there should have been the 25 per cent credit for guilty pleas.  In her submission, the appropriate sentence was therefore a little over 18 months.

Submissions for the police

[15]     Mr Bates submitted that there was no error in the approach the Judge had taken and the overall sentence was lenient given there had been no additional uplift with regard to the theft of the tourists’ property or the driving while disqualified.

Discussion

[16]     Ms Saunderson-Warner’s submission as to an error in the starting point which the Judge adopted was based very much on the approach which the Court of Appeal had taken in Singh v R.4   Mr Singh had pleaded guilty to four counts of unlawfully taking motor vehicles, including three from parking buildings, and three charges of theft.  On one of those charges, the maximum sentence was one year’s imprisonment and on another it was three months’ imprisonment.  One other charge included the

theft of a security camera from a car park.   As with Mr Duxfield, the maximum sentence for that theft was seven years’ imprisonment.  Mr Singh also faced a charge of driving while disqualified.   Taking into account the totality of the dishonesty offending, the sentencing Judge had adopted a starting point of two and a half years’ imprisonment.    He  then  added  nine  months  for  an  “appalling”  prior  history of offending comparable to Mr Duxfield’s, and then allowed a discount of 20 per cent for early guilty pleas resulting in a total end sentence of two years and nine months.

[17]     The Court of Appeal reduced that sentence by three months because it had a concern that there had been an element of double counting in adopting a starting point of two and a half years and then adding nine months for Mr Singh’s previous criminal record.  The Court of Appeal said earlier in its judgment that it was “not persuaded that the starting point adopted by the Judge, was, in itself, outside the

available range, though we consider that it was near the top of that range”.5   The end

sentence in that case imposed by the Court of Appeal was two  years and four months, which is obviously more than was imposed on Mr Duxfield.

4      Singh v R [2011] NZCA 139.

5 At [11].

[18]     Ms Saunderson-Warner also referred to the case of Affleck v R.6   Gendall J, in the High Court, held that a starting point of two years’ imprisonment was within range for the lead offending of unlawfully taking a courier van and the theft of packages from inside the van.  Ms Saunderson-Warner submitted that starting point was appropriate where there were particular aggravating circumstances relating to the offending in that the vehicle taken was a commercial vehicle with the potential for a significant gain from theft of its contents.

[19]     I do not consider the adoption of a starting point of two years and six months for Mr Duxfield’s offending was inconsistent with Gendall J’s approach in Affleck v R.  There were aggravating features relating to the offending in Affleck but there was an aggravating feature relating to Mr Duxfield’s offending, namely his targeting of vehicles, similar modus operandi and premeditation.  I also agree with Gendall J’s logic in comparing the taking and thefts to the guidelines which the Court of Appeal has provided in relation to burglary offending.  It is necessary to acknowledge that the maximum sentence for burglary is ten years’ imprisonment compared to the seven years for the unlawful taking of a vehicle or theft of items worth more than

$1,000.  However, given the dishonesty involved in the breaking into and taking of a vehicle, breaking into and theft of items from a vehicle and the personal connection between the owner and user of a vehicle and their vehicle, that sort of offending does sit appropriately at the upper end of the range identified in R v Arahanga (of 18 months to two and a half years for a low end residential burglary).7    This was the

observation which Gendall J made in relation to the offending in Affleck.8

[20]     Counsel referred to Gendall J’s judgment in Muir v Police.9    In allowing an appeal, Gendall J said a starting point for lead offending of the taking of motor vehicle should have been 15 months.  The taking arose out of Mr Muir being trusted to test drive a vehicle from a car yard but then keeping it for several days and taking it from Christchurch to Greymouth.  He had caused $1,300 in damage and had no

intention of returning the vehicle.  Significantly, Gendall J considered that starting

6      Affleck v R [2015] NZHC 1741.

7      Arahanga v R [2012] NZCA 480.

8      Affleck v R, above n 6, at [24].

9      Muir v Police [2015] NZHC 1425.

point to be appropriate for “a single offence involving dishonesty”, in contrast to the situation in the cases of Singh v R and Hollingshead v Police.10

[21]     Ms Saunderson-Warner also referred me to judgments of the High Court in O’Sullivan v Police and Gideon v Police.11   The circumstances in those cases are not sufficiently similar for the observations as to the starting points for unlawful taking offences  to  be of  much  assistance  to  me on  this  appeal.    I have,  nevertheless, considered what was said in the High Court in those cases, both with regard to appropriate starting points and, as importantly, the end sentence that was imposed.

[22]     The judgment of Venning J in Hollingshead v Police is of some assistance to me.   Mr Hollingshead had broken the window of a Holden Commodore but was apprehended before he could steal the car, stole a digital thermometer valued at $700 from the victim’s work vehicle, broke into a Mercedes Benz motor-home valued at

$100,000 and drove it away, stole a Toyota car valued at $25,000 and on three separate occasions broke into vehicles and took property valued at $250, $600 and

$2,200.   The offending occurred between September 2012 and March 2013.   The Judge adopted a starting point of imprisonment of three years before uplift for 308 previous convictions of which 94 involved dishonesty.   Venning J considered the offending  was  similar  to  that  in  Singh  v  R.    On  that  basis,  he  considered  an appropriate starting point for the totality of the offending was two and a half years. Venning J, however, did not change the end sentence because, having regard to all aggravating features relating to the offending, including Mr Hollingshead’s previous criminal history with an appropriate discount for guilty pleas, the end sentence of two years and eight months was within range and was not manifestly excessive.

[23]     The effect of Judge Crosbie’s sentencing in this instance was to adopt a starting point of two years’ imprisonment for the premeditated targeting, breaking into and unlawful taking of a motor vehicle, the targeted and deliberate breaking into of a vehicle and theft from it of cameras worth $7,500 and a separate breaking into a vehicle and theft from it of personal items.  Those items were given a cash value of

around $500 but would obviously have been of considerable personal value and

10     At [23], citing Singh v R, above n 4, and Hollingshead v Police [2014] NZHC 1131.

11     O’Sullivan v Police [2015] NZHC 2032; Gideon v Police [2014] NZHC 1065.

importance to the owners.  The starting point was also adopted having regard to the offence of driving while disqualified.  In the context of all that offending, I do not consider a starting point of two years was excessive.

[24]     Given Mr Duxfield’s extensive criminal history and, in particular, his  76 convictions for unlawful taking of and interference with vehicles and theft, the uplift for his criminal offending could have been higher than the six months which the Judge arrived at.  That offending was obviously similar in nature to the offending which Judge Crosbie was concerned with.   His history indicated that Mr Duxfield had continued to offend in a way which had become habitual to him and which he had become adept at.  This meant that the focus on deterrence and denunciation was justified.  Judge Crosbie gave Mr Duxfield credit for a full 25 per cent for his guilty pleas.  Again, that could be considered generous given he obviously had no defence to the charges.

[25]     As  Ms  Saunderson-Warner  acknowledges,  I  must  focus  on  the  overall sentencing and the end point sentence.12

Conclusion

[26]     I am not persuaded that there was any error in the sentencing or that a difference sentence should have been imposed. The appeal is accordingly dismissed.

[27]     I have read the letter which Mr Duxfield provided to the District Court.  In that letter, Mr Duxfield acknowledged his history of criminal offending but said he had decided to change and wants to put effort into changing his ways.  Mr Duxfield will have the opportunity to achieve this change and to prove he meant what he said when he is released from his current prison sentence.

Solicitors:

S Saunderson-Warner, Dunedin

R P Bates, Dunedin.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.