Edwards v Police HC Auckland CRI 2010-404-103

[2010] NZHC 693

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000103

BETWEEN  DANTON DAVID PIRI PIA JNR EDWARDS

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 May 2010

Appearances: L Smith for Appellant

K Mills for Crown

Judgment:      11 May 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Public Defence Service, Auckland

EDWARDS V NEW ZEALAND POLICE HC AK CRI-2010-404-000103  11 May 2010

Introduction

[1]      The appellant appeals against a sentence imposed on him by Judge Gibson in the District Court at Manukau on 25 March this year.  On that day he was sentenced to imprisonment for a total of 23 months.  The sentence was made up as follows.  On a charge of unlawfully taking a motor vehicle he was sentenced to 18 months’ imprisonment.  He was also sentenced on charges of driving in a dangerous manner, driving whilst disqualified and unlawfully interfering with a motor vehicle for which he received concurrent terms of imprisonment.   In addition to the sentence of 18 months’ imprisonment he was sentenced to a cumulative term of five months imprisonment on a charge of breaching conditions of home detention.

[2]      He appeals against sentence on the basis the end sentence of 18 months’ imprisonment for unlawfully taking a motor vehicle and the other charges for which he was sentenced to concurrent sentences on, was manifestly excessive.  He does not challenge the sentence of five months’ imprisonment cumulative for breach of the home detention conditions.

Background

[3]      On 4 September 2009 the appellant was convicted on a number of charges and sentenced to a term of five months’ home detention.  A condition of his home detention order was that he not associate with a Ms Paiana Thompson.  He was also at that time suspended from driving for a period of two years.

[4]      On  19  November  2009  a  Subaru  Impreza  motor  car  was  stolen  from Manukau Road in One Tree Hill. The next day the appellant was located by the police in the car with two associates, one of whom was Ms Paiana Thompson.  The car was stopped and the appellant was spoken to.  As the police were speaking to him he accelerated away from the police, heading towards Papatoetoe.  The appellant weaved through traffic and crossed the centre line on several occasions, travelling on the wrong side of the road at speeds estimated between 120 and 130 kilometres an hour.  At the intersection of Puhinui Road and State Highway 20 the appellant turned

right and drove the wrong way up northbound off-ramp at speed.   Other vehicles were exiting the highway on the off-ramp causing him to perform a sudden u-turn and travel back the way he had come.  In doing so he careered off the road and onto a grassed area at the side of the road.   He then travelled directly across the road, crossing over the raised centre traffic island, before turning right, and continuing to drive at high speed on the road.  Again he weaved in and out of traffic, and drove on the wrong side of the road in an attempt to avoid the police pursuit.  He drove at no less than 100 kilometres an hour on a road where the speed limit is 50 kilometres an hour.  A number of other vehicles on the road were forced to take evasive action.

[5]      The appellant continued to drive in this way until turning into an address at Vigo Place in Papatoetoe.  He abandoned the vehicle at the rear of that property and was located soon after by the police.  When spoken to he denied he had been driving the vehicle and gave false particulars.

[6]      As a result of inquiries the police also charged the appellant with interfering with a motor vehicle that had been taken outside the North Shore Hospital in Takapuna on 26 July 2009 before his previous offending had been dealt with.

[7]      In sentencing the appellant Judge Gibson noted the appellant was only 18 years old but had a long history of appearances before the Youth Court and had previous appearances in the District Court.  The Judge felt compelled to impose a sentence of imprisonment.  The Judge took as a start point for the offending before him, apart from the breach of home detention, a term of imprisonment of two years. That  start  point  took  into  account  the  totality  of  the  offending  and  also  the aggravating features of the appellant’s previous bad record and that the offending occurred whilst the appellant was serving a sentence of home detention.

[8]      The Judge then gave a credit for a guilty plea of one-third and said he was sentencing the appellant to 18 months’ imprisonment.  I observe here that the Crown accepts that it appears the Judge made an arithmetical miscalculation.  A one-third discount from the two years’ start point would lead to an end sentence for that offending of 16 months’ imprisonment.  On the home detention breach, as noted, the

Judge imposed a further five months’ imprisonment cumulative.  The appellant was also disqualified for a further period of time.

[9]      As I note the appeal against sentence is advanced on the basis that the 18 months’ sentence for the current offending was manifestly excessive.

Appellant’s submissions

[10]     In her thoughtful submissions Ms Smith submitted that taking into account the aggravating and mitigating factors in relation to the offending an appropriate start point  would  have  been  18  months’  imprisonment  as  opposed  to  the  two  years adopted by the Judge.

[11]     Ms  Smith  acknowledged  the  aggravating features  that  the  offending  was committed whilst the appellant was subject to a sentence and also that the Court was entitled to take account of the previous notations in the Youth Court which showed a predilection for committing a particular type of offence.

[12]     Nevertheless, Ms Smith submitted that as there was no tariff or guideline judgment, each case must turn on its facts, having regard to the purposes and principles of the Sentencing Act.  Having regard to the cases referred to in the Crown submissions of Jackson v Police[1]  and Castle v Police[2]  and the cases cited therein, she submitted a start point, before allowance for mitigating factors personal to the appellant, would have been 18 months leading to an end sentence for the current

offending of something in the region of 12 months.  On that analysis she submitted that  the  16  months,  even  accepting  the  Crown’s  concession,  was  manifestly excessive.

Respondent’s submissions

[1] Jackson v New Zealand Police HC Wellington CRI-2007-485-000062, 20 August 2007.\

[2] Castle v Police HC New Plymouth AP32/02, 14 August 2002.

[13]     For the Crown, Ms Mills submitted that the start point of two years was open to the Judge having regard to the particular offending in this case, the totality of the offending overall and the aggravating features personal to the appellant.

Decision

[14]     As counsel have identified, there is no tariff for this type of offending, which is relatively common offending.  There are not very many cases in this Court that deal with the issues the Court has to consider this morning because the charge of unlawfully taking a motor vehicle is often associated with other offending such as burglary.  It is not often a lead offence.

[15]     Counsel did identify two cases which are of some assistance to the Court.  In the case of Jackson Mr Jackson appealed against a sentence of 12 months’ imprisonment on a charge of dishonestly getting into a car and one charge of theft. In the course of decision on the appeal Mallon J referred to other authorities dealing with similar offending such as Kanara v Police[3];  Prasad v Police[4];  Hall v Police[5] and Castle.

[3] Kanara v Police HC Auckland CRI-2006-404-000383, 8 December 2006.

[4] Prasad v Police HC Napier AP 50-01, 13 December 2001.

[5] Hall v Police HC Christchurch CRI-2003-409-000097, 18 December 2003.

[16]     Ultimately, in the case of Jackson Mallon J did not consider the 12 months’

imprisonment fixed in that case was manifestly excessive.

[17]     The case of Jackson can be distinguished on the basis that the charge was one of dishonestly getting into a car.   The maximum term of imprisonment was two years.  In the present case the offending is unlawfully taking a vehicle, which carries a maximum sentence of seven years.  In terms of the purposes and principles of the Sentencing Act Parliament has determined that the charge the appellant pleaded guilty to, is to be regarded more seriously.   However, the circumstances of the offending  in  Jackson’s  case  were  not,  at  least  in  relation  to  the  dishonestly

interfering with the car, markedly dissimilar to the present.  That case also involved interfering with the car’s ignition to make it accessible and available for use.

[18]     In my judgment a start point for the unlawfully taking in the present case could support a start point for that offending of 15 months.  There then must be an uplift for the totality of the offending, including the earlier getting into a motor vehicle, although I note that pre-dated the previous offending for which the appellant had  been  sentenced  and  I  would  not  uplift  much  for  that.    The  more  serious offending was the associated driving in this case and the fact the appellant was driving whilst disqualified   An uplift for that of about three months would be available to the Judge leading to a sentence of 18 months for a start point for the offending itself before taking account of aggravating and mitigating factors personal to the appellant.  The appellant then has to accept that in the present case there are serious personal aggravating features.   It is significant that the offending occurred whilst the appellant was subject to a sentence of home detention and had served only about a half of the five month sentence.  He was also in breach of an express order requiring him not to associate with the person he was found it.  To aggravate matters the appellant was driving when he was subject to a disqualification, although that of course is a separate offence.

[19]     The other personal aggravating feature in relation to the appellant arises from his previous convictions in the District Court and previous notations in the Youth Court.  Those show that this young man has a propensity for offending by taking and unlawfully interfering with motor vehicles.   For a person so young he has a substantial number of notations.

[20]     Given those personal aggravating features a personal uplift of six months could be supported leading to the start point of two years adopted by the Judge.

[21]     No issue is taken with the Judge’s allowance of one-third discount for the guilty plea.  In my judgment that gives full credit for any remorse expressed by the appellant.

[22]     I also accept Ms Mills’ submission that in this case while he is a young offender his previous record is such that there is a limited extent to which the Court can take youth into account in his case.  There is no further deduction required for that in this case.

Result

[23]     It follows that while the end sentence of 16 months might be regarded as towards the higher end of the scale it is certainly within range that was available to the sentencing Judge.   It cannot be described as manifestly excessive in all the circumstances of this case.

Result

[24]     The result is that the appeal against sentence is allowed in that the sentence of

18 months’ imprisonment is quashed and replaced with the sentence of 16 months imprisonment on the charge of unlawfully taking a motor vehicle (as the Judge intended).   I also make an adjustment in relation to the driving whilst disqualified charge where the Judge imposed a sentence of four months’ imprisonment when, on the charge before the Court, the maximum was three months.  That is to be served concurrently.

[25]     There is no change or effect on the cumulative sentence in relation to home detention so that the effect of the total sentence, taking into account the cumulative

sentence, is 21 months.

Venning J