Epere v Police

[2019] NZHC 336

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-420

[2019] NZHC 336

BETWEEN

TEUA EPERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 March 2019

Appearances:

K S Holden for Appellant

B Charmley for Respondent

Judgment:

5 March 2019

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 5 March 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

EPERE v NEW ZEALAND POLICE [2019] NZHC 336 [5 March 2019]

[1]    Mr Epere pleaded guilty in the District Court to 18 charges involving different types of offending. On 20 November 2018 Judge Cocurullo sentenced him to an effective term of 18 months imprisonment.1 He appeals against sentence on the basis that the Judge erred in applying uplifts to the initial starting point for the sentence, and this led to an end sentence that was too high. He also argues the Judge ought to have converted the sentence to one of home detention.

Background

[2]Mr Epere was sentenced on the following charges:

(a)Receiving stolen property (a motor vehicle);2

(b)Unlawful taking of a motor vehicle (x 2);3

(c)Unlawful getting into a motor vehicle (x 5);4

(d)Driving whilst disqualified, third or subsequent (x 4);5

(e)Possession of methamphetamine;6

(f)Failing to attend court x 2;7 and

(g)Breach of release conditions x 3.8

[3]    The charges reflected a raft of offending committed by Mr Epere between May and September 2018. For the most part it involved him unlawfully taking or getting into motor vehicles belonging to others. Mr Epere was disqualified from driving

1      New Zealand Police v Epere [2018] NZDC 24004.

2      Crimes Act 1961, ss 246 & 247. Maximum penalty seven years imprisonment.

3      Crimes Act 1961, s 226(1). Maximum penalty seven years imprisonment.

4      Crimes Act 1961, s 226(2). Maximum penalty two years imprisonment.

5      Land Transport Act 1998, ss 32(1)(a) & 32(4). Maximum penalty two years imprisonment or a fine not exceeding $6,000.

6      Misuse of Drugs Act 1975, ss 7(1)(a) & 7(2)(a). Maximum penalty six months imprisonment and/or a fine not exceeding $1,000.

7      Bail Act 2000, s 38(a). Maximum penalty one year imprisonment or a fine not exceeding $2,000.

8      Sentencing Act 2002, s 96(1).  Maximum penalty one year imprisonment or a fine not exceeding

$2,000.

during this period so he also committed the offence of driving whilst disqualified when he unlawfully took the vehicles. After he had been arrested, he failed to attend Court on two occasions. On three occasions he also breached prison release conditions by failing to report as required. The charge of being in possession of methamphetamine was laid after the police searched Mr Epere on 28 May 2018 after they were called to his address to deal with an unrelated matter. They found a plastic bag containing .1 of a gram of methamphetamine in his jeans pocket.

The sentence

[4]    The Judge took the lead charges as being those relating to the unlawful taking of motor vehicles. He selected a starting point on those charges of 18 months imprisonment. He then added uplifts of six months in relation to the five charges of unlawfully getting into motor vehicles and three months to reflect the charges of driving whilst disqualified and breaching bail and release conditions. This resulted in the end starting point of 27 months imprisonment. The Judge declined to reduce that sentence to reflect totality principles.

[5]    The Judge deducted three months to reflect remorse and rehabilitative steps taken by Mr Epere whilst awaiting sentence. He then applied a further discount of six months, or 25 per cent, to reflect guilty pleas. This produced the end sentence of 18 months imprisonment.

[6]Turning to the issue of home detention, the Judge observed:9

[16]      The factors that would weigh in support of, for example, the recommendation of the report home detention would be your age, the hope that you could be rehabilitated and the programmes that could be put in place with a degree of compliance whilst under a bracelet. The factors on the other side would be the multitude of the offending, the seriousness particularly of the taking of the motor vehicles, your not good previous breach of Court orders list and the difficulty I sense in you being able to comply with Court orders, together with aspects of deterrence and denunciation. Essentially, what I mean by that is to send a message to those persons who want to embark upon offending like you, that they do that at the peril of imprisonment.

[17]      Pivotally and I give significant weight to your breach history. I know that you want to portray a sense to me that you will faithfully comply with a home detention sentence. Every time in the past that you breached a Court

9      New Zealand Police v Epere, above n 1.

order by way of release conditions and or driving whilst disqualified and or failing to appear, what you are doing was you were building up a list of things for which a judge would then have to assess whether if you received another community based sentence, you would comply with it at all.

[18]      I regret to advise you that on balance, I clearly come to the view that you would not cope on home detention. There would be problems. There would be breaches of it and in my view, particularly given that issue, I elect not to deal with you by home detention and so the sentence will be one of imprisonment.

Arguments on appeal

[7]    On Mr Epere’s behalf Ms Holden does not challenge the starting point of 18 months imprisonment the Judge selected on the charges of unlawfully taking motor vehicles. She submits, however, that the Judge should not have applied an uplift on the charges of driving whilst disqualified because this conduct formed an integral part of the charges of unlawfully taking motor vehicles. Ms Holden also contends the Judge should not have applied an uplift on the five charges of unlawfully getting into a motor vehicle. In the alternative, she submits that an uplift of six months was too high to reflect these charges, and that an uplift of no more than three months could be justified. Finally, and this is really the thrust of the appeal, Ms Holden submits the Judge ought to have imposed a sentence of home detention rather than imprisonment.

Decision

Uplift for the charges of driving whilst disqualified

[8]    I do not accept Ms Holden’s submission relating to the uplift the Judge applied to reflect the charges of driving whilst disqualified. Those charges were quite different in character from the charges of unlawfully taking, or getting into, motor vehicles. They reflect the fact that, in choosing to drive a vehicle away, Mr Epere breached Court orders that prohibited him from driving motor vehicles. It is now well established that charges of driving whilst disqualified are distinct from charges of driving with excess blood or breath alcohol even though the two offences may be committed at the same time. For the same reason, I am satisfied the Judge was entitled to add a separate uplift in relation to the charges of driving whilst disqualified.

Uplift for the charges of unlawfully getting into motor vehicles

[9]    I accept Ms Holden’s submissions that these charges reflected an ongoing series of offences, and that they were similar in character to the charges of unlawfully taking motor vehicles. I do not accept, however, her submission that no uplift should have been applied to reflect these charges. They relate to separate and quite different instances on which Mr Epere unlawfully got into another person’s motor vehicle.

[10]   It is certainly arguable that an uplift of six months to reflect these charges was outside the available range. However, it needs to be remembered that they represent five separate occasions on which Mr Epere was prepared to unlawfully get into a motor vehicle. Furthermore, another Judge may have applied a significantly greater uplift to reflect the charges of driving whilst disqualified and those of breaching bail and prison release conditions. In addition, the Judge did not apply any uplift to reflect the charge of being in possession of methamphetamine.

[11]   It is now well understood that the manner in which a sentence is constructed is of little relevance. The ultimate issue is whether the end sentence is wrong in principle or manifestly excessive. In the present case Mr Epere had pleaded guilty to 18 separate charges, each of which reflected a discrete incident involving unlawful conduct. He has numerous previous convictions for previous offending. Regardless of how this particular sentence was constructed, I do not consider an end sentence of 18 months imprisonment to be outside the available range.

Home detention

[12]   The imposition of a sentence of home detention is the exercise of a sentencing discretion. That discretion is fettered, however, by the purposes and principles of sentencing contained in the Sentencing Act 2002.

[13]   I consider the passage set out above at [6] demonstrates the Judge took into account relevant considerations both for and against a sentence of home detention. He ultimately decided such a sentence was inappropriate because he did not consider  Mr Epere had the ability to successfully complete a sentence of home detention. That conclusion was open to the Judge notwithstanding the fact that Mr Epere does not have

a history of breaching electronically monitored bail or sentences. Notwithstanding this, he has a history of breaching prison release conditions and driving whilst disqualified. This fact, together with the duration and nature of the conduct giving rise to the present charges, means he is likely to find it very difficult to comply with a sentence of home detention.

[14]   I am therefore satisfied the Judge did not err in exercising his discretion against a sentence of home detention.

Result

[15]The appeal against sentence is dismissed.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau