Galloway v Police

[2019] NZHC 3363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000471

[2019] NZHC 3363

BETWEEN

CHRISTOPHER GALLOWAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 December 2019
Appearances:	S Dickson for the Appellant D Taylor for the Respondent
Judgment:	17 December 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 17 December 2019 at 4:00 pm

Registrar/Deputy Registrar

Solicitors:           Public Defence Service (S Dickson), Waitakere

Meredith Connell (Office of the Crown Solicitor), Auckland

GALLOWAY v NZ POLICE [2019] NZHC 3363 [17 December 2019]

Summary

[1]                 On 5 November 2019, Christopher Peter Galloway was sentenced to a total of 27 months’ imprisonment by Judge A C Roberts in the Waitakere District Court.1 He was also disqualified from holding or obtaining a driver’s licence for two years. The sentence was made up as follows:

Date	Offence	Outcome
1	20 December 2018	Breach of release conditions – (One year maximum)	Four months’ imprisonment (concurrent)
2	26 January 2019	Conversion of vehicle – (Seven years maximum)	20 months’ imprisonment
31 January 2019	Driving while disqualified (3rd or subsequent) – (Two years maximum)	Seven months’ imprisonment (cumulative) 12 months’ disqualification (concurrent)
31 January 2019	Failing to stop – ($10,000 maximum)	Conviction and discharge
31 January 2019	Dangerous driving (Three months maximum)	Two months’ imprisonment (concurrent) Six months’ disqualification (concurrent)
3	10 October 2019	Failing to stop (Third or subsequent) (Three months maximum)	Two years’ disqualification (concurrent)

[2]                 Mr Galloway now appeals on the ground that the sentence was manifestly excessive.

Facts

[3]                 On 20 December 2018, Mr Galloway breached his conditions of release from prison by failing to reside at an approved address.

[4]                 On 26 January 2019, a car (worth $7000) was unlawfully taken from outside an address on the North Shore. On 31 January 2019, Mr Galloway was driving that vehicle and failed to stop when the Police attempted to pull him over for speeding by activating their lights. He was disqualified from driving at the time. He drove dangerously (far exceeding the speed limit and crossing to the wrong side of the road)

1      Police v Galloway [2019] NZDC 22276.

to evade the police. After three minutes he stopped and was taken into custody. He said he bought the vehicle for $1000 and did not know it was stolen.

[5]                 On 10 October 2019, the appellant was again driving, and the police attempted to pull him over by activating their lights. He failed to stop and was located later on foot.

Sentencing

[6]                 The Judge noted the pattern of similar offending in the appellant’s criminal history and his repeated failure to follow release conditions and rehabilitative programmes. The appellant has the following driving convictions from 2003 onwards: one conviction for sustained loss of traction, conversion, and excess breath alcohol; two convictions for driving carelessly and two for driving recklessly; eight for driving while disqualified; three for failing to stop; and two for unlawfully getting into a vehicle. He has nine convictions for breaching community work; four for breaching home detention; and one each for breaching supervision, community detention and home detention. He also has further convictions for other offences, including six dishonesty offences.

[7]                 A 20-month starting point was chosen for the lead offence of conversion of a motor vehicle on 26 January 2019 by comparison to the following cases:

(a)McAlister v Police, where the appellant had unlawfully entered a vehicle, stole a mag wheel off a car, uplifted two cars, and drove dangerously to evade police.2 Judge Roberts considered this less serious than the present offending because that  appellant  was only  22 years old and had not previously served an electronically monitored sentence. On appeal, his sentence of 20 months’ imprisonment was commuted to an end sentence of nine months home detention.

(b)Beattie v Police, where the appellant’s lead offending was unlawfully taking her aunt’s car (returning it undamaged shortly after).3 A starting

2      McAlister v Police [2017] NZHC 2881.

3      Beattie v Police [2017] NZHC 1626.

point of 12 months’ imprisonment was adopted for the conversion charge, which was described as harsh on appeal, but not outside the available range because it reflected the fact the offending occurred on bail and her extensive conviction history. Judge Roberts considered this less serious than the present offending, because here “damage to the car was occasioned” and it took four days for the car to be found.

(c)Wiparata v Police, where the appellant had unlawfully taken a vehicle, stolen items (to the value of $1850) from two cars and breached community work.4 An overall starting point of 24 months’ imprisonment was adopted and upheld on appeal.

[8]                 Taking into account the principle of totality, a 12-month uplift and a 12-month disqualification from driving was imposed for the driving while disqualified (third or subsequent) on 31 January 2019 (the second most serious charge after conversion of a motor vehicle). The Judge did not impose an uplift for previous convictions as they were “already factored into the equation”. For the other less serious offences, the Judge imposed concurrent sentences: four months’ imprisonment for breach of release conditions on 20 December 2018; a conviction and discharge for failing to stop on 31 January 2019; two months’ imprisonment and six months’ disqualification for dangerous driving on 31 January 2019, and two years’ disqualification for failing to stop (third or subsequent) on 10 October 2019.

[9]                 The Judge gave a 15 per cent discount for the appellant’s guilty plea (rounded to five months), because he defaulted on his bail obligations and did not plead at an early stage. He took this off the 12-month uplift for the driving while disqualified charge (third or subsequent), meaning the sentence imposed on that charge was seven months’ imprisonment cumulative on the 20 months’ imprisonment imposed for the conversion of a motor vehicle. The end sentence was 27 months’ imprisonment.

4      Wiparata v Police [2016] NZHC 3062.

Approach to Appeal

[10]              The Criminal Procedure Act 2011 sets out that a first appeal court must allow an appeal if satisfied that:5

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[11]              This court must point to an error made by the District Court, either in the Judge’s reasoning or shown by additional material considered on appeal.6 The error must be adequately significant for the appeal to be allowed – although the Criminal Procedure Act 2011 does not require the sentence to be ‘manifestly excessive’, this is a helpful concept when considering the seriousness of the error.7

Submissions

Appellant submissions

[12]              Counsel for the appellant submits that the starting point of 20 months’ imprisonment for conversion of a motor vehicle was too high. The Judge erred in taking into account damage to the car when there was no evidence from which to draw that inference.

[13]              Counsel further submits the Judge did not sufficiently adjust for totality and the combined starting point of 32 months (20 months for conversion and 12-month uplift for driving while disqualified) was too high. Lastly, counsel submits the appellant should have been granted a 20 per cent discount for his guilty plea.

Crown submissions

[14]              The Crown submits in all the circumstances, 27 months’ imprisonment was not manifestly excessive. It is acknowledged that the starting point of 20 months’ imprisonment was at the high end of the available range. However, when looked at in

5      Criminal Procedure Act 2011, s 250.

6      Tutakangahau v R [2014] NZCA 279 at [30].

7 At [35].

light of the appellant’s significant criminal record, and against the cases referred to by Judge Roberts, it is submitted that the starting point was appropriate. Since being released from prison the appellant has continued to offend, failed to comply with conditions, failed to report, and tested positive for methamphetamine.

[15]              As to the 15 per cent discount for his guilty pleas, the Crown submits it was open to the Judge to have regard to the cost and delay occasioned by the appellant’s failure to comply with bail.

Discussion

[16]              In my view, the only real issue is whether the Judge erred in setting the starting point for the lead offence of conversion of a motor vehicle. In Wood v Police, Downs J suggested a “a single unlawful taking charge can give rise to a starting point of at least 18 months' imprisonment, if the offence has a significant aggravating feature or features”.8 There were, however, no significant aggravating feature or features in the present case. In particular, I have not been referred to any evidence to support the Judge’s comment that “damage to the car was occasioned”. I have also considered cases (including those discussed at the District Court and those referred to by counsel) in which a starting point for a charge of conversion was separately set:

8      Wood v Police [2018] NZHC 1629 at [24].

Features of conversion	Starting point
Gideon v Police [2014] NZHC 1065.	Car worth $750	12 months
Muir v Police [2015] NZHC 1425.	“A serious example of unlawfully taking a motor vehicle” - car worth $16,000, seriously damaged	15 months (reduced on appeal from 30 months)
O'Sullivan v Police [2015] NZHC 2032.	Took car and was pursued by police for 17 km	12 months (reduced on appeal from three years)
O’Rourke v Police [2016] NZHC 273.	Took car from carpark for a short period	Nine months
Shufflebotham v Police [2015] NZHC 3114.	Took an $8000 car from a residential property	12 months
Peka-Hazel v Police [2016] NZHC 2696.	Did not return a courtesy car to garage	Nine months (considered high on appeal, but for absence of any uplift and generous credit for mitigating factors)
Beattie v Police [2017] NZHC 1626.	Took aunt’s car (returned undamaged)	12 months (described as harsh on appeal)
Tito v Police [2017] NZHC 2552.	Took a car worth $18,000	14 months (18 months imposed in District Court held to be outside the available range)
Allport v Police [2019] NZHC 1306.	Borrowed the car with consent and failed to return it	15 months

[17]              In comparison with these cases, a 20-month starting point is too high. A starting point of 12 months’ imprisonment is more appropriate. As a result, the end sentence was manifestly excessive.

[18]              Although appellant’s counsel submits that the uplift of 12 months’ imprisonment for all other offending was too high, the Judge did not uplift further for the appellant’s criminal history, even the driving offences. An uplift for his criminal history could have been warranted. The 12-month uplift must be seen in that context because on appeal it’s the end sentence that matters, not how the Judge arrived at it.

[19]              The Judge gave the appellant a 15 per cent discount for his guilty pleas (rounded to five months), because he defaulted on his bail obligations and did not plead at an early stage. A greater discount was not warranted. The appellant failed to appear on a number of occasions and it took almost a year for his charges to be dealt with.

Result

[20]              The appeal against sentence is allowed. The sentences imposed by the District Court are quashed. They are replaced with:

(a)Twelve months’ imprisonment for conversion of a motor vehicle;

(b)Eight    months’    imprisonment     (cumulative)     for    driving    while disqualified (third or subsequent) and 12 months’ disqualification;

(c)Four months’ imprisonment (concurrent) for breach of release conditions;

(d)Conviction and discharge for failing to stop;

(e)Two months’ imprisonment (concurrent) for dangerous driving and six months disqualification (concurrent); and

(f)Two years’ disqualification for failing to stop (third or subsequent) (concurrent).

[21]              The end sentence is therefore one of 20 months’ imprisonment. I decline to commute the sentence to one of home detention, owing to the appellant’s significant history of breaching Court orders, including a number of breaches of home detention conditions.

Woolford J