George v Police

[2020] NZHC 1725

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000170

[2020] NZHC 1725

BETWEEN

TYRONE GEORGE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 July 2020

Appearances:

J Corby for the Appellant

E Maiden for the Respondent

Judgment:

16 July 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 16 July 2020 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Meredith Connell (Office of the Crown Solicitor), Auckland Counsel:     J Corby, Auckland

GEORGE v NZ POLICE [2020] NZHC 1725 [16 July 2020]

[1]    On 25 February 2020, Tyrone Marvin George pleaded guilty to unlawfully using a motor vehicle,1 driving while disqualified (third or subsequent)2 and intentionally damaging a police cell mattress while in custody.3

[2]    On 15 May 2020, Judge K J Glubb convicted and sentenced Mr George  to  20 months’ imprisonment for the unlawful use of a motor vehicle, 10 months’ imprisonment for driving while disqualified and two months’ imprisonment for damaging police property. All sentences are to be served concurrently. Mr George was also disqualified from holding or obtaining a driver’s licence for a period of     12 months and one day. He now appeals against the sentence of 20 months’ imprisonment.

Factual background

[3]    On Monday 9 September 2019, Mr George appeared in the Auckland District Court and was disqualified from driving for six months from that date. At 6.30 pm on Tuesday 8 October 2019, the owner of a Honda Civic parked and secured his motor vehicle on Cook Street in the Auckland CBD. At 9.00 am on Wednesday 9 October 2019, the car owner returned to his vehicle and saw it was gone. At approximately 1.08pm on Thursday 10 October 2019, Mr George drove the stolen motor vehicle into a carpark outside Briscoes, Westgate, and parked the car, before walking into Briscoes. He did not have authority from the car owner to use the vehicle.   In explanation,   Mr George stated that he did not take the vehicle.

District Court decision

[4]    After reciting the factual background, the Judge looked at the aggravating factors of the offending. First, the vehicle was valued at $5,000. Secondly, there was a degree of planning and premeditation. Thirdly, there had been some impact on the car owner. As far as personal aggravating factors were concerned, the Judge referred to Mr George’s extensive list of previous convictions, together with the fact that he had offended while subject to a sentence. He noted that Mr George had only just been

1      Crimes Act 1961, s 226(1).

2      Land Transport Act 1998, ss 32(1)(a) and 32(4).

3      Summary Offences Act 1981, s 11.

released from prison and that he was back offending again.    The Judge saw no mitigating factors in the offending.

[5]    The Judge then referred to the contents of a pre-sentence report in which the risk of harm towards others was assessed as high and the risk of reoffending assessed as very high. The writer also noted that Mr George had an entrenched lifestyle conducive to criminal offending. The report writer observed that it is doubtful that Mr George’s offending behaviour would change without significant efforts on his part. It was noted that neither prison nor community-based sentences had acted as deterrent.

[6]    The Judge then referred to a report prepared pursuant to s 27 of the Sentencing Act which traversed Mr George’s early life and the circumstances which had led to his offending. He was disconnected from Te Ao Māori. The Judge said he did not underestimate the impact that his pervasive history had had on Mr George and what has led to him offending in this way.

[7]    The Judge then referred to Mr George’s letter of remorse together with a letter of support written by his partner, Ms Love, who is raising their two children. The Judge also recognised the work that Mr George had been doing while in custody, having attended a Community Alcohol and Drug Service (CADS) course, a parenting course and also starting a Thinking Hats course.

[8]    After noting the submissions of the police and Mr George’s counsel as to the appropriate starting point, the Judge adopted a starting point of 14 months’ imprisonment for the unlawful use of a motor vehicle. He then uplifted the starting point by eight months for driving while disqualified. That led to an adjusted starting point of 22 months. The Judge then uplifted the adjusted starting point by a further six months for Mr George’s extensive conviction history. This led to the Judge arriving at a final  start  point  of  28  months’ imprisonment.  From  that  he  gave Mr George a 10 per cent discount for the personal circumstances outlined in the s 27 report which brought the start point of 28 months down to 25.2 months. He then gave Mr George a 20 per cent discount for his pleas of guilty, which brought the sentence of imprisonment down to 20 months. He therefore sentenced Mr George to 20 months’

imprisonment for the lead offence of unlawfully using a motor vehicle, a concurrent term of 10 months’ imprisonment for driving while disqualified and a concurrent term of two months’ imprisonment for damaging police property.

Appellant’s submissions

[9]    Counsel for Mr George submits that the sentence imposed was manifestly excessive, primarily because a greater discount should have been given for the factors outlined in the s 27 report.

[10]   The report discloses that Mr George was largely raised by his mother – his father had never been in his life. He was expelled from school in the 4th form. He had various stints in boys homes where he was regularly exposed to violence and sexual abuse. He started smoking dope and drinking alcohol from 11 years old. He tried methamphetamine at the age of 18 and had used it on and off over the last 17 years. He became associated with the Bloods gang.

[11]   The report notes that Mr George’s extensive offending history over many years demonstrates a clear pattern of behaviour centred around property-related offending, including shoplifting, theft and robberies. When asked about the nature of his offending, Mr George says when he was younger it was to help his mother, and now, it appears there is a correlation to unemployment as he is welfare dependant.

[12]   Mr George identifies as Māori, but has failed to maintain a meaningful relationship with his culture, whānau and prosocial members of society.

[13]   He did, however, have the support of his partner, with whom he has two children aged six and two years. She advised that Mr George would steal so that they had money for the kids, despite her disapproval. She said she would encourage him to make more appropriate choices in the future.

[14]   Counsel submits that the Judge erred in not giving Mr George a larger discount than 10 per cent for the personal factors disclosed in the s 27 report. He notes the comments in Solicitor-General v Heta,4 that:

An argument might be made that 30 per cent was warranted as a discount for hardship in Ms Heta’s case because of the need to recognise Māori post- colonial experience and to meet the Parliamentary intention underlying s 27.

Discussion

Starting point

[15]   At sentencing, counsel for Mr George submitted that the appropriate starting point for the lead offence of unlawful use of a motor vehicle was 12 months’ imprisonment. The Judge adopted a starting point of 14 months’ imprisonment. On appeal, neither Crown counsel nor counsel for Mr George challenge the starting point.

Totality of offending

[16]   Turing then to the uplift for the offence of disqualified driving, s 85 of the Sentencing Act provides that if only concurrent sentences are to be imposed, the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending and each of the lesser offences must receive the penalty appropriate to that offence.

[17]   In the present case, the Judge reasonably did not uplift the 14 months’ starting point for the charge of intentionally damaging a police cell mattress while in custody. He did, however, uplift the 14 months’ starting point by eight months for driving while disqualified.

[18]   The offences of unlawful use of a motor vehicle and disqualified driving were, however, committed through exactly the same actions by Mr George. At approximately 1.08pm on Thursday, 10 October 2019, Mr George parked a stolen Honda Civic in the carpark at Briscoes, Westgate. He did not have authority from the car’s owner to use the vehicle. He was also disqualified from driving by Court order.

4      Solicitor-General v Heta [2018] NZHC 2453 at [2].

His actions in driving the car into the carpark and parking it that afternoon constituted two offences.

[19]   In those circumstances, an uplift of eight months’ imprisonment to reflect the totality of the offending was excessive. This can be compared to two previous sentences imposed on Mr George on 25 October 2011 and 28 April 2014.

[20]   On 25 October 2011, Mr George was sentenced to 15 months’ imprisonment on three charges of unlawfully getting into a motor vehicle, one charge of driving while disqualified, and two charges of receiving property valued at more than $1,000 and concurrent terms of three months’ imprisonment on three charges of breach of prison release conditions and one charge of possession of drug utensils. He was also convicted and discharged on charges of careless use of a motor vehicle and failing to stop – 12 offences committed over a four-month period.

[21]   On 28 April 2014, Mr George was again sentenced to 15 months’ imprisonment on two charges of unlawfully taking a motor vehicle, and one charge of unlawfully interfering with a motor vehicle and concurrent terms of imprisonment for one charge of driving while disqualified, and one charge of receiving property valued at over

$1,000, two charges of receiving property valued at between $500 and $1,000, one charge of breach of prison release conditions, one charge of theft ex car and one charge of obtaining by a deception (less than $500). He was also convicted and discharged on a charge of being an unlicensed driver and failing to comply with a prohibition – 11 offences committed over a six-week period.

[22]   I am therefore of the view that the addition of eight months’ imprisonment for disqualified driving to the starting point of 14 months’ imprisonment for unlawfully using a motor vehicle is excessive. The addition of no more than two months’ imprisonment was required to reflect the totality of the offending at 1.08pm on Thursday, 10 October 2019. That would bring the adjusted starting point to 16 months’ imprisonment rather than 22 months’ imprisonment.

Previous convictions

[23]   It is a long-standing principle that a sentencing Judge should not increase the sentence that would otherwise be imposed merely because of the offender’s previous convictions, since that would result in a further sentence for a crime for which the offender had already been punished.5

[24]   They are, however, now statutorily recognised as aggravating factors.  Section 9(1)(j) of the Sentencing Act provides that in sentencing an offender the Court must take into account as an aggravating factor the number, seriousness, date, relevance and nature of any conviction.

[25]   Previous convictions are, therefore, taken into account in three ways: as an indicator of character and culpability; because they show the need for a greater deterrent response; and as an indicator of risk of reoffending.6

[26]   In the present case, the Judge apparently relied on the last two factors when he said:7

I then turn to your previous conviction history. I have already teased that out, it is troubling and you continue to come back before the Courts, you have got to stop doing that, there is only one person who can make that happen. I uplift by six months for that, it gets me to 28 months.

[27]   Any uplift applied for previous convictions must, however, be proportionate in the circumstances. First, the uplift should bear a reasonable relationship to the sentence imposed for the previous offence. Secondly, the uplift should bear a reasonable relationship to the starting point that is appropriate for the circumstances of the present offending.

[28]   Mr George has never received more than 15 months’ imprisonment for unlawful interference, getting into, taking or using a motor vehicle. The two 15 month terms have been imposed when Mr George was being sentenced for multiple and varied offending.

5      R v Casey [1931] NZLR 594 (CA) at 597.

6      Reedy v Police [2015] NZHC 1069 at [19].

7      New Zealand Police v George [2020] NZDC 9013at [22].

[29]   The proper adjusted starting point in this case is a term of 16 months’ imprisonment. The uplift of six months adopted by the Judge is, therefore, 37.5 per cent. The learned authors of Adams on Criminal Law opine that uplifts of up to 25 per cent are common. I am of the view that uplifts of more need some justification. In Reedy, an uplift of 37 per cent in the context of drug offending was reduced to 25 per cent for 17 prior drug-related convictions. A similar reduction is called for here now that the starting point has been adjusted. An uplift of 25 per cent of four months, rather than six months is all that is warranted.

[30]   That brings the adjusted starting point down from 28 months’ imprisonment to 20 months’ imprisonment.

Section 27 report

[31]   The purpose of a s 27 report is to inform the sentencing Judge as to the offender’s background. As described Whata J in Solicitor-General v Heta:8

… the evident legislative policy of s 27 is that background factors, such as the presence of systemic deprivation, may be relevant to individualised justice. I agree however that the presence of deprivation, systemic or otherwise, in the lives of all Māori offenders cannot be assumed. This brings back into focus the significance of s 27. It mandates and enables Māori (and other) offenders to bring to the Court’s attention information about, among other things, the presence of systemic deprivation and how this may relate (if at all) to the offending, moral culpability and rehabilitation. Thus, the cogency of any s 27 information, and the likely presence of systemic deprivation and strength of the linkages between (among other things) that deprivation, the offender and the offending, together with the availability of rehabilitative measures to specifically address the effects of systemic deprivation, will be critical to the assessment.

The evidence of the presence of systemic deprivation (or social disadvantage more generally) on an offender need not be elaborate. The symptoms of systemic Māori deprivation are reasonably self-evident, including (among other things) intergenerational social and cultural dislocation of the whanau, poverty, alcohol and or drug abuse by whanau members and by the offender from an early age, whanau unemployment and educational underachievement, and violence in the home. Evidence from whanau about the offender’s life is enough. But there must be some evidence identifying the presence of systemic deprivation in the offender’s background and linkage to the offending.

8      Solicitor-General v Heta, above n 1, at [49] - [50].

[32]   In the present case, I consider that the presence of systemic deprivation in  Mr George’s background is not sufficiently linked to the offending for the Court to conclude that the Judge was in error in only giving a 10 per cent discount for those personal factors to Mr George.

[33]   The offences to which Mr George has pleaded guilty of unlawful use of a motor vehicle, disqualified driving and wilful damage of police property, are not directly linked to Mr George’s drug addiction or the violence and sexual abuse he was exposed to in boys homes during his formative years. There is no doubt that Mr George is alienated from Te Ao Māori and would benefit from intensive residential and other programmes designed to address the drivers of his offending. To that end, the special release conditions imposed by the Judge included attending a psychological assessment and completing any treatment and/or counselling as recommended by such an assessment, as well as attending and completing an appropriate alcohol and drug treatment programme to the satisfaction of a probation officer.

[34]   In all the circumstances, I am of the view that the Judge was not wrong to give only a 10 per cent discount for such personal factors.

Result

[35]   The appeal is allowed. The sentence of 20 months’ imprisonment imposed on the charge of unlawful use of a motor vehicle is quashed. In its place, a sentence of 14 months’ imprisonment is imposed. This is calculated on the basis of a starting point of 20 months’ imprisonment less 10 per cent (or two months) for personal factors disclosed in the s 27 report and a further 20 per cent (or 3.6 months) for the pleas of guilty. This takes the final sentence to be imposed to 14.4 months, which is rounded down to 14 months’ imprisonment. All other sentences and the period of disqualification remain the same.

Woolford J