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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading George v Police

Details

AGLC: George v Police [2020] NZHC 1725
Case: [2020] NZHC 1725
Decision Date: 16 July 2020

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide the appeal by Tyrone Marvin George against his sentence for unlawfully using a motor vehicle, driving while disqualified, and intentionally damaging a police cell mattress while in custody. The original sentence was 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 to be served concurrently. George appealed the 20-month sentence, arguing it was manifestly excessive. The court considered whether the starting point for the sentence, the uplift for the totality of the offending, the uplift for previous convictions, and the discount for personal factors were correctly applied.

The court found that the starting point of 14 months for the unlawful use of a motor vehicle was correctly applied. It also found that the uplift for the totality of the offending was excessive and should have been no more than two months. Regarding previous convictions, the court found that the uplift of six months was disproportionate and should have been reduced to four months. The court found that the 10% discount for personal factors was appropriate as the systemic deprivation in George's background was not sufficiently linked to the offending.

The appeal was allowed, and the sentence of 20 months' imprisonment was quashed. In its place, a sentence of 14 months' imprisonment was imposed. This was calculated on the basis of a starting point of 20 months' imprisonment, less 10% for personal factors and a further 20% for the pleas of guilty. All other sentences and the period of disqualification remained the same.

Orders