Gunn v Police
[2012] NZHC 3278
•5 December 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-443-033 [2012] NZHC 3278
BETWEEN JULIAN GUNN Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 5 December 2012
Counsel: JC Hannam for Appellant
SA Law for Respondent
Judgment: 5 December 2012
JUDGMENT OF BREWER J
This judgment was delivered by me on 5 December 2012 at 4:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS
Hannam & Co Lawyers (New Plymouth) for Appellant
C&M Legal (New Plymouth) for Respondent
GUNN V POLICE HC NWP CRI-2012-443-033 [5 December 2012]
[1] The appellant appeals against a sentence of 18 months’ imprisonment handed
down by Judge AC Roberts in the District Court at Hawera on 1 August 2012.
Background
[2] Mr Gunn, the appellant, was 22 years old at the time of his sentencing. He has a considerable list of convictions. They include six convictions for driving while disqualified or while his licence was suspended. He has twice served sentences of imprisonment for driving while disqualified (third or subsequent offence) associated with driving with excess blood alcohol. The last sentence of this type was imposed on him in the District Court at New Plymouth on 9 February 2011.
[3] It was with that background that the appellant came before the District Court Judge on 1 August 2012. At that time he had pleaded guilty to two sets of offending. The first set comprised one charge of theft of a motor vehicle and driving while disqualified. These offences occurred on 30 March 2012 and 31 March 2012. Having been released on bail for those offences on 3 April 2012, he committed the second set of offending on 21 June 2012. In the early hours of that morning, the appellant went to commercial premises which contained motor vehicles. He and an associate obtained access to the premises and damaged a number of the motor vehicles. One was started and driven into a chained gate, smashing the lock off the gate and forcing it open. The cost of the damage to the five vehicles involved was
$6,668.98. The Police apprehended the appellant at the scene. From this event came three charges of unlawfully interfering with motor vehicles, two charges of unlawfully taking motor vehicles, and one charge of burglary.
The District Court sentence
[4] The District Court Judge paid particular attention to the appellant’s criminal history. I have already mentioned the previous convictions for driving while disqualified. There are also two previous convictions for burglary, one in May 2007 and one in June 2008. The Judge also noted quite a number of breaches of orders of
the Court including breaches of community work, breaches of supervision, and breaches of community detention.
[5] The District Court Judge took the charge of burglary as being the lead offence. He considered that aggravating factors relating to that offending were premeditation, the amount of damage done to the cars, and the fact that the offending occurred while the appellant was on bail.
[6] The District Court Judge identified an appropriate start point as one of
18 months’ imprisonment. He then went backwards in time to look at the charges of theft of a motor vehicle and driving while disqualified. He considered that were he to sentence on those matters alone, he could take a start point of 10 months’ imprisonment for the driving while disqualified and, taking into account the theft of the vehicle, could arrive at an end sentence of around 16-18 months’ imprisonment.
[7] His Honour recognised that a cumulative approach to the sentencing was required. He said that looking at both sets of offending together he would arrive at an end sentence in the vicinity of two years and 10 months’ imprisonment. The Judge then reduced that sentence by 12 months. Six months of that was to “accommodate the principle of totality”,[1] and six months to take into account pleas of guilty. The end sentence was one year and 10 months’ imprisonment. The Judge then apportioned the end sentence as follows:[2]
[1] Police v Gunn DC Hawera CRI-2012-021-615, 1 August 2012, at [16].
[2] Ibid, at [18].
The sentences thus will be imposed on this basis:
(a) On the charge of theft of the motor vehicle, 30 March, four months’ imprisonment. That sentence will be cumulative on the 18 months that I will impose for the burglary.
(b) On the charge of driving while disqualified, four months’ imprisonment, but concurrent. Disqualification is 12 months, starting on 9 May 2013.
(c) The unlawful takings, both of them have sentences of eight months’
imprisonment, concurrent.
(d) The burglary, 18 months’ imprisonment.
(e) The unlawful interferences, six months’ imprisonment, concurrent.
[8] Mr Hannam for the appellant advanced the appeal on the basis that the overall sentence was manifestly excessive. He submitted that the District Court Judge identified a starting point of 18 months’ imprisonment for the lead charge of burglary and did not reduce it either in consideration of the totality principle or to take account of the plea of guilty.
[9] Mr Hannam, realistically, recognised that my approach to the appeal must be to determine whether the end sentence of 22 months’ imprisonment is manifestly excessive. If it is not, it matters little how the District Court Judge arrived at it.[3]
[3] R v MacCulloch [2005] 2 NZLR 665 (CA).
[10] So far as the sentence for the burglary is concerned, Mr Hannam referred me to the decision of Collins J in Iwikau v Police[4] in which, on appeal, a sentence of
21 months’ imprisonment was reduced to 13-and-a-half months’ imprisonment. Mr Hannam submitted that the facts of Iwikau are similar to the present case. That is because the charge of burglary related to breaking into commercial premises and removing an item of equipment valued at approximately $2,500 by a man who had two prior convictions for burglary. The prisoner was also for sentence for driving while disqualified, having had five previous convictions for that offence. Collins J held that the District Court Judge had overestimated the seriousness of Mr Iwikau’s burglary in adopting a starting point of 18 months’ imprisonment. Collins J adopted a starting point of 15 months’ imprisonment. His Honour reached an end sentence of
13-and-a-half months’ imprisonment for the burglary offence by allowing a 10%
reduction to reflect a delayed plea of guilty.
[4] Iwikau v Police [2012] NZHC 2027.
[11] So far as the driving while disqualified charge is concerned, Collins J was faced with some difficulty in interpreting the District Court Judge’s decision so as to identify the starting point. He concluded that the actual starting point was six months’ imprisonment. In the end, Collins J felt that an end sentence for the driving while disqualified in all the circumstances, including totality, should be three
months’ imprisonment.
[12] Mr Hannam’s submission is that the District Court Judge in this case, having regard to Iwikau, imposed a sentence which was approximately seven-and-a-half months too long.
The respondent’s submissions
[13] The respondent submits that the sentence was well within the range available to the District Court Judge.
Discussion
[14] In my view, this case is very different from Iwikau. In that case, Collins J was considering only two charges. In this case, I am considering how the District Court Judge sentenced in relation to two separate sets of offending, with the second set of offending occurring while the appellant was on bail for the first set of offending.
[15] I agree with Mr Hannam that the District Court Judge has taken an unorthodox approach to calculating the sentence. Where a cumulative sentence must be imposed (and there is no suggestion that a cumulative sentence approach was unjustified in this case), it is usual to arrive at an end point for each set of offending and then to apply the totality principle. The District Court Judge has instead taken a global approach and after arriving at a total end sentence has apportioned it between the various charges.
[16] My task is not to resentence the appellant. The appeal proceeds by way of rehearing, which means that I must consider the case for myself, but I will disturb the District Court Judge’s final sentence only if I find it to be manifestly excessive. I will not recast it in the way that I would have approached the sentencing process.
[17] In this case, I find that the effective end sentence of one year and 10 months’
imprisonment was well within the range available to the District Court Judge.
[18] The end point of 18 months’ imprisonment on the charge of burglary was intended to also take into account the three charges of unlawfully interfering with motor vehicles and two charges of unlawfully taking motor vehicles. The fact that these offences occurred while the appellant was on bail was a significant aggravating feature. The damage to the vehicles of close to $7,000 was also significant. However, if the District Court Judge had made no allowance for the pleas of guilty or had not considered the overall sentencing against the totality principle, I would have held that 18 months’ imprisonment is too high an end point. But the District Court Judge did make allowance for those factors. The charges of theft of the motor vehicle and driving while disqualified were each awarded terms of four months’ imprisonment. The sentence attaching to the charge of theft of the motor vehicle was made cumulative on the 18 months sentence for the burglary. That is where the allowance was made for pleas of guilty and for totality.
[19] In a recent decision issued in this registry,[5] I had the opportunity to look at cases in the area of driving while disqualified. I dismissed an appeal against a sentence of nine months’ imprisonment imposed for a seventh driving while disqualified offence. In my view, the District Court Judge would have been justified in taking his indicated start point on the driving while disqualified charge (given that the offence occurred in the context of actually stealing a car) of 10 months’ imprisonment. Factoring in the theft of the car (which he later sold or “flicked on”), an end sentence for that offending – given the appellant’s criminal record of dishonesty – of around 16-18 months’ imprisonment would have been unexceptional.
[5] Dew v Police HC New Plymouth [2012] NZHC 2915.
[20] The issue then is the extent to which credit should be given for guilty pleas. Had I been sentencing, I would have given the appellant little or no credit for the pleas of guilty to the first set of offending. Pleas of not guilty were entered originally and it was not until after the second set of offending that pleas of guilty were substituted. However, overall, the District Court Judge allowed a little over
21% reduction and that was generous. The six months reduction to consider the totality principle was also within the available range. The appellant is a young man with a considerable record of offending, but rehabilitation is nevertheless an
important factor.
[21] In summary, by apportioning the discounts for pleas of guilty and for totality more evenly, the District Court Judge might well have reached a lesser end sentence on the burglary charge. But to do that he would have had to have reached a significantly higher end sentence on the driving while disqualified charge. The net result would have been the same, and I cannot say that that result was manifestly excessive.
Decision
[22] The appeal is dismissed.
Brewer J
2
1