Hepburn v Police
[2023] NZHC 475
•9 March 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-000193
[2023] NZHC 475
BETWEEN DOUGLAS KELVIN HEPBURN
Appellant
AND
NEW ZEALAND POLICE
DEPARTMENT OF CORRECTIONS
Respondents
Hearing: 9 March 2023 Appearances:
J M Grainger and E E McClay for the Appellant A R T Garrick for the Respondent
Judgment:
9 March 2023
ORAL JUDGMENT OF GENDALL J
Summary
[1] On 9 November 2022 following a guilty plea, the appellant Douglas Hepburn was sentenced in the Christchurch District Court to six years’ imprisonment and disqualified from driving for five years and six months on the following charges:1
(a)Three counts of receiving property over $1,000;
(b)Two counts of theft over $1,000;
(c)One count of dishonestly taking a motor vehicle;
1 Police v Hepburn [2022] NZDC 22047.
HEPBURN v NEW ZEALAND POLICE [2023] NZHC 475 [9 March 2023]
(d)One count of dishonestly obtaining a document;
(e)31 counts of driving while disqualified;
(f)Five counts of dangerous driving;
(g)12 counts of receiving under $500;
(h)19 counts of theft under $500;
(i)Four counts of failing to stop;
(j)Failing to answer District Court bail; and
(k)Two counts of breach of home detention.
[2]Mr Hepburn now appeals the sentence.
Facts
[3] The majority of the charges Mr Hepburn faced relate to offending which took place between January and March 2022. The remaining charges concerned offending which occurred in May, July and November 2021. The stolen goods Mr Hepburn dealt in included vehicles, number plates, petrol, a brush cutter and power tools. The driving related offences arise from Mr Hepburn driving while disqualified on 31 occasions, failing to stop for flashing police red and blue lights and driving away from police on five occasions. Mr Hepburn also breached the conditions of his home detention on two occasions, including by failing a drug and alcohol screening test.
[4] Mr Hepburn is 31 years of age. He has previously appeared before the courts but has not served a sentence of imprisonment before.
District Court’s Decision
[5] Mr Hepburn, having entered guilty pleas he faced, appeared before Judge AA Couch in the Christchurch District Court on 9 November 2022 for sentencing.
[6] Judge Couch began by canvassing the charges Mr Hepburn appeared for, noting the large volume. He took the lead charges as those carrying maximum penalties of seven years’ imprisonment. There were seven such charges. For the totality of these seven charges, the Judge adopted a starting point of two years and eight months’ imprisonment.
[7] The Judge then considered the 31 charges of driving while disqualified. Each of these charges carries a maximum penalty of two years’ imprisonment. For the totality of the 31 charges, the Judge adopted a starting point of four years’ imprisonment.
[8] Next, Judge Couch considered the five charges of dangerous driving and adopted a starting point of six months’ imprisonment, noting the danger Mr Hepburn posed to road users. The Judge applied no uplift for the four charges of failing to stop since they are fine only offences but carry a mandatory driving disqualification.
[9] As to the 12 receiving charges, the Judge dealt with these by taking a starting point of 10 months’ imprisonment. For the 19 charges of theft, the Judge adopted a starting point of 15 months’ imprisonment.
[10] The breaches of home detention attracted a starting point of two months’ imprisonment, and the final charge of failing to answer District Court bail attracted an uplift of two months’ imprisonment.
[11] This brought the Judge to a combined starting point of nine years and seven months’ imprisonment. Noting, however, the considerable connection between much of the offending, the Judge adopted an adjusted starting point of seven years and six months’ imprisonment.
[12] The adjusted starting point was then uplifted by 10 per cent to reflect the aggravating feature of the majority of the offending having been committed while Mr Hepburn was on bail, and a further five per cent uplift to reflect similar offending appearing in Mr Hepburn’s criminal history. The Judge then applied a 20 per cent discount for Mr Hepburn’s guilty pleas, despite the delay. To account for
Mr Hepburn’s personal mitigating factors, including an at-times unstable life and drug addiction, the Judge applied a discount of five per cent resulting in an end point of six years’ imprisonment.
[13] The Judge cited R v Xie,2 a Court of Appeal authority as the basis for imposing a combination of cumulative and concurrent sentences. Accordingly, it would appear that the Judge structured the sentence so that Mr Hepburn was to serve three years’ imprisonment for the seven charges carrying maximum penalties of seven years’ imprisonment, three years’ imprisonment for the driving while disqualified charges and the balance to be dealt with concurrently. Two reparation orders were also made.
Grounds of Appeal
[14] Mr Hepburn brings this appeal on the grounds that the end sentence, including the period of driving disqualification were manifestly excessive due to the following errors:
(a)Grouping of offences by maximum penalty rather than type resulted in connected offending being treated cumulatively and this resulted in an excessive starting point which was not adequately reduced for totality;
(b)The four-year starting point for the driving while disqualified charges failed to recognise the offending as a continuing course of conduct nor the fact that the bad driving was reflected in other charges as well;
(c)A 25-month starting point for the three-months’ imprisonment maximum penalty charges was excessive;
(d)Percentage uplifts exacerbated the already excessive starting point;
(e)Personal mitigating factors, including addiction, were not adequately discounted for; and
2 R v Xie [2007] 2 NZLR 240 (CA).
(f)The driving disqualification period failed to address the causes of the offending and was crushingly excessive.
Relevant Law
[15] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.3
[16] Generally, the focus in a sentence appeal is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.4 The Court of Appeal has accepted, however, that there may be cases where “what has gone wrong is such as to require correction albeit the sentence imposed is within range”.5
[17] Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of the error in sentence appeals.6 As Ellen France J said in Tutakangahau v R:7
The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.
[18]In R v Shipton Hammond J said:8
It is only if an error of that character is involved that the Court should re- exercise the discretion. If it should come to that, the Court will then form its own view of the appropriate sentence to be passed. If in its own view it “thinks that a different sentence should have been passed”, the original sentence will be quashed and a new sentence imposed.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
4 Ripia v R [2011] NZCA 101, At [15].
5 Tutakangahau v R, above n 3, at [36].
6 At [35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
7 Tutakangahau v R, above n 3, at [32].
8 R v Shipton, above n 8, at [140].
[19] That formulation was repeated in Tutakangahau where the Court of Appeal said: 9 “If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.”
Analysis
[20] The appellant has raised a number of discrete grounds of appeal. I will deal with each in turn. But the gist of submissions advanced on his behalf is that the end sentence imposed of six years’ imprisonment for Mr Hepburn’s crime spree which involved driving while disqualified, dangerous driving and dishonesty charges related to the theft of two vehicles and the other lower value items was manifestly excessive. Instead, the end sentence, counsel for the appellant maintains, should be in the vicinity of four years’ imprisonment.
[21] The respondent says that the end sentence and the starting points adopted accurately reflect the appellant’s culpability here and the volume of charges he faced, making the sentence within range and appropriate in the circumstances.
Charges grouped according to penalty
[22] The appellant before me submitted that by grouping offences by penalty, the District Court treated similar and connected offending cumulatively, leading to an excessive starting point. Instead, the Court should have recognised that Mr Hepburn’s offending was best characterised as a four-month crime spree, driven by drug addiction. The appellant submits that all of the dishonesty related offences were connected to the driving while disqualified offences which in turn were connected to the failing to stop for police and dangerous driving offending. Accordingly, it was artificial to separate this inter-connected offending based on the maximum penalty the charges carried.
[23] The Crown submits that the Judge did not only group offences by maximum penalty but instead, appropriately, grouped similar offending together and adopted a concurrent approach for offences committed as a series. For example, the three broad
9 Tutakangahahu v R, above n 5, at [30].
groups were driving offences all involving high speeds and evasive manoeuvres; dishonesty offences involving high value identifiable property; and dishonesty offences relating to low level stolen number plates. Additionally, the Crown says, the Judge assessed starting points for the totality of the conduct in each group of charges even before adjusting the overall starting point for totality. All of this shows, the Crown submits, that the sentence imposed was not in error but appropriately arrived at.
[24] Section 84 of the Sentencing Act 2002 provides guidance that concurrent sentences are generally appropriate for offences of a similar kind and a connected series of offences. Generally I do acknowledge the appellant’s argument that the offending here is best characterised as a crime spree, driven by drug addiction. The stealing of high value items, mainly vehicles, was connected to the stealing of the low value items, the number plates, and, resulted in the driving offences of dangerous driving, driving while disqualified and failing to stop. Accordingly, I am prepared to accept the offending was connected in time and nature and to an extent warranted consideration of a concurrent sentencing approach.
[25] Offences committed in order to avoid the consequences of an earlier offence attract a cumulative sentence despite being connected in time when the offences are different in nature.10 However, in a more recent authority, Anderson v R, the Court of Appeal noted that concurrent sentences may have been more appropriate for the offences of theft, receiving and arson because, despite its difference in nature, the arson charge was “intimately connected with one of the theft charges”.11
[26] While the approach to adopt cumulative sentences I accept was open to the Judge here, the overall sentence arrived at in my view to an extent is contrary to the principle of totality in s 85 of the Sentencing Act. The “overall criminality” of Mr Hepburn’s offending here as I see it does not warrant an end sentence of six years’
10 R v Uon CA108/05, 27 June 2005; and Hughes v R [2012] NZCA 388: Offences of driving with excess blood alcohol and disqualified driving committed at the same time, where the offender had multiple convictions for both offences, were held to be “different in kind” and justifying a cumulative term of imprisonment.
11 Anderson v R [2017] NZCA 91 at [8].
imprisonment.12 I acknowledge that the volume of charges is very significant. However, I do note that many of the charges themselves, are, in part, of relatively limited seriousness.
[27] I consider the appropriate way to approach this sentencing exercise is to follow the Court of Appeal’s suggestion in Anderson, i.e., by adopting the dishonesty offending as the lead charges and then applying uplifts for the related driving offending and other comparatively less serious charges. A starting point of three years, in line with Fraser v R,13 Doidge v Police14 and Skeens v Police,15 is appropriate here in my view for all the dishonesty related offending.
Driving while disqualified uplift
[28] I now deal with the uplift for the driving while disqualified charges. I note the large volume of charges for this offending and the appellant’s submission on the point that the course of conduct which gave rise to the majority of these charges was uninterrupted. The number of charges do not reflect the appellant being caught and cautioned by police between each offence. Rather, the continuing course of conduct was caught by police once all the offences had been committed. In other words, the appellant submits, the culpability would have been better reflected in three representative charges of driving while disqualified. The appellant also emphasises that driving while disqualified charges are such that they themselves take into account the aggravated nature of the offence when the offender has previous convictions for driving while disqualified. Accordingly, uplifts for previous convictions are not usually appropriate.16 In any case, the appellant has three previous convictions relating to driving while disqualified.
[29] Ms Garrick for the respondent in reply says that the uninterrupted nature of Mr Hepburn’s offending is of no moment. His recidivist offending of this type, Ms Garrick maintains, warrants a strict response and the three previous convictions
12 R v Xie, above n 2, at [17]; and see also Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [16].
13 Fraser v R [2019] NZHC 3298.
14 Doidge v Police [2021] NZHC 2256.
15 Skeens v Police [2022] NZHC 875.
16 Finch v R CA401/2012, 28 September 2012.
she says should have served as warning enough for Mr Hepburn to not drive while disqualified again.
[30] To an extent, however, I share the appellant’s concern here about the charging decision having an unusual quality to it, making the comparison to like cases difficult. I also accept the appellant’s point about being cautioned after every instance of offending. Mr Hepburn’s accumulation of 31 charges over some 23 days is different to a situation where someone is convicted 31 times for the same type of offence having been charged and cautioned after each instance and having some degree of time separation between each instance of offending. Mr Hepburn’s culpability in my view is lower than that hypothetical situation and does not warrant an uplift of twice the maximum penalty for the offence. I adopt an uplift of two years’ imprisonment for all the driving related offences.
Other charges
[31] The remaining charges which warrant a cumulative sentence or an uplift are the two breaches of home detention and one charge of failing to answer bail. I adopt the same uplifts adopted by Judge Couch in respect of these charges, that is, two months’ imprisonment for the breach of home detention charges and a further two-month uplift for the failure to answer bail.
[32] This leads me to a starting point for all of the charges of five years and four months’ imprisonment. In coming to this final starting point, I have been particularly mindful of the totality of Mr Hepburn’s offending, noting on the one hand the large volume of charges as well as the fact, on the other hand, that the great majority of the charges arose as a result of one continuous crime spree on Mr Hepburn’s part. I am satisfied that a final starting point of five years and four months’ imprisonment reflects Mr Hepburn’s overall criminality and is proportionate to the offending here in its entirety.
Personal aggravating and mitigating factors
[33] Mr Hepburn has previous convictions relating to driving while disqualified and dishonesty offences. I am guided by Finch v R that caution is to be exercised when
uplifting a sentence for previous convictions relating to driving while disqualified charges. That is because the charges have built into themselves the aggravated nature of the repeat offence.17 Additionally, and considering the volume of charges here, there comes a point where the court has to question whether uplifts will have the desired deterrent effect or whether imposing an uplift will amount to double punishment by sentencing someone on their criminal record.18 Uplifts are not to be applied as a matter of course19 and this is a case where I do not consider an uplift to be appropriate. Again, I note Ms McClay before me suggested Mr Hepburn’s actions here, albeit involving a significant crime spree committed over a four-month period, were simply ones driven by addiction. I say nothing more on that here. But I do note also that the current sentence will be Mr Hepburn’s first one of imprisonment and the deterrent and hopefully rehabilitative effect of that will not be lost on him.
[34] As for the uplift imposed for offending while on bail as well as the discounts applied for Mr Hepburn’s guilty pleas and personal mitigating factors, I do not think it is necessary to disturb those. I agree with the District Court Judge’s reasoning for coming to each and find the results appropriate. Accordingly, I adopt the 10 per cent uplift for the majority of the offending here having been committed while on bail, the 20 per cent discount for the appellant’s guilty plea, albeit that this was a plea entered in a rather delayed manner, and the five per cent discount for Mr Hepburn’s personal mitigating factors, this last aspect including the impact of drug addiction on Mr Hepburn’s offending.
[35] This leads to an end sentence here of four years and seven months’ imprisonment, rather than the sentence of six years’ imprisonment imposed by the District Court Judge.
Driving disqualification period
[36]I turn now to Mr Hepburn’s driving disqualification period sentence.
17 At footnote 2.
18 See, for example, Andrew Becroft and Geoff Hall Becroft and Hall’s Transport Law (online ed, LexisNexis) at [SPPA.3.2(a)].
19 O’Connor v R [2014] NZCA 328 at [41].
[37] The appellant says the period of five years and six months imposed in the District Court is crushing and will never allow Mr Hepburn to break the cycle of offending he is in. It also means that he will not be able to obtain his licence during his parole period, thereby first, setting him up to fail; secondly, increasing the risk that he will continue to drive while disqualified and, thirdly, creating a further risk to the public.
[38] Ms Garrick for the respondent responds by saying that the disqualification period imposed was within range and will still allow the appellant to obtain a licence while on parole, provided he is released at the halfway mark (given the original sentence stands). Further, the respondent submits that Mr Hepburn’s imprisonment will provide motivation in changing his behaviour so that he does not repeat such offending once he is released.
[39] Having come to the conclusion that Mr Hepburn’s sentence in the District Court was manifestly excessive and having substituted it for a sentence of four years seven months’ imprisonment, I accept what seems generally to be common ground between the parties, that Mr Hepburn should be given an opportunity to obtain his licence during the parole period. This reason alone is sufficient to allow the appeal against the period of driving disqualification. However, I am also persuaded by the appellant’s submission that the period of disqualification must be one that, while denouncing the culpable conduct, leaves room for Mr Hepburn to rectify his mistakes by enabling him to become a legal driver.20 Accordingly, in line with the authorities, I consider a period of one and a half years’ disqualification from Mr Hepburn’s release from prison is appropriate, especially given the lack of actual harm caused by Mr Hepburn’s driving while disqualified offending.21
Conclusion
[40] Considering the principle of totality, the sentences imposed on Mr Hepburn of six years’ imprisonment and a period of driving disqualification of five years and six months I find are manifestly excessive here.
20 Hitchens v R CA380/03, 25 March 2004 at [10]; and Shirley v Police [2022] NZHC 986.
21 Contrast with Leaupepe v Police [2016] NZCA 228 where death was caused. The offender was disqualified for a period of five years, which was upheld on appeal.
[41] I allow the appeal and quash both aspects of that sentence. I substitute for them first, a sentence of imprisonment of four years and seven months and secondly, a period of driving disqualification of one and a half years from his release from prison.
[42]The reparation orders made in the District Court stand.
ADDENDUM:
(a)Addressing the allocation of the new cumulative sentences for Mr Hepburn amounting to four years seven months’ imprisonment (in place of the total cumulative sentence of six years’ imprisonment, imposed on 9 November 2022 in the District Court) this is now to be:
(i)On CRN 220090 – two years seven months’ imprisonment (received an Isuzu truck).
(ii)On CRN 2200903408 – one year’s imprisonment (disqualified driving).
(iii)On CRN 22009003416 – one year’s imprisonment (disqualified driving).
All sentences are cumulative.
(b)On other concurrent sentences…for Mr Hepburn – imposed on 9 November 2022 in the District Court, those now to be altered by this decision from a concurrent sentence of three years’ imprisonment to a concurrent sentence of two years seven months’ imprisonment are:
CRN 22009002253
CRN 22009003327
CRN 22009003328
CRN 22009003329
CRN 22009003443
CRN 22009003445
All these being concurrent on the cumulative sentences noted in (a) above.
(c)On other concurrent sentences for Mr Hepburn imposed on 9 November 2022 in the District Court, those now to be altered by this decision from a concurrent sentence of one year and six months’ imprisonment to a concurrent sentence of one year’s imprisonment are:
CRN 22009002255
CRN 22009003382
CRN 22009003383
CRN 22009003384CRN 22009003385
CRN 22009003386
CRN 22009003387
CRN 22009003388
CRN 22009003389
CRN 22009003390
CRN 22009003391
CRN 22009003392
CRN 22009003393
CRN 22009003394
CRN 22009003395
CRN 22009003396CRN 22009003397
CRN 22009003398
CRN 22009003399
CRN 22009003400
CRN 22009003401
CRN 22009003402
CRN 22009003404
CRN 22009003405
CRN 22009003409
CRN 22009003412
CRN 22009003414CRN 22009003429
CRN 22009003436
(d)All the other concurrent sentences for Mr Hepburn imposed on 9 November 2022 in the District Court are to remain unchanged by this appeal decision as follows:
(i)As to the concurrent sentences of two months’ imprisonment (which remain unchanged)
CRN 21009500839
CRN 21009501100
CRN 21009002666
(ii)As to the concurrent sentences of one month’s imprisonment, which remain unchanged:
CRN 22009002254
CRN 22009002257
CRN 22009003365
CRN 22009003366
CRN 22009003367
CRN 22009003368
CRN 22009003369CRN 22009003370
CRN 22009003371
CRN 22009003372
CRN 22009003373
CRN 22009003374
CRN 22009003375
CRN 22009003380
CRN 22009003410
CRN 22009003411
CRN 22009003413
CRN 22009003415
CRN 22009003417CRN 22009003418
CRN 22009003419
CRN 22009003420
CRN 22009003421
CRN 22009003422
CRN 22009003423
CRN 22009003424
CRN 22009003425
CRN 22009003427
CRN 22009003431
CRN 22009003432CRN 22009003433
CRN 22009003438
CRN 22009003439
CRN 22009003441
CRN 22009003446
CRN 22009003787
Gendall J
Solicitors:
Ministry of Justice – Public Defence Service Christchurch for the Appellant Raymond Donnelly & Co for the Respondent
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