Kara-Newcombe v Police

[2018] NZHC 25

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-000003 [2018] NZHC 25

BETWEEN

CLEVELAND KARA-NEWCOMBE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 January 2018 (via AVL at Wellington)
Counsel:	W R Hawkins for Appellant C C Gullidge for Respondent
Judgment:	30 January 2018

JUDGMENT OF COLLINS J

Introduction

[1]      Mr Kara-Newcombe appeals a sentence of 13 months’ imprisonment imposed by Judge Adeane in the Napier District Court on 14 December 2017.1

[2]      The sentence in question was imposed after Mr Kara-Newcombe pleaded guilty to unlawfully getting into a motor vehicle.2   Initially, Mr Kara-Newcombe was charged with unlawfully taking a motor vehicle and burglary.  On the morning of the scheduled trial before Judge Adeane the charges were amended to a single charge of unlawfully getting into a motor vehicle.

[3]      Mr Kara-Newcombe was sentenced with Mr Waikato, who faced a charge of burglary in addition to unlawfully getting into the motor vehicle.

1      New Zealand Police v Waikato [2017] NZDC 28685.

2      Crimes Act 1961, s 226(2). Maximum penalty is two years’ imprisonment.

KARA-NEWCOMBE v NEW ZEALAND POLICE [2018] NZHC 25 [30 January 2018]

[4]      Judge Adeane adopted a starting point of 12 months’ imprisonment for both offenders.   He increased Mr Kara-Newcombe’s sentence by three months to take account of his history of dishonesty offending and then reduced the provisional sentence by two months to reflect Mr Kara-Newcombe’s guilty plea.  Mr Waikato’s sentence was increased by three months to reflect the burglary charge and a further three months to reflect his previous convictions for dishonesty offending.

Background

[5]      On 19 August 2017, Mr Kara-Newcombe and Mr Waikato were in a carpark near a bar in Napier. Mr Waikato entered the bar and stole the keys to an Audi vehicle from inside the victim’s bag.  It is that conduct that formed the basis of the burglary charge against Mr Waikato. Mr Waikato and Mr Kara-Newcombe located the Audi in the carpark.  They then drove off.  They were stopped by the police some time later. They fled the scene but were soon apprehended and arrested.

Personal circumstances

[6]      Mr Kara-Newcombe is a 19 year old beneficiary who has significant substance abuse problems.  He is a daily user of methamphetamine and cannabis and has an entrenched affiliation to a gang.  He has six previous convictions for burglary, two convictions for shoplifting, one conviction for theft, one conviction for theft from a car and 10 other convictions that primarily relate to breaching release conditions.  He also has similar convictions in the Youth Court.

Starting point

[7]      I am satisfied that the starting point of 12 months’ imprisonment for unlawfully getting into a motor vehicle was beyond the level that was appropriate in this case. As a consequence, the end sentence was manifestly excessive. The criteria in s 250 of the Criminal Procedure Act 2011 for allowing an appeal against sentence are therefore satisfied in this case.

[8]      In reaching this conclusion I have examined a number of similar cases.

[9]      In Mack v Police, the accused was sentenced to three months’ imprisonment for unlawfully getting into and interfering with a motor vehicle, alongside separate charges of assault and theft.3  Mr Mack was 20 years old, and had criminal convictions for a wide range of offences.   Mr Mack was involved with a co-offender who unlawfully took the vehicle.

[10]     In Prasad v Police, the accused was sentenced to six months’ imprisonment for unlawfully getting into a motor vehicle.4   Mr Prasad had 18 previous convictions, many for dishonesty offences. Mr Prasad had entered the vehicle, which he knew had been converted by a co-offender, to go on a “joyride”. An aggravating factor was that

Mr Prasad had recently been realised from prison.

[11]     In Rota v Police, the accused was sentenced to six months’ imprisonment for three charges of unlawfully getting into a motor vehicle and one charge of conversion of a motor vehicle, alongside a separate charge of aggravated assault.5   Mr Rota was

18 years old and pleaded guilty.  A co-offender had broken into most of the cars, but

Mr Rota was responsible for breaking into one of them.

[12]   In McDonald v Police, the accused was sentenced to eight months’ imprisonment for unlawfully getting into a motor vehicle, in the context of theft and possession of instruments for conversion charges.6    Mr McDonald and an associate unlawfully took a car from Christchurch to Dunedin, where they were found with tools commonly used to break into vehicles. The sentencing Judge described this as “spree offending”, and Mr McDonald as a “career criminal given his history”. Pre-meditation was an aggravating factor, given the tools.

[13]     I acknowledge that in Karetu v Police,7  a case relied upon by the Crown, I imposed a sentence of one year’s imprisonment for three charges, which included unlawfully getting into a motor vehicle, refusing to provide a blood specimen and

careless driving causing injury.  That case, however, is clearly quite distinguishable

3      Mack v Police HC Dunedin CRI-2007-012-4365, 4 October 2007.

4      Prasad v Police HC Napier AP50/1, 13 December 2001.

5      Rota v Police HC Gisborne CRI-2009-416-20, 14 September 2009.

6      McDonald v Police [2012] NZHC 1408.

7      Karetu v Police [2012] NZHC 2370.

from the present situation where there were not the aggravating factors of refusing to provide a blood specimen and careless driving causing injury.

[14]     Mr Kara-Newcombe’s circumstances are similar in most respects to the cases outlined above, but Prasad v Police in particular.   The starting point adopted by Judge Adeane was well beyond the range normally adopted in cases of this kind.

[15]     In  this Court counsel  for the Crown  submitted that the starting point of

12 months’ imprisonment was “stern” but reasonably available.  In my assessment, however, the starting point of 12 months’ imprisonment offends the principle of consistency in sentencing which aims to ensure that offenders who commit similar offences are, so far as is reasonably possible, sentenced in a similar way.8  Based upon the similar authorities to which I have referred, a starting point of between six to eight months’ imprisonment would have been more appropriate for Mr Kara-Newcombe. In my assessment, the appropriate starting point in this case was one of seven months’ imprisonment.

[16]     It was appropriate to impose an uplift to reflect Mr Kara-Newcombe’s previous convictions and the fact that he offended while subject to release conditions. It is also appropriate that he receive a discount for his guilty plea that was entered on the same day the charges were amended to reflect his role in the offending.

[17]     In this case, both the uplift for previous convictions and the discount for the guilty plea should have been in the vicinity of 20 per cent.  Those factors therefore cancel each other out.

Result

[18]     The  appeal  against  sentence  is  allowed.    The  sentence  of  13  months’

imprisonment  is  quashed  and  substituted  with  a  sentence  of  seven  months’

imprisonment.

8      Sentencing Act 2002, s 8(e).

D B Collins J

Solicitors:

Public Defence Service, Napier for Appellant

Crown Solicitor, Napier for Respondent