Knapp v The King

[2024] NZHC 2045

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-49

[2024] NZHC 2045

BRYAN KNAPP

v

THE KING

Hearing:	11 July 2024
Appearances:	G A Walsh for Applicant L Glasser for Crown
Judgment:	25 July 2024

JUDGMENT OF MUIR J

This judgment was delivered by me on 25 July 2024 at 3.30 pm,

………………………………… Registrar/Deputy Registrar

Solicitors:

L Glaser, Hamilton Legal G Walsh, Barrister

KNAPP v R [2024] NZHC 2045 [25 July 2024]

Introduction

[1]    Mr Knapp pleaded guilty to 10 charges including: conversion of a vehicle,1 three charges of burglary,2 three charges of intentional damage,3 failure to stop,4 dangerous driving causing injury,5 and possession of cannabis.6 On 3 May 2024,

Judge N D Cocurullo sentenced him to 26 months’ imprisonment.7

[2]    Mr Knapp appeals on the basis that his end sentence was manifestly excessive, and he should have been sentenced to home detention. Counsel for Mr Knapp submits that the Judge gave insufficient weight to Mr Knapp’s youth and further personal mitigating factors including his time spent on restrictive bail, his vulnerability, and medical disability.

Background

[3]    The case involves a spree of ram-raiding incidents throughout the Waikato region.

[4]    On 24 November 2023 at around 11.30 pm, Mr Knapp and six associates arrived via two stolen Toyota Corollas at a club in Te Kuiti. The group gained access to the club by pulling the metal grating off the rear door with one of the vehicles. Inside the club, Mr Knapp stole a variety of alcoholic drinks, cigarette lighters, a box of Crunches, and the cash till drawer. Mr Knapp and his associates then fled the scene in the stolen vehicles.

[5]    On 26 November 2023 at around 1.00 am, Mr Knapp and his associates arrived in the two Corollas at a Benneydale supermarket. Mr Knapp attempted to kick the front door in. Following this unsuccessful attempt, the group again gained access by

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

2      Section 231(1). Maximum penalty: 10 years’ imprisonment.

3      Section 269(2)(a). Maximum penalty: seven years’ imprisonment.

4      Land Transport Act 1998, s 52A(1)(a)(ii), (2) and (3). Maximum penalty: $10,000 fine and disqualification from holding or obtaining a driver licence for six months.

5      Section 36(1)(b) and (2). Maximum penalty: five years’ imprisonment or $20,000 fine and disqualification from holding or obtaining a driver licence for one year or more.

6      Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: three months’ imprisonment or

$500 fine.

7      New Zealand Police v Knapp [2024] NZDC 13524.

tying a rope between a door and a vehicle and driving forward causing the door to break. Inside the supermarket, Mr Knapp and his associates stole vapes, cigarette papers, freezer bins containing frozen items including ice-creams, the cash till drawer, a blue handled hammer, chips, and a wooden handled mallet. Before leaving, the group unplugged the freezers and smashed a security camera. In her victim impact statement, the owner of the supermarket notes that she is uninsured, faces losses of around $5,000 and says the struggle to repair her shop has “caused major stress” and has impacted her significantly.

[6]    On 25 November around 2.00 am, Mr Knapp and his associates visited a supermarket in Piopio. The group arrived in three stolen vehicles (the two Corollas and a Mazda). The group gained access to the store after an associate reversed into the supermarket’s front doors and caused considerable damage. The group stole a large volume of cigarettes, drinks, vapes and other food. The group then fled the area.

[7]    At around 2.30 am, police followed Mr Knapp from a distance as he drove one of the stolen Corollas into the Te Kuiti township. Mr Knapp was travelling at an increased speed, and the police activated their vehicle’s flashing lights and sirens.  Mr Knapp pulled away from the patrol vehicle and police were forced to abandon the pursuit.

[8]    Police then sighted Mr Knapp heading towards Hangatiki. Mr Knapp was travelling at high speed. During this time, he raced through a State Highway intersection crossing the centre line travelling on the wrong side of the road, failed to give  way,  and  drove  into  the  direct  path   of   a   south   bound   vehicle   on  State Highway Three. Mr Knapp was then involved in a high-speed head-on crash with members of the public  travelling  south.  As  a  result  of  the  crash,  four  of Mr Knapp’s co-offenders were transported to Waikato Hospital. Two co-offenders received minor facial injuries, one sustained a T12-L1 spinal fracture and the fourth a collapsed lung, fractured hand, grade three liver laceration, and severe kidney damage. Those in the southbound vehicle sustained minor injuries including whiplash, chest soreness, a split lip, hip and arm pain.

[9]    Following Mr Knapp’s arrest, police searched his bag and located .70 grams of cannabis.

[10]   At the time of the offending Mr Knapp held his learner’s licence. Mr Knapp admitted to police that he was driving at the time of the crash because he was “the best getaway driver”.

District Court decision

[11]   The Judge noted that Mr Knapp has about 20 or 21 previous charges in the Youth Court for which he was discharged under s 282 under the Oranga Tamariki Act 1989. Judge Cocurullo considered that these previous matters meant there was no credit available for good character.

[12]   Judge Cocurullo identified the Crimes Act 1961 charges, the burglary charges and the criminal damage charge, as the lead charges and noted his intention to group those charges together before grouping the remaining charges and uplifting for totality. He noted that there would be disqualifications from driving and the destruction of the cannabis plant.

[13]   The reports available to the Judge included the pre-sentence report and a s 27 report, the contents of which Judge Cocurullo did not wish to address in open court. He did note that Mr Knapp had been on restrictive but not electronically monitored bail.

[14]   Judge Cocurullo noted that whilst reparations were sought by some of the victims there was no prospect of that, and he did not wish to revictimize them by ordering reparations that Mr Knapp could not meet. Throughout his summary of the offending Judge Cocurullo noted the damage done, the degree of planning and premeditation, and the loss caused by the offending.

[15]   The Judge referred to his philosophical view, supported by research, that if a young man is jailed early that they continue to offend when released and return to jail; and noted Mr Knapp’s desire for a sentence of home detention.

[16]   The Judge was referred to Tuifua v New Zealand Police which had a similar factual matrix.8 However, he queried the relevance of the starting point given the differences between the one-off ram-raid burglary in Tuifua and the spree-like nature of Mr Knapp’s offending.

[17]   In determining the starting point the Judge considered s 16  of  the  Sentencing Act 2002, the high degree and premeditation of the raids, Mr Knapp’s culpability as one of the older offenders, the damage caused, the property taken and the discrete offending at  night-time  of  vulnerable  premises.  A starting  point  of 42 months’ imprisonment was set for the lead charges.

[18]   In adjusting for totality, and recognising the remaining charges, a six-month uplift was applied resulting in an adjusted starting point of 48 month’s or four year’s imprisonment.

[19]   The Judge awarded a 25 per cent discount to reflect Mr Knapp’s early guilty plea. Judge Cocurullo awarded a 10 per cent discount to recognise matters raised in Mr Knapp’s s 27 report (which he did not detail in open court) and a further 10 per cent discount to  acknowledge  Mr  Knapp’s  youth.  Resulting  in  a  total  discount  of  45 per cent and an end sentence of 26 months’ imprisonment.

Law on appeal

[20]   This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.9 Otherwise, the Court must dismiss the appeal.10

[21]   The sentence must be manifestly excessive before the appeal court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.11 Whether a sentence is manifestly excessive is to be

8      Tuifua v New Zealand Police [2015] NZHC 2426.

9      Criminal Procedure Act 2011, s 250(2).

10     Section 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

assessed in terms of the final sentence given rather than the process by which it was reached.12

Submissions

[22]   Counsel for Mr Knapp, Mr Walsh, submits that the discounts for Mr Knapp’s youth and personal factors raised in the s 27 report could have been higher suggesting a discount of 15 per cent. He refers to R v Halliday-Walters which notes the Court’s readiness to recognise the significant age-related neurological difference between adult and youth offenders,13 and R v Slade in which the Court of Appeal accepted that the effect of imprisonment differs between youth and adult offenders.14

[23]   For the Crown, Ms Glaser, regarded the Court’s recognition of the relevance of youth in sentencing,15 and acknowledged Mr Knapp’s familiarity with the justice system noting that he has previously benefited from repeated rehabilitative responses from the Court. Ms Glaser says that despite this approach Mr Knapp’s anti-social behaviour has continued and escalated. She emphasises that his attempts to avoid detection by police placed members of the public at significant risk.

[24]   Mr Walsh submits that additional reductions for Mr Knapp’s youth and personal factors would allow the Court to reduce the starting point to a level at which a short-term sentence could be considered. Mr Walsh says that such a sentence would be consistent with the aims of the sentencing judge and would be ensconced within   s 16 of the Act as an end sentence of home detention would be the least restrictive option.

[25]   Ms Glaser outlined aspects of Mr Knapp’s s 27 report including his father’s repeated incarceration, his sister’s involvement in the criminal justice system, and Mr Knapp’s substance abuse. Ms Glaser highlights that the report writer did not consider that substance abuse played a role in Mr Knapp’s offending and cites the requirement for a causative contribution between the offender’s background and the

12     Ripia v R [2011] NZCA 101 at [15].

13     R v Halliday-Walters [2024] NZHC 520 at [24].

14     R v Slade [2005] 2 NZLR 526 (CA) at [45].

15     Churchward v R [2011] NZCA 531; and Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.

offending to justify any credit.16 She submits that the existing 10 per cent discount for Mr Knapp’s personal factors could be seen as generous.

[26]   Ms Glaser submits that Mr Knapp’s bail conditions were not particularly restrictive and should not have attracted credit on sentence. She says that Mr Knapp’s bail conditions did not restrict his liberty to an extent warranting a discrete reduction. It is noted that Mr Knapp also breached his bail on one occasion.

[27]   No discount was directly given in acknowledgement of Mr Knapp’s medical disability. Ms Glaser submits that the sentencing judge was correct in this determination. She submits that Mr Knapp has lived with his disability for 15 years and that there is no evidence that his disability would impact his ability to serve a sentence of imprisonment. As this matter was raised in the s 27 report, Ms Glaser noted that providing an additional discount in respect of Mr Knapp’s disability would risk double counting.

[28]   I note that in oral argument Mr Walsh did not press his written submissions in so far as they referred to the possibility of further discounts for restrictive bail conditions or medical disability. Appropriately so in my view. Bail conditions were not particularly restrictive, and I note that despite being blind in one eye for 15 years Mr Knapp stated to police that he was driving because he was “the best getaway driver”. Evidently therefore, his disability has limited impact on his day-to-day function.

Discussion

Introduction

[29]   The focus of this appeal is on the discounts of 10 per cent allowed for each of the youth and aspects of familial background reducing culpability. Because the Judge’s final sentence was only two months more than that which would have enabled consideration of home detention, small adjustments to overall discounts can in this

16     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

context have meaningful impact and justify appellate intervention where otherwise claims of tinkering might be made.17

[30]   In this case, the experienced District Court Judge obviously considered himself motivated to reach an end sentence which would have given rise to home detention eligibility. He indicated that he had:18

… a philosophical view, Mr Knapp, that I endeavour to do all that I can for young men, particularly, who are first offenders to the Adult Court to try and keep them out of jail. The reason why I have that philosophical view is that the research tells us that generally if a young man is jailed early, sadly they continue to offend when released and return to jail.

[31]   The issue on appeal is whether the Judge was in error in limiting available discounts (in addition to that for guilty plea) to 20 per cent. That inquiry must in turn be conducted by reference to the overall outcome of the sentencing in the context of the overall offending. As has often been said, the focus is on whether the end sentence was within range, not the process by which that sentence was reached.19

Discount for familial background

[32]   The Court was in receipt of a comprehensive s 27 report, which noted familial criminogenic influences arising from his father’s repeated imprisonment for property related offences and sister’s lower level involvement with the criminal justice system. However, his father’s negative influence was much diminished following separation from his mother, who is described by one of those who were interviewed, as having “basically brought up the kids on her own. They haven’t had it easy, she’s done the best she can, but the kids always expected more and wanted more”. Moreover, many of Mr Knapp’s seven siblings appear to have gone on to get what Mr Knapp describes as “mean jobs”. He is also described as having “a decent level of connection with both his King Country based Ngāti Maniapoto Marae”.

[33]   In short, although the Judge was correct to recognise a likely causal connection between Mr Knapp’s offending and aspects of his childhood/adolescent role modelling

17     R v Gledhill [2009] NZCA 415 at [32]; and Sweeney v R [2023] NZCA 417 at [32].

18     New Zealand Police v Knapp, above n 7, at [21].

19     Tutakangahau v R, above n 11, at [36]–[40].

and economic deprivation, Mr Knapp had the benefit of at least one seemingly competent parent and considerations of agency and choice clearly feature prominently in his offending profile. This was not a background as obviously characterised by systemic violence, trauma and deprivation as this Court is often required to consider.

[34]   In that context, the discount allowed, albeit at the lower end of the available range, was not in my view, in error.

Discount for youth

[35]   Mr Knapp was 18 years old at the time of the offending. The Judge noted that although he was appearing for the first time in the adult court, he had “20 or 21” previous charges in the Youth Court for which the Judge was informed Mr Knapp had received a s 282 discharge on an informal plan. I note that these charges included multiple instances of burglary and unlawfully taking motor vehicles.

[36]   Section 9(2)(a) of the Sentencing Act recognises that the age of an offender can be a mitigating factor. A case specific assessment must be made. The reasons for allowing such a discount are typically identified as:20

(a)the need to recognise age related neurological differences between young people and adults;

(b)the effect of imprisonment on young people; and

(c)their general capacity for rehabilitation, given that their character is not yet as well formed as that of adults.

[37]   In Dickey v R the Court of Appeal identified that there is no outer limit to the discount for youth, with discounts ranging between 10 and 30 per cent being common.21

20     See for example Churchward v R, above n 15.

21     Dickey v R, above n 15, at [175].

[38]   At least in the context of serious aggravated robbery, the Court of Appeal has also recognised that offenders “who have accumulated considerable lists of convictions while still in their teens cannot expect leniency in sentencing”.22

[39]   Similar considerations appear to have animated the District Court Judge. He said, describing the defendant’s previous offending history:23

That whole process in the Youth Court was designed to try and turn you away from continuing to offend as an adult, coming to the District Court and risk going to jail.

[40]   I agree with the Crown that Mr Knapp is familiar with the justice system and has previously had the benefit of repeated rehabilitative responses from the Court. Mr Knapp was given an opportunity to learn from his Youth Court experiences, make positive change and engage in rehabilitation. Despite being afforded that opportunity, his anti-social behaviour has continued and escalated. This offending was premediated and his attempts to avoid detection by police placed members of the public at significant risk.

[41]   I accept that in one of the otherwise broadly equivalent cases referred to by the Crown—Bracey v New Zealand Police,24 the Court allowed a 15 per cent discount for an 18-year‑old offender, noting that his previous history in the Youth Court reduced the credit that might otherwise be available. But it is clear that in identifying a discount at this level, the Judge also took into account the fact that the offender had spent     14 days in prison and had been subject to 24-hour curfew for three months. These features are not present in the instant case.

[42]   I am unable, therefore, to identify any error in the approach adopted by the District Court Judge in respect of the discount applied.

22     R v Mako [2000] 2 NZLR 185 at [65] recently considered in Matkovich v New Zealand Police

[2021] NZHC 1660.

23     New Zealand Police v Knapp, above n 7, at [1].

24     Bracey v New Zealand Police [2022] NZHC 476.

Result

[43]I dismiss the appeal.

Muir J