Knock v Police

[2017] NZHC 910

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2017-443-7 [2017] NZHC 910

BETWEEN

WESLEY JOSEPH KNOCK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 May 2017
Counsel:	M S Boyd for Appellant J E Bourke for Respondent
Judgment:	8 May 2017

JUDGMENT OF ELLIS J

[1]      On 9 March 2017, following a sentence indication, Mr Knock was sentenced by Judge Sygrove to a total of 24 months’ imprisonment as a result of his conviction on the following charges:

(a)       burglary;

(b)      driving while disqualified (third or subsequent);

(c)       driving with excess breath alcohol (third or subsequent); (d)   dangerous driving; and

(e)       shoplifting.1

1      He was convicted and discharged on charges of threatening behaviour and breach of release conditions.

KNOCK v POLICE [2017] NZHC 910 [8 May 2017]

[2]      He now appeals that sentence.

Facts

[3]      Mr Knock walked into a residential property in New Plymouth.  He got into the car parked in the driveway and started it.   He reversed  at speed  down the driveway colliding with the victim’s boundary fence and letterbox and drove off at speed.

[4]      Mr Knock drove through various residential streets before turning onto State Highway 3.  As he drove past an intersection he drove off the road and collided with a lamp post so hard that it was torn from its base and javelined through a road sign. He continued driving towards Waitara with sparks flying off the front left rim of the vehicle.  Several members of the public called Police saying he was weaving across both sides of the road. The car was effectively written off.  It was valued at $13,500.

[5]      A short time later, he was located by Police in Waitara.   He admitted to drinking alcohol, and a breath test produced a result of 873 micrograms per litre of breath.  Checks revealed he was disqualified from driving at the time.

Sentencing in the District Court

[6]      The sentencing followed a sentence indication given on 3 March 2017.  The

Judge adopted:

(a)       a  20  month  starting  point  for  the  burglary,  taking  into  account

Mr Knock’s previous similar convictions; and

(b)an uplift of 12 months for the driving offending, taking into account its serious nature and his previous driving convictions.

[7]      The Judge said there were no mitigating factors and that Mr Knock had previously been given credit for his “age, intellectual disability and things in the past”.2   He was afforded a 25 per cent discount for guilty plea, resulting in the end sentence of 24 months’ imprisonment.

The appeal

[8]      Mr  Knock’s  appeal  was  principally  advanced  on  two  relatively  narrow

grounds.

[9]      First, Ms Boyd said that although a 20 month starting point was within the available, more minor, “dwelling house” burglary range,3  it was at the highest end, and given the circumstances, a 12 month starting point could have been adopted, referring to O’Sullivan v Police.4

[10]     Secondly (and independently of the first point), she said that although a starting point of 12 to 18 months would be appropriate for the driving offences if being sentenced separately,5 when combined with the 20 months for the burglary the end sentence is wholly out of proportion to the seriousness of the offending overall.

[11]     As far as the first contention is concerned, Ms Boyd’s reliance on O’Sullivan

was predicated in large part on the proposition that the burglary charge here was akin to an unlawful taking charge (which had been the lead charge in that case).6   She said

2      There is nothing on the file that suggests that Mr Knock has an intellectual disability.  He is, however, an alcoholic and, as I understand it, homeless.

3      As to which see Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

4      O’Sullivan v Police  [2015] NZHC 2032. In that case, this Court allowed an appeal against a sentence of two and a half years’ imprisonment on charges of unlawfully taking a motor vehicle, driving with excess breath alcohol (third or subsequent), driving while disqualified (third or subsequent), failing to stop for Police, resisting Police and possession of cannabis. The sentence was reduced to 16 months on appeal. The Court said that the starting point of three years was

unsupported by authority, and failed to take account of the impulsivity of the offending.   It

substituted a starting point of 12 months, with an uplift of eight months for the associated driving offending.

5      In Samson v Police [2015] NZHC 748 this Court reviewed sentence level for driving with excess breath or blood alcohol. Disqualification and dangerous driving are considered relevant

aggravating factors.  Where one or more seriously aggravating factor is present, a sentence of

12 to 18 months’ imprisonment is appropriate.  For multiple offences with seriously aggravating factors, 18-20 months is appropriate.

6      In Gideon v Police [2014] NZHC 1065 this Court said that the unlawful taking in that case was akin to theft so it was appropriate to set the starting point for unlawful taking by comparison to theft, rather than burglary.

that although Mr Knock had entered onto private property to take the car he did not enter a dwelling house and so the policy considerations favouring higher starting points in dwelling house burglaries did not apply.

[12]     But I am unable to agree.   As Mr Bourke said, the car was parked in a residential driveway.  The offending took place in the early evening, when it could be expected that the occupants could be home.  There was a real and appreciable risk of confrontation. The 20 month starting point cannot be impeached.

[13]     And in terms of the wider “totality” issue, the two cases referred to me by Mr Bourke indicate that combined sentences of the kind imposed here were within the available range, even after taking into account totality.

[14]     First, in Poole v R, the appellant had pleaded guilty to burglary, unlawful taking of a motor vehicle, driving with excess breath alcohol, driving dangerously and failing to stop for Police.7     His previous convictions included four burglary convictions, seven unlawful taking or interfering with vehicle convictions, and 11 for driving offences.  The burglary involved forced entry into a residential address and the taking of approximately $2,500 of electronics.  On a separate occasion, he broke into a car at a residential address and drove off at speed.  When Police attempted to stop him, he sped off accelerating up to 180 kilometres per hour.  Police pursued him

over 11 kilometres and were only able to stop him using road spikes.   Once apprehended, he gave a reading of 595 micrograms of alcohol per litre of breath.

[15]     The sentencing Judge adopted a starting point of three years for the burglary, reduced this by 25 per cent for guilty plea, and added four months cumulative for the driving offending, resulting in an end sentence of 31 months.   On appeal, Justice Mallon determined that a starting point of 18 months for the burglary was more appropriate.  She found that a cumulative sentence of up to 15 months was available for the driving offending, in light of the appellant’s previous convictions, and that

this would not offend totality.8

7      Poole v R [2014] NZHC 1226.

8      The final sentence was 25 months’ imprisonment, made up of various cumulative sentences.

[16]     And in White v Police the appellant had pleaded guilty to two separate sets of charges and was sentenced to cumulative sentences totalling three years and four months’ imprisonment.9   The first set of charges involved the appellant, after a night of drinking, going to a friend’s house, climbing in through an open window and taking $60.00 and a set of keys.  He used the keys to start and drive his friend’s car into town.  His friends saw him, stopped him and parked the car.  The second set of charges arose nearly two months later, when the appellant was on bail.   He was driving with blood alcohol twice the legal limit and at high speeds.  He crossed the

centre line, lost control of the vehicle and crashed into a power pole.  In respect of the second charges, the sentencing Judge took a starting point of three years.  Lang J on appeal considered the starting point was appropriate.  Lang J considered that the first set of charges warranted a starting point of 12 months.10

[17]     In the present case, it seems to me that it would have been open to the Judge to have imposed cumulative sentences.  While the burglary and driving charges are connected in time, they are different in kind.11   And although s 85 of the Sentencing Act 2002 makes it clear that totality must still be considered the Judge’s omission to refer expressly to totality means that he did not take it into account.  Indeed, he noted that,  on  their  own,  the  driving  offences  could  attract  a  starting  point  of  up  to

18 months’ imprisonment, but “uplifted” by only 12 months.  The totality adjustment may well have been implicit.   But even if it is not, the end result remains, in my view, within the available range, as the two cases to which I have just referred indicate.

[18]     The appeal must be dismissed accordingly.

Rebecca Ellis J

9      White v Police HC Rotorua CRI-2009-463-72, 12 October 2009.

10     He then uplifted by six months for previous convictions, and then discounted six months for guilty pleas.   That sentence was cumulative on the two year sentence for the second set of charges, which Lang J upheld, resulting in a total effective sentence of 36 months.

11     See s 84 of the Sentencing Act 2002.