Kushell v Police

[2012] NZHC 2380

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-000034 [2012] NZHC 2380

BETWEEN  MICHAEL WILLIAM KUSHELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 September 2012

Counsel:         C Ure for Appellant

R D Smith for Respondent

Judgment:      14 September 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 12.30pm on the 14th day of September 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      On 12 June 2012 Mr Kushell was sentenced to two years and four months’ imprisonment for his involvement in taking two cars from where they were parked in Pukekohe and driving them to Rotorua.

[2]      Mr Kushell appeals against this sentence on the basis that:

(1)the sentencing Judge applied an uplift for his previous convictions that was manifestly excessive and resulted in an end sentence which

was totally inappropriate;  and

KUSHELL V NEW ZEALAND POLICE HC DUN CRI-2012-412-000034 [14 September 2012]

(2)that his co-accused appears to have been sentenced to just 100  hours of community work.

[3]      Mr Kushell submits that the disparity between his sentence and that imposed on  his  co-accused  renders the  sentence he  received as  one  that  was  manifestly excessive.

Summary of facts

[4]      On the evening of 29 March 2012, Mr Kushell and his co-accused were in Pukekohe.  They approached a parked car and gained entry using a fork in the shape of a key.   Mr Kushell used the same fork to start the car.   He and his co-accused drove to another address where a Ford Laser was parked.  The co-accused got out of the first car and gained entry to the Ford Laser, starting it using a fork in the same manner as was used on the first vehicle.  The two offenders drove to Rotorua in the stolen  cars,  completing  some  “burn  outs”  en  route  before  parking  the  cars  in Rotorua.  They were then apprehended by police.  Mr Kushell explained he stole the car in order to get back to Dunedin where he had been living since his release on parole in 2011.

District Court Judge’s decision

[5]      The District Court Judge described the offending as an opportunistic attempt to steal low value cars and drive a good distance from Auckland.  He then stated the primary purpose of sentencing would be to hold Mr Kushell to account for a long record of offending.  Mr Kushell’s prior convictions for the same kind of offending have attracted every sentence possible, ranging from corrective training to five years’ imprisonment.  The most serious offence was committed in 2000 when Mr Kushell was sent to prison for five years for burglary and unlawfully taking a motor vehicle. After his release from prison Mr Kushell was convicted of aggravated robbery and unlawfully taking a motor vehicle which attracted a sentence of three and a half years’ imprisonment.   The District Court Judge noted serious concerns about this previous offending and the fact that Mr Kushell has not responded to prior sentences.

[6]      The   District   Court   Judge   imposed   a   starting   point   of   18   months’ imprisonment and applied an uplift of 18 months’ imprisonment for Mr Kushell’s previous convictions and a 20 per cent discount for a guilty plea, resulting in an end sentence of two years and four months’ imprisonment.

Grounds of appeal

[7]      On appeal, Ms Ure, counsel for Mr Kushell, submitted that:

(1)       the  uplift  imposed  of  18  months’  imprisonment  was  manifestly

excessive and disproportionate;

(2)      the  disparity  between  Mr  Kushell’s  sentence  and  the  sentence imposed  upon  his  co-accused  was  disproportionately  harsh  on Mr Kushell.

Submissions for the Crown

[8]     Mr Smith, for the Crown, acknowledged that the uplift of 18 months’ imprisonment  might,  on  its  face  appear  excessive.    However,  he  strenuously submitted that the overall starting point of three years’ imprisonment was within the range that was reasonably available having regard to Mr Kushell’s unenviable criminal history.

[9]      In relation to the disparity issue, Mr Smith submitted that Mr Kushell’s co- accused had a much more limited criminal history than Mr Kushell and had previously been the subject of an order under the Criminal Procedure (Mentally Impaired Persons) Act 2003.   The co-accused had just four previous convictions, three of which were comparatively trivial.

Analysis

[10]     The  number,  seriousness,  date,  relevance  and  nature  of  any  previous convictions of an offender are a mandatory aggravating feature which need to be

taken  into  account  pursuant  to  s  9(1)(j)  of  the  Sentencing  Act  2002.    Prior convictions are taken into account in three ways:

(1)       as an indicator of character and culpability;

(2)       as showing the need for a greater deterrent response from the Courts;

and

(3)       as an indicator of risk of reoffending.

[11]     The District Court Judge appears to have based the 18 months’ uplift on a pattern of offending for the same types of offence, and Mr Kushell’s inability to respond  to  the  sentences  imposed.    Mr  Kushell’s  history  warranted  a  greater deterrent response.  Mr Kushell’s convictions for unlawfully taking a motor vehicle go back as far as 1997 when he was dealt with in the Youth Court jurisdiction.  He has 28 convictions for unlawfully taking motor vehicles.  The most recent sentences he received for this offending were ones of imprisonment.   Mr Kushell served a concurrent sentence of nine months’ imprisonment in respect of two charges of unlawfully taking a motor vehicle in 2000, and soon after his release from that sentence he faced five charges of unlawfully taking a motor vehicle, to which he was sentenced to a concurrent sentence of three years’ imprisonment.

[12]     Prior offending of a similar type will generally carry greater weight than prior offending of a different character altogether.[1]

[1] R v Ward [1976] 1 NZLR 588 (CA) at 591.

[13]     The fact the current offending occurred within a short time of the previous offending is an additional aggravating factor, particularly when it is considered that Mr Kushell was on parole after release from prison in 2011, and committed the current offences in March 2012, whilst he was still subject to release conditions.

[14]     Additionally, the prior convictions for unlawful taking stand alongside other serious convictions for which Mr Kushell has served sentences of imprisonment.

Since 2000 there have been two convictions for aggravated robbery, one for breaking

and entering with a weapon, and one for burglary for drugs.  Mr Kushell told the pre- sentence report writer that his time in prison helped him “learn about life” and that he is “more humble, more thoughtful” after his last sentence.   However, the last sentence of imprisonment does not seem to have deterred Mr Kushell from reoffending.

[15]    Taking into account Mr Kushell’s prior record generally, the number of convictions for the same type of offending and the fact that he has reoffended so soon after being released on parole in my view a significant uplift needed to be imposed, but it needed to be proportionate to the starting point of 18 months’ imprisonment.  An uplift of 100 per cent of the starting point is very unusual.  In my assessment a proportionate uplift in this case was 12 months’ imprisonment.

[16]     I  am  also  concerned  about  the  apparent  disparity  between  the  sentence imposed upon Mr Kushell and that imposed upon his co-accused.

[17]     In R v Rameka the Court of Appeal said:[2]

that it will in special cases have regard to disparity as a ground of appeal against sentence, but only when the disparity appears unjustifiable and is gross.

[2] R v Rameka [1973] 2 NZLR 592 (CA) at 594.

[18]     In R v Lawson[3] the Court of Appeal made plain that in considering disparity issues the Court needed to objectively assess whether there was a real justification for disparate sentences,  and  whether  a reasonably minded  independent  observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[3] R v Lawson [1982] 2 NZLR 219 (CA). See also R v Piper [2006] NZCA 345.

[19]     A similar approach was adopted by the Court of Appeal in Mau’u v R, where the  Court  of Appeal  held  that  where  disparity  is  caused  by  an  unduly  lenient sentence, an otherwise proper sentence for a co-offender should not be modified.[4]

[4] Mau’u v R [2011] NZCA 385.

The Court remarked that two wrongs do not make a right, and that reducing a proper

sentence to bring it in line with a lenient sentence imposed on a co-offender can also

undermine public confidence in the administration of justice.[5]    This echoes earlier Court of Appeal authorities R v Te Kaha and R v Feterika,[6] where the Court held that an inadequate sentence cannot justify yet a further inadequate sentence.

[5] At [28].

[6] R v Te Kaha CA49/05, 5 July 2005 and R v Feterika [2008] NZCA 127 at [47].

[20]     In this case the District Court Judge does not appear to have had the benefit of knowing of the sentence imposed upon Mr Kushell’s co-accused.  This causes me some disquiet in the circumstances of this case.  For this reason I believe this factor also justifies altering the uplift imposed by the District Court Judge when sentencing Mr Kushell by reducing the uplift to 12 months’ imprisonment.

Result

[21]     The appeal is allowed.  I impose a sentence that is based upon a starting point of 18 months to which I apply an uplift of 12 months’ imprisonment to reflect Mr Kushell’s previous convictions.   I then provide the same 20 per cent discount applied by the District Court to reflect Mr Kushell’s guilty pleas.  This produces an

end result of two years’ imprisonment.

D B Collins J

Solicitors:

Public Defender, Southland for Appellant

Crown Solicitor, Dunedin for Respondent