Lowe v Police
[2018] NZHC 282
•1 March 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2017-488-000039
[2018] NZHC 282
BETWEEN ZEKE JAMES LOWE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 February 2018 Appearances:
David Niven for the Appellant
James Eng for the Respondent (via AVL from Wellington)
Judgment:
1 March 2018
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered by me on 1 March 2018 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
LOWE v NEW ZEALAND POLICE [2018] NZHC 282 [1 March 2018]
Introduction
[1] Zeke Lowe, the appellant, pleaded guilty to a range of dishonesty charges on 11 May 2017.
[2] The pleas were entered following protracted discussions between the Crown and his counsel. He was sentenced to two years and eight months’ imprisonment.1
[3] Mr Lowe now appeals that sentence on the basis the summary of facts relied on for sentencing purposes did not properly reflect the plea arrangement reached with the Crown and, as a consequence, a manifestly excessive sentence was imposed.
Factual background
[4] On 29 September 2015 the Whangarei Police terminated search warrants in relation to an operation codenamed “Farm”. This was an investigation into dishonesty offending involving Mr Lowe and associates. Three search warrants were executed at addresses known to be used by Mr Lowe and as a result stolen property and vehicles were located.
[5] A further search warrant was executed on 1 October 2015 at an address in Waipu, also connected to Mr Lowe. There two stolen vehicles and stolen property were recovered.
[6] As a consequence the Police laid a large number of property/dishonesty-related charges against Mr Lowe.
[7] Between May and June 2016 discussions were had between Crown counsel and Mr Lowe’s previous counsel, Mr Day. Mr Day was Mr Lowe’s fourth counsel in relation to these matters.
[8] According to Mr Day, who filed an affidavit for the appeal, he was assigned to Mr Lowe on 21 April 2017.2 By that time resolution discussions involving Mr Lowe’s
1 R v Lowe [2017] NZDC 14938.
2 Prior to the hearing I convened a telephone conference to discuss with counsel the status of Mr Day’s affidavit. It seems Mr Day filed the affidavit without consulting Mr Niven who acts for
previous three counsel had resulted in what Mr Day describes as “a path to settlement”. It is not necessary to discuss the detail of the proposed settlement at this point other than observe that discussions continued until 4 May 2017 when Mr Day’s proposal was accepted.
[9] Under the terms of the agreement Mr Lowe would plead guilty to eight charges. For the purposes of the present discussion three particular charges assume special relevance. These are charges 12, 18 and 23. Significantly for sentencing purposes, these two charges of unlawfully getting into a motor vehicle and one charge of theft would be amended to unlawful interference with or getting into a motor vehicle. Mr Day says that his proposal to the Crown was that if these charges were amended to unlawfully getting into a motor vehicle Mr Lowe would plead guilty. The Crown accepted this offer on 4 May 2017.
[10] As a consequence of the agreement, Mr Lowe pleaded guilty to the following charges:3
(a)Charge 12 – unlawfully interfering with and getting into a motor vehicle. Between 15 and 16 September 2015 a Mitsubishi L300 van worth approximately $10,000 was taken from commercial premises. It was located at the Waipu address frequented by Mr Lowe. He was in the process of transferring parts from it to a lawfully purchased Mitsubishi L300. ESR analysis indicated the chassis in the lawfully purchased vehicle was taken from the stolen vehicle.
(b)Charge 15 – burglary. Between 12 and 13 September 2015 Mr Lowe jemmied five windows at the rear of a property in Kamo, breaking the latches. By entering each room via the windows he avoided setting off the alarm. No property was taken.
Mr Lowe on his appeal. Despite no application for leave being made both parties agreed the evidence could be admitted on the appeal. I agreed because the evidence is relevant, cogent and fresh.
3 The summaries that follow are draw from the Crown summary of facts which Mr Lowe pleaded guilty to.
(c)Charge 16 – receiving. Police located fishing rods and tools at Mr Lowe’s home address and the address where the Mitsubishi L300 was stored. The fishing rods alone have an estimated value in excess of
$25,000. They had been taken from a property in Whangārei.
(d)Charge 18 – unlawfully interfering with and getting into a motor vehicle, being an Isuzu Bighorn worth approximately $7,000. Mr Lowe was seen on surveillance footage jemmying the car door open and starting the vehicle. When the vehicle was found on a property Mr Lowe was cleaning up for a friend the licence plates and roof and licence plates had been removed.
(e)Charge 20 – receiving tools valued at $16,000, including a Dewalt angle grinder. The tools had been stolen from a property in Whangārei.
(f)Charge 22 – theft of two powertools and a lawnmower from a property he had arranged to maintain for the victim.
(g)Charge 23 – unlawfully interfering with and getting into a motor vehicle, being a Mitsubishi L300 van which had recently been purchased for $10,500. It contained approximately $15,000 of equipment for a catering business. It was found at the address of an associate of Mr Lowe’s, and a range of property from inside the van was found at Mr Lowe’s address.
(h)Charge 25 – receiving a Nissan Civilian motor home valued at $40,000.
[11] It appears that no application for leave to amend the charges was made before Mr Lowe entered his pleas of guilty on 11 May 2017. Nor was such an application made at sentencing.
District Court sentencing
[12] Mr Lowe was sentenced by Judge Davis on 7 July 2017. The Judge had before him an agreed summary of facts.
[13] Judge Davis adopted a starting point of 18 months’ imprisonment for the lead charge of burglary. He then uplifted this by 12 months for charge 12 and by a further six months for charges 18 and 23. Further uplifts were given of 12 months, for the receiving and theft charges, and six months for previous relevant offending. Inclusive of these uplifts, the sentence totalled 54 months, before discounts for time spent on electronically monitored bail (three months), participation in counselling (three months), resolving the charges without the need for a trial (three months), and guilty pleas (seven months, or 15 per cent) were quantified.
[14] The Judge then arrived at an end sentence of 32 months’ imprisonment, which he considered was appropriate on a totality basis. This figure was reached by virtue of an arithmetical error. Adopting the Judge’s figures the end sentence was in fact 38 months’ imprisonment, or three years and two months’ imprisonment.
[15] Due to this error the Crown applied for the sentence to be recalled. Judge Davis acknowledged the error in a further judgment of 3 August 2017, but concluded:4
“… Here is a situation where the maths, as I have indicated, is clearly wrong. However, I take the view that given Mr Lowe is now a sentenced prisoner and entitled to settle into his sentence for the duration, it is not in the interests of justice that the matter be reheard simply for the purposes of increasing that by a further six months. It will be a matter for the Parole Board when Mr Lowe is released on parole. The Crown have quite properly brought the application in my view, it is quite properly drawn to the Court’s attention, but when one steps back and looks at this from the overall totality perspective on the one hand and the interests of justice, I do not take the view that it would be in the interest[s] of justice to have the sentence put back before the Court to increase it by the six months that I have made reference to.”
Grounds of appeal
[16] Mr Niven, for Mr Lowe, submits Judge Davis erred in imposing a combined uplift of 18 months for the three charges of unlawfully getting into or interfering with a motor vehicle. Relatedly, he submits the end sentence was not calculated in accordance with the plea arrangement between the Crown and Mr Lowe, and therefore that it is manifestly excessive.
4 R v Lowe [2017] NZDC 17117 at [6].
Jurisdiction
[17] This is a first appeal against sentence. The appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed, and a different sentence should be imposed.5 The touchstone is whether the sentence imposed is manifestly excessive.6 The focus is on the sentence imposed, rather than the process by which it was reached.7
Analysis
Was there an error in the sentence imposed?
[18] As noted this appeal focuses on charges 12, 18 and 23. Charges 12 and 18 were disputed by Mr Lowe, and were set down for hearing. Originally these were charges of unlawful taking and theft respectively. They involved, among other things, allegations Mr Lowe broke down the cars for parts over a period of time. They were then amended to charges under s 226(2) of the Crimes Act 1961 which provides:
“(2) Every one is liable to imprisonment for a term not exceeding 2 years who attempts to commit the offence in subsection (1) or who, dishonestly and without claim of right, interferes with, or gets into or upon, any vehicle, ship, or aircraft.”
[19] This arrangement was by agreement between the Crown and Mr Day. Mr Day helpfully attached the relevant portion of his letter to the Crown. It is set out below:
“I confirm the Crown will accept pleas to the following charges,
Charge 12
CRN 3976
Unlawfully gets into motor vehicle
Mitsubishi L300
BLA674
Charge 15
CRN 3980
Burglary
15 Royden Drive
Charge 16
CRN 3981
Receiving
165
Tutukaka Block Rd
5 Criminal Procedure Act 2011, s 250(2).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
7 At [36].
Charge 18
CRN 4646
Unlawfully gets into motor vehicle
Isuzu Bighorn BZP113
Charge 20
CRN 4648
Receiving
583
Ormiston Road
Charge 22
CRN 4651
Theft
12 Mulberry Lane
Charge 23
CRN 4653
Unlawfully gets into motor vehicle
Mitsubishi L300 CNK301
Charge 25
CRN 4656
Receiving
Nissan Civilian WI5130
…”
[20] In accepting Mr Day’s proposal the Crown attached a summary of facts which it advised Mr Lowe would be required to accept. The email then added:
“I have not substantially amended the summaries in relation to charges 12 or 18 from when the theft and receiving charges were proposed. Paragraph 18.8 of the Solicitor General’s Prosecution Guidelines reads,
‘Plea discussions will often encompass discussions about the factual basis of sentencing. Any document on the nature of a summary of facts should contain a full account of the charges filed on the basis of those facts that could have been proved by admissible evidence if the matter went to trial. It should not omit any material fact for the purposes of any plea arrangement with the defendant, and in particular should not outline facts to the court which are misleading or, when measured against the essential elements of the offence to which the defendant has pleaded guilty, would cause the court to reject the plea in favour of a plea of not guilty. Facts that should not be omitted include the extent of the injury or damage suffered by a victim.’
The summaries for those charges include the material facts that the Crown could have proven by admissible evidence at trial. It will then be up to the Court to grant the Crown leave to amend the charges to unlawful interference, or not.
…”
[21] Those summaries refer to three charges of “unlawfully interferes with and gets into a motor vehicle”. They also include facts which amount to theft.
[22] Guilty pleas were duly entered on 11 May 2017. Mr Niven submits the amendment of charges 12, 18 and 23 to unlawfully getting into motor vehicles represented a significant reduction in Mr Lowe’s alleged culpability, with the only remaining allegations being that he used the vehicles on the nominated dates. He says the Crown in its sentencing submissions, as well as the Judge, acknowledged this reduction, but that:
(a)Mr Lowe was nevertheless sentenced on the basis of the original allegations; and
(b)the Judge appeared to sentence on the basis of unlawful interference rather than unlawfully getting into a motor vehicle.
[23] This, he submits, constituted a reviewable error which gave rise to a manifestly excessive sentence. This dispute hinges on the wording of s 226(2) which creates dual offences of interfering with or getting into a vehicle, both punishable by up to two years’ imprisonment.
[24] Mr Niven is correct that Judge Davis referred to unlawful interference in respect of charges 12, 18 and 23. The question before me is whether that constituted an error. Competing positions are available on the material before me. The email attached to Mr Day’s affidavit indicates the agreement was that the charges would be amended to unlawfully getting into motor vehicles. It also stated it would be up to the Court to grant leave to amend the charges to unlawful interference, or not. Those matters support Mr Niven’s submission. But the email also attached a summary of facts which referred to unlawful interference. The charge list the Judge had before him also referred to unlawful interference. Mr Lowe must be taken to have agreed to that summary, as he accepted the plea agreement, and did not object to its contents or the charge notice either at the entry of his pleas or at sentencing. The salience of any failure by the Crown to seek amendment of the charges was overtaken by Mr Lowe’s subsequent acceptance of them. In that context, it is hard to see how Judge Davis erred in proceeding to sentence Mr Lowe on the basis he did.
[25] Mr Niven is also correct that the Judge made findings that, among other things, charge 18 “has all the hallmarks of a vehicle that was stolen.”8 But in compliance with cl 18.8 of the Crown Prosecution Guidelines, the Crown prosecutor was required to include a full account of the charges filed on the basis of those facts that could have been proved by admissible evidence at trial. Judge Davis’ findings accord with the facts included in the agreed summary of facts. Mr Day could have objected to the inclusion of facts which elevated the seriousness of the unlawful interferences. He did not, and in my view it is now too late to object.
[26] I turn now to consider the Judge’s methodology and the uplifts and discounts he gave. I accept the 18 month uplift for three unlawful interference charges was stern. In Webster v Police, Brewer J uplifted the starting point by 12 months to account for a number of driving charges including nine charges of unlawfully getting into a motor vehicle and one of unlawful interference.9 In that case however, the total value/cost of offending was $10,781.87. There were also other charges of demanding with menaces and theft. In contrast, the value of the vehicles taken and interfered with in charges 12, 18 and 23 was approximately $27,000. In Kara-Newcombe v Police, Collins J, having conducted a review of authorities, imposed a seven month starting point for one charge of unlawfully getting into a motor vehicle.10 In Singh v R, a starting point of two and a half years was endorsed by the Court of Appeal for one charge of unlawfully taking a motor vehicle, three charges of unlawfully getting into a motor vehicle, and three charges of theft.11 The Court did, however, comment that the starting point was near the top of the available range.
[27] Against that background, an uplift of 18 months for three charges of unlawful interference with or getting into a motor vehicle was stern, even accounting for the high value of the goods taken. Without concluding that uplift constituted an error, a closer look at the sentence imposed is called for.
8 R v Lowe, above n 1, at [34].
9 Webster v Police [2017] NZHC 2685 at [28].
10 Kara-Newcombe v Police [2018] NZHC 25 at [15].
11 Singh v R [2011] NZCA 139 at [11].
Should a different sentence have been imposed?
[28] In my view the end sentence of 32 months was not manifestly excessive for the reasons which follow. First, Mr Lowe’s offending included a residential burglary, receipt of significant amounts of stolen property, theft of power tools and dealing with other people’s vehicles in a way which was consistent with theft or conversion. In total a starting point of four years, excluding the uplift for prior convictions, was available. In Kaihau v R, a case with striking parallels to the present facts, the Court of Appeal endorsed a total starting point of four years’ imprisonment for property/dishonesty offending in which the appellant was “operating as a professional or commercial thief at a very high end of dishonesty”.12 An uplift of 18 months for seven charges of theft, receiving stolen property and interfering with a motor vehicle was imposed on a starting point of two and a half years for burglary. By comparison, the combined uplift for Mr Lowe’s receiving, theft and unlawful interference charges was 30 months, on top of an 18 month starting point for burglary. In Kaihau v R, the Court commented that had the starting point been lower, a larger uplift would have been justified, as the total starting point of four years was appropriate.13 Therefore even if the uplift for the unlawful interference offending was stern, it did not result in a starting point that was out of range.
[29] Secondly, as Mr Eng for the Crown submits, numerous aspects of the sentence were generous to Mr Lowe.
[30] For example, on Judge Davis’ count, Mr Lowe has 282 prior convictions for dishonesty offending, and he was either on parole or subject to release conditions for an earlier burglary when some of the index offending was committed. In Ellis v R, the appellant had over 40 convictions for dishonesty and had committed the index offending while on parole.14 The Court of Appeal considered an uplift of 12 months for both factors (or two thirds of the starting point), while at the top end of what could
12 Kaihau v R [2015] NZCA 40 at [7].
13 A similarly stern global starting point was imposed in Taylor v R [2012] NZCA 329 for property/dishonesty offending on a commercial scale. See also Singh v R, above n 10, and the receiving cases cited by Judge Davis: Clapham v R [2012] NZCA 130 and Sinclair v Police [2014] NZHC 1332.
14 Ellis v R [2012] NZCA 513.
properly be given, was within range in the circumstances.15 Equally in Stevens v R the appellant had some 60 previous dishonesty offences (but only three for burglary), and was subject to a sentence of intensive supervision at the time of the burglary offending.16 The Court of Appeal concluded an uplift of 12 months on a starting point of 18 months was within range.17 As the exact date of the index offending is uncertain, it is not clear whether Mr Lowe was subject to parole or release conditions at the material time. Nevertheless, the extent of his prior dishonesty convictions dwarfs that of Mr Ellis and Mr Stevens. In this regard his case is more similar to R v Van Wakeren, where a 12 month uplift was given to reflect 160 previous dishonesty convictions spanning 20 years.18 Like the offending in that case, Mr Lowe’s can be seen as “just one more chapter in a lengthening history” of dishonesty offending including taking and possession of stolen property. In those circumstances, a six month uplift for relevant prior convictions (which equated to one eighth of the cumulative starting point) was unduly generous to Mr Lowe.
[31] Furthermore, while discounts for time spent on EM bail are at the Judge’s discretion,19 a discount of three months for the three months spent on restrictive bail conditions, is more than what is typically afforded.20
[32] Another example of the Judge’s generous approach is the three month discount applied for “saving the justice system a two week Judge alone trial”. This allowance, which sits alongside a 15 per cent discount for guilty plea, is irreconcilable with the Supreme Court’s statements in Hessell v R:21
“In the administration of criminal justice, courts give credit in sentencing for a guilty plea principally for policy reasons. The policy expressed in s 9(b) reflects the benefits that a guilty plea delivers to the administration of justice and to those who otherwise must participate in the trial process. Avoiding the need for a trial saves the government costs associated with the judiciary and
15 At [10]-[11].
16 Stevens v R [2009] NZCA 190.
17 At [15].
18 R v Van Wakeren [2008] NZCA 492 at [17].
19 Chea v R [2016] NZCA 207 at [109].
20 See, for example, Chea v R, above n 20, where a discount of four months was allowed for a period of 13 months on restrictive bail conditions. In Schuster v R [2011] NZCA 343, a discount of three months for eight months spent on EM bail was applied. Finally, in Beckham v R [2012] NZCA 603, [2013] 1 NZLR 613, where the appellant had been detained on 24-hour EM bail for almost eight months, a six month discount was given.
21 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]. The Court of Appeal made comments to this effect in Ratu v R [2016] NZCA 97 at [26].
providing prosecution and defence services (the latter most often through legal aid). There are also savings in fees paid to witnesses and jurors and in costs associated with the use of court facilities. Another benefit is the reduction in the back-log of trials. The number and length of criminal trials has increased, with consequent delays in persons charged facing trial. This impedes the effective operation of the system in the interests of justice. As well as such savings in public expenditure and demands on state resources, the social utility of guilty pleas includes benefits for witnesses and, in particular, victims who are spared the stress of giving evidence in the adversarial context of a criminal trial. A guilty plea often also assists victims and their families through its acknowledgement of responsibility for the offending. Even very late pleas will usually generate some of these systemic and social benefits. These considerations are based on expediency and social utility but are of importance to the effective operation of the criminal justice system. In consequence, it is now generally recognised that providing encouragement for guilty persons to admit their guilt is a necessary incident of criminal justice.”
[33] This additional discount contradicts the rationale which underpins allowances for guilty pleas, and equates to a double-counting in Mr Lowe’s favour.
[34] Additionally, the six month reduction for totality adequately neutralised any error in the uplift for the unlawful interference charges, and arguably resulted in an unduly generous end sentence.
[35] Accounting for those factors, an end sentence of 32 months’ imprisonment was not out of range given the nature of the offending and Mr Lowe’s personal circumstances. He is a recidivist offender with an appalling criminal history. The most recent spate of offending is simply the latest in an unenviable catalogue of serious property and dishonest criminal conduct. A different sentence should not be imposed.
Result
[36]The appeal is dismissed.
Moore J
Solicitor/Counsel:
Mr Niven, Auckland
Crown Law Office, Wellington
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