Martin v Police

[2022] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-000021

CRI-2022-488-000022 [2022] NZHC 856

BETWEEN

DEON MARTIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 April 2022

Appearances:

J Scott for the Appellant

A Tupuola for the Respondent

Judgment:

28 April 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 28 April 2022 at 4 pm Registrar/Deputy Registrar

MARTIN v NEW ZEALAND POLICE [2022] NZHC 856 [28 April 2022]

Introduction

[1]    Deon Martin was sentenced in the District Court at Whangārei by Judge P Rzepecky on 21 February 2022 to a term of imprisonment of 19 months.1 He was sentenced following guilty pleas on a raft of (primarily) dishonesty and driving offences. The charges fall within 6 different time periods. More particularly, those charges are:

(a)driving while disqualified, 3rd or subsequent,2

(b)dangerous driving,3

(c)failing to stop,4

(d)two charges of driving while forbidden,5

(e)theft between $500 and $1000,6

(f)three charges of theft under $500,7

(g)possession of utensil,8

(h)breach of community work,9 and

(i)failure to answer bail.10

1      New Zealand Police v Martin [2022] NZDC 3581.

2      Land Transport Act 1998, ss 32(1)(a) and 32(4) carrying a maximum penalty of two years’ imprisonment or a $6,000 fine.

3      Land Transport Act 1998, s 35(1)(b) carrying a maximum penalty of three months’ imprisonment or a $4,500 fine.

4      Land Transport Act 1998, ss 52(1)(a)(ii) and 114(2) carrying a maximum penalty of a $10,000 fine.

5      Land Transport Act 1998, ss 52(1)(a)(ii) and 113(2)(e) carrying a maximum penalty of a $10,000 fine.

6      Crimes Act 1961, ss 219 and 223(c) carrying a maximum penalty of one year’s imprisonment.

7      Crimes Act 1961, ss 219 and 223(d) carrying a maximum penalty of three months’ imprisonment.

8      Misuse of Drugs Act 1975, s 13(1)(a) and (3) carrying a maximum penalty of one year’s imprisonment or a $500 fine.

9      Sentencing Act 2002, s 70(a) carrying a maximum penalty of three months’ imprisonment or a

$1,000 fine.

10     Bail Act 2000, s 38(a) carrying a maximum penalty of one year’s imprisonment or a $2,000 fine.

[2]There are two other relevant contextual matters to the sentencing.

[3]    First, Mr Martin was also re-sentenced for previous offending for which he was initially sentenced on 19 August 2020. This arises due to breach of his intensive supervision sentence. The Judge described this as “quite serious default”.11 Suffice it to say at this stage that the way in which the sentencing judge dealt with this aspect is not challenged on appeal.

[4]    Secondly, on 2 March 2022, Mr Martin was sentenced to one month’s cumulative imprisonment on a further charge of being unlawfully in an enclosed yard.12 This is also not challenged but I have considered the issue of totality.

[5]    Mr Martin argues that the starting point for the lead offending was too high, the uplifts for the remaining offending were too large, prior convictions were effectively double-counted and the sentencing judge failed to account for his youth.13

[6]He acknowledges that there was no error in the disqualification imposed.

The offending

[7]    Mr Martin’s earliest offending in respect of the current charges was on 27 November 2020. Mr Martin was driving in Whangārei. He was stopped and a police check found that he was disqualified from driving. He told the Police that he was going to get the transmission fixed. Mr Martin had been forbidden from driving until obtaining the appropriate licence on 11 September 2019.

[8]    On 25 July 2021, Mr Martin was at a Gull service station in Whangārei pumping gas. Another person, Mr Heta was there as well. When he approached Mr Martin, Mr Martin got into the car and took off at speed. He exited the service station at speed in front of a police constable. When red and blue flashing lights were activated, Mr Martin accelerated at speed down the street.

11 At [19].

12     New Zealand Police v Martin [2022] NZDC 3568.

13     Mr Martin was 23 years old at the time of sentencing. The first category of index offending goes back to November 2020.

[9]    Soon after, he began driving on the wrong side of the road to evade the Police, doing so over the brow of a blind hill where he would not have seen any oncoming traffic and they would not have seen him.

[10]    Mr Heta suffered damage to the driver’s door of his car. Mr Martin said he felt threatened and his life was at risk.

[11]   Mr Martin was charged with dangerous driving, failing to stop for blue and red flashing lights, and driving while forbidden.

[12]   While he was still forbidden from driving on 25 August 2021, Mr Martin was driving on Otaika Road, Taumanga, Whangārei. The Police activated blue and red lights to pull him over. He stopped the car in the middle of the road and swapped seats with his partner. He was pulled over and the car was impounded. He tried to convince the Police that he was not driving.

[13]He was charged with driving while forbidden.

[14]   Mr Martin carried out a series of thefts in October 2021. On 3 October 2021, he entered a Rebel Sport with another person. He took five tops into a changing room. He removed the security tags from the items, returned two to the rack, concealed the remaining three tops and left without making any attempt to pay for the items. His associate took a further two items. The total value of the items stolen was $689.95.

[15]   On 27 October 2021, Mr Martin returned to Rebel Sport with an associate. Together, they de-tagged a pair of Under Armor shoes and Adidas shorts. They left the store with them without making any attempt to pay for the concealed goods. The value of items was $273.99.

[16]   The two other thefts were petrol drive-offs. On two occasions, Mr Martin went to a petrol station, pumped $99.46 and $119.46 of petrol into his car respectively, and drove off without making any attempt to pay.

[17]   Mr Martin was arrested on 1 November 2021. He had a backpack in his possession at the time. A search of the backpack subsequent to his arrest was conducted and a pipe used to smoke methamphetamine was discovered inside.

[18]The theft and possession of utensil charges arise from these events.

District Court decision

[19]   After reciting the facts of the offending and noting that Mr Martin had continued to offend whilst on a rehabilitative sentence, the Judge referred to the sentencing framework in ss 7 and 8 of the Sentencing Act. He emphasised the relevant purpose of a sentence being to make Mr Martin accountable, to denounce the conduct and protect the community.

[20]   The first step in the sentencing exercise was calculation of an adjusted starting point incorporating aggravating and mitigating factors. The Judge identified the lead charges as the theft charges. He took a starting point of eight months’ imprisonment for that offending.14 He added an uplift of six months for the driving charges, one month for the possession of utensils charge, two months for the breach of community work and failure to answer District Court bail, and a substituted sentence of five months for failing to comply with the intensive supervision.

[21]That left an adjusted starting point of 22 months’ imprisonment.

[22]   He then turned to personal aggravating and mitigating factors. He gave a 15 per cent uplift for previous offending on bail and a full guilty plea discount of 25 per cent. There was no discount for a late expression of remorse and no reference to Mr Martin’s youth. The Judge thus arrived at a total end sentence of 19 months’ imprisonment, rounded down in terms of totality.

[23]The final sentence was apportioned as follows:

(a)     on the theft charges between $500 and $1,000, you are sentenced to eight months.

14     According to the final apportionment, it was eight months for the theft charges between $500 and

$1000 and two months cumulative for the three thefts under $500.

(b)     The theft times three of under $500, two months cumulative. Driving whilst disqualified, four months cumulative.

(c)    Dangerous driving, two months concurrent. Failing to stop, convicted and discharged.

(d)    Driving whilst forbidden times two, convicted and discharged.

(e)      Possession of utensils, four months concurrent. Breach of community work convicted and discharged.

(f)    Breach of bail convicted and discharged.

(g)    Substituted sentence, five months cumulative.

(h)    That gives a total of 19 months on my calculation.

[24]   Mr Martin was also disqualified from holding or obtaining a driver’s licence for 12 months.

[25]   The Judge gave leave to Mr Martin to leave to apply for home detention if he or his whānau or lawyers find a suitable address. Post-release conditions for six months were imposed.

Submissions

Appellant submissions

[26]   Mr Scott, counsel for Mr Martin, submits that the starting point of eight months’ imprisonment is too high. He refers to three comparator cases, Henry v Police,15 Nikora v Police,16 and Rabson v R.17 The conclusion he seeks to draw from those cases is that a three to four month starting point on the lead charge would be more appropriate.

[27]   In respect to the uplifts for the driving charges, he submits that driving while disqualified, without any driving fault, would normally attract a two to three month term of imprisonment. As no one was hurt and no property was damaged, the uplift for dangerous driving should only be one month. The other driving offences of driving while forbidden and failing to stop are only fineable. Therefore the uplift for the

15     Henry v Police [2016] NZHC 800.

16     Nikora v Police [2020] NZHC 2013.

17     Rabson v Police [2013] NZCA 152.

driving offences should only be between three to four months in total. He describes the dangerous driving as short-lived, one-off and without serious consequence in this instance. In my assessment, this was wholly down to good luck, a point which Mr Scott properly acknowledges.

[28]   Mr Scott points out that due to counsel error, Mr Martin’s alleged breach of bail was included in the sentencing calculation when it should not have been.18 Mr Martin had disputed breaching bail that day. Judge de Ridder had declined to direct a disputed bail breach hearing and recorded that no breach was proved. Therefore the uplift for Mr Martin’s breach of community work should only be one month.

[29]   I pause to note that Ms Tupuola was unable to confirm the position in relation to the matter of failing to answer District Court at the hearing, despite inquiry. On that basis, I accept Mr Scott’s explanation and consider there was an error on that aspect accordingly.

[30]   Mr Scott submits that, in assessing personal aggravating and mitigating factors, imposing a 15 per cent uplift for previous convictions was effectively double-counting given the five month uplift for resentencing. Further, that reference to 26 charges in three years is incorrect.  The correct number is a total of 18 prior convictions as at  21 February 2022.

[31]   Finally, Mr Scott raises the issue of Mr Martin’s youth as a mitigating factor. By my calculation, Mr Martin was 23 years old at sentencing but only 21 years old at the time of the first group of offences. This was his first sentence of imprisonment. Mr Scott acknowledges that a youth discount was not raised in mitigation at sentencing but contends that the sentencing judge ought to have considered the youth factor given the comments in Churchward v R.19 He submits that a discount between 15 and 20 per cent is available.

18     Mr Scott was not counsel at sentencing.

19     Churchward v R [2011] NZCA 531.

Respondent submissions

[32]   Ms Tupuola submits that the starting point was within range and distinguishes Mr Martin’s offending from the cases relied on. She suggests that the aggravating features of the driving offences warrant the six month uplift but accepts that if the failure to answer bail charge does not exist, then the uplift should be limited to breach of community detention (i.e one month only).

[33]   Ms Tupuola disputes that the Judge gave uplifts for prior convictions and says the relevant uplifts were for offending on bail only. She considers that Mr Martin’s youth was expressly considered and factored into the grant of leave for home detention. She emphasises that Mr Martin’s prior involvement with the Court and justice system, without evident efforts to rehabilitate or reintegrate militate against a specific youth discount.

Approach on appeal

[34]   The appeal against the sentence must be allowed if the court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.20 Otherwise, the court must dismiss the appeal. The court will not simply substitute its own view for that of the sentencing judge. The sentence must be “manifestly excessive” for the court to intervene.21 The court will dismiss the appeal if it is “within the range that can properly be justified by accepted sentencing principles”.22

[35]   Whether the sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.23 In short, it is the end result which the appellate court is interested in and not the methodology.

Discussion

[36]I distil the appeal issues to be:

20     Criminal Procedure Act 2011, s 250.

21     Te Aho v R [2013] NZCA 47 at [30].

22     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

(a)Was the starting point too high?

(b)Were the uplifts too high or did they lead to ‘double-counting’ of prior convictions?

(c)Should a youth discount have been given to Mr Martin?

Starting point

[37]   In my assessment, the start point for the theft offending was too high. I find assistance in the decision of Clark J in Henry. There the defendant was sentenced in respect of 13 theft/shoplifting offences. The total value of the goods stolen was calculated to be $5,568.23. The District Court Judge adopted a starting point of eight months’ imprisonment for these offences collectively, uplifted by two months for previous dishonesty offending. While the imposition of a single sentence in respect of all the shoplifting offences was described by the Judge as “unorthodox”, it did not follow that the sentence ultimately arrived at was manifestly excessive.24 Although Ms Tupuola sought to distinguish Henry, I note that only one tranche of offending could be described as a “spree” and the shoplifting offences were disconnected, as in the present case.

[38]   In McMurtrie v New Zealand Police, the High Court reduced a starting point from 12 months to six months in respect of six charges of shoplifting from supermarkets and a department store. In McKenzie v Police, the High Court adopted a six month starting point for four charges of shoplifting of goods worth less than

$500.25

[39]   It is not apparent that the sentencing judge referred to any authority when setting his starting point. The cases referred to by Mr Scott satisfy me that the starting point of eight months was outside the available range.26 I consider the appropriate starting point was 5 months.

24     As observed in McMurtrie v New Zealand Police [2015] NZHC 1031 at [17].

25     McKenzie v Police [2015] NZHC 2742.

26     Nikora v Police [2020] NZHC 2013 and Rabson v R [2013] NZCA 152 are of limited assistance in my view. In Nikora, the theft charges were applied as an uplift rather than a starting point, and

Uplifts

[40]   I accept Mr Scott’s submission that the uplift of six months for the driving charges is too stern. An uplift of two months for the charge of driving while disqualified, third or subsequent charge and two months for his dangerous driving charge is more in line with the nature of the offending, aggravated by Mr Martin’s prior history – a total uplift for the driving charges of four months.

[41]   The next issue is whether the Judge effectively double-counted by uplifting for prior convictions. If he did, I would be inclined to find this involved double-counting but is this what the Judge did?

[42]   On my reading of the sentencing notes, the uplift was clearly for offending on bail rather than for prior offending. The Judge stated:27

Looking at your previous offending on bail, there is a 15 percent uplift.

[43]   Whether offending on bail (or while serving a rehabilitative sentence), I find no error in an uplift of 15 per cent uplift (or 3.3 months in the present sentence). His driving offences on 25 July and 25 August occurred while he was on bail for other driving charges. This emphatically signals that Mr Martin has not learnt anything to date from a chequered history. Furthermore, he had four prior charges of driving while forbidden for which he was fined, or convicted and discharged.

[44]   This results in an adjusted start point of 19 months before application of the guilty plea discount.

Youth Discount

[45]   I turn to the question of discount for Mr Martin’s youth. Ms Tupuola submits that Mr Martin’s prior extensive history shows no efforts to rehabilitate or reintegrate. I understand her point to be that any youth discount must by now be “spent” in view of the number of times Mr Martin has appeared before the Court.

so would be expected to be lower. Rabson concerned a single incident of theft of scrap metal from the land where the defendants were previously authorised to take scrap metal.

27 At [25].

[46]The rationale for a youth discount is articulated by the Court of Appeal in

Churchward v R as follows:28

[77]  Youth has been held to be relevant to sentencing in the following ways:

(a)    There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.

(b)   The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.

(c)  Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.

[47]   It is not inevitable that a young offender will receive a youth discount but neither is it inevitable that a chequered conviction history cancels out the impact of youth. Mr Martin’s behaviour to date does not necessarily show a greater capacity for rehabilitation but lack of maturity leading to poor decision making remains relevant. It is clear to me that Mr Martin lacks awareness of consequences. I am also concerned about the effect of imprisonment on someone of Mr Martin’s age and stage in life. I consider an appropriate discount is 10 percent.29

Result

[48]   I conclude that the end sentence is manifestly excessive. The Judge fell into error on the start point and the omission to consider the impact of youth on the offending.

[49]   I allow the appeal and quash the sentence of 19 months. I substitute a sentence of 12 months calculated as follows:

(a)Start point on lead charge of theft – 5 months;

(b)Uplift of four months for driving offending;

28     Above n 19.

29     Jensen v Police [2020] NZHC 726; Kino v Police [2012] NZHC 2570.

(c)Uplift of one month for breach of community work;

(d)No uplift for failure to answer bail allegation;

(e)One month uplift for possession of utensil;

(f)Uplift of five months for resentencing of 2020 charges;

(g)Uplift of three months for offending whilst on bail;30

(h)A discount of 25 per cent for guilty pleas;

(i)A discount of 10 percent for youth.

(j)An end sentence of 12 months’ imprisonment (rounded down).

[50]   Adopting a similar approach to the sentencing Judge, I apportion the sentence as follows:

(a)for the theft between $500 and $1000, five months’ imprisonment;

(b)for the thefts under $500, one month’s cumulative imprisonment;

(c)for driving while disqualified, 3rd or subsequent, one month’s cumulative imprisonment;

(d)for dangerous driving, one month’s imprisonment to be served concurrently;

(e)for failing to stop, and driving while forbidden twice, a conviction and discharge;

30     Although expressed by the sentencing judge as 15 per cent which would require recalculation in the light of other adjustments, I consider the 3 month indication remains appropriate.

(f)for possession of utensil, one month’s imprisonment, to be served concurrently;

(g)for breach of community work, conviction and discharge; and

(h)the substituted sentence, five months’ imprisonment to be served cumulatively.

[51]   This sentence remains subject to the standard and special release conditions contained in the pre-sentence report as recorded in the District Court judgment.

[52]   The disqualification from holding or obtaining a driver’s licence for 12 months is unchanged. This is the mandatory disqualification associated with the current offending rather than the offending attached to the charges on which Mr Martin was re-sentenced. I am informed by Mr Watkins that the former disqualification on those charges has been served in full. Section 68(4) of the Act says that when determining a substitute sentence the court must take into account the portion of the original sentence that remains unserved at the time of the order. On this basis, the only current disqualification is that imposed for a 12 month period from 21 February 2022.

[53]   Leave to apply for home detention should an appropriate address be found remains.

............................................................

Walker J