McWatt v Police

[2013] NZHC 1703

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-55 [2013] NZHC 1703

JASON WILLIAM MCWATT Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	4 July 2013
Appearances:	K Beaton and N A Pointer for the Appellant M Zintl for the Respondent
Judgment:	4 July 2013

JUDGMENT OF FOGARTY J

[1]      The  appellant  appeals  against  a  total  sentence  of  2  years  3  months imprisonment and 3  years disqualification from driving, imposed in the District Court in April by Judge MacAskill.  There were 10 charges, which will be set out in a schedule to this judgment, showing the charge and the sentence.  As the schedule shows, the Judge treated as the most serious offending the unlawful taking of a motor vehicle on 8 December. The sentence allocates 2 year 3 months imprisonment and the 3 years disqualification against this charge.

[2]      To my mind, the merit of the appeal has been the argument that the Judge did not appropriately analyse the gravity of that offending on 8 and 9 December, it took place over two days.  The charge was the unlawful taking of a motor vehicle.  The police summary of facts in respect of this charge says that on 8 December the defendant and his associate, Mr Lake, were at the home of David Hempstead, the

victim in this matter.   At about 7.45 am on 8 December, the defendant and his

MCWATT v NEW ZEALAND POLICE [2013] NZHC 1703 [4 July 2013]

associate drove away from the victim’s address in his Volkswagen car, etc.  Neither the defendant nor his associate had permission from the victim to take the motor vehicle.  Then it goes on to the next offence, which was driving to a Caltex service station in Washdyke, Canterbury, and filling the vehicle with petrol, and leaving without paying.   Similarly, the next day, driving to Greymouth, filling the vehicle with petrol and leaving without paying. The vehicle was stopped in Buller.

[3]      What is left out of that summary is that the associate, Mr Lake, is the brother of the owner of the car, David Hempstead.   The timing of the taking appears to suggest either that the defendant had stayed the night with Mr Lake and the owner of the car, David, at that home, or that the two men had come around in the morning.

[4]      The Judge in his judgment does not mention the social relationship.  At the very least it is clear that this is not a case of unlawful taking of a stranger’s car.

[5]      I understand from Ms Beaton’s submissions that the instructions defence counsel received were that the keys to this car had been given to the appellant by Mr Lake.    That  the  context  was  that  the  appellant  may  not  have  understood immediately that Mr Lake did not have the consent to use his brother’s car.   It appears that about an hour later, after they had taken the car, after a phone call or a text from David to Mr Lake in the car, Mr Lake told the appellant that his brother was reporting his car to the police as stolen.

[6]      It would appear on those facts that the offence of unlawful taking occurred at that point, at the latest anyway.   It is distinctly dubious as to whether or not the police  would  have  had  the  ability  to  prove  beyond  reasonable  doubt  that  the appellant had the mens rea of unlawful taking at the time he started driving the car.

[7]      Now, clearly thereafter, as I have indicated from the summary of facts, these two men stayed in the car and kept driving.  So I have no doubt, at the end of the day, that certainly they committed the offence of unlawful taking.

[8]      There is, however, a difference in the gravity of the offending when the context is essentially a brother and his friend driving the brother’s car without the

brother’s permission.  It can be distinguished from at least one of the cases cited in

argument, where it is the taking of a car from a stranger.

[9]      The cases show that 2 years and 3 months imprisonment for the unlawful taking of a motor vehicle is of itself a reasonably high sentence.  The decision of Pearson v Police,1 a judgment of France J, was the dismissal of an appeal against a sentence of 20 months imprisonment.   The sentence was imposed in the District Court on one charge of unlawfully taking a motor vehicle; four charges of theft, one of petrol, three of shop lifting; one charge of assault on his partner; and six charges of driving while disqualified.  The District Court Judge took a starting point for all offending of 18 months imprisonment, and uplifted that by 12 months to reflect three

personal aggravating factors.  He was on release conditions, having only just been released from a sentence of imprisonment.  In fact, most of the offending occurred while  he  was  on  bail  from  the  first  offence.    His  previous  conviction  record, including 13 prior convictions for car conversion and taking.  France J recognised there were many routes by which a sentencing Judge could have reached the 2 years and 6 months adjusted starting point, which was by no means excessive, before allowance for guilty pleas.

[10]     Ms Beaton for the appellant submitted the offending in this case was at a similar level of gravity to the present.

[11]    I agree that there are some similarities.  The appellant in this case has an appalling criminal history.  Appalling in the sense that he seems to be perpetually offending in relatively minor ways, but relentlessly.  Including in his offending are car offences.  For example, in 2008, he was convicted of driving while disqualified on the third, or more, occasion. In 2007, he was driving while disqualified. In 2007, he also drove while his licence was suspended or revoked.  In 2007, there was an unlawful interference with a motor vehicle.  In 2002, there was theft of a motor vehicle.  In 2001, there was theft of a car, that was in December.  In July, earlier, there was another theft of a car.   I am just selecting from this extensive criminal

history car-related offending, and probably have not spotted them all.

1      Pearson v Police HC Wellington CRI-2009-485-92, 12 August 2009.

[12]     So far, I have just been talking about the car offending. The other charges on car offending in this case were the theft of the petrol to drive the car, driving while disqualified, and driving with excess breath alcohol.   Those were all on 8 and 9

December.

[13]     The other charges are of less gravity.  There is the theft of a small amount of clothing from The Warehouse, failing to answer police bail, theft of a laptop, possession of cannabis, breach of the Medicines Act.  In those charges the sentences were concurrent and appear on the schedule to this judgment.

[14]     In answer to Ms Beaton’s argument, Mr Zintl accepted the relevance of the decision in Pearson, but pointed out that France J was saying effectively that the sentencing Judge could have reached a 2  years and 6 months starting point, as distinct from the 18 months starting point.

[15]    It is a little difficult to judge that.  The Judge took a starting point of the offending for 18 months and uplifted that by 12 months to reflect three personal aggravating factors, which is actually 2 years and 6 months adjusted starting point. On that view of it, France J was agreeing with the analysis of the District Court.

[16]     In this case, the Judge did not select a lead offence and work out a starting point  adjusting for  gravity of  the  offence,  deducting for  any mitigating factors relating to the offence, and then turning to the personal features, etc.  Rather, he said at [10]:

I take the lead the charge to be the charge of unlawfully taking of a motor vehicle.  On that charge I shall impose a sentence on a totality basis.  I take the starting point to be imprisonment for three years. That takes into account that you are a recidivist offender.  It also takes into account your offending under sentence and your previous offending.  I deduct nine months for your guilty pleas.  So you are sentenced on that charge to two years and three months.

[17]     In my view, the starting point for imprisonment for three years, using the unlawful taking of a motor vehicle as the lead offence, is out of line with the authorities.  Following the Judge’s analysis, I would take the starting point more appropriately on the authorities to be 2 years and 6 months.  The Judge gave a 25%

discount, which is the maximum and in the circumstances is tolerably generous, and allowed 9 months deduction.  I would, without splitting months, allow 7 months deduction, which reaches an end sentence of 23 months.  I am going on the grounds that the sentence was excessive and out of line with the authorities.  Therefore, amending the sentence to 1 year and 11 months.

[18]     I turn to the appeal against the disqualification from driving for 3 years. Ms Beaton said that was a very stern disqualification.  It appears in the sentencing charges against the unlawful taking.   It also appears against the charge of driving while disqualified.  The driving with excess alcohol has a one month imprisonment. It was not suggested it was beyond the Judges jurisdiction.

[19]     Because of the appalling motor vehicle offending history, keeping in mind also the age of this offender who is 43, and keeping in mind that he has a prison sentence, I do not think that that was an excessive disqualification.  The appeal in that regard is dismissed.

[20]     The adjustment to the sentence will be against the charge of unlawfully taking a motor vehicle. Going from 2 years 3 months to 1 year 11 months.

Solicitors:

Raymond Donnelly & Co, Christchurch

Public Defence Service, Christchurch

SCHEDULE

Date	CRN ending	Charge	Sentence
21 October 2012	4611	Theft (clothing from the Warehouse)	2 months imprisonment
26 October 2012	5128	Failing to answer Police bail	Convicted and discharged
16 November 2012	7231	Theft (laptop)	6 months imprisonment
16 November 2012	6526	Possession of cannabis	1 month imprisonment
16 November 2012	6527	Breach of Medicines Act	1 month imprisonment
8 December 2012	1275	Unlawful taking of a motor vehicle	2 years 3 months imprisonment, 3 years disqualification, zero alcohol license order
8 December 2012	1278	Shoplifting (theft of petrol)	1 month imprisonment, reparation $44.71
8 December 2012	1276	Driving while disqualified (second or subsequent)	18 months imprisonment, 3 years disqualification, ze alcohol license order
9 December 2012	1277	Driving with excess breath alcohol	1 month imprisonment
9 December 2012	1279	Shoplifting (theft of petrol)	1 month imprisonment, reparation $31.00