Muir v Police
[2015] NZHC 1425
•23 June 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000046 [2015] NZHC 1425
BETWEEN CHRISTOPHER MALCOM DUANE
MUIR Appellant
AND
NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents
Hearing: 23 June 2015 Appearances:
K Paima for Appellant
C Butchard for RespondentJudgment:
23 June 2015
ORAL JUDGMENT OF GENDALL J
MUIR v NEW ZEALAND POLICE [2015] NZHC 1425 [23 June 2015]
This appeal
[1] Mr Christopher Muir was charged with, and pleaded guilty to, four offences arising out of four discrete situations. The offences were (a) operating a vehicle in a manner causing sustained loss of traction;1 (b) conversion of a motor vehicle valued at $15,995;2 (c) common assault;3 and (d) breach of release conditions.4
[2] On these charges, Mr Muir was sentenced to two years, three months’ imprisonment.5 He now appeals the sentence on the basis that it was manifestly excessive and that mitigating factors were not taken into account (some of which may not have been known to the Judge in the District Court).
[3] In a more detailed notice of appeal, Mr Muir refers to the fact that this was his first ever charge of assault, he pleaded guilty at the first opportunity, he paid
$500 in reparation to one of the victims, and he was, and remains, willing to attend restorative justice. In addition, he refers to mental health difficulties he says he suffers from: Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder. Finally, Mr Muir contends that the starting point here of two years, six months imprisonment adopted by the District Court on the conversion charge was too high, particularly when the uplift of eight months for previous offending is considered.
[4] I turn now to consider the events giving rise to the four offences.
The assault charge
[5] First the assault charge. On 8 February Mr Muir was at a residential address with his then partner and her 15 year old daughter. Mr Muir got into an argument with his partner. As the argument was ongoing, Mr Muir snatched a phone from his
partner’s daughter, which was a gift he had given to the daughter for her birthday.
1 Land Transport Act 1998, s 36A(1)(c).
2 Crimes Act 1961, s 226(1).
3 Summary Offences Act 1981, s 9.
4 Parole Act 2002, s 71(1).
5 Police v Muir [2015] NZDC 7353.
When the daughter tried to get the phone back, Mr Muir punched her once to the side of the head, in the jaw area.
The sustained loss of traction charge
[6] Secondly, the sustained loss of traction charge. At around 10.40 pm on Friday, 13 February 2015, Mr Muir was driving a Mazda motor vehicle in an industrial area in Christchurch. The road had a 50 kph speed restriction. At the time of the incident there were 20 – 30 ‘boy racers’ on the street.
[7] Mr Muir stopped his vehicle in the middle of an intersection, where he began revving his engine. He then accelerated heavily while performing a right hand turn. The rear tyres began spinning, ultimately losing traction with the road surface. The vehicle spun 540 degrees in total, this lasting some 11 seconds. This caused squealing of the tyres and plumes of smoke to be emitted from the tyres.
[8] When spoken to by Police, Mr Muir stated that he performed the act as he wanted to take a bit of anger out on the road, rather than someone else.
The breach of conditions charge
[9] Thirdly, the breach of conditions charge. Mr Muir was released from prison in 2014, subject to parole conditions. On 16 February 2015, Mr Muir breached those conditions by moving address without prior approval.
The conversion charge
[10] And fourthly, the conversion charge. At 11 am on 17 February 2015, Mr Muir went to a Christchurch car yard, where he inquired about a Holden motor vehicle. He indicated to a salesman that he wished to test drive the vehicle, on his own, to his father’s address in Somerfield, Christchurch. This was agreed to and a dealer plate was placed on the vehicle, and the keys given to Mr Muir.
[11] Mr Muir left the dealership and removed the dealer plate shortly thereafter. The salesman reported the vehicle as stolen later that evening. Mr Muir continued to use the vehicle for his own purposes for the next four days, until he drove with his
partner to Greymouth on 21 February 2015. At about 6 pm, they pulled into a motel for the night. Police arrived around one hour later to find the vehicle parked in a unit car park. When Mr Muir saw the Police, he took off through the rear of the complex. He was located shortly after by a Police dog handler.
[12] When questioned, Mr Muir stated that he planned on returning the vehicle the following week.
Judge Couch’s sentencing
[13] Turning now to Judge Couch’s sentencing in the District Court, after traversing the background of the offending, Judge Couch went on to note that Mr Muir has a substantial history of dishonesty offending. This includes 32 previous convictions for stealing or unlawfully taking a motor vehicle. Judge Couch took the conversion charge as the lead offence, carrying as it does a seven year maximum.
[14] As to this charge, Judge Couch considered it to be “well up the scale” in terms of seriousness. Mr Muir obtained the keys to the vehicle, and its possession, by deception and breach of trust. He did not intend to take the vehicle back and then proceeded to use it extensively, including on a long trip. A starting point of two years, six months was adopted on this charge. Further, Judge Couch considered this offence to be seriously aggravated by the fact that Mr Muir was on bail on the assault charge, and taking into account his previous offending. These factors resulted in an uplift of eight months.
[15] From this position (an adjusted starting point of 38 months), a discount of
10 months was allowed for guilty pleas. This, Judge Couch said, resulted in an end point of two years, two months imprisonment.6 On the charge of assault, a one month cumulative sentence was imposed for what was described as the “cowardly”
attack. On the charge of sustained loss of traction, a two months concurrent sentence
6 There is plainly some arithmetical error in this calculation. A reduction of 10 months from 38 months imprisonment, results in an end sentence of 28 months, or two years, four months’ imprisonment. A twelve months discount would be necessary to get to 26 months, or two years, two months’ imprisonment. In any event, both of these discounts exceed the maximum permissible discount. I address this below.
was imposed, together with an eight month disqualification. On the charge of breaching parole conditions, Mr Muir was sentenced to three months concurrent.
Jurisdiction to appeal
[16] Turning now to the jurisdiction for this appeal, Mr Muir is able to appeal the sentence imposed as of right.7 This Court, as first appeal Court,8 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.9 The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 remains the same as that under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).10 Toogood J recently captured the essence of the test in Larkin v Ministry of Social Development in this way:11
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[17] In specific relation to appeals challenging an uplift for previous convictions, the Court of Appeal has commented:12
On appeal, an assessment of the judge's evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.
Resolution
The starting point
[18] Turning now to a resolution of this matter and the starting point adopted, first, I must consider whether that starting point adopted by Judge Couch was within
the range available to him. On this, the Crown refers to various cases as establishing
7 Criminal Procedure Act 2011, s 244.
8 Section 247.
9 Section 250.
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].
12 Ripia v R [2011] NZCA 101 at [10].
that the starting point here is not subject to challenge on this appeal.13 Both Seymour v Police and Chapman v Police are cases that tend to indicate that the starting point adopted by Judge Couch was at the higher end of the permissible range. On the other hand, Singh v R indicates that a starting point of two years, six months’ imprisonment was not out of range.
[19] In Singh v R, Mr Singh faced multiple charges, including one charge of unlawfully taking a motor vehicle worth $15,000, three charges of unlawfully getting into a motor vehicle, three theft charges, and one of driving whilst disqualified.14 In that case, the District Court Judge set a starting point of two years, six months’ imprisonment for the entirety of the dishonesty offending. This was uplifted by nine months to account for the fact that Mr Singh had an extensive history of dishonesty offending, much of which related to vehicles. A generous discount of 20 per cent
was allowed for early guilty pleas.
[20] In total, Mr Singh was sentenced to two years, nine months’ imprisonment. This consisted of a sentence of two years, seven months for the dishonesty offending and two months cumulative for the driving whilst disqualified. On appeal, the Court of Appeal declined to interfere with the starting point, though it was described as
being at the top of the available range.15 Nor was the Court inclined to interfere with
the uplift of nine months.16 However, due to a risk of double counting, the appeal was allowed by reducing the total sentence by three months.
[21] Another similar case is Hollingshead v Police.17 Mr Hollingshead pleaded guilty to four charges of theft, two of conversion of a motor vehicle, one of interfering with a vehicle, one of receiving, and one of possession of a pipe for the purpose of smoking cannabis. On the charges of theft and conversion, Mr Hollingshead was sentenced to two years, eight months’ imprisonment. On the less
serious charges, he was sentenced to one month imprisonment.
13 Singh v R [2011] NZCA 139; Chapman v Police [2015] NZHC 498; Seymour v Police [2013] NZHC 2232.
14 Singh v R [2011] NZCA 139 at [4].
15 At [9]–[11].
16 At [12]–[15].
17 Hollingshead v Police [2014] NZHC 1131.
[22] On appeal, Venning J recognised that the starting point of three years seemed, prima facie, too high.18 The more appropriate starting point would have been two years, six months imprisonment. However, the fact that Mr Hollingshead committed some of the offending whilst on bail for other earlier offending warranted an uplift of six months. Further, he said that Mr Hollingshead’s deplorable history of dishonesty offending warranted an uplift of six to eight months. This would result in an
adjusted starting point of somewhere between three years, six months and three years, eight months, before accounting for mitigating factors. A discount of 20 per cent was afforded, which meant the ultimate sentence was within the range available and the appeal was accordingly dismissed.
[23] In all of the circumstances of the present case, it seems to me that the starting point that should have been taken in relation to this offending was one of 15 months. While this was a serious example of unlawfully taking a motor vehicle, it involved, unlike Singh v R and Hollingshead v Police, a single offence involving dishonesty. But for the fact that Mr Muir took the vehicle on such a long journey, caused over
$1,300 in damage, and seemed to have no intention of returning the vehicle, that starting point could have been fixed around 12–14 months.19
The uplift
[24] Turning now to the uplift, in the context of a starting point of two years, six months’ imprisonment, an uplift of eight months for previous convictions, and the fact that Mr Muir was on bail, cannot, in my view, be challenged. The correct approach to uplifts was recently traversed by Dunningham J in Reedy v Police.20
After reviewing the relevant authorities, Her Honour stated:21
[19] The principles in relation to uplifting the previous offending can therefore be stated as follows:
18 At [9].
19 On this I note in Gideon v Police [2014] NZHC 1065, a starting point of 12 months was considered unimpeachable on appeal. This case related to a vehicle of relatively low value
($750), however, and limited damage was done to the vehicle. In Kushell v Police [2012]
NZHC 2380 a starting point of 18 months was taken where two vehicles were unlawfully taken. This was not disturbed on appeal. I refer also to the case of Prattley v Police [2014] NZHC 486 and the cases referred to therein.
20 Reedy v Police [2015] NZHC 1069.
21 (citations omitted).
(a) there will be no uplift for the bare existence of previous convictions — to do so would be to punish offending more than once;
(b) the permissible lines of reasoning, justifying an uplift, fall into three broad categories:
(i) previous convictions bearing upon character and culpability;
(ii) indication of predilection to offend in a specific way
(an indicator of reoffending);
(iii) the need to protect society by the imposition of a deterrent sentence.
This necessarily requires the uplift to be firmly tied to specific aspects of the offender's criminal history.
(c) the uplift must remain proportionate to the starting point fixed by the sentencing Judge.
(d) there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).
[25] In that case, in the context of drug offending, the appeal was allowed and an uplift equating to some 37 per cent of the starting point was substituted with an uplift of 25 per cent. In Mr Muir’s case here the uplift was to account for both previous convictions and the fact the offending occurred whilst he was on bail for the assault charge, which had occurred only very recently.
However, given that I have concluded the starting point adopted by Judge Couch was too high, this will need to be reviewed for proportionality.
The sentencing exercise approached afresh
[26] Turning now to consider the sentencing exercise approached afresh, having reached these conclusions, I remind myself that pointing to discrete errors in a sentence does not, of itself, warrant interference with the sentence imposed. The overarching requirement is that the error is such that a different sentence ought to be imposed. As a cross-check, and perhaps as a counsel of perfection, I will undertake a hypothetical sentencing exercise to ascertain the available sentencing range.
[27] On the lead charge of conversion, I would adopt a starting point of 15 months imprisonment. I would adjust this upwards by three months to account for the fact that this offence occurred whilst on bail, and, in fact, all of the offending was committed whilst Mr Muir was on parole for previous offending, which also involved dishonesty. I would then uplift by a further four months to account for Mr Muir’s substantial and aberrant history of dishonesty offending, particularly as it
relates to vehicles.22 Finally, rather than sentence Mr Muir on a cumulative basis for
any of the other offending, I would prefer to provide one further uplift of two months to account for the assault, the sustained loss of traction charge and the breach of release conditions. This would lead to an adjusted starting point of 24 months’ imprisonment.
[28] From there, I would allow a discount of 20 per cent for Mr Muir’s early guilty plea. In this respect, I note that the discount provided to Mr Muir for his early guilty pleas was, with respect, generous. Indeed, it exceeded the maximum prescribed by the Supreme Court in Hessell v R.23 However, even putting that issue to one side, the case against Mr Muir, at least in relation to the lead charge of conversion, was overwhelming. In relation to the other charges it was very strong. In these circumstances, I struggle with the idea that he is entitled to a 25 per cent discount here.
[29] The Supreme Court in Hessell v R made clear that 25 per cent is the maximum available to the Court.24 In assessing the discount to be allowed for a guilty plea, the Court stated “[a]ll circumstances in which the plea was entered must be addressed, not merely the timing”.25 Commenting on the approach advocated by the Court of Appeal, the Supreme Court stated that if the Court of Appeal’s approach was permitted to prevail:26
… where a plea is entered promptly, even in the face of a very strong prosecution case, the maximum discount must be given. But that treats as irrelevant an important factor in evaluating the extent to which a plea
22 A review of Mr Muir’s criminal history establishes that he has approximately 76 convictions for dishonesty offending, more than 30 of which relate to offending involving the taking of, or interfering with, vehicles.
23 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
24 At [75].
25 At [51].
26 At [60].
involves acceptance of responsibility. The approach is likely to lead to the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty. Importantly also, it would put pressure on an accused to plead guilty for reasons that are unprincipled. In some cases pressure of this kind could lead to a guilty plea being entered in haste, by someone who may not be guilty of the offence charged and pleaded to.
[30] Applying these principles to the present case, I have assessed the utility of Mr Muir’s guilty plea as at least somewhat diminished by the strength of the prosecution case. However, at the same time the utilitarian aspects of an early guilty plea cannot be ignored. Therefore, taking a range of 15–20 per cent, I have afforded Mr Muir what I see as a generous discount of 20 per cent. Applying this discount to the current offending, this yields a sentence of 19 months’ imprisonment.
[31] For clarity, I would allow no further deduction for the mitigating factors raised by Mr Muir. This included that he had been out of prison, and in full time employment for one year, that he had obtained professional help for his ADHD and ADD and was on medication for such, the willingness to participate in restorative justice, the $500 reparation paid to the mother of the assault victim, and ordinary remorse. To the extent that I have considered appropriate, these matters are encapsulated in the 20 per cent discount.
[32] Approaching the appeal in this way, it is apparent that the sentence imposed was outside the range available to Judge Couch. While this was a case where the principles of deterrence and denunciation were paramount, particularly in light of Mr Muir’s past, it must be remembered that he is being sentenced for the current offending, not his past.
[33] I would therefore allow the appeal. The sentence of two years, three months imprisonment is quashed and substituted with a total sentence of 19 months’ imprisonment. This is not a case where I see home detention as being appropriate. Mr Muir has shown he struggles with compliance and, moreover, the extent of his history is such that I do not consider the relevant principles and purposes of sentencing can be achieved by anything less than a custodial sentence. Further, standing back and taking a holistic approach to this offending in the round, it seems
to me that a sentence of 19 months’ imprisonment fairly reflects Mr Muir’s
culpability once all relevant matters are accounted for.
[34] In conclusion I note that, while it is admirable that Mr Muir has taken steps to turn his life around plainly reoffending is not conducive to that goal. It might be seen as unfortunate that this is not a case in which home detention is a possibility. However, given that the substituted sentence is a short term of imprisonment, his release date may well turn out to be half of that new sentence. When he is released, I encourage Mr Muir to rectify the new life he had sought to begin.
Outcome
[35] Finally, as to outcome, this appeal is allowed. The sentence of 27 months’ imprisonment is quashed and replaced with a total sentence of 19 months’ imprisonment for all the offending here. This is to include a now concurrent sentence of one month imprisonment for the assault charge.
...................................................
Gendall J
Solicitors:
Better Lawyers, Christchurch
Raymond Donnelly & Co, Christchurch
Copy to Miranda Rout, Christchurch
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