Nandan v Police
[2024] NZHC 505
•12 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000046
[2024] NZHC 505
BETWEEN SELVIN SANGESH NANDAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 March 2024 Appearances:
L Ameye for the Appellant
R van Boheemen for the Respondent
Judgment:
12 March 2024
JUDGMENT OF GORDON J
This judgment was delivered by me on 12 March 2024 at 3 pm
Registrar/Deputy Registrar Date:
Solicitors/counsel:
L Ameye, Auckland
Meredith Connell, Auckland
NANDAN v NEW ZEALAND POLICE [2024] NZHC 505 [12 March 2024]
[1] Selvin Nandan appeals his sentence of three years’ imprisonment imposed by Judge K Maxwell in the Auckland District Court on 16 January 2024.1
[2] The sentence was for offending occurring on five separate dates from 2021 to 2022.
[3]The submissions for Mr Nandan on appeal are:
(a)the starting point adopted by the Judge was too high;
(b)the uplift for the balance of the offending was too severe and the Judge failed to consider the principle of totality;
(c)further discounts were available, especially for addiction; and
(d)the order of applying discounts and uplifts was not consistent with the two step approach envisaged in Moses and this led to an error in the sentence.2
[4] The respondent’s position is that the District Court Judge did not err as alleged by Mr Nandan and the end sentence of three years’ imprisonment is not manifestly excessive.
Summary of offending
[5] The Judge set out a summary of the offending which I accept is accurate by reference to the various summaries of facts. However, some of the Judge’s summary does not relate the facts to the particular charges. Ms van Boheemen, counsel for the respondent, has included references to the various charges in the summary she sets out in her submissions. I accept her summary is accurate and I reproduce it (with some minor amendments) rather than adopting the Judge’s summary.
1 New Zealand Police v Nandan [2024] NZDC 629.
2 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
(a) 22 July 2021: In the afternoon, Mr Nandan made repeated attempts to enter a number of properties in Goodwood Heights. In relation to the first house, he attempted to gain entry by opening a latched window (unlawfully in an enclosed yard).3 The first victim was at home with her children.
The first victim’s neighbour (the second victim) observed the defendant in the first victim’s yard. Mr Nandan raised a brick at the second victim in a threatening manner (behaves threateningly).4 The second victim retreated.
Mr Nandan climbed over another fence and entered the outside of the property of the third victim (unlawfully in an enclosed yard).5 The third victim chased the defendant off his property.
About five minutes later, Mr Nandan entered another property on the same street in Goodwood Heights. The fourth victim was asleep on a couch inside his house at the time. Mr Nandan entered the house through sliding doors while holding a screwdriver. He put on the fourth victim’s shoes. Mr Nandan took a bottle of bourbon and the fourth victim’s silver Ford Ranger, valued at $55,000.00 (burglary).6
Mr Nandan left the fourth victim’s house in his car. He drove down the street at excessive speed. He drove southbound in a northbound lane causing oncoming traffic to take evasive action to avoid a head on collision. Mr Nandan eventually crashed the vehicle into a fence, causing extensive damage (reckless driving).7
3 Summary Offences Act 1981, s 29(1)(b) – maximum penalty of three months’ imprisonment or
$2,000.00 fine.
4 Summary Offences Act, s 21(1)(a) – maximum penalty of three months’ imprisonment or a
$2,000.00 fine.
5 Above n 3.
6 Crimes Act 1961, s 231(1)(a) – maximum penalty of ten years’ imprisonment.
7 Land Transport Act 1998, s 35(1)(a) – maximum penalty of three months’ imprisonment or a
$4,500.00 fine.
(b) 25 – 26 July 2021: Sometime between 4 pm on 25 July 2021 and 6 am on 26 July 2021, Mr Nandan broke into the fifth victim’s vehicle. He took items valued at $15,000.00 (theft over $1,000).8
(c) 10 August 2021: Mr Nandan was driving while disqualified and failed to stop for Police (driving while disqualified – third and subsequent,9 failing to stop for flashing red and blue lights – third and subsequent).10 He ran a red light and accelerated at speed, driving 160km/h in a 50 km/h area. Mr Nandan crashed into the vehicle of the sixth victim (driving in a dangerous manner).11
(d) 9 September 2021: A Mazda vehicle was stolen from an address in Ruapehu. The next day it was located by Police. A DNA result for a cigarette in the vehicle was a match for Mr Nandan (unlawfully gets into motor vehicle).12
(e) 22 – 27 September 2022: In the early hours of the morning on 22 September 2022, the seventh victim’s van was taken from outside his house. On 27 September 2022, Police located the stolen vehicle with a different registration plate. Police activated red and blue lights to try and stop Mr Nandan while he was driving the stolen vehicle in Papakura. Mr Nandan accelerated away at speed. He performed risky overtaking manoeuvres and drove on the wrong side of the road. He was eventually stopped by Police (drove while disqualified – third and subsequent,13 failing to stop for flashing red and blue lights – third and subsequent14 and driving in a dangerous manner).15
8 Crimes Act, ss 219 and 223(b) – maximum penalty of seven years’ imprisonment.
9 Land Transport Act, s 32(1)(a) and 32(4) – maximum penalty of two years’ imprisonment or a
$6,000 fine, and minimum one year disqualification.
10 Land Transport Act, ss 52A(1)(a)(ii) and 114(2) – maximum penalty of three months’ imprisonment, a $10,000 fine and two year disqualification.
11 Land Transport Act, s 35(1)(b) – maximum penalty of three months’ imprisonment or a $4,500 fine, and minimum six month disqualification.
12 Crimes Act, s 226(2) – maximum penalty of two years’ imprisonment.
13 Above n 9.
14 Above n 10.
15 Above n 11.
(f) Breach of probation orders: There were also four charges that related to Mr Nandan breaching conditions of home detention.16
Sentencing decision
[6] The Judge took the 22 July 2021 burglary charge as the lead charge. She referred to defence counsel’s submission in relation to this charge as follows:17
… [Your lawyer] submits that, having regard to the factors which the Court generally considers when determining the seriousness of this type of offending, that there was a degree of planning and sophistication. He acknowledges the nature of the premises you entered, which was residential. He acknowledges the fact that the victim was at home and was asleep and was, of course, vulnerable. He also acknowledges the value of the property taken, which was something in the order of $55,000.
[7] The Judge referred to the submission made on behalf of Mr Nandan that a starting point in the order of two years and two months would be appropriate by reference to Tafengatoto v New Zealand Police where the offender had entered a residential house in the early morning.18 The victim was asleep and items to the value of $12,500 were taken. The High Court considered a starting point of two years was appropriate in that case.
[8] The Judge noted the acknowledgement by counsel for Mr Nandan that Mr Nandan’s offending was more serious than in Tafengatoto having regard to the value of the property taken. The Judge agreed and further noted that Mr Nandan had possession of a screwdriver during the burglary which in her view aggravated the offending.
[9] The Judge adopted a starting point of two years and four months with an uplift, expressing herself in this way:19
… In my view, a starting point of two years four months is available for the burglary related offending, which [sic] an uplift of two months for the offending which is also included in that summary of facts.
16 Sentencing Act 2002, s 80S – maximum penalty of 1 year or $2,000.00 fine.
17 New Zealand Police v Nandan, above n 1, at [17].
18 Tafengatoto v New Zealand Police [2018] NZHC 2452.
19 New Zealand Police v Nandan, above n 1, at [19].
[10] The word ‘which’ appears to be a typographical error and should read ‘with’. Both counsel agree. In other words, the starting point for the lead charge of burglary, or as the Judge described it “burglary related offending” was two years and four months’ imprisonment. To that the Judge added an uplift of two months’ imprisonment for all the other offending on the same day as the burglary.
The Judge then applied the following uplifts for the rest of the offending:
(a)25–26 July 2021 (theft) and 10 August 2021 (driving offending) – six months’ imprisonment;
(b)22–27 September 2022 (driving offending) – three months’ imprisonment;
(c)breaches of earlier probation orders – six months’ imprisonment.
[12] The Judge does not appear to have added an uplift for the 9 September 2021 offending of unlawfully getting into a motor vehicle.
[13]The global starting point arrived at was 45 months’ imprisonment.
[14]The Judge then gave the following discounts:
(a)20 per cent for a guilty plea; and
(b)10 per cent for steps taken to address addiction and the causal nexus between addiction and the dishonesty offending.
[15] That reduced the sentence to 31 and a half months. The Judge then uplifted that by four and a half months to reflect Mr Nandan’s criminal history and the fact that his offending occurred while he was on bail.
[16]The end sentence was, therefore, 36 months or three years’ imprisonment.
[17] The Judge also ordered Mr Nandan to pay a total of $1,300 in reparation and remitted his fines.
The law on sentence appeals
[18] A person may bring an appeal against sentence as of right.20 The Court hearing the appeal must allow the appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.21 In any other instance the Court must dismiss the appeal.
[19] The overall issue on appeal is whether the end sentence was manifestly excessive or the sentence is wrong in principle.22 The appeal court will not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The focus is on the end result, rather than the process by which the sentence was reached.23
Totality principle
[20] When sentencing an offender for multiple offences the Court must ensure that the final sentence represents the totality of the offending and it is not wholly out of proportion to the gravity of the overall offending.24 The principle of totality must be considered after setting a starting point and before considering personal aggravating and mitigating factors.25 A judge is not required to explicitly mention the principle of totality provided that the end sentence is not wholly disproportionate to the overall offending.26
Starting point on lead offence
[21] Mr Ameye, counsel for Mr Nandan, submits the starting point was not in line with appellate authority. In a contradictory submission he accepts the starting point
20 Criminal Procedure Act 2011, s 244.
21 Section 250.
22 Tutakangahau v R, [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
23 At [36].
24 Sentencing Act, s 85(2).
25 Jacobson v R [2023] NZHC 1358 at [14].
26 Kite v R [2018] NZCA 485 at [21].
was within range but goes on to submit that the starting point contributes to the sentence being manifestly excessive.
[22] Mr Ameye submits that the Court should have adopted a starting point of 23 months for the burglary charge (as opposed to 28 months adopted by the Court).
[23]Mr Ameye refers to the judgment of the Court of Appeal in Arahanga v R
where the Court said:27
[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.
(footnotes omitted)
[24] The Court went on to find the starting point of four years’ imprisonment adopted by the sentencing Judge was appropriate. The Court in Arahanga referred to the features that it considered justified that starting point as follows:
[79] There were a number of aggravating features that accentuated the gravity of the burglaries in the present case and that brought the offending within the more serious end of the scale: there were two dwelling house burglaries; the burglaries occurred in the early hours of the morning; there were two burglars, so there was a heightened risk of violence; one of the burglaries took place while the victims were asleep in the house; the offending involved the unlawful taking of a motor vehicle; and, as the Crown points out, the burglaries involved the taking of high value items from the houses.
(footnotes omitted)
[25] Having regard to the aggravating features accurately identified by the Judge in this case I consider a starting point of two years and four months, while at the high end, is not inconsistent with the starting point of four years in Arahanga which I accept was more serious. The aggravating features in this case are as follows:
27 Arahanga v R [2012] NZCA 480.
(a)The nature of the premises: The burglary was of a residential property. In Senior v Police the Court endorsed the following passage from the English Court of Appeal (Criminal Division):28
Domestic burglary is, and has always been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured; because they may have fewer possessions, they are the more seriously injured by the loss of those they do have.
The loss of material possession is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar.
In this case the fourth victim was asleep on a couch during the day when Mr Nandan entered his home. The possibility of confrontation was accordingly high.
(b)The extent of the loss: Mr Nandan took a vehicle, valued at $55,000 from the property. He subsequently crashed the vehicle causing serious damage.
(c)Premeditation: I accept the submission made by Ms van Boheemen that the burglary was premeditated. Mr Nandan brought a screwdriver with him, and tried, unsuccessfully, to enter other homes in the street before entering the victim’s home. In other words, Mr Nandan had set out to commit a burglary.
28 R v Brewster [1998] 1 Cr App R 200 at 225, as cited in Senior v Police (2000) 18 CRNZ 340 (HC) at [18].
[26] Mr Ameye refers to three other cases which he submits provide a basis for a lower starting point for the burglary. First, in Stepanicic v R the Court of Appeal considered that an appropriate starting point was two years.29 There were two burglaries, both of residential property that occurred at night when people were in their homes with the risk of actual danger or confrontation. A number of personal items were stolen from both properties and the victim impact statements revealed that there had been significant effects on the peace of mind of the occupants.
[27] Although there were two properties entered in Stepanicic, as opposed to the one property in this case, Mr Nandan took and damaged property of a much greater value. He was also holding a screwdriver which the Judge, correctly in my view, considered was a further aggravating factor. I accept that Mr Nandan most likely took the screwdriver for use as a tool for burglary. The screwdriver was, nevertheless, available to Mr Nandan as a weapon should he be confronted by the fourth victim.
[28] In Taylor v R the Court of Appeal considered a starting point of 17 months’ imprisonment was appropriate for the burglary in that case.30 The Court added an uplift of seven months to acknowledge the appellant’s 29 previous convictions for burglary. Some of the aggravating features are comparable with the instant case. The burglary was premeditated and during the daytime. However, the theft in Taylor concerned a “small number of relatively low-value items” and the house was not occupied during the burglary.31 I consider the burglary in the instant case was more serious because the value of the goods stolen was much higher and the fourth victim was present during the burglary.
[29] In Price v Police the High Court considered an appeal against sentence involving a number of charges.32 In the District Court the Judge had set a starting point of 18 months for the lead charge of burglary, which involved breaking into a dwellinghouse while the victim was at home asleep. No issue was taken with the starting point on appeal. Accordingly, the judgment does not provide assistance on setting an appropriate starting point as there was no discussion as to whether it was
29 Stepanicic v R [2015] NZCA 2011.
30 Taylor v R [2021] NZCA 606.
31 At [39].
32 Price v New Zealand Police [2021] NZHC 3265.
appropriate or not. I consider the starting point was low and in oral submissions Mr Ameye accepted that. I do not consider Price provides a benchmark for the starting point and I put it to one side on this issue. Having regard, however, to the other cases referred to above, I consider the starting point on the lead charge of burglary of two years and four months, while at the high end, was available to the Judge. There is no error in that regard.
The uplifts
[30] I will consider the uplifts for the balance of the offending individually and then as a whole in the context of a consideration of whether the adjusted starting point is too high.
First uplift
[31] The first uplift of two months’ imprisonment was for the offending on 22 July 2021 excluding the burglary.33
[32] Having regard to the offending as summarised above, a two month uplift is not excessive.
The second uplift
[33] The second uplift was for the offending on 25–26 July 2021 and 10 August 2021.34
[34] I accept Ms van Boheemen’s submission that the theft charge alone could have attracted a starting point in the region of 14 months’ imprisonment. Ms van Boheemen refers to Davies v New Zealand Police where this Court held an eight month starting point was appropriate for a single theft valued at $1,388.35 Here, the total value of the goods was $15,000.
33 See above at [5(a)].
34 See above at [5(b)]–[5(c)].
35 Davies v New Zealand Police [2019] NZHC 3081 at [12].
[35] As to the driving offences, Mr Nandan accumulated nine driving while disqualified convictions prior to the current offending. In Fataiki v Police this Court held that a starting point in the range between nine and 15 months was available for an eighth driving while disqualified offence, taking into account other aggravating features.36
[36] As regards the dangerous driving charge, it carries a maximum penalty of three months’ imprisonment. I consider Mr Nandan’s offending was at the top end of the range for this offending: after Police had signalled him to stop he ran a red light, accelerating at speed. He then drove into the forecourt of a service station before stopping to allow passengers to get out of the vehicle; he then accelerated at speed again travelling at up to 160 km/h in a 50 km/h zone; he proceeded through a red light and crashed into a vehicle; he was unable to exit the vehicle through the driver’s door, and so exited through the passenger door and ran from the scene.
[37] Taking into account all of the offending I consider a six month uplift cannot be criticised.
The third uplift
[38] The Judge made a combined three month uplift for driving offending on 22-27 September 2022.37
[39] As I have already mentioned, Mr Nandan has accumulated a large number of driving while disqualified offences. I accept that on its own the charge could have attracted a starting point of over three months. The driving while disqualified was aggravated by failing to stop for Police and dangerous driving, resulting in danger to others on the roads.
[40]I consider a three month uplift was appropriate.
36 Fataiki v Police [2021] NZHC 3446 at [31].
37 See above at [5(e)].
The fourth uplift
[41] An uplift of six months’ imprisonment was imposed for four offences of breaching a condition of home detention.38
[42] The offending indicates a disregard for court-ordered sanctions. When the three offences are taken together I do not consider the uplift was inappropriate.
No uplift for 9 September 2021 offending
[43] The Judge did not account for Mr Nandan’s offending on 9 September 2021.39 I will take this into account when considering the uplift in totality.
Uplift considered overall and totality
[44] The starting point adopted by the Judge on the burglary charge was 28 months. The Judge imposed a 17 month uplift for all the other offending, including the other offending on the day of the burglary charge, to reach an adjusted starting point of 45 months.
[45] Mr Ameye submits the adjusted starting point should have been 36 months (23 months for the burglary charge, one month for the other offending on the day of the burglary charge and 12 months for the balance of the offending).
[46] Mr Ameye submits that the adjusted starting point of 45 months is excessive. He submits the imposition of an uplift is an art rather than a science but says an uplift of more than 50 per cent of the lead charge engages questions of totality. He again refers to Price where Justice Grice said:40
[47] The totality principle requires consideration of all the offending, rather than simply discrete uplifts for sequential groupings of events. In each grouping, the uplifts appear within range. However, it is their combined amount that seems out of proportion with the offending, especially in light of the authorities cited.
38 See above at [5(f)].
39 See above at [5(d)].
40 Price v New Zealand Police, above n 32, at [47]–[48].
[48] In my view while the discrete sets of offences were properly analysed the sentence uplift applied for those on a cumulative basis (including the uplift for offending while on bail) led to a totality which was out of range. The starting point of 51 months was manifestly excessive. A starting point between 40 to 45 months would be the range.
[47] Mr Ameye says here, the uplifts combined were excessive and that led to an end sentence that was excessive. He refers to the other charges in Price: motor vehicle theft; possession of a knuckle duster; driving charges, including Police chases and crashes; theft of petrol; possession of methamphetamine; escaping from custody; theft of items valued at up to $2,780; and unlawfully using a document. Mr Ameye submits the overall offending in the instant case is less serious than in Price.
[48] While there were other, different charges in Price, I consider it is at least on a par with this case. The adjusted starting point reached by the District Court Judge in this case, 45 months, is consistent with an adjusted starting point range between 40 to 45 months, which the High Court considered appropriate in Price.
[49] The adjusted starting point is stern. But standing back I do not consider it can be said an adjusted starting point of 45 months for all the offending is manifestly excessive.
Discounts for personal mitigating factors
[50] The Judge gave a 20 per cent discount for Mr Nandan’s guilty pleas noting that they were entered at a relatively early stage. To that she added a further 10 per cent for “the steps that you have taken to try and address your addictions, and the fact that at least in relation to the dishonesty charges, there appears to be a link between your addiction and that particular offending”.41
Rehabilitative efforts
[51] Mr Ameye initially submitted that there is nothing to suggest that the Judge considered a nexus between addiction and offending. However, he withdrew that submission having regard to the passage I have set out above where the Judge referred to the link between addiction at least in relation to the dishonesty charges.
41 New Zealand Police v Nandan, above n 1, at [21].
[52] Mr Ameye submits that Mr Nandan has made considerable efforts at rehabilitation after many years of addiction and he says coupled with a consideration for the role that addiction has played, this warrants a greater discount than 10 per cent.
[53]The Judge referred to Mr Nandan’s rehabilitative efforts as follows:42
[15] It appears from the file that you were, in middle of 2022, accepted into the Alcohol and Other Drug Treatment Court. It is not easy to follow all of the notations and your journey through that court, but it would appear that you started out with Wings Trust. You were able to abstain from alcohol and drugs for some 70 days before you self-discharged. New charges appeared in court which related to 29 September 2022. You were not exited from the Alcohol and Other Drug Treatment Court and it appears that you were given an opportunity to participate in the Salvation Army Bridge programme. You appear to have largely completed that programme and then were due to go to Higher Ground, except you were discharged from Higher Ground. You went to Epsom Lodge and ultimately discharged from there because of a positive test for methamphetamine.
[54] In relation to his time at Higher Ground it appears from a minute of another Judge on the file dated 22 November 2023 regarding Mr Nandan’s exit from the Alcohol and Other Drug Treatment Court (AODTC) that he attended Higher Ground for two weeks until he was discharged on 12 September 2022. After attending the Salvation Army Bridge Residential Programme for eight weeks, he re-entered Higher Ground on 19 June 2023 but was discharged the following day.
[55] The Provision of Advice to Courts report records that when asked why he had started using methamphetamine again, Mr Nandan was reported to have said he was “bottling up emotions and got stressed”.
[56] I accept that Mr Nandan did make some progress with his rehabilitative efforts but then lapsed and tested positive for methamphetamine. Having regard to the information available to the Judge, I do not consider a 10 per cent discount for rehabilitative efforts can be seen as an error.
42 New Zealand Police v Nandan, above n 1, at [15].
Guilty plea discount
[57] Mr Ameye says that guilty pleas were entered following considerable adjustment to the original charges. He submits a full 25 per cent discount would be available. He invites the Court to take the approach that a total discount of 35 per cent for both mitigating factors would be more appropriate.
[58]The offending in 2021 occurred between the months of July and September.
[59] There is a minute on the file dated 22 September 2023 which records that Mr Nandan was granted entry into the AODTC on 5 May 2022. Although Mr Ameye was not counsel at the time, he assisted the Court with the process that occurs when a defendant is accepted into the AODTC.
[60] In order to be granted entry into the AODTC a defendant must have pleaded guilty. Having regard to the process that follows after a guilty plea is entered and before a defendant is granted entry, it is likely that guilty pleas were entered in relation to the 2021 offending, by early April 2022 at the latest. Prior to the guilty pleas being entered it is apparent that there were resolution discussions in relation to the charges.
[61] Also to be taken into account is the period between 18 August 2021 and 21 September 2021 when Auckland was at COVID-19 Alert Level 4 and the period between 22 September 2021 and 2 December 2021 when Auckland was at COVID-19 Alert Level 3.
[62] I accept that what appears on its face to be a relatively lengthy period before guilty pleas were entered, when a closer analysis is undertaken there is an explanation for at least part of the length of time but not for the whole period. I therefore consider the guilty pleas were not entered at the first available opportunity and that a 20 per cent discount was appropriate.
Order of applying discounts and uplifts
[63]Finally Mr Ameye submits the Court failed to follow the sentencing steps in
Moses v R.43
[64] Mr Ameye accepts the four and a half month uplift for Mr Nandan’s criminal history and the fact that he offended while on bail was appropriate but he says it was applied at the incorrect step in the sentencing process. He submits that the District Court Judge should have approached the sentencing in this way:
(a)setting a starting point for all the offending on 22 July 2021 and adding an uplift for offending on bail and Mr Nandan’s offending history;
(b)adding an uplift for the balance of the offending, adjusted for totality; and
(c)discounting for rehabilitative efforts and guilty plea – the discount being calculated on the basis of the figure arrived at by adding (a) and
(b) together.
[65]That is plainly wrong. I refer to two Court of Appeal decisions since Moses.
The approach of the Court in Gray v R demonstrates the correct approach:44
[31] Applying the approach in Moses, the personal mitigating discounts are calculated from the adjusted starting point (without the uplifts for personal aggravating factors). On this approach, the end sentence is five years and five months’ imprisonment. This is calculated as follows:
(a)The adjusted starting point is seven years’ imprisonment (84 months). This constitutes a six year starting point plus 15 months for the injury with intent to injure charge and 6 months for injuring the police dog, and minus three months for totality generally and six months because Mr Gray was serving a sentence for cannabis offending.
(b)There are uplifts of three months for offending while on sentence and three months for the prior convictions.
(c)There are discounts of 30 per cent of the adjusted starting point, being 25 months (15 per cent for background factors
43 Moses v R, above n 2.
44 Gray v R [2020] NZCA 548.
and rehabilitative prospects, and 15 per cent for the guilty plea).
[66] It is apparent from Gray that the adjusted started point incorporates aggravating and mitigating features of the offending. Offending while on bail is akin to offending while on sentence (as occurred in Gray). An uplift for offending while on bail and for prior convictions comes in at step 2. It will make no difference if any uplift for personal aggravating factors is considered before or after discounts for personal mitigating factors, as discounts are calculated against the adjusted starting point (paragraph (a) in Gray above) and not against the adjusted starting point plus the uplift for personal aggravating factors (paragraph (a) plus (b) in Gray above).
[67] This is all explained by the second Court of Appeal judgment I refer to. In Stuart v R the Court of Appeal was required to consider the Moses methodology. The Court said:45
[14] The Court had earlier defined the term “adjusted starting point” to incorporate all aggravating and mitigating factors of the offending. The Court explained that under this methodology all second-step uplifts and discounts are fixed by reference to the adjusted starting point. It makes no difference to sentence length therefore if the guilty plea discount is the last step in the sentence calculation.
[15] Ms Moses had no relevant prior convictions and hence the issue of such an uplift did not arise. However in our view it is abundantly clear from the reasoning in Moses that previous convictions constitute an aggravating factor personal to the offender, not an aggravating feature of the instant offending.
[16] We agree with Ms King’s submission for the Crown that it is clear that contemporaneous offending is to be taken into account at step 1 and previous offending is to be taken into account at step 2. …
(footnotes omitted)
[68] In conclusion on this ground of appeal, the District Court Judge proceeded correctly in terms of the Moses methodology. The process the Judge followed did not incorrectly add to the length of the final sentence.
45 Stuart v R [2021] NZCA 539.
Result
[69]For all the above reasons the sentence is not manifestly excessive.
[70]The appeal is dismissed.
Gordon J
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