Patangata v Police

[2020] NZHC 407

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2020-416-000002

[2020] NZHC 407

BETWEEN

JORDAN PATANGATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 March 2020
Counsel:	M Terekia for the Appellant C Stuart for the Respondent
Judgment:	5 March 2020

JUDGMENT OF DOOGUE J

Introduction

[1]        Mr Patangata was granted leave to bring this appeal against sentence out of time by France J on 3 February 2020.

[2]        Mr  Patangata  was   sentenced   on   10   December   2019   in   the   Gisborne District Court by Judge Cathcart to 17 months imprisonment and disqualified from driving for one year and one day.1

1      Police v Patangata [2019] NZDC 25078.

PATANGATA v NEW ZEALAND POLICE [2020] NZHC 407 [5 March 2020]

[3]        This was in relation to charges of theft of petrol,2 burglary,3 driving while disqualified (third or subsequent),4 using a document for pecuniary advantage (x10),5 a Bail Act 2000 charge,6 and a charge of failing to stop for an enforcement officer.7

Factual background

[4]        The theft occurred on 28 April 2019. Mr Patangata was a passenger of a Mazda motor vehicle in the Palmerston North area. When the driver pulled the vehicle into a Z Energy Station in Palmerston North, he got out and put $30 worth of petrol in the car while the driver went inside to use the bathroom. Mr Patangata then approached the staff and attempted to use his cell phone as a deposit. The staff advised him that they could not accept it and went to uplift a form for him to complete. Mr Patangata then took a Snickers bar and went back to the vehicle. Mr Patangata and his associate left the store without paying for the fuel or the food.

[5]        The burglary occurred on 1 May 2019. Mr Patangata and the same associate were again driving in the Palmerston North area in the same vehicle. The vehicle was stopped outside the victim’s address after some engine problems. Mr Patangata got out of the vehicle, went up the driveway and forced entry into a garden shed. His associate attempted to resolve the problems with the vehicle. A witness approached the associate and offered assistance to jump start the vehicle but that was not successful. Mr Patangata exited the garden shed carrying a petrol can and weed eater. He placed the weed eater in the boot and poured the fuel into the vehicle. Mr Patangata and his associate then left the area in the vehicle.

[6]        The charges of driving while disqualified and failing to remain stopped for an enforcement officer  occurred  on  15  October  2019.  On  that  day,  at  11:10  pm Mr Patangata was driving a Mitsubishi motor vehicle along Childers Road in

2      Crimes  Act  1961,  ss  219  and  223(d).    Category  2.     Maximum penalty of three months’ imprisonment.

3      Section 231(1)(a). Category 3. Maximum penalty of 10 years’ imprisonment.

4      Land Transport Act 1998, ss 32(1)(a) and 32(4). Category 3. Maximum penalty of two years’ imprisonment or $6,000 fine.

5      Crimes Act, s 228(1)(b). Category 3. Maximum penalty of seven years’ imprisonment.

6      Bail Act 2000, s 38(a). Category 2.  Maximum penalty of one year imprisonment or $2,000 fine.

7      Land Transport Act, ss 52A(1)(b), 52A(4), 52A(6) and 114.   Category 1.   Maximum penalty of

$10,000 fine.

Gisborne. Police observed him at a roundabout with his vehicle on the wrong side of the road. Before the officers were able to signal for his vehicle to stop, he turned into a driveway of a commercial premise and stopped. The police officers activated their red and blue flashing lights, and pulled up behind his vehicle with the intention of administering a compulsory breath test. However, Mr Patangata got out of the driver’s seat, ran from the vehicle, jumped over a fence and ran away before police could speak to him. He was located a short time later in a local bar and was arrested. Police checks revealed Mr Patangata was indefinitely disqualified in March 2012.

[7]        The offending relating to using a document for pecuniary advantage relate to Mr Patangata’s repetitive use of a BNZ Visa PayWave card on 12 February 2019. He used the card on numerous occasions that day to purchase items from various businesses in Palmerston North. Towards the end of that sequence of offending a transaction was declined and his offending came to an end.

District Court decision

[8]        The Judge structured his sentencing by fixing a starting point for the burglary offending and all other offending except the driving whilst disqualified charge. He treated the burglary as the lead charge within the first group of offending. He settled on 17 months’ imprisonment as the appropriate starting point for that group of offending.

[9]        He settled upon a starting point of 10 months’ imprisonment for the driving whilst disqualified charge.8

[10]      Adding the two starting points together he made an adjustment for totality and settled upon a globally adjusted starting point of 21 months’ imprisonment.

[11]      Because the two sets of offending occurred while Mr Patangata was on bail, the Judge made an uplift of two months’ imprisonment.

8      With reference to Samson v Police [2015] NZHC 748.

[12]      The Judge made an uplift of one months’ imprisonment for the history of dishonesty offending.9

[13]He gave a full discount of six months for the early guilty plea.

[14]      He noted a referral for restorative justice was made but “little more than that”, noting the pre-sentence reports indicated he was a high-risk offender who did not accept responsibility for his offending and did not expect to have to pay reparation.10 The Judge said this “somewhat dampened” the claim that he wanted to take steps to rehabilitate.11 While the Judge initially rejected a discount for remorse, he later amended the judgment based on a letter Mr Patangata had written and deducted one month for remorse.

[15]      The final sentence was 17 months’ imprisonment and disqualification from driving for one year and one day.

[16]The sentencing exercise is summarised in table format below:

Description	Date	Starting Point
Using a document for pecuniary advantage (x10).	12 February 2019	17 months
Theft of petrol and confectionary valued around $30	28 April 2019
Burglary of garden shed taking petrol and weed eater	1 May 2019
Failing to answer District Court Bail	14 October 2019
Failing to stop for enforcement officer	15 October 2019	Fine only
Uplift for driving while disqualified	15 October 2019	+ 10 months
Totality adjustment		- 6 months
Sub total		21 months
Uplift for offending on bail		+ 2 months
Uplift for previous dishonesty offending		+ 1 month
Guilty plea discount		- 6 months (25%)
Reduction for remorse		- 1 month
End sentence		17 months

9      In accordance with the principles from Orchard v R [2019] NZCA 529.

10     Police v Patangata, above n 1, at [18].

11 At [20].

Principles on appeal

[17]      This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and therefore must only be allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed, and that a different sentence should be imposed.12

[18]      The sentence must be either manifestly excessive or inappropriate if the appellate court is to interfere with the discretion.13

[19]      The focus is on the final sentence rather than the exact process by which it was reached  and whether the sentence was  in the  available range.14  As  articulated in   R v Peters:15

As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but it is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component.

[20]Mr Patangata’s appeal raises the following questions:

(a)Was the starting point of 17 months’ imprisonment in respect of the first category of dishonesty offending excessive?

(b)Should Mr Patangata have been granted leave to apply for home detention?

12     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

13     Affleck v Police [2017] NZHC 3220 at [9].

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

15     R v Peters CA12/03, 14 May 2003 at [13].

Was the starting point for the burglary excessive?

Appellant’s submissions

[21]      Mr Terekia for  Mr  Patangata  compared  the  present  case  to  the  facts  in  R v Columbus where Mr Columbus  pleaded  guilty  to  one  charge  of  burglary,  two charges of theft, possession of cannabis and possession of a pipe.16 In Columbus the offending consisted of getting into a garage on a residential property, taking a mountain bike, gardening tools and a toolbox. Mr Columbus then sold the bike. He went on to steal a lawnmower worth about $479.00. Having been granted bail, he then took $68 worth of petrol from the petrol station.

[22]      In that case the Court of Appeal said a burglary in those circumstances would not attract a starting point of more than one year imprisonment.17 A further uplift of six months was then applied to reflect the remaining offences and the fact that some offences were committed while on bail.

[23]      Mr Terekia also submitted that the facts in Blance v Police were on foot with the facts in this case.18 The offending in Blance involved going on to a residential property and breaking into a shed to obtain fuel.

[24]      Finally, Mr Terekia submitted there was no premeditation in this offending and that it arose as a result of the vehicle Mr Patangata and his associate were travelling in having problems. He referred to the fact that the offending occurred in the morning but not the early hours. Because of these facts and the similarity to the facts of Columbus19 and Blance,20 Mr Terekia submitted the starting point on the burglary charge alone should have been no more than 12 months’ imprisonment.

16     R v Columbus [2008] NZCA 192.

17 At [16].

18     Blance v Police [2015] NZHC 2566.

19     R v Columbus, above n 16.

20     Blance v Police, above n 18.

Respondent’s submissions

[25]      Mr Stuart for the Police conceded that a starting point of 12 months’ imprisonment for the burglary alone may have been appropriate having regard to the similarity of the facts in this case to those in Columbus.21

Analysis

[26]      For present purposes I shall assume that a starting point of 12 months was more appropriate having regard to the similarities between Columbus, Blance and this case.

Was the uplift for the remaining offences in the first set of offending justified?

Appellant’s submissions

[27]      Mr Terekia referred to the fact that the theft consisted of taking $30 of fuel, and a Snickers bar,  from a petrol station.   The using a document charges  related to     Mr Patangata using an EFTPOS card with PayWave. He used the card to obtain

$577.73 worth of goods through a series of purchases.

[28]      Mr Terekia submitted that the uplift in Columbus was for six months and that reflected the additional offending and the fact that some of that offending occurred while on bail.22 Mr Terekia accepted that in this case an uplift of two months from a starting point of a year would have appropriately reflected the additional offending, including the failure to answer bail.

Respondent’s submissions

[29]      Mr Stuart submitted that the dishonesty offending could not be adequately accounted for by an uplift of two months. He submitted that a starting point of around six months for these charges alone was available having regard to the following cases:

(a)Palmer v Police23 – the appellant and his partner found an EFTPOS card  with  a  pin  number  recorded  on  it.  A  total  of  $10,200 was

21     R v Columbus, above n 16.

22     R v Columbus, above n 16.

23     Palmer v Police HC Rotorua CRI-2009-463-82 (4 November 2009).

withdrawn over five days. The offending was described as opportunistic. A starting point of nine months’ imprisonment was adopted.

(b)Horrell v Police24 – the appellant used bank cards stolen from a neighbour’s property to withdraw $600 cash and purchase $133.15 worth of goods. A starting point of six months’ imprisonment was considered appropriate.

(c)Doctor v Police25 – the appellant used a stolen PayWave card 12 times to purchase petrol, alcohol, food and tobacco. The total loss was described as a modest amount and in the hundreds rather than thousands. A starting point of 12 months was considered appropriate.

(d)Tiopira v Police26 – the appellant used a number of stolen credit and EFTPOS cards  over  a  fortnight  to  obtain  money  and  goods  on  33 occasions  to  the  value  of  $11,606.21.  The  starting  point  of  30 months’ imprisonment was considered at the top of the available range.

[30]      Mr Stuart submitted that the overall starting point of 17 months could be represented by a 12-month starting point for the burglary and five-month starting point for the other offending, and that was well within range having regard to the cases set out in [29].

Analysis

[31]      Based on a comparison between this case and those listed in [29], I find that the remaining dishonesty offences could have attracted a six-month uplift.

24     Horrell v Police [2016] NZHC 820.

25     Doctor v Police [2017] NZHC 1084.

26     Tiopira v Police [2012] NZHC 1720.

[32]      Therefore, the overall starting point of 17 months, represented by a 12-month starting point for the burglary and a five-month starting point for the other offending, was within the available range.

[33]      The subsequent adjustment for totality and the unchallenged adjustments to the starting point cannot therefore be described as leading to a manifestly excessive end sentence.

[34]      Any reduction in this case would be so modest as to amount to mere tinkering, even if a slightly lower starting point may have been adopted by another Judge on another day.

[35]      It follows I find there is no discernible error in this part of the sentence and the answer to the first question on appeal is no.

Should leave have been granted to apply for home detention?

[36]      In this case Mr Patangata did not seek leave to apply for home detention. Nevertheless, he was declined leave to appeal for home detention.

Appellant’s submissions

[37]Mr Terekia submitted a useful analysis from the High Court in Kanuta v R:27

[37]      The principles in considering an appeal of this nature are well- established. When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community’s safety. It follows from this principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act. The Court cannot impose a sentence of imprisonment unless it is satisfied:

(a)that the sentence is being imposed for a statutory purpose or purposes, that is: to hold the offender accountable; or to induce in him or her a sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or to protect the community;

(b)that those purposes cannot be achieved by a sentence other than imprisonment; and

27     Kanuta v R [2016] NZHC 436.

(c)that no other sentence would be consistent with the statutory principles as applied to the particular case.

[38]      Where the end sentence reached is a short term of imprisonment, the Judge must decide whether to commute that sentence to one of home detention. But, as the Court of Appeal has said:28

That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[39]      The choice between imprisonment and home detention must be intelligible. The Judge must properly identify and weigh the factors that really count.

[38]              Mr Terekia submitted that leave should have been granted to apply for home detention for the following reasons:

(a)The offending, while serious and aggravated by Mr Patangata’s history, could not be described as high-level offending, and the total financial loss of the current offending would be less than $1,000.

(b)The Senior Courts have recognised that home detention is in and of itself a serious sentence and carries with it a significant degree of deterrence.

(c)Mr Patangata was attempting to begin a rehabilitation programme at He Waka Tapu prior to returning to the North Island.

(d)Mr Patangata completed a three-month sentence of community detention in 2012 without breaching that sentence, and a similar sentence in 2010 with a single breach demonstrating an ability to comply with community-based sentences.

28     Fairbrother v R [2013] NZCA 340 at [30].

Respondent’s submissions

[39]              Mr Stuart relied on the following considerations evident in the Judge’s decision as justifying no leave being provided to apply for home detention:

(a)Mr Patangata’s previous sentences of imprisonment for similar offending;

(b)that the driving whilst disqualified represented Mr Patangata’s 10th conviction for that offending;

(c)Mr Patangata’s high risk of reoffending; and

(d)Mr Patangata’s implausible denials about some aspects of his offending.

[40]              Mr Stuart submitted that the cumulative effect of those considerations gave the Judge significant latitude to refuse granting leave to apply for home detention.

Analysis

[41]              I find the Judge was justified exercising his discretion to refuse to grant leave to apply for home detention given the appellant’s previous convictions (particularly for driving whilst disqualified). He has served previous terms of imprisonment for driving whilst disqualified and denouncement and deterrence was justified in a further term. It would be inconsistent with the principles of consistency for him to have been sentenced to a lesser sentence.

[42]              The Judge canvassed all matters relevant to leave for home detention including those in the previous paragraph  and the consideration of prospective rehabilitation  in [18]-[21] of his decision.

[43]              Finally, he noted no available address had been identified in which the appellant could serve home detention in any event.

[44]              Whilst the Judge did not expressly state he was determining the issue of the suitability of home detention, it is clear from his judgment he had considered the possibility and that for the very good reasons given in his decision he considered it inappropriate.

Conclusion

[45]              The end sentence of 17 months’ imprisonment was within the range available to the Judge.

[46]              The Judge was correct in exercising his discretion to refuse to grant leave to apply for home detention, given Mr Patangata’s previous convictions and sentences, and the lack of a suitable address.

Result

[47]The appeal is dismissed.

Doogue J

Solicitors:

Crown Solicitor, Gisborne Woodward Chrisp, Gisborne