Paul v Police

[2019] NZHC 1650

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000153

[2019] NZHC 1650

BETWEEN

JONATHAN PAUL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	8 July 2019
Appearances:	C Oxnam and S Papp for the Appellant H MacDonald for the Respondent
Judgment:	16 July 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 16 July 2019 at 3:30 pm

Registrar/Deputy Registrar

Solicitors:           Public Defence Service (N Baier), Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland

PAUL v NZ POLICE [2019] NZHC 1650 [16 July 2019]

Summary

[1]        On 14 March 2019, the appellant, Mr Jonathan Raniera Paul, was sentenced in the District Court in respect of the following 18 charges:1

(a)Three charges of unlawfully taking a vehicle (CRN’s ending in 0535, 4830, 6005);2

(b)Two charges for dishonestly taking or using a document (CRN’s ending in 6006, 6008);3

(c)One charge of unlawfully getting into a vehicle (CRN ending in 6992);4

(d)Three charges of failing to answer District Court bail (CRN’s ending in 7568, 0173, 0119);5

(e)One charge of failing to answer police bail (CRN ending in 0963);6

(f)One charge of breaching conditions of intensive supervision (CRN ending in 3362);7

(g)One charge of breaching community work (CRN ending in 2745);8

(h)One charge of receiving (CRN ending in 6007);9

(i)One charge of wilful damage (CRN ending in 4828);10

1      Police v Paul [2019] NZDC 4817.

2      Crimes Act 1961, s 226. The maximum penalty is seven years’ imprisonment.

3      Crimes Act 1961, s 228. The maximum penalty is seven years’ imprisonment.

4      Crimes Act 1961, s 226(2). The maximum penalty is two years’ imprisonment.

5      Bail Act 2000, s 38. The maximum penalty is one years’ imprisonment or a fine not exceeding

$2,000.

6      Bail Act 2000, s 24. The maximum penalty is three months’ imprisonment or a fine not exceeding

$1,000.

7      Sentencing Act 2002, s 70A. The maximum penalty is six months’ imprisonment or a fine not exceeding $1,500.

8      Sentencing Act 2002, s 71(1)(a). The maximum penalty is three months’ imprisonment or a fine not exceeding $1,000.

9      Crimes Act 1961, s 246. The maximum penalty is three months’ imprisonment.

10     Summary Offences Act 1981, s 11. The maximum penalty is three months’ imprisonment or a fine not exceeding $2,000.

(j)One charge of failing to stop (CRN ending in 4826);11

(k)One charge of operating a vehicle carelessly (CRN ending in 4827);12

(l)Two charges of driving without a licence (CRN’s ending in 4829, 4246).13

[2]        Judge Ronayne sentenced the appellant to three years and two months’ imprisonment.

[3]        The appellant appeals that sentence on the grounds that it is manifestly excessive. The respondent, the New Zealand Police, opposes the appeal and submits that the sentence was plainly available to the Judge.

Summary of facts

[4]The District Court Judge divided the offending into groups:

(a)On 2 September 2015, the appellant unlawfully took a vehicle valued at $5,300 overnight (0535).

(b)On 25 March 2017, the appellant drove without a licence (4246).

(c)On 22 October 2017, the appellant unlawfully took a vehicle valued at

$8,000 (4830). In doing so, he breached his bail and failed to comply with his prohibition from driving (0119, 4829). He failed to stop for police when they signalled him with flashing lights and a siren (4826). He drove on the wrong side of the road before abandoning the vehicle (4827). He was apprehended by police and caused intentional damage to a constable’s notebook (4828).

11     Land Transport Act 1998, s 52A(1)(a)(ii). The maximum penalty is a fine not exceeding $10,000 and mandatory disqualification under s 52A(3).

12     Land Transport Act 1998, s 37. The maximum penalty is a fine not exceeding $3,000 and disqualification from driving for such period as the Court thinks fit.

13     Land Transport Act 1998, s 52. The maximum penalty is a fine not exceeding $10,000.

(d)The appellant failed to answer police bail and failed to answer District Court bail twice (0963, 7568, 0173).

(e)In July 2017, the appellant breached community work (2745) and intensive supervision (3362).

(f)In January 2018, the appellant received and twice used a credit card he knew was stolen (6006, 6008, 6007). He spent $68.50 and $67 with the card.

(g)On 7 May 2018, the appellant unlawfully took and got into a vehicle valued at $3000 (6005, 6922).

District Court decision

[5]        The District Court Judge adopted a starting point of 18 months’ imprisonment for the October unlawful taking charge.14 This was because of the value of the vehicle uplifted, his bad driving to avoid apprehension and the fact that within three days the appellant was involved in a police chase. The Judge referred to the discussion in Leaf v Police:15

The most serious offence in this set was the unlawful taking of the Holden car, an offence punishable by a maximum penalty of seven years' imprisonment. No guideline judgment exists in relation to unlawful takings, but High Court authority is plentiful. I analysed some in Wood v Police, and concluded:

All this suggests a single unlawful taking charge can give rise to a starting point of at least 18 months' imprisonment, if the offence has a significant aggravating feature or features; see Gurnick. If a defendant unlawfully takes a car and attempts to evade Police in a chase, typical global starting points range between 18 and 20 months' imprisonment; see O'Sullivan, Ratahi and Edwards. But, an especially bad constellation can attract more; see Bell. If a defendant unlawfully takes several cars, or takes one and engages in other similar dishonesty, a starting point of two and a half years' imprisonment or more may follow; see Gibbon, Taki and Singh.

14     Police v Paul [2019] NZDC 4817 at [8].

15     Leaf v Police [2018] NZHC 3209, citing Wood v Police [2018] NZHC 1629 at [24] (citations omitted).

[6]        The Judge calculated the appellant’s end sentence of three years and two months’ imprisonment as follows:

CRN	Date	Offence	Months’ imprisonment or disqualified from driving
0535	02/09/2015	Car conversion	4 (cumulative)
4246	25/03/2017	Driving without licence	6 months disqualification
3362	11/07/2017	Breach of intensive supervision	2 (cumulative)
2745	13/07/2017	Breach of community work	1 (concurrent)
0963	09/08/2017	Police bail breach	convicted and discharged
4830	22/10/2017	Car conversion	18 (cumulative)
4828	25/10/2017	Wilful damage	1 (concurrent)
4829	25/10/2017	Driving without licence	6 months disqualification
4826	25/10/2017	Failing to stop	2 years’ disqualification
4827	25/10/2017	Careless driving	convicted and discharged
7568	19/12/2017	Court bail breach	1 (concurrent)
0173	22/12/2017	Court bail breach	2 (concurrent)
6007	16/01/2018	Receiving document	1 (concurrent)
6006	17/01/2018	Using a document	6 (concurrent)
6008	16/01/2018	Using a document	6 (concurrent)
6992	03/05/2018	Unlawfully getting into a vehicle	6 (concurrent)
6005	07/05/2018	Car conversion	12 (cumulative)
0119	08/08/2018	Court bail breach	2 (cumulative)

[7]        Although the Judge considered making the document charges cumulative, he decided that an overall sentence of three years and two months’ imprisonment was suitable. The Judge did not discuss the aggravating features of each offence or any discounts. He did acknowledge that the appellant had pleaded guilty and taken responsibility for his actions. He discussed the appellant’s criminal history, including his previous convictions for similar offending.

[8]        The Judge noted that a burglary had occurred in St Heliers on the night the appellant  used  the  credit  cards,  and   a   vehicle   was   unlawfully  taken   from Mt Wellington early that morning. The Judge called this proximity ‘incredible’:

You know what I think don’t you? That you were the burglar, but you are not before me on a burglary charge, but I certainly take into account the fact that it is an extraordinary coincidence and you are an unlucky man, or you are very close to the burglar if you were using that at two in the morning.

[9]        The Judge’s oral sentencing notes are confusing and do not accord entirely with his handwritten notations on the charging documents or with the appellant’s criminal history printed on the date of the appeal hearing. The following discrepancies are able to be identified:

(a)In his oral sentencing notes the Judge stated that he would adopt an end sentence of 22 months in prison for the all of the October offences.16 However, the charge of  unlawful  taking  was  accounted  for  with  18 months’ imprisonment. The other charges resulted in disqualification from driving or discharge without conviction, plus a one month concurrent sentence of imprisonment for the wilful damage charge.17

(b)In his oral sentencing notes the Judge stated:

So here it is on car conversion 0535 four months’ prison. On failing to comply with that prohibition 4246 six months’ disqualification, and then the October 2017 offending. So on the car conversion 4830 18 months but that is cumulative on the four months that I gave you for that car conversion 0535.

The appellant’s criminal history, however, shows 0535 and 4830 as concurrent.

(c)In his oral sentencing notes the Judge stated:

Then  the  sixth  group,  on  the  receiving  of  that  car  on 16 January last year one month prison. On 6008 using a

16     Police v Paul [2019] NZDC 4817 at [10].

17     Police v Paul [2019] NZDC 4817 at [22].

document so using it at the gas station, six months’ prison. On 6006 using a document six months’ prison.

The Judge, however,  wrote  on  the  charging  document  for  6006  “6 months prison cumulative on 3362”. This is reflected in the appellant’s criminal history, which states that the sentence of six months’ imprisonment is cumulative on 3362.

[10]      The net result of the above discrepancies means that I am unclear as to what the total sentence imposed on the appellant was. The appellant’s criminal history shows a total sentence of three years and four months’ imprisonment rather than three years and two months’ imprisonment, which seems to have been intended by the Judge.

The appeal

[11]      Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. For sentencing multiple offences, it does not matter if the lower court’s method was convoluted, only that the total sentence was within range.18 The focus of an appeal should be on the end sentence rather than the Judge’s approach.19 If there  is an error of the requisite character, I will form a view of the appropriate sentence.20 Section 251(2) of the Criminal Procedure Act 2011 sets out the orders I may make if the appeal is successful.

Submissions

Appellant Submissions

[12]      Counsel for the appellant submits that the Judge took an unorthodox approach to sentencing, but acknowledges that it is not the methodology but the result that is important in appeals.

[13]In summary, counsel points to the following errors made by the Judge:

18     Dellaway v R [2010] NZCA 100 at [22].

19     Tutakangahau v R [2014] NZCA 279 at [35] – [36].

20 At [30].

(a)The Judge incorrectly compared the offending in this case to the offending discussed in Leaf v Police and Wood v Police. Counsel submitted that a starting point of 18 months’ imprisonment for the October offending would have been appropriate.

(b)Only small uplifts (for the other substantive offences, for the non- compliance charges and the fact that some of the offending occurred on bail) should have been applied;

(c)The Judge failed to apply adequate discounts for guilty pleas and time spent on EM bail;

(d)The Judge failed to make an adjustment for totality.

[14]      Counsel proposes that an appropriate sentence would approximately be between two years’ imprisonment and two years and two months’ imprisonment. On this basis, counsel submits that the sentence imposed in the District Court is manifestly excessive.

Police submissions

[15]      Counsel for the police submits that the grounds of appeal do not justify the intervention of this Court. Counsel submits that the starting point was within the available range.

[16]      Counsel also submits that the Judge did take totality into account, because he used a combination of concurrent and cumulative sentences. Further, although no discrete uplifts and discounts were applied, it can be inferred that the Judge turned his mind to the appellant’s history of offending and guilty pleas:21

I am not going to go through all the sentencing submissions made on your behalf, but your lawyer has filed extensive written submissions which have been very helpful, and I have read them carefully and understood them.

21     Police v Paul [2019] NZDC 4817 at [3].

Counsel submits that it was open to the Judge to take this approach. Further, counsel submits that an uplift of up to 12 months’ imprisonment can be justified to reflect an extensive history of criminal offending.22 The appellant has 35 previous convictions. He also “deliberately flouted Court decisions” in breaching bail and other sentences.23

[17]      Even if the Court finds that the starting point was not appropriate, counsel submits that the end sentence was within range. Counsel submits that the appellant has not demonstrated any error in the sentence imposed and accordingly the appeal should be dismissed.

Discussion

[18]      Although the Judge did make comments about the appellant’s previous convictions (“there has got to be some sort of calculation in my head about your previous convictions because you cannot just keep coming back before the Court with previous convictions under your belt, and not expect that to effect how things go”), pleas of guilty (“I acknowledge that you are pleading guilty to everything now and you are taking full responsibility, you did not on the night, but you are now”), and totality (“But I am satisfied that overall the three years and two months is about right”), it is preferable that any uplifts or discounts to initial starting points should be clearly specified and the process by which a judge arrives at a final sentence should be quite transparent. However, it is the end sentence, rather than the process by which that sentence is reached, that is important on appeal. The question is whether a sentence of three years and two months’ imprisonment is within a range justified by accepted sentencing principles.

[19]      It must be determined whether the Judge materially erred in calculating uplifts and discounts, and whether the discrepancies identified above were significant enough to mean a different sentence should have been imposed.

22     Columbus v R [2008] NZCA 192; R v Povey [2009] NZCA 362; Nelson v Police [2012] NZHC and Johnston v Police [2012] NZHC 551.

23     Police v Paul [2019] NZDC 4817 at [8].

Is 18 months’ imprisonment for the lead charge too high?

[20]      The unlawful taking of a motor vehicle on 22 October 2017 is obviously the lead charge as the appellant failed to stop for the blue and red flashing lights and sirens of the police, and drove on the wrong side of the road at a time traffic in the area was medium to heavy before abandoning the vehicle.

[21]      Counsel for the appellant seeks to distinguish Wood v Police, which was cited by the Judge.24 That case was an appeal involving 17 charges, mostly carried out on bail, including three counts of unlawfully taking a motor vehicle. A 20 month starting point for the lead unlawful taking offence was approved on appeal, because of the prolonged very dangerous driving, evasion of the police and the weapons found in the car.25 Counsel for the Police submits that Wood is comparable to the present case - weapons were not present in the car, but the appellant was unlicensed and tore up a police notebook when he was apprehended. In Wood, the Court found that typical global starting points for unlawfully taking a car are between 18 and 20 months' imprisonment when the defendant attempted to evade Police, but an “especially bad constellation” can attract more.26

[22]      Given the appellant’s dangerous driving, failing to stop, the fact he was unlicensed and his behaviour when he was apprehended, I think an 18 month sentence is justified. The starting point adopted by the Judge for this offending is within range for this offence.27 As noted, the Judge did not specify any uplifts or discounts to the starting point, so the starting point was also the end sentence for the offending.

Were the uplifts on the lead charge excessive?

[23]      The dates of the offences on which the appellant was sentenced ranged from 2 September 2015 to 8 August 2018, almost a three year period. Of the 18 charges to which the appellant pleaded guilty, only five had a maximum sentence of more than two years’ imprisonment – three of unlawful taking of a motor vehicle (on 2 September

24     Wood v Police [2018] NZHC 1629.

25 At [26].

26     Wood v Police [2018] NZHC 1629 at [24], citing O'Sullivan v Police [2015] NZHC 2032; Ratahiv Police [2014] NZHC 2394; Woolston v Police [2017] NZHC 1079.

27     Although the Judge stated that he would adopt a 22 month starting point for the October offences, an 18 month starting point was the actual outcome.

2015, 22 October 2017 and 7 May 2018), and two of dishonestly using a document

(on 16 and 17 January 2018).

[24]      Of the two further charges of unlawful taking of a motor vehicle, the first vehicle was recovered the next day. The appellant ran from the third vehicle when police located it five days after its taking.

[25]      The two charges of dishonestly using a document involved using a stolen debit card by using its paywave function to obtain goods valued at $68.50 and $67.00 from two different petrol stations. The Judge noted that these charges carried a maximum penalty of seven years’ imprisonment, but erred in treating the appellant as the burglar.

[26]      In Wood the 11 remaining charges could have warranted a 20 month uplift, but only a 16 month uplift was added to the lead offence of unlawfully taking a car to account for totality.28 The additional charges included two further charges of unlawfully taking a car, as well as more serious offences such as possession of weapons. In O'Sullivan v Police, an eight month uplift for relatively serious associated offending (driving while disqualified, failing to stop, excess breath alcohol, resisting police officer and possession of cannabis) on a lead charge of unlawfully taking a motor vehicle was upheld on appeal.29

[27]      Regarding the non-compliance charges, counsel for the appellant notes that similar charges in other cases have resulted in conviction and discharge,30 or a one- month cumulative sentence.31 In the recent case Ashqar v Police, Palmer J said a one- month uplift for two bail offences was ‘on the high side’.32 In McKenzie v Police a two month uplift for four non-compliance charges was considered appropriate.33

[28]      On this basis, it can be seen that the uplifts imposed on the lead offending by the Judge were manifestly excessive. An uplift of six months’ imprisonment to take

28     Wood v Police [2018] NZHC 1629 at [27].

29     O'Sullivan v Police [2015] NZHC 2032 at [21].

30     R v Emery [2012] NZHC 2933 at [20], De Seymour v Police [2013] NZHC 2232 at [20].

31     Williams v Police [2014] NZHC 2622 at [23], and Dick v Police [2014] NZHC 434 at [23].

32     Ashqar v Police [2019] NZHC 1184 at [9].

33     McKenzie v Police [2015] NZHC 2742 at [27].

into account the remaining (less serious) substantive charges,34 and a further uplift two months’ imprisonment to take into account the remaining non-compliance charges is appropriate.35

[29]      As for the appellant’s criminal history, he is 31 years of age. He did not receive his first conviction until he was 23 years old. Prior to sentencing on the current charges, he had received 30 convictions in the  previous  five  years.  Seven of the  30 convictions were for traffic offences. A further 15 convictions related to non- compliance with Court orders, such as failure to answer bail or breach of conditions of supervision. His most serious previous convictions were two family violence offences of male assault female and assault of a child in 2016, for which he received

18 months’ intensive supervision. He had never previously been sentenced to community detention, home detention or imprisonment.

[30]      An offender’s criminal history is relevant to sentencing if it is indicative of their character or shows they are predisposed to commit a relevant kind of offence.36 I am of the view that an uplift in the term of imprisonment for the appellant’s previous convictions is not warranted as he has never previously been sentenced to imprisonment. However, an uplift of a further one month’s imprisonment is warranted for the appellant’s offending while on bail.

[31]      An appropriate adjusted starting point is, therefore, two years and three months’ imprisonment.

Did the Judge fail to apply adequate discounts?

[32]      It is not crucial for a Judge to mention the totality principle, if the sentence imposed is not out of proportion to the gravity of the offending.37 However, the sentence imposed at the District Court did not reflect the overall culpability of the

34 It seems the Judge intended to impose a total sentence of two years and 10 months’ imprisonment on the three car conversion charges (four months + 18 months + 12 months), but the criminal history records a total sentence of two years and six months’ imprisonment (four months (concurrent), 18 months + 12 months).

35 The Judge sentenced the appellant to a cumulative sentence of four months imprisonment on two charges of breach of Court bail and breach of intensive supervision (two months + two months).

36 Beckham v R [2012] NZCA 290 at [84].

37 Kite v R [2018] NZCA 485 at [21].

appellant, because three years and two months’ imprisonment is excessive for the totality of his conduct. For the most part, the offences were not very serious and they were committed over a long period of time.

[33]      The sentencing process should be guided from the outset by the principle of totality.38 If the uplift on the starting point for the remaining substantive charges took into account the less serious nature of offences, no reduction for totality would be required. That is the case here with uplifts totalling nine months on the 18 month sentence for the lead charge.

[34]      The appellant spent five and a half months on EM bail from 29 May 2018, before removing his bracelet, absconding for a couple of days and then voluntarily presenting himself at Court to be arrested and remanded in custody on 12 November 2018. The appellant explained that he had heard that his partner had been admitted to hospital. He, therefore, made a quick decision to cut off his bracelet, get on a train, and visit his children to check on their welfare. In line with the Court of Appeal authority of O’Connor v R,39 the appellant should be accorded a credit of two months’ imprisonment for the restrictive terms of EM bail. That brings the adjusted starting point down to two years and one month’s imprisonment.

[35]      Finally, the appellant is entitled to a 20 per cent discount for his guilty pleas.40 This brings his end sentence down to one year and eight months’ imprisonment.

Result

[36]      An appeal cannot be based on the Judge’s method alone, but I am satisfied in this case that that the Judge’s method has resulted in a manifestly excessive sentence. Accordingly, the appeal is allowed and the following sentences substituted. All sentences are concurrent.

38     Haywood v R [2015] NZCA 551 at [11].

39     O’Connor v R [2014] NZCA 328, where the appellant was on EM bail for 10 months before removing his bracelet and was still given a four month discount.

40     Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.

CRN	Date	Offence	Months’ imprisonment
4830	22/10/2017	Car conversion	1 year 8 months
0535	02/09/2015	Car conversion	6 months
6992	03/05/2018	Unlawfully getting into motor vehicle	3 months
6005	07/05/2018	Car conversion	6 months
6007	16/01/2018	Receiving debit card	1 month
6008	16/01/2018	Using debit card	3 months
6006	17/01/2018	Using debit card	3 months
7568	19/12/2017	Failing to answer Court bail	2 months
0173	22/12/2017	Failing to answer Court bail	2 months
0119	08/08/2018	Failing to answer Court bail	2 months
0963	09/08/2017	Failure to answer police bail	Convicted     and Discharged
3362	11/07/2017	Breach condition of intensive supervision	2 months
2745	13/07/2017	Breach community work	1 month
4828	25/10/2017	Wilful damage	1 month
4826	25/10/2017	Failing to stop	2                years disqualification
4827	25/10/2017	Careless use of motor vehicle	Convicted     and Discharged
4829	25/10/2017	Driving without licence	6            months disqualification
4246	25/03/2017	Driving without a licence	6            months disqualification

Woolford J