Reeves v The King
[2023] NZHC 3140
•8 November 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI 2023-488-59
CRI 2023-488-60
[2023] NZHC 3140
BETWEEN LEVI REEVES
Appellant
AND
THE CROWN
Respondent
Hearing: 31 October 2023 Appearances:
M Taylor-Cyphers for the appellant D Soich for the Crown
Judgment:
8 November 2023
JUDGMENT OF CAMPBELL J
[Appeal against Sentence]
This judgment was delivered by me on 8 November 2023 at 4.00 pm
Registrar/Deputy Registrar
REEVES v THE CROWN [2023] NZHC 3140 [8 November 2023]
Introduction
[1] Mr Reeves appeals the sentence imposed on him after he pleaded guilty to two sets of charges.
[2] The first set was one charge of receiving property exceeding $1,000,1 one charge of conversion of a vehicle,2 one charge of failing to stop for an enforcement officer,3 one charge of dangerous driving,4 one charge of failing to stop to ascertain injury,5 and one charge of driving under the influence of drugs.6 The second set was one charge of possession of an offensive weapon,7 one charge of failing to remain stopped for an enforcement officer,8 one charge of conversion of a vehicle,9 one charge of dangerous driving,10 and one charge of possession of a knife.11 On 10 August 2023, Judge D J Orchard sentenced Mr Reeves to two years and five months’ imprisonment for this offending.12
The offending
Offending resulting in the first set of charges
[3] On 1 May 2022, at approximately 1.45 pm, Mr Reeves and two associates were driving from Auckland to Whangārei in a stolen car. The car had been taken from Auckland between 7.30 pm 28 April 2022 and 9 am 29 April 2022.
1 Crimes Act 1961, ss 66(1), 246 and 247(a). Maximum penalty: seven years’ imprisonment.
2 Crimes Act 1961, ss 66(1) and 226(1). Maximum penalty: seven years’ imprisonment.
3 Search and Surveillance Act 2012, s 177(1)(a) and (b). Maximum penalty: three months’ imprisonment.
4 Land Transport Act 1998, s 35(1)(b) and (2). Maximum penalty: three months’ imprisonment or a $4,500 fine.
5 Land Transport Act 1998, s 35(1)(c) and (2). Maximum penalty: three months’ imprisonment or a $4,500 fine.
6 Land Transport Act 1998, s 58(1) and (3). Maximum penalty: two years’ imprisonment or a $6,000 fine.
7 Crimes Act 1961, s 202A. Maximum penalty: three years’ imprisonment.
8 Land Transport Act 1998, ss 52A(1)(b) and 114. Maximum penalty: $10,000 fine.
9 Crimes Act 1961, s 226(1). Maximum penalty: seven years’ imprisonment.
10 Land Transport Act 1998, s 35(1)(b). Maximum penalty: three months’ imprisonment or a $4,500 fine.
11 Summary Offences Act 1981, s 13A. Maximum penalty: three months’ imprisonment or a $2,000 fine.
12 R v Reeves [2023] NZDC 17032.
[4] The car ran out of petrol at about 2 pm. The trio were stranded on State Highway 1 near Waipu. They then stole another car, a Toyota, from a nearby address. The owner of the Toyota was at home and observed the car being driven down the road. He drove after the offenders in another car, a Mazda.
[5] The owner located his Toyota parked on a nearby road, next to the car that had run out of petrol. The offenders were in the Toyota. When the owner exited his Mazda, Mr Reeves exited the Toyota and advanced towards the owner in an aggressive manner, holding a screwdriver. Fearing for his safety, the owner backed off.
[6] Mr Reeves’ associates then exited the Toyota and shouted at the owner. The owner fled, leaving both his cars. The offenders then drove towards Whangārei in the owner’s two vehicles. Mr Reeves drove the Toyota whilst his associates drove the Mazda. Stranded, the owner called Police.
[7] Police located and attempted to stop Mr Reeves on State Highway 1 near Maungakaramea Road. Mr Reeves drove off at speed. Police observed Mr Reeves driving erratically along State Highway 14 and activated their lights and sirens to stop him. Mr Reeves accelerated away from Police, overtaking five cars on the left-hand side of the road, including one by driving on the gravel shoulder. He continued to overtake other cars, veering onto the opposite side of the road. His driving forced motorists to take evasive action and pull off to the side of the road.
[8] Police deployed road spikes in an attempt to stop Mr Reeves. These punctured a front tyre, but this failed to deter Mr Reeves. He drove at speed along a median strip, continued to pass cars and exceeded several marked speed limits. He sped through an area of road cones, hitting several and trapping one under the Toyota. Near the Whangārei Base Hospital the punctured tire ripped off, leaving the Toyota with only three tyres. Mr Reeves continued to drive.
[9] Mr Reeves approached the intersection of State Highways 1 and 14, which is controlled by traffic lights. Traffic was heavy and several cars were waiting at the lights. Approaching the line of traffic, Mr Reeves first drove into the left-hand lane before turning quickly into the right-hand lane and driving through a red light. He
crashed into a southbound car, causing the Toyota to bounce over a median curb and crash into two other cars waiting at the lights.
[10] Mr Reeves, now on foot, made no attempt to speak to others involved in the crash. Instead, he fled down a driveway. To evade Police, Mr Reeves jumped into a nearby stream. He was eventually arrested near Western Hills Drive. Blood testing procedures revealed that Mr Reeves had methamphetamine and cannabis in his system. DNA analysis linked Mr Reeves to a methamphetamine pipe discovered in the car that had run out of petrol.
Offending resulting in the second set of charges
[11] The offending that gave rise to the second set of charges arose while Mr Reeves was on bail for the first set.
[12] On 20 July 2023 at about 4.24 am, Police observed a car travelling at speed along New North Road, Auckland. Inquiries revealed that the registered owner of the car did not match the observed driver of the car (who was Mr Reeves). Police conducted a vehicle stop. As Police walked towards the car, the car decamped at speed along New North Road. The car was later observed driving in the wrong direction along Hobson Street.
[13] The car was located at 4.41 am in a Hobson Street carpark. Mr Reeves was not with the car. A search of the car returned a tomahawk and a small knife in the driver’s side door.
District Court judgment
[14] For the first set of offending that occurred in May 2022, Judge Orchard considered driving under the influence of drugs in its aggravated form to be the lead charge. An aggravating feature of that offending was Mr Reeves driving recklessly to encourage the Police to call off the pursuit. The Judge said that Mr Reeves had a complete disregard for the risk his driving caused others.
[15] The Judge set a starting point of 12 months’ imprisonment for the driving charges. She uplifted that by six months for the receiving charge and another six months for the charge of unlawful taking. This produced a notional starting point of 24 months’ imprisonment. Her Honour uplifted that by three months for Mr Reeves’ previous criminal history. This gave a running total of 27 months. The Judge deducted 20 per cent from that for Mr Reeves’ guilty plea.13 This resulted in an end sentence of 21 and a half months’ imprisonment for the first set of offending.
[16] For the second set of offending, in July 2023, Judge Orchard considered the lead charges to be the conversion and the possession of an offensive weapon. The Judge considered the other matters to be aggravating features of that offending. Her Honour adopted a 10-month starting point for the July offending. She uplifted that by two months for Mr Reeves’ criminal history and for the offending having occurred on bail. A 25 per cent reduction was given for Mr Reeves’ guilty plea, resulting in an end point for the July offending of nine-months’ imprisonment.
[17] The two end points produced a combined end sentence, before mitigating features, of two years and six and a half months’ imprisonment.
[18] The Judge considered that Mr Reeves’ background, as set out in a report under s 27 of the Sentencing Act 2002, justified a 10 per cent discount. The Judge did not give a discount for time spent on electronically monitored (EM) bail as Mr Reeves had ultimately absconded. The Judge awarded an additional five per cent discount for Mr Reeves’ rehabilitation efforts. The total discount was therefore 15 per cent.
[19] Judge Orchard then purported to apply the 15 per cent total discount to the combined end sentence of two years and six and a half months’ imprisonment. Judge Orchard said this resulted in an end sentence of two years and six months’ imprisonment. (Her Honour made an arithmetical error. A 15 per cent discount applied against the combined end sentence produced an end sentence of two years and two months’ imprisonment.)
13 This was in error. The discount should have been applied only to the starting point of 24 months’ imprisonment, not also to the uplift for Mr Reeves’ prior criminal convictions.
[20] Counsel then raised with Judge Orchard that she had applied the discounts for the guilty pleas before applying the discounts for other mitigating factors. The judge acknowledged this was not in accordance with Moses v R.14 The Judge said she was minded to think the end sentence was an appropriate sentence, but she decided to adjust the sentence down slightly, to two years and five months’ imprisonment.
Grounds of appeal
[21]Mr Reeves appeals his sentence on three grounds:
(a)The Judge did not take into account the totality principle.
(b)The Judge should not have uplifted the starting point for each set of charges for Mr Reeves’ previous convictions. This amounted to double-counting.
(c)There should have been a reduction for the time Mr Reeves spent on EM bail.
[22] Mr Reeves’ notice of appeal and submissions did not identify the arithmetical error made by the Judge in applying the discounts for Mr Reeves’ background and rehabilitation prospects. This error was very fairly raised by the Crown in its submissions.
Principles governing sentence appeals
[23] For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.15 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. An exception is where a mathematical error has resulted in a sentence more severe than the Judge intended. Such an error must be corrected, even if the sentence imposed was within the available range.16
14 Moses v R [2020] NZCA 296.
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ferris-Bromley v R [2017] NZCA 115 at [15].
[24] Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.17
Did the Judge err by failing to consider totality?
[25] Ms Taylor-Cyphers, counsel for Mr Reeves, did not challenge the standalone starting points that the Judge adopted for each set of offending (24 months and 10 months respectively). She submitted, however, that the Judge should have taken totality into account to reach an overall starting point for all the offending.
[26] I accept that Judge Orchard did not explicitly address totality in reaching an overall starting point. But, as Ms Soich for the Crown submitted, this is of no consequence if the overall starting point was not wholly out of proportion to the overall gravity of the offending.18
[27] Ms Soich referred me to several cases which, she submitted, showed that the overall starting point adopted by Judge Orchard was generous to Mr Reeves, and that therefore the Judge’s starting points were informed by the totality principle. It suffices to refer to Wood v New Zealand Police,19 an appeal against sentence on 17 charges, including three charges of unlawfully taking a motor vehicle. After reviewing the case law, Downs J concluded that a single unlawful taking charge can give rise to a starting point of at least 18 months’ imprisonment if the offending has significant aggravating features. His Honour added that if a defendant takes a car and attempts to evade Police in a chase, typical global starting points are between 18 and 20 months’ imprisonment, but an especially bad combination of factors could attract more.20
[28] There was an especially bad combination of aggravating factors in the first set of offending. It would have been plain to Mr Reeves that the first car driven from Auckland was stolen. The conversion of the Toyota near Waipu involved Mr Reeves and his associates acting aggressively towards the car’s owner. His dangerous driving was prolonged, was for the intent of evading Police and put many other drivers at risk.
17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
18 Kite v R [2018] NZCA 485 at [21].
19 Wood v New Zealand Police [2018] NZHC 1629.
20 At [24].
A higher starting point than 24 months’ imprisonment could easily have been adopted. The second set of offending was not as serious, but still involved Mr Reeves driving dangerously in a stolen car to evade Police. An 18-month starting point would have been justified.
[29] In light of this, the overall starting point was not out of proportion to the overall gravity of the offending. If anything, it was generous to Mr Reeves. This suggests that the Judge may have had totality in mind when reaching the starting points. But, if she did not, it was of no moment.
[30] For completeness, I accept that the Judge did say at the end of her sentencing that she considered the overall sentence to be appropriate.21 That, however, occurred after the Judge had made allowances for Mr Reeves’ guilty pleas, background and rehabilitation efforts. Totality should be considered before such personal mitigating (or aggravating) factors are taken into account.22 The totality principle is that the overall starting point should not be wholly out of proportion to the gravity of the overall offending,23 whereas adjustments to the overall starting point reflect factors personal to the offender. If totality is considered only after allowances have been made for personal factors, there is a risk that the totality assessment is influenced by factors that are irrelevant to the gravity of the offending.
Did the Judge err in uplifting twice for Mr Reeves’ prior convictions?
[31] Ms Taylor-Cyphers submitted that the total uplift for Mr Reeves’ prior convictions should have been two to three months, rather than the five months imposed by Judge Orchard.
[32] I consider that the five-month uplift was at the stern end. But I would not disturb it. First, the uplift in part accounted for the fact that Mr Reeves committed the second set of offences while on bail. Secondly, any sternness is offset by the overall starting point being at the generous end.
21 R v Reeves [2023] NZDC 17032 at [21].
22 Polaapau v R [2020] NZCA 227 at [44].
23 Sentencing Act 2002, s 85(2).
Should the Judge have made a reduction for time on EM bail?
[33] Mr Reeves spent three and a half months on EM bail. I was not provided with full details of the EM bail conditions. However, most of his time on EM bail was at a residential rehabilitation facility. I assume that Mr Reeves would have been subject to a 24/7 curfew but with exceptions for out-of-residence programmes run by that facility.
[34] Mr Reeves absconded after about five weeks on EM bail at the rehabilitation facility. Two weeks later, he was readmitted to EM bail. Later, he was arrested for allowing his monitor to go flat but was readmitted to EM bail the same day. Later still, on 23 June 2023, he absconded for a second time. He remained at large until arrested in Auckland at the conclusion of the second set of offending.
[35] The amount of credit for EM bail depends on the relative restrictiveness of the bail conditions, compliance with those conditions and the time on EM bail.24 EM bail to a rehabilitation facility subject to a 24/7 curfew with exceptions for programmes is not as restrictive as a 24/7 curfew to a home without exceptions. Mr Reeves’ non- compliance was serious. But I do not consider that absconding from EM bail means that the court should put to one side altogether the time that a defendant has otherwise spent subject to restrictions on his or her liberty. I therefore allow half a month.
Was the sentence manifestly excessive or should it be corrected?
[36] If the only error in Judge Orchard’s sentencing was the failure to make some allowance for time spent on EM bail, that would not be enough to find that the sentence was manifestly excessive. But, as noted, there was an arithmetical error. This was significant and ought to be corrected. Moreover, the Judge did not apply the credits for Mr Reeves’ background and rehabilitation prospects in accordance with Moses. Although the Judge made an adjustment for this at the end of her sentencing, the adjustment did not fully correct for the failure to follow Moses.
24 Sentencing Act 2002, s 9(3A).
[37] I consider the sentence should be calculated as follows. I take the Judge’s overall starting point of 34 months’ imprisonment. I make the following adjustments:
(a)I uplift by five months, as the Judge did, for prior convictions and for offending on bail.
(b)I apply the same guilty plea credits as the Judge: 20 per cent in respect of the first set of offending (against the 24-month starting point) and 25 per cent in respect of the second set (against the 10-month starting point). The total credit is 7.3 months.
(c)I apply the same 15 per cent credit as the Judge for Mr Reeves’ background and for rehabilitation prospects. This is applied against the 34-month overall starting point. The credit is 5.1 months.
(d)I allow half a month for time on EM bail.
[38] This results in an end sentence of two years and two months’ imprisonment. Judge Orchard’s sentence was for an additional three months. I consider that was manifestly excessive. In any event, the difference is largely a result of an arithmetical error which should be corrected.
Result
[39]I allow Mr Reeves’ appeal.
[40] I quash the sentence of two years and five months’ imprisonment. In substitution, I sentence Mr Reeves to two years and two months’ imprisonment.
Campbell J
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