Scott v Police
[2022] NZHC 3295
•8 December 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-175
[2022] NZHC 3295
BETWEEN MATHEW JOSEPH SCOTT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 December 2022 Appearances:
T R Nicholls for Appellant
G E R Alloway for Respondent
Judgment:
8 December 2022
JUDGMENT OF MANDER J
This judgment was delivered by me on 8 December 2022 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date:
SCOTT v NEW ZEALAND POLICE [2022] NZHC 3295 [8 December 2022]
[1] Mathew Scott pleaded guilty to dishonestly using a motor vehicle,1 failing to stop when followed by an enforcement officer flashing blue and red lights (third or subsequent),2 driving while disqualified (third or subsequent),3 possession of an offensive weapon,4 possession of a knife,5 and two charges of theft.6 On 11 May 2022, Mr Scott was convicted of breaching his release conditions and was ordered to come up for sentence if called upon.7
[2] On 28 October 2022, Judge Couch sentenced Mr Scott in the Christchurch District Court to 18 months’ imprisonment and disqualified him from obtaining or holding a driver licence for three years.8 Mr Scott appeals that sentence.
Factual background
[3] Mr Scott has at least two previous convictions both for driving while disqualified and failing to stop when followed by red and blue flashing lights.
[4] On 29 May 2022, Mr Scott drove a vehicle on Mairehau Road in Christchurch. That vehicle had been stolen two days earlier. At around 3.25 pm, Mr Scott entered the Travis Wetlands carpark and smashed the right rear quarter window of a vehicle. He took a black puffer jacket and a glasses case from that car. He then smashed the rear quarter window of another vehicle and took an iPhone and a bag filled with personal items.
[5] At 4.10 pm, Police located Mr Scott driving the stolen vehicle on Mairehau Road. Police activated red and blue flashing lights. He failed to stop. He overtook another vehicle driving at an estimated speed of 70 km in a 50 km zone. He drove down a nearby street, exited the vehicle while it was still moving (it apparently had
1 Crimes Act 1961, s 226(1) – maximum penalty seven years’ imprisonment.
2 Land Transport Act 1998, ss 52A(5) and 114(2) – maximum penalty three months’ imprisonment and a mandatory disqualification of two years.
3 Sections 32(1)(a) and 32(4) – maximum penalty of two years’ imprisonment or a fine not exceeding $6,000, and a mandatory disqualification of one year or more.
4 Crimes Act, s 202A(4)(a) – maximum penalty three years’ imprisonment.
5 Summary Offences Act 1981, s 13A – maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
6 Crimes Act, ss 219 and 223(c) and (d) – maximum penalty one year’s imprisonment and three months’ imprisonment respectively.
7 Parole Act 2002, s 71 – maximum penalty one year’s imprisonment or a fine not exceeding $2,000.
8 Police v Scott [2022] NZDC 21405.
run out of petrol), and fled on foot. The vehicle continued to move down the street until it collided with the fence of a residential property. Mr Scott was located running down Mairehau Road and arrested. In the car, police located in his backpack an extendable baton and a knife.
[6] Mr Scott had previously been ordered to come up for sentence if called upon for breaching release conditions. The sentencing Judge accepted an application to sentence Mr Scott for that matter when sentencing him on these charges.
District Court decision
[7] The Judge assessed the lead charge as one of dishonestly using a motor vehicle valued at around $10,000. The Judge noted Mr Scott used that vehicle for convenience and to commit other crimes. A starting point of 10 months’ imprisonment was adopted.
[8] The Judge adopted a starting point of four months’ imprisonment for the two thefts. He took into account that Mr Scott caused damage to the vehicles when taking the property, and that such damage is often more expensive to repair than the items taken are worth. Inconvenience to the victims in having to get their vehicles repaired was also noted.
[9] A one-month uplift was imposed for the failing to stop charge, which was Mr Scott’s fourth offence of that kind.
[10] The Judge adopted a starting point of two months for the charges of possessing an offensive weapon and possession of a knife. The possession of an offensive weapon charge was described on its face as being serious because the extendable baton’s only use was to hurt people and a knife was observed to be obviously dangerous. To some extent the Judge accepted Mr Scott’s explanation that he did not know the items were in the backpack, but considered the driver of a car has a responsibility for everything found within it.
[11] A starting point of six months’ imprisonment was adopted for the driving while disqualified charge, it being Mr Scott’s seventh offence.
[12] That resulted in a combined starting point of 23 months’ imprisonment which was adjusted for totality down to 20 months’ imprisonment.
[13] The Judge considered there were two aggravating personal features. The first was that the offending occurred while Mr Scott was subject to a sentence. The Judge imposed a five per cent uplift for this. The second aggravating feature was Mr Scott’s criminal history. Excluding the convictions for failing to stop and driving while disqualified which were taken into account when setting the starting points for the driving offences, Mr Scott has numerous convictions for dishonesty, violence, breaches of sentences and other driving-related matters. The Judge imposed an uplift of 10 per cent in recognition of this history.
[14] The Judge allowed a 20 per cent discount for Mr Scott’s guilty plea. He noted that Mr Scott had pleaded guilty at a second case review hearing after entering pleas of not guilty, but also recognised that some of the charges had been amended prior to pleas being entered. Mr Scott was also provided with a five per cent discount for matters outlined in a s 27 cultural report. However, the Judge observed that most matters recorded in the report about Mr Scott’s life were self-reported and were not, in the Judge’s view, clearly connected to Mr Scott’s current offending. The Judge expressed the view that Mr Scott at 33 years of age could not expect to continue to get a discount for his background if he continued to offend.
[15] The Judge did not consider a sentence other than imprisonment would be appropriate. In that regard it was noted Mr Scott had been given numerous rehabilitative sentences in the past, but had breached the conditions of those sentences and had not taken advantage of the opportunities offered to him.
Principles on appeal
[16] An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 As confirmed by the Court of Appeal in Tutakangahau v R, it is only appropriate for this Court to intervene and substitute its own views if the sentence
9 Criminal Procedure Act 2011, s 250(2) and (3).
under appeal is “manifestly excessive” and not justified by accepted sentencing principles.10
The appeal
[17] On behalf of Mr Scott, Mr Nicholls advanced the appeal on two grounds. The first ground was that the starting point taken by the Judge was too high for dishonestly having taken a vehicle. It was submitted three to six months’ imprisonment should have been applied instead of 10 months’ imprisonment.
[18] The second ground of appeal was that the s 27 report should have attracted a discount in the order of between 15 per cent and 20 per cent. Mr Nicholls cited a number of cases where discounts greater than five per cent had been provided.11
Analysis
Starting point
[19] There is no guideline judgment for sentencing offenders for the unlawful taking of or using a motor vehicle. In Curle v Police, Wylie J referred to a number of High Court judgments,12 before concluding the cases suggested that for the single conversion of a motor vehicle a starting point of between 12 and 18 months would generally be appropriate.13 In Dawson v Police the starting point of 14 months’ imprisonment for the unlawful use of two cars was upheld on appeal.14 The District Court Judge in that case noted there was no material difference between whether a defendant took or used the vehicle because he had been found with it very soon after it had been stolen. In Wilson v Police, the appellant was found driving a stolen car while disqualified which he used to flee from Police.15 There was no evidence in that case that Mr Wilson had taken the car. The Judge on appeal held a 12-month starting
10 Tutakangahau v R [2014] NZCA 279, [2014] 3NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
11 Crowley-Lewis v R [2022] NZCA 235; Poi v R [2020] NZCA 312; Carr v R [2020] NZCA 357;
Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622; and R v Manuel [2021] NZHC 250.
12 Curle v Police [2017] NZHC 1194 at [27] citing Muir v Police [2015] NZHC 1425; Affleck v R [2015] NZHC 1741; Duxfield v R [2015] NZHC 3018; Gideon v Police [2014] NZHC 1065; Kushell v Police [2012] NZHC 2380; and Riini v Police [2016] NZHC 2218.
13 Curle v Police above n 12, at [28].
14 Dawson v Police [2021] NZHC 3441.
15 Wilson v Police [2021] NZHC 402.
point was appropriate. Similarly, in Shufflebotham v Police, a starting point of 12 months’ imprisonment on a charge of unlawfully taking a motor vehicle was not disturbed on appeal.16
[20] In George v Police, a starting point of 14 months’ imprisonment was taken on a single charge of unlawful use of a vehicle which was not challenged on appeal.17 The appellant was found driving the vehicle the day after it was stolen, although there was no evidence he had stolen it.
[21] Mr Scott referred to two cases in support of his argument Rawiri v R,18 and Dawson v Police.19 In those cases six-month and three-month uplifts were applied for charges of unlawfully using a motor vehicle where the offender was for sentence on more serious charges attracting significantly greater prison terms. Neither case provides useful guidance regarding the appropriate starting point for unlawfully using a vehicle where that charge is taken as the lead offence.
[22] The vehicle in this case was used to commit traffic offences by speeding and fleeing the Police. Mr Scott then left the vehicle when it ran out of petrol and it collided with a fence. Although there is no evidence Mr Scott took the stolen car, he still used the vehicle for illegal purposes before abandoning it. It is not clear whether it sustained any damage nor whether it was returned to its owner. Given those circumstances, I do not consider a 10-month starting point is outside of the available range for such offending.
Discount for the content of the s 27 report
[23] The second ground of appeal was that Mr Scott should have received a greater discount for the factors detailed in his s 27 report. Mr Scott is of Māori and Pakeha descent. His mother is Māori and his father Pakeha. He has whakapapa links to Ngāti Raukawa and Taranaki. Mr Scott does not know much about his family history. His father died when Mr Scott was eight years old, after his parents separated when
16 Shufflebotham v Police [2015] NZHC 3114.
17 George v Police [2020] NZHC 1725.
18 Rawiri v R [2021] NZHC 1573.
19 Dawson v Police [2020] NZHC 2296.
he was four or five years old. Mr Scott has a good relationship with his mother, but has limited contact with her.
[24] One of the reasons he does not know much about his whakapapa is because he has no-one in his whānau to connect with. He expressed the view that his grandmother had throughout her whole life turned her back on her Māori culture. He has only met one person recently from her family. Mr Scott expressed a wish to know more about who he is and his whakapapa and he hopes to travel to Taranaki to do that once he is out of prison.
[25] Mr Scott struggled while he was at school. He went to several schools and was expelled from some of them. He later enrolled in alternative education. He said that he was never diagnosed with any behavioural issues but felt he always had trouble regulating his emotions. He links this with the death of his father at a young age.
[26] Mr Scott was in state care throughout his childhood which he described as having limited stability. In his pre-sentence report, the writer noted that Mr Scott resided with his mother until he was 11, and after that point he lived with his grandmother until she passed away in 2018. Mr Scott joined a gang at the age of 10. He said he joined it because his brothers belonged to it. Mr Scott is a father to three children, the youngest being 11 years old. His oldest child passed away when the child was two years old. Mr Scott was diagnosed with chronic depression when he lost his son and he reported that medication made him withdrawn from society. He has struggled with depression since.
[27] The sentencing Judge concluded that while the information contained in the s 27 report explained Mr Scott’s background in a general sense, it did not provide a basis to make a clear connection between his life experience and his current offending.
[28] The Court of Appeal in Waikato-Tuhega v R recently endorsed a broad, holistic approach when considering whether a nexus exists between an offender’s background and their offending.20 The assessment as to whether there is such a link should involve
20 Waikato-Tuhega v R [2021] NZCA 503.
an overall examination of how personal circumstances may have contributed to the offender’s culpability or to the offending.21
[29] Although the report writer did not draw a clear connection between the offending and Mr Scott’s background, it is apparent that he had an unstable life while growing up. He did not have good relationships with his family and was largely alienated from part of his cultural background. His relatively marginalised upbringing led to his involvement with a gang from a young age. Mr Scott’s young life does not appear to have been riddled with violence and poverty, as many who come before the Courts are, and he was able to enter alternative education and earn himself some qualifications.
[30] The pre-sentence report writer linked Mr Scott’s offending to his criminal associates and the influence of others who Mr Scott said had taken the car and directed him to drive it. Mr Scott is required to be held responsible for his own actions but there does appear to be some linkage between his offending and his exposure to influences that are likely to be the product of his upbringing. I do not overlook his relative maturity but it is apparent there is some linkage between Mr Scott’s offending and aspects of his upbringing that undoubtedly contributed to how he has come to live a criminal lifestyle.
[31] The appropriate size of any discount for personal background and cultural reasons is dependent on the circumstances of the individual offender and the nature of the offending for which they are for sentence. I consider the discount in this case should have been greater, but having regard to the nature of Mr Scott’s offending and his personal background, the connection is not as strong or as direct as it is with many defendants. If I was to make an adjustment it would only have been in the region of providing for a further five per cent which equates to a variation of one month.
[32] The task of the appellate Court is to focus on the final sentence imposed and whether it falls outside the range available to the sentencing Court in the exercise of its sentencing discretion.22 While I consider the sentencing Judge erred by not
21 At [51].
22 Ripia v R, above n 10, at [15].
providing a greater discount, I do not consider that it had a material effect on the appropriateness of the final sentence imposed. Importantly it has not resulted in an end sentence that can be categorised as manifestly excessive. Having reached that conclusion, it follows the appeal must be dismissed.
Result
[33]The sentence appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy To:
T R Nicholls, Barrister, Christchurch
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