Skeens v Police

[2022] NZHC 875

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-000010

[2022] NZHC 875

BETWEEN

DAMAIN JOSEPH SKEENS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 April 2022
Appearances:	D Watkins for the Appellant A Tupuola for the Respondent
Judgment:	29 April 2022

JUDGMENT OF WALKER J

This judgment was delivered by me on 29 April 2022 at 12.30 pm Registrar/Deputy Registrar

SKEENS v NEW ZEALAND POLICE [2022] NZHC 875 [29 April 2022]

Introduction

[1]    Damain Skeens appeals his sentence of nine months’ imprisonment for unlawfully taking a motor vehicle (conversion) 1 and being unlawfully in a building.2 The sentence was imposed by Judge GL Davis in the Whangārei District Court on  21 January 2022 following guilty pleas. 3

[2]    Mr Skeens was remanded in custody for an initial period after arrest and a further period from either 11 or 17 January 2022 to 21 January 2022. The combined period of custodial remand and sentence means that as at today’s date, Mr Skeens will have approximately 3 weeks before eligibility for release. That calculation assumes that he has successfully served one half of his sentence. It is regrettable that, practically speaking, this appeal may have little practical utility.

[3]    An urgent hearing date for this appeal was originally set for 10 March 2022. It had to be adjourned due to difficulties with legal aid assignment. The Court invited an application for bail pending appeal but I understand that was unable to be advanced due to lack of a suitable address.

The offending

[4]The charges arise from two incidents.

Theft of car

[5]    On 21 July 2021, Mr Skeens texted the victim asking if he could come over. The two were known to each other as their parents used to associate when they were younger. They had not seen each other for a considerable amount of time. The victim agreed for him to come over. Mr Skeens and the co-defendant, his partner, Ms Murray turned up at the victim’s house. They asked if they could stay the night as they had nowhere else to go. The victim agreed.

1      Crimes Act 1961, s 226(1) carrying a maximum penalty of 7 years’ imprisonment.

2      Summary Offences Act 1981, s 29(1)(a) carrying a maximum penalty of 3 months’ imprisonment or a fine not exceeding $2,000.

3      New Zealand Police v Skeens [2022] NZDC 908.

[6]    The following day, Mr Skeens asked the victim if they could go for a drive to Dargaville. He said he would give the victim some money for gas and asked to drive his car. The victim agreed. Mr Skeens drove Ms Murray and the victim to a petrol station in Whangārei but did not drive onto the forecourt. He gave the victim a plastic petrol container and asked if he would put $10 worth of petrol in it for him. The victim walked over to the forecourt and filled up the petrol container. From there, he could just see where the vehicle was parked. As he went into the service station shop to pay for the petrol, he saw a dark figure walk around from the rear of the car and get into the driver’s seat. The victim assumed that Mr Skeens and Ms Murray had swapped seats and that she was now driving. The victim started to walk towards the car but it drove off in a northerly direction.

[7]    The victim tried to contact Mr Skeens several times by phone and Messenger. Mr Skeens denied taking the vehicle. He said someone else took the car.

[8]    Mr Skeens later swapped the vehicle with another individual who was then involved in a traffic accident. The vehicle was extensively damaged.

Unlawfully in Building

[9]    At 6.25 am on 23 August 2021, Mr Skeens and Ms Murray were at an address in Otaika, Whangārei. They entered the address and illegally resided there without the knowledge or authority of the owner. Neighbours of the property saw through CCTV Mr Skeens looking through an ashtray located at the entrance to their property. They confronted Mr Skeens. An altercation ensued, resulting in police being called.

District Court decision

[10]   Judge G L Davis in the District Court took the theft of the motor vehicle as the lead charge. He described it as a “significant breach of trust”, noting that it is now not able to be returned to the complainant. He determined that a starting point of imprisonment was appropriate. He noted that Mr Skeens has 120 previous convictions involving general failures to complete sentences, violent offences, and dishonesty offences.

[11]   The Judge adopted a starting point of 12 months’ imprisonment. He then gave Mr Skeens a 25 per cent discount for the guilty pleas which brought the sentence to a total of nine months’ imprisonment. In doing so, he recorded that there was a strong argument that Mr Skeens was not entitled to the full discount for a guilty plea in view of the timing of the plea.

[12]   For the charge of  being  unlawfully  in  a  building,  the  Judge  sentenced  Mr Skeens to one month’s imprisonment, to be served concurrently.

Submissions

Appellant submissions

[13]   Mr Skeens’ notice advanced two grounds of appeal. The second ground – that sentencing was based on an incorrect summary of facts – was abandoned prior to hearing. That was a responsible position to take. That ground of appeal could never have succeeded in the circumstances.

[14]   The sole remaining ground of appeal is that the sentence is manifestly excessive. Although initially the starting point adopted by the sentencing Judge was attacked, Mr Watkins properly conceded that the start point was within range. I agree for the reasons briefly set out below.

[15]   The focus of this appeal thus became whether the Judge erred by not granting leave to apply for home detention in terms of s 80I of the Sentencing Act 2002 (Act).

Respondent submissions

[16]   The respondent submits the starting point was appropriate and within range. It says that the appellant’s history means that a sentence of home detention was not appropriate, nor available.

Approach on appeal

[17]   An appeal against sentence must be allowed if the court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.4 Otherwise, the court must dismiss the appeal. The court will dismiss the appeal if it is “within the range that can properly be justified by accepted sentencing principles”.5 In short, an appellate court will not intervene unless the sentence is manifestly excessive.6 Whether the sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.7

Discussion

[18]   Although the appeal grounds were considerably narrowed, I briefly discuss the adopted starting point. It is common ground that there is no tariff case for the unlawful taking of a motor vehicle. Sentencing in this context can vary widely, in part because it is often accompanied by other charges. As Mr Watkins points out, if such a charge is considered in a sentencing exercise involving multiple charges, the sentence for the unlawful taking can be as low as two to four months. Where sentencing involves two or less charges, the starting points and penalties appear to be higher.

[19]   Assistance is provided by Wylie J’s survey in Curle v New Zealand Police.8 He commented on the starting points in some unlawful taking of motor vehicle or conversion cases:9

There are a number of cases in this court where sentences have been imposed in relation to the conversion of motor vehicles. Assistance can readily be derived from them. For example in Muir v Police, the Court adopted a starting point of 15 months' imprisonment for conversion of  a  single  car.  In  Affleck v R, the Court upheld a starting point of two years' imprisonment. In this case, the vehicle which was stolen was a commercial van. It was targeted, due to the potential for large gain from theft of its contents. In Duxfield v Police, a starting point of 12 months' imprisonment in relation to the conversion of a motor vehicle was upheld on appeal. Similarly in Gideon v Police, a starting point of 12 months' imprisonment was upheld for the same offence. In Kushell v Police, a starting point of 18 months' imprisonment was

4      Criminal Procedure Act 2011, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6 At [30].

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

8      Curle v New Zealand Police [2017] NZHC 1194.

9      At [27]

upheld on appeal. In Riini v Police, the Court accepted that a 12 month starting point was available for conversion of a motor vehicle.

[20]   Mr Curle was sentenced in respect of nine offences but the starting point for the car conversion charge was one of 15 months’ imprisonment.

[21]   Based on the cases referred to the Court by counsel, a starting point in the range of 12 to 15 months is common for a charge of unlawful taking of a motor vehicle.10 Mr Watkins’ observation that the sentence for unlawful taking is lower in cases where there are multiple charges is reflective of the totality principle.11 It follows that the starting point of 12 months and end sentence of nine months’ imprisonment is within the range available. Whether or not the start point adopted by the Judge in fact took into account an uplift for Mr Skeens’ previous offending is not material since the focus must be on the final sentence, but I observe that its historic nature tells against an uplift.

[22]   Mr Watkins submits that a sentence will still be manifestly excessive where it does not represent what the least restrictive sentence requires. The sentencing Judge did not expressly refer to consideration of a sentence of home detention in his sentencing notes. On the basis of the information before me, Mr Skeens did not ask that the sentence be commuted to one of home detention at the time of sentencing nor seek leave to apply should an address become available.12

[23]   A court is bound to consider whether home detention should be imposed if it is technically available within the terms of s 15A of the Sentencing Act 2002, even if a defendant does not request it.13 There is no presumption either way.14 The judge must assess what is the least restrictive sentence after taking into account the relevant purposes of sentencing in the context of the present offending.15

10     Ratahi v New Zealand Police [2014] NZHC 2394; Hall v Police [2012] NZHC 2641; Singh v R

[2011] NZCA 139; Edwards v Police HC Auckland, CRI-2010-404-103, 11 May 2010

11     Sentencing Act 2009, s 85.

12     Mr Watkins was not counsel at sentencing.

13     R v Vhavha [2009] NZCA 588 at [29]. Simon France (ed) Adams on Criminal Law — Sentencing

(online ed, Thomson Reuters) at [SA15A.01].

14     R v Vhavha [2009] NZCA 588 at [29].

15     Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147.

[24]   An omission to consider the grant of leave under s 80I is a sentencing error leading an appellate court to consider the matter afresh.16

[25]   In this instance, an appeal on this ground is somewhat moot because Mr Skeens is due for release in three weeks. It also appears that he was unable to provide an address for EM monitoring to enable him to advance an application for EM bail pending the hearing of this appeal. Practically speaking, this suggests that the reason why no application was made at the time of sentencing was because of the absence of an address.

[26]   Mr Watkins submits that the proper course, should I allow the appeal on this basis, would be to order release of Mr Skeens immediately. One problem with that submission is that it requires that I quash the original sentence and substitute a slightly shorter term when there is no error in the term of imprisonment imposed.

[27]   Looking at the question of the availability of home detention afresh, I consider that, at the time of sentencing, the relevant factors weighed so heavily against commuting the sentence to home detention that the sentencing Judge could hardly be criticised for not giving it consideration. This was not someone on the “cusp of home detention” to adopt the phrase used by Duffy J in Richmond v New Zealand Police. 17

[28]   The only factor in favour of commuting the sentence or granting leave to apply was the relatively short duration of the term of imprisonment. Against that, in the past ten years, Mr Skeens has been convicted of at least thirteen charges of breaches of conditions of his sentence, including post-release conditions, post-detention conditions, conditions of community detention or community work. Based on his record of persistent disregard for Court-imposed sanctions, there was (and remains) no good reason to think that Mr Skeens can satisfactorily complete a sentence of home detention. The rehabilitative purpose of a sentence of home detention would not therefore be fulfilled.

16     Pahulu v Police [2020] NZHC 153 at [42]; Richmond v New Zealand Police [2019] NZHC 2001;

Papa v Police [2019] NZHC 1309.

17     Richmond v New Zealand Police [2019] NZHC 2001 at [55].

[29]   It follows that, even if there was utility in allowing the appeal, the end result would have been the same.

Result

[30]For those reasons, I dismiss the appeal.

............................................................

Walker J