Smith v Police
[2018] NZHC 3236
•10 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000331
[2018] NZHC 3236
BETWEEN ROMEO SMITH
Appellant
AND
NEW ZEALAND POLICE
First Respondent
DEPARTMENT OF CORRECTIONS
Second Respondent
Hearing: 10 December 2018 Appearances:
N Cooke for Appellant
M Mortimer for Respondent
Judgment:
10 December 2018
ORAL JUDGMENT OF VENNING J
Solicitors: Meredith Connell, Auckland Counsel: N Cooke, Auckland
SMITH v NZ POLICE [2018] NZHC 3236 [10 December 2018]
[1] Mr Smith seeks leave to appeal out of time against a sentence of 30 months’ imprisonment imposed in the Auckland District Court by Judge N R Dawson on 17 November 2017 on a number of charges.1 The sentence was consistent with an earlier sentence indication.
[2] Mr Smith filed an appeal against sentence on 12 October 2018. Apparently in the meantime he had made an unsuccessful application for habeas corpus. The appeal is almost 11 months out of time. Leave to appeal out of time is required.2 Mr Smith offered no explanation for the delay in lodging the appeal with his original papers. Mr Cooke has now filed a second memorandum on behalf of the appellant seeking to support or explain the reason for Mr Smith’s delay in filing the appeal. The memorandum notes a number of incidents that have occurred whilst Mr Smith has been in prison. I acknowledge the points made in that memorandum. Strictly speaking they do not directly explain the continued delay in bringing this appeal but nevertheless as Mr Cooke observes and I note as the Crown has effectively conceded there would be no particular prejudice if leave were granted. However, to determine the application for leave the substantive merits are relevant. If the appeal has substantive merit and should be allowed then leave will be granted. If it lacks that substantive merit then this is a case where leave should not be granted given the still largely unexplained substantial delay.
[3]I take the summary of the offending from the Judge’s sentencing notes. About
10.30 am on 3 April 2017 a victim left his Mazda car locked in Mount Eden. Sometime between that time and 3.15 pm the driver’s door lock was tampered with, the ignition pulled and the car taken. A property in Epsom, owned by another victim, was entered at about 3.15 pm by Mr Smith. Mr Smith arrived in the stolen vehicle. He used force against the front door of the address causing the locking mechanism to break which allowed access to the home. Mr Smith then entered it and took an Apple iPad, an Olympus camera, an LG television, a pair of Nike sport shoes, a Fujifilm camera and a rose gold ring. The items taken were estimated to be worth $2,500.
1 New Zealand Police v Smith [2017] NZDC 26449.
2 Criminal Procedure Act 2011, s 248(4).
[4] Previously, on 25 November 2016 Mr Smith had been disqualified from driving on two counts of driving whilst disqualified. Mr Smith was driving the stolen Mazda car on 3 April 2017. The police required him to stop by activating blue and red flashing lights and sirens. Instead of stopping he accelerated to speeds upwards of 150 km per hour. He travelled towards Pakuranga, throwing the stolen television out of the driver’s side of the vehicle while the police were chasing. He then travelled on the south-eastern highway reaching speeds of 114 km per hour in an 80 km hour zone. He weaved his way aggressively through traffic through the entirety of the pursuit. The patrol vehicles abandoned the pursuit and a police helicopter maintained surveillance. Mr Smith continued to drive at up to 150 km per hour from time to time and performed a number of dangerous manoeuvres. He drove on the wrong side of the road, into incoming traffic at speeds greater than 90 km per hour. He travelled through an intersection on a red traffic signal while pedestrians were crossing the road. He weaved through traffic and collided with a red motor vehicle. He travelled through a busy intersection on another red traffic signal into turning traffic and drove between the turning motor vehicles. He experienced a near miss with pedestrians waiting to use crossing signals at another intersection while travelling through that intersection on a red traffic signal. He collided with two motor vehicles using a carpark in Cavendish Drive and failed to stop after those collisions.
[5] During the driving incident Mr Smith operated the motor vehicle on the wrong side of the road seven times and travelled through 10 red traffic signals in all. Mr Smith was only ultimately apprehended by the police using a tyre deflation device, which disabled the car he was driving. Located in the front of the car when it was stopped was a small black bag containing a pair of vice grips and a small black handled knife and screwdriver.
[6] At the time of his offending Mr Smith was subject to a sentence of home detention for 11 months imposed on 28 March 2017. After being released from custody to attend Odyssey House he failed to report and was never connected for his home detention sentence.
[7] At the time of the offending Mr Smith was 19 years old. By the time of sentence he was 20 years old. He has 23 previous convictions for dishonesty, six for
violence, four for failing to stop, six for driving dangerously, two for driving whilst disqualified, and two for breach of conditions, in addition to over 20 matters in the Youth Court.
[8] The Judge took the burglary as the lead offence. After uplifting for his history and the other minor offences for sentence the Judge arrived at a starting point on that lead charge of 26 months. He then reduced that by five months for the early guilty plea. The Judge then took 10 months for the failure to comply with the home detention sentence but reduced that by four months to reflect youth. In arriving at the end sentence of 30 months, the Judge imposed cumulative sentences of three months for reckless driving and six months for breach of the sentence of home detention, again cumulative. Combined the Judge arrived at an end sentence of 30 months’ imprisonment.
[9] In support of the appeal against sentence Mr Cooke submits that while the Judge considered the principle of totality, he miscued in arriving at the eventual end sentence of 30 months. The Judge failed to allow discounts for early guilty pleas for the other offending (apart from the burglary) and, while the Judge referred to a deduction of four months for Mr Smith’s youth, Mr Cooke submitted that guilty plea should have been taken account of once all other matters had been evaluated. If the guilty plea had been applied in that way then on his calculation, and with an allowance for youth an end sentence more in the range of 24 to 27 months would have been arrived at which would have been in his submission more appropriate. He made the point that a difference of a few months is important to a young man such as Mr Smith. He submitted the term of imprisonment had created difficulties for the appellant. Mr Cooke emphasised Mr Smith’s age and observed it was difficult for the Court to sentence young offenders.
[10] As the Court of Appeal and this Court have said on a number of occasions the issue for the Court on an appeal against sentence is not how the sentence is ultimately constructed but rather, whether at the end of the day the sentence can be said to be within range. That remains the test.3
3 Tutakangahau v R [2014] NZCA 279.
[11] The offending in the present case was serious. It involved offending which was quite different and distinct in kind and required cumulative sentences. The burglary involved a planned break-in using tools of burglary. Property to a reasonably significant value was taken. Given Mr Smith’s two previous convictions for burglary a starting point for burglary of 20 months was well open to the Judge. That needed to be uplifted for the very bad driving offending and driving whilst disqualified and the other related offences. The two offences of breach of sentence of home detention supported a starting point of 10 months. A further uplift was required for the previous convictions and other offences as noted.
[12] There are regrettably no positive features to be found in the pre-sentence report. While Mr Cooke is correct that the appellant is still a young man he has of course had the fact of his youth taken into account and his sentence reduced for that factor. It also has to be observed that Mr Smith is not a young man who appears before the Court on the cusp. He has a very bad record and has so far not responded to any of the other sentences or other interventions that have been attempted to turn him around.
[13] I accept Mr Mortimer’s submission that the sentence could have been structured in a different way with the discount allowed for the guilty plea at the end. If the Judge had approached it in that way the sentence would have been:
Burglary 20 months
Reckless driving 3 months
Breach home detention 10 months
Uplift for previous and other minor related offending 6 months
39 months
less a discount for age 4 months
35 months
the guilty plea discount of 20 per cent 7 months
leading to an end sentence of 28 months.
[14] Mr Cooke makes the point that the ultimate sentence imposed for the breach of home detention was six months, not 10 months. He is correct in that. That is of course as a result of the way the ultimate end sentence was structured in terms of the end point. It does not affect the validity of the Judge taking the breach of home detention at 10 months as a starting point.
[15] The guilty plea discount at a level of 20 per cent could perhaps be seen as generous, given the Crown case was overwhelming. Further, the driving was of the most serious type of reckless driving. Driving in that way whilst disqualified and given it was his fourth such driving whilst disqualified offence within two and a half years could have supported an increased or greater sentence for the driving whilst disqualified instead of the three months’ cumulative.
[16] The effective end sentence imposed by the Judge of 30 months’ imprisonment is within range, and cannot be described as manifestly excessive.
[17] It follows the appeal lacks substantive merit. The application for leave to appeal out of time is dismissed.
Venning J
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