TANE MICHAEL WARD AND NEW ZEALAND POLICE
[2024] NZHC 2884
•7 October 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-172
CRI-2024-409-237 [2024] NZHC 2884
BETWEEN TANE MICHAEL WARD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 October 2024 Appearances:
J M Campbell for Appellant P J Brand for Respondent
Judgment:
7 October 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 7 October 2024 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
WARD v NEW ZEALAND POLICE [2024] NZHC 2884 [7 October 2024]
Introduction
[1] Tane Michael Ward was convicted and sentenced on two charges of driving while disqualified (third or subsequent),1 three charges of receiving stolen vehicles,2 one charge of unlawfully getting into a vehicle,3 one charge of unlawfully possessing ammunition,4 and one charge of failing to comply with intensive supervision.5
[2] On 9 July 2024, Mr Ward was sentenced by Judge McMeeken to two years and seven months’ imprisonment and disqualified from driving for one year and one day.6 He now appeals this decision.
Facts
[3]The facts were summarised by the Judge as follows:
[2] Very briefly, the facts are that on 17 February last year you were driving a car on Linwood Avenue when you were disqualified. On 21 April last year when you were subject to a sentence of intensive supervision you failed a urine test because you tested positive for methamphetamine. On 10 May last year a search warrant was executed at your address and police found a stolen e-Bike worth over $3,000, a single 12-gauge shotgun round and some other rounds and a stolen Mazda Demio was also found on the property, and you acknowledge you had been inside it. On 1 November the police were notified about five stolen motorbikes ranging in value from $5,000 to
$40,000 and they were found at your address, and you were also observed riding one of them.
[4] The receipt of stolen vehicles related to five separate thefts, being an e-bike stolen on 23 April 2023, and motorbikes stolen on 18 October 2023 (Suzuki), 29–30 October 2023 (Honda), 21–22 October 2023 (Yamaha), and 1 November 2023 (two Ducatis). The two Ducati motorcycles were valued at approximately $40,000 each and the total value of the property was approximately $110,000.
1 Land Transport Act 1998, s 32(1)(a) & 32(4) — maximum penalty two years’ imprisonment,
$6000 fine.
2 Crimes Act 1961, s 246 & 247(a) — maximum penalty seven years’ imprisonment.
3 Section 226(2) — maximum penalty two years’ imprisonment.
4 Arms Act 1983, s 22B — maximum penalty, $10,000 fine.
5 Sentencing Act 2002, s 70A(a) — maximum penalty six months’ imprisonment, $1500 fine.
6 Police v Ward [2024] NZDC 15876.
District Court decision
[5] The Judge observed that Mr Ward had been assessed as being at a high likelihood of re-offending by the probation report and had 28 previous convictions for different types of offending including driving, property matters and violence matters. The Judge also noted that while Mr Ward claimed to want to rehabilitate, he had not shown much motivation in the past. This was demonstrated by his breaches of intensive supervision (which was still active at the time of sentencing), his decisions not to get his driver’s licence (despite the fact it would have been paid for) and not to complete his community work (one hour completed out of 150), his reoffending and relapse into methamphetamine use, and his breaches of EM bail on the current charges that resulted in Mr Ward being placed back in custody.
[6] The receiving charges were seen as the lead offending. The total value of the five motorbikes exceeded $100,000 and were located at Mr Ward’s address within weeks of being stolen, with the two Ducatis being found on the same day they were stolen. The e-bike, valued at $3,699, was found at Mr Ward’s address about a month after being stolen. The combined value of those bikes was seen as a significant aggravating feature and a starting point of three years’ imprisonment was adopted.
[7] An uplift of six months was taken for the charges of driving while disqualified. An uplift of two months was taken for the breaches of intensive supervision and the convictions for non-complying with court-ordered sentences. No uplift was taken for the charge of unlawfully getting into a motor vehicle. Finally, Mr Ward was convicted and discharged on the charge of unlawful possession of ammunition.
[8] The global starting point was three years and eight months’ imprisonment, which was determined to be proportionate having regard to the totality of the offending.
[9] A three-month uplift was warranted for Mr Ward’s previous convictions for theft and demanding with intent to steal and the fact that his offending occurred while serving a sentence of intensive supervision and while on bail. A 20 per cent discount was granted for guilty pleas. This provided an end sentence of two years and seven months’ imprisonment.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Submissions
Appellant’s submissions
[11] Counsel for the appellant, Mrs Campbell, takes no issue with the uplifts and discounts taken on sentencing. The only issue taken was with the starting point and whether the principle of totality was properly considered.
[12] Mrs Campbell submits the starting point should have been lower, in the vicinity of two to two and a half years’ imprisonment.
[13] Considering the factors outlined in Ellis v R, Mrs Campbell acknowledges the high value of the motorbikes and the fact the Ducati motorbikes were located at the appellant’s house later on the same day they were stolen are aggravating factors.10 However, she submits the District Court failed to give sufficient weight to the fact all of the motorbikes were recovered with no damage and able to be returned, which mitigates the amount of loss suffered by the victims. Mrs Campbell then referred to case law supporting the proposition that stolen items returned with minimal damage or loss of value, should provide a lower starting point.
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
10 Ellis v R [2012] NZCA 513.
[14] Mrs Campbell relies on Davoren v Police where Mr Davoren faced charges including receiving a motor vehicle, driving while suspended and possession of a firearm.11 The receipt charge was in relation to a utility vehicle stolen from a rural property in an area frequented by Mr Davoren and was located in his control. Items had been removed from the vehicle (such as bull bars), but it was otherwise undamaged and able to be returned. The District Court set a starting point of 15 months’ imprisonment, which was reduced to 10 months on appeal.
[15] Mrs Campbell submits the lack of complexity in the operation should also have been taken into account. She compares this situation to that in Anderson v R and Greenwood v R, which involved extensive and semi-sophisticated operations of ‘rebirthing’ vehicles, including removal of registration plates, vehicle identification numbers and chassis plates from stolen vehicles and replacing them with identifiers from legitimate but run-down vehicles to conceal the vehicle’s identity. The lack of complexity in the current case should have seen a lower sentence than the two and a half years’ imprisonment that was upheld on appeal in each of these cases.12 A starting point of no more than two years and six months’ imprisonment was appropriate for the appellant.
[16] Mrs Campbell then submits the Judge did not adequately engage with the totality assessment. An appropriate adjustment for totality would have seen the new adjusted starting point reduced down from three years and two months to two years and nine months.
[17] Mrs Campbell then goes on to consider home detention, submitting that should the Court find a sentence of less than two years’ imprisonment available, a sentence of home detention would be appropriate, particularly given the appellant’s rehabilitative journey commencing in custody and the support of his partner who has attended and completed a rehabilitation course of her own.
11 Davoren v R [2016] NZHC 3046.
12 Anderson v R [2017] NZCA 91; and Greenwood v Police [2016] NZHC 2951.
Respondent’s submissions
[18] Counsel for the respondent, Mr Brand, submits the Judge could have adopted three separate, cumulative starting points for the separate receiving charges and then adjusted for totality, which would have provided for the same global starting point of three years.
[19] Mr Brand referred to the assistance provided by Asher J’s judgment in R v Lasike, which discussed the sentencing ranges by reference to decisions of the High Court and Court of Appeal, noting:13
[66] It can be seen from [R v Bom and Police v Som] that sentences of six years or more will result if the receiving is sophisticated and on a large scale, with property stolen to order. Starting points of three to four years may be appropriate where the receiving is at a lower level, where the receivers nevertheless have a close relationship with the burglars, and specific property is targeted, and the amounts received are in the $15,000 - $50,000 area.
[20] With reference to a number of cases, the respondent submits that starting points of between 18 to 24 months are reserved for cases that involve low to mid-value items:
(a)R v Collier — receiving a car worth $14,000 attracted a calculated starting point of approximately 18 months;14
(b)Ellis v R — receiving goods worth $5,000 which came into Mr Ellis’ possession within hours of being stolen resulted in a starting point of 18 months, which was upheld on appeal;15
(c)Vansilfhout v R — receiving goods worth around $4,500 resulted in a starting point between 18–21 months on appeal (down from three years in the District Court);16
13 R v Lasike HC Auckland CRI-2004-044-7103, 7 September 2006; citing R v Bom CA209/96, 16 October 1996 and Police v Som HC Wellington CRI-2005-485-141, 4 November 2005.
14 R v Collier CA170/03, 21 August 2003 at [7].
15 Ellis v R, above n 10, at [9].
16 Vansilfhout v R HC Rotorua CRI-2006-470-2, 7 March 2006.
(d)Sinclair v Police — receiving goods worth $10,000 which came into the appellant’s possession within hours of being stolen resulted in a starting point of two years and six months. On appeal, this starting point was deemed stern but within range;17 and
(e)R v Holden — receiving goods worth $33,773 which had been stolen in five separate burglaries and resulted in six charges. Mr Holden pleaded guilty to four additional charges of receiving on the day of sentence. He received an effective sentence of 21 months’ imprisonment which was upheld on appeal.18
[21] Mr Brand submits therefore that the starting point of 18 to 24 months on one charge of receiving the Ducatis was open to the Judge, and that this has been uplifted by an appropriate 12–18 months to reflect the second and third receiving charges, thus appropriately taking account of totality.
Analysis
[22] As counsel identify, the number of vehicles taken, their value, and the short space of time between the thefts and the items being located in the appellant’s possession are all relevant to setting the starting point. While I accept that the items were returned with minimal damage, this is really a consequence of police intervention and the fact that the highest valued goods, the Ducati motorbikes, were found so soon after they were stolen. The absence of an aggravating factor is not a mitigating factor.
[23] Based on these factors, I am satisfied it was open to the Judge to adopt a starting point of no less than 24 months’ imprisonment on the receiving charge that involved the Ducatis. Their combined value was around $80,000 and they were located at the appellant’s address on the same day they were stolen. The connection in time between the theft and receipt is very close and indicates that the appellant is likely to be closely linked to the burglar. Furthermore, the number of bikes stolen indicates an element of commerciality and this is supported by Mr Ward’s statement to the pre-sentence report
17 Sinclair v Police [2014] NZHC 1332.
18 R v Holden CA329/04, 14 December 2004.
writer that “the extra money was useful”, noting he was addicted to methamphetamine at the time.
[24] I am satisfied that an uplift of a further 12 months on that sentence to account for the receipt of $16,000 worth of other motorbikes from multiple thefts, and the receipt of the e-bike was available.
[25] That sentencing process leads to a starting point of three years, consistent with the starting point taken by the Judge. As a further check on the availability of that starting point, I note this is consistent with the sentencing ranges suggested in R v Lasike, referred to in [19] above where a starting point of three to four years was said to be appropriate for offending such as this.19 Indeed, using the suggested sentencing range in this judgment, the three year starting point could be seen to be at the lower end of the available range.
[26] I turn now to the question of whether the sentence properly took into account totality. The Judge clearly had regard to totality when sentencing. She convicted and discharged Mr Ward on the possession of ammunition charge20 and she did not uplift the sentence on the charge of unlawfully getting into a motor vehicle. She then stood back and assessed the combined starting point to ensure it was proportionate to the totality of the offending. In doing this I note that there is no obligation to reduce the sentence at this stage, particularly where, as here, a global starting point was taken on the receiving charges which, in itself reflected totality considerations and where the Judge was satisfied the sentence was not “wholly out of proportion to the gravity of the overall offending”.21 Given the Judge imposed a sentence that reflected the totality of the receiving offending, and not each individual allegation, and was conservative in the uplifts she gave for the balance of the offending, I am satisfied she took appropriate account of the principle of totality.
[27] In summary, the Judge’s sentence was well within range having regard to both the gravity of the offending and considerations of totality.
19 R v Lasike, above n 13.
20 While I note this charge attracted a fine only, the fact no additional penalty was imposed suggests totality was considered.
21 Sentencing Act 2002, s 85(2).
[28] The discounts given for rehabilitative efforts and remorse were appropriate and, indeed, the appellant takes no issue with them. Consequently, the end sentence was not manifestly excessive.
Result
[29]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
J Lucas, Barrister, Christchurch
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