Towler v Police

[2021] NZHC 3010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000470

[2021] NZHC 3010

BETWEEN

BRAYDEN ANDREW TOWLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	8 November 2021
Counsel:	CF Dunne for Appellant JR Ah Koy for Respondent
Judgment:	10 November 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 10 November 2021 at 11 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland.

Public Defence Service, Waitakere.

TOWLER v POLICE [2021] NZHC 3010 [10 November 2021]

A sentence appeal

[1]    Judge J M Jelas imposed an 18-month, 10-day term of imprisonment on Brayden Towler for dishonesty offences.1 Mr Towler appeals. An appeal in this context must be allowed if the appeal Court is satisfied there is an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

Background

[2]    On 14 March 2021, Mr Towler  collected  a  chainsaw  from  Bunnings  (New Lynn) he had bought by fraudulent use of a credit card. The chainsaw was worth

$599.

[3]    On the afternoon of 15 May 2021, Police stopped Mr Towler. He was driving a 2019 Mazda CX9 stolen 2 March 2021. Its registration plates had been swapped for ones stolen 13 May 2021. Police found a visa card in Mr Towler’s pocket that was not his and, in a bag in the car, bankcards, documents, and five drivers licenses belonging to others, but bearing photographs of Mr Towler. In the bag was a sixth license belonging to another. The images of its owner had been removed. All this occurred while Mr Towler was supposed to be serving a sentence of community work. He failed to report as required.

[4]    Consequently, Mr Towler faced five charges: receiving stolen property worth more than $1,000—the Mazda CX9; a representative charge of altering a document with intent to defraud—the altered drivers licenses; driving while forbidden; breaching community work; and obtaining the chainsaw by deception.

[5]    Judge Jelas adopted a starting point of 16 months’ imprisonment on the receiving charge. She added seven months for the altering a document charge, and three months for the balance of the offences and Mr Towler’s criminal history—about which more shortly. The Judge deducted 25 percent for Mr Towler’s guilty pleas. This

1      Police v Towler [2021] NZDC 19831.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279.

left a sentence of 18 months’ imprisonment, to which the Judge added 10 days for several thousand dollars of unpaid fines and court fees.

Argument and analysis

[6]    Mr Towler  contends the sentence is manifestly excessive.  On his behalf,   Mr Dunne invites attention to several aspects of the Judge’s methodology.

The starting point on the receiving charge

[7]    Mr Dunne contends the starting point on this charge should have been “around 10–12 months’ imprisonment”, not 16 months’ imprisonment.

[8]    In Te Tai v Police,4 Moore J observed “starting points of between 12 and 18 months have routinely been considered appropriate  for  offending  of  this  sort”.5 Mr Te Tai faced charges of unlawfully taking a car (worth $3,500) and receiving another stolen car (worth $5,000). Moore J was satisfied a starting point “of at least 12 months” was appropriate for those offences.6

[9]    The car Mr Towler received had been recently stolen and was worth $45,000. Moreover, I infer Mr  Towler  had  changed  its  number  plate  to  avoid  detection. A starting point towards the upper end of the (compressed) range described by Moore J was therefore available.

Starting point on the representative altering a document charge

[10]   Mr Dunne says the starting point of seven months should have attracted “only a modest uplift in the vicinity of three months, maybe less”. Mr Dunne relies on Enache v Police.7

[11]   Sheree Enache altered the victim’s passport by placing her own photograph in it. She used the passport in support of a tenancy application. Ms Enache had a poor

4      Te Tai v Police [2015] NZHC 2453.

5 At [20].

6 At [24].

7      Enache v Police [2015] NZHC 2586.

credit record, hence the offending.  The first instance Judge declined to discharge  Ms Enache without conviction. He imposed a sentence of 80 hours’ community work. Ms Enache appealed the former aspect. Muir J dismissed the appeal. As will be apparent, that case is rather different.

[12]   A seven-month increase was not excessive given (a) the charge was representative; and (b), the maximum penalty for this offence is 10 years’ imprisonment.

Uplift

[13]   Mr Dunne contends no uplift should have been imposed, particularly given Mr Towler’s age. He is now 26.

[14]   Mr Towler has an extensive history for dishonesty despite his age. As observed, he was serving a sentence of community work when he committed this offending. That too is aggravating. A three-month uplift was therefore available.

Discount for an alleged addiction?

[15]Mr Dunne’s written submissions helpfully frame the point:

Her Honour did not include a discount for drug addiction, nonetheless it is accepted that the defendant did not make such representation to the court at the time of the offending or at his sentencing. The defendant now instructs counsel that he has a drug addiction, although he does not have evidence of any rehabilitative measures taken. Counsel’s submission is that the defendant’s criminal history speaks of addiction. If the Court is minded, a benefit of a doubt discount might also be deducted from the starting point.

[16]   The twin difficulty with this submission is that (a) there is no evidence to support it (beyond Mr Towler’s record of dishonesty); and (b), it is for an offender to establish an addiction.8

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].

A refusal to grant leave to commute the sentence to home detention

[17]   Mr Dunne argues the Judge erred not to allow at least the possibility of home detention, should an address become available. Mr Dunne said Mr Towler hopes to study mechanical engineering at university in the near future.

[18]   The pre-sentence report records Mr Towler “has appeared before the court every year since 2013”. His risk of re-offending “is assessed as high”. Mr Towler was on electronically monitored bail at his mother’s home. He did not comply with the terms of bail and was remanded in custody. The report also says Mr Towler has also breached “previous EM sentences”. These aspects justify the Judge’s approach.

A manifestly excessive sentence?

[19]   As will be apparent, the sentence is not manifestly excessive. Mr Towler committed a series of moderately serious offences against a backdrop of like offending. He was on community work at the time. Leave to apply for home detention is frustrated by Mr Towler’s poor compliance with electronically monitored sentences and like bail.

Result

[20]The appeal is dismissed.

……………………………..

Downs J