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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 3010
Decision Date: 10 November 2021

CaseChat Overview and Summary

The case of Towler v Police was heard by Downs J in the High Court of New Zealand. Brayden Andrew Towler, the appellant, challenged the 18-month and 10-day term of imprisonment imposed by Judge J M Jelas for various dishonesty offences. Towler argued that the sentence was manifestly excessive, prompting the court to review the legal issues surrounding the appropriateness of the sentence.

The court examined whether there was an error in the sentencing process that warranted a different sentence. This included scrutinizing the starting points for the various charges, the uplift applied for the totality of the offending, the discount for guilty pleas, and the refusal to allow home detention as an alternative. The court found that the starting point for the receiving charge was appropriately set at 16 months, considering the value and recent theft of the car. The seven-month increase for the altering a document charge was also deemed reasonable given the representative nature of the charge and the maximum penalty. The three-month uplift was justified due to Towler's extensive criminal history and his failure to comply with community work orders. The court further noted that any claim for a discount due to addiction was unsupported and inappropriate as it was not established by the appellant.

Downs J concluded that the sentence was not manifestly excessive. The appellant's history of dishonesty and his failure to comply with bail and electronically monitored sentences supported the Judge's decision. The appeal was dismissed, and the original sentence was upheld.

The final orders confirmed the dismissal of the appeal and the maintenance of the original sentence imposed by Judge Jelas.

Orders