Trego v Police

[2024] NZHC 3796

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000631

[2024] NZHC 3796

BETWEEN

DAETYN TREGO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 December 2024
Counsel:	DWE Dowsett for Appellant CSA Jordan for Respondent
Judgment:	13 December 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 13 December 2024 at 10 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland.

Public Defence Service, Waitākere.

TREGO v POLICE [2024] NZHC 3796 [13 December 2024]

The appeal

[1]    Daetyn Trego received a 29-month sentence of imprisonment for unlawfully possessing a loaded firearm and unlawfully using two motorcars.1 Mr Trego appeals that sentence. The appeal must be allowed if there is an error in the sentence and a different sentence is warranted.2 The ultimate concern is whether the sentence is manifestly excessive.3

Background

[2]Little detail is required.

[3]    On  20  January   2024,   Mr   Trego   drove   a   Ford   motorcar   stolen   on 4 January 2024. On 27 February 2024, hence approximately a month later, Mr Trego drove a second stolen vehicle, a Mercedes Benz. Later that day, Police found Mr Trego in the car at a service station. A search revealed a loaded, sawn-off shotgun in the footwell of the front passenger’s seat. Mr Trego exercised his right to silence.

[4]    All three charges were  laid  that  month.  Mr  Trego  later  pleaded  guilty. He was sentenced 11 October 2024.

[5]    Judge T Singh adopted a starting point of two years and three months’ imprisonment for the firearms offending. The Judge added 12 months’ imprisonment for the two offences of unlawful use of a motorcar, producing a global starting point of three years and three months’ imprisonment. The Judge then applied a series of discounts:

(a)20 percent for the guilty pleas.

(b)10 percent for personal mitigating factors.

(c)A total of 10 percent for rehabilitative efforts and apparent willingness to engage in restorative justice.

1      R v Trego [2024] NZDC 25102.

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

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

[6]    The Judge then added six months (or 15 percent of the global starting point) because the offending occurred while Mr Trego was subject to release conditions from prison, and in recognition of Mr Trego’s criminal history. More particularly, Mr Trego unlawfully possessed a firearm in March 2023. That offence resulted in a one-year term of imprisonment and the release conditions in question.

A précis of the case for Mr Trego

[7]    On behalf of Mr Trego, Mr Dowsett contends the sentence is manifestly excessive. He  argues  each of  the  (two) starting points was too  high,  as was the  15 percent uplift. Mr Dowsett  also  contends  the  Judge  should  have  deducted  five percent as Mr Trego has a two-year-old daughter and his partner is pregnant with their second child.

Analysis

The starting point for the firearms offence

[8]Mr Dowsett offers three arguments here:

(a)The Judge erred in taking into account an aggravated robbery conviction (not involving a firearm) when setting the starting point.

(b)The Judge wrongly identified an “ill-intent towards the Mobil Service Station”.

(c)The starting point was too high based on case analysis.

[9]    The respondent acknowledges the error in (a) but contends it is immaterial, a point to which I return.

[10]In relation to (b), the Judge said:

[22]      The circumstances in which you were found with the sawn-off firearm were that you were at a Mobil Service Station and the end of the story only became the end of the story because the police arrived and blocked the vehicle in and then arrested you.

[23]      I do not know what else would have happened but what I can take into account is that a loaded firearm, which was sawn-off in a stolen vehicle in the carpark of a service station, is a bad combination. It is a combination that requires deterrence and denunciation.

[24]      Mr King is right that the protection of the community must be a factor uppermost in my mind, in terms of setting a start point. The start point I adopt for that offence is one of two years and three months. I agree with your lawyer in terms of the other offending. The unlawfully taking can be dealt with by an uplift of  12 months,  which takes it to three years  and three months or  39 months.

[11]   Contrary to Mr Dowsett’s submission, the Judge did not infer Mr Trego was going to do something sinister at the service station. Indeed, the Judge recognised that would be speculative by his observation, “what I can take into account ...”.4 Relatedly, the Judge was correct to identify the presence of a loaded sawn-off shotgun in a public place as “a bad combination”. I also return to this aspect shortly.

[12]   Mr Dowsett and Ms Jordan, on behalf of the respondent, referred me to a host of sentencing cases in relation to unlawful possession of a firearm.5 It is sufficient to refer to one: Campbell v R, a recent decision of the Court of Appeal directed at just that offending.6

[13]   Earl Campbell possessed five firearms. He received a sentence of two and a half years’ imprisonment. There were no mitigating features to Mr Campbell’s offending so that figure also comprised the starting point. Mr Campbell appealed his sentence — he was self-represented. The Court of Appeal dismissed the appeal. The Court observed the starting point appeared to be “on the lenient side”7 and sat “at the lower end of the available range”.8 More importantly (for present purposes), the Court said:9

Although there are few decisions where starting points have been set on the basis that firearms offending was the lead charge, possession of a single

4      Emphasis added.

5      R v Richardson CA450/02, 25 March 2003; R v Fonotia [2007] NZCA 188; Head v Police [2017] NZHC 1733; Taranaki v Police [2021] NZHC 2746; R v Cochrane [2020] NZHC 1485; R v Collett [2021] NZHC 1658; McMillan v Police [2019] NZHC 3323; Ede v R [2023] NZHC 1197; Herewini v Police [2014] NZHC 2396; and Rawiri v R [2021] NZHC 1573.

6      Campbell v R [2022] NZCA 579.

7 At [18].

8 At [25].

9      At [18] (footnote omitted).

firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.

[14]   Mr Dowsett said Campbell “does not purport to be a tariff judgment and is simply indicative of sentencing trends”. I agree, but the point goes nowhere: the Court of Appeal addressed sentencing in the context of an applicable appeal and identified a typical range for a single offence of the type under review. The Court’s observation is, therefore, authoritative and the Judge was right to apply it.

[15]   Consequently, the starting point in relation to Mr Trego is unremarkable despite the Judge’s error in relation to Mr Trego’s conviction for aggravated robbery. This is cemented by the serious combination identified by the Judge: a loaded weapon, sawn-off — hence with no lawful purpose — readily available (to Mr Trego) in a public place.

The starting point for the other offending

[16]   Mr Dowsett acted for Mr Trego in the District Court and recommended a 12-month starting point for the unlawful usage of two  motorcars.   However, as    Mr Dowsett explained, that figure presupposed a lower starting point for the firearms offending. Mr Dowsett contends the 12-month figure was too severe given the starting point adopted in relation to the firearms offending.

[17]   I  disagree  given   the   cases   responsibly   identified   by   Mr   Dowsett.   In Galloway v Police,10 O’Sullivan v Police,11 and Shufflebotham v Police,12 this Court upheld 12-month starting points of imprisonment for a single offence of unlawfully taking (or using) a motorcar. Mr Trego committed two such offences only a month apart.

[18]   Mr Dowsett also relies on Rawiri v R,13 in which a global starting point of four years’ imprisonment was upheld. Mr Dowsett argues that case was appreciably more serious, and yet Mr Trego’s global starting point was not that much lower.

10     Galloway v Police [2019] NZHC 3363.

11     O’Sullivan v Police [2015] NZHC 2032.

12     Shufflebotham v Police [2015] NZHC 3114.

13     Rawiri v R, above n 5.

One answer to this contention is that Mr Rawiri’s global starting point appears to have been well within the available range. Another is that seamless graduations in penalty between cases of varying seriousness is an unrealistic expectation of any system of criminal justice. What ultimately matters is, therefore, whether the sentence is manifestly excessive (having regard to the range(s) for the offence(s) in question).

The uplift

[19]   Mr Dowsett contends the uplift was too severe, especially as Mr Trego was only 24 years old when he committed the offences. Mr Dowsett argued the uplift should have been four months, not six months.

[20]   Section 9(1)(j) of the Sentencing Act 2002 requires a Court to take into account the number, seriousness, date, relevance, and nature of an offender’s previous convictions.    Two   recent  decisions  of  the  Court  of  Appeal  are  illustrative.     In Taitapanui v R, the Judge uplifted a 15-year starting point by one year for previous offending.14 The Court upheld the 6.7 percent uplift on the basis denunciation and community protection were important sentencing objectives. In Farrell v R, the sentencing Judge uplifted a 33-month starting point by nine months for previous offending.15 The Court upheld the 27 percent uplift, albeit noting it lay “toward … the limit of what was permissible”.16

[21]   Against this backdrop, the 15 percent uplift was unremarkable, particularly given the recency of Mr Trego’s earlier firearms offending and that he was on release conditions for that offending when he unlawfully possessed another firearm. Denunciation and deterrence, as sentencing imperatives, were, therefore, engaged.

Discount in relation to children?

[22]   As  observed,  Mr  Dowsett  contends  the  Judge  should  have  deducted  five percent as Mr Trego has a two-year-old daughter and his partner is pregnant with their second child. Mr Dowsett relies on Philip v R, a decision of the Supreme Court,

14     R v Taitapanui [2021] NZCA 161.

15     Farrell v R [2024] NZCA 482.

16 At [16].

in which that Court held the fact of dependent children can be a relevant sentencing consideration, subject to the circumstances of the case.17

[23]Ms Jordan responds:

In Philip, a discrete discount was available given that Mr Philip was “an important presence in his young child’s life”, following evidence from a doctor that the child had a “secure attachment” with Mr Philip. And perhaps more fundamentally, the Supreme Court noted that such a discount may not be warranted in cases where there is “an absence of remorse and/or lack of rehabilitative steps”. The Court also observed that the discount was warranted given that “there was such a close relationship between Mr Philip’s rehabilitation and his relationship with the child”.

While a discount for this factor might have been available if Mr Trego had also shown remorse or could point to any steps at rehabilitation related to his children, he has not done so – the bare assertion in submissions for the appellant that it is important to note the link between Mr Trego’s rehabilitation and his relationship with his daughter is insufficient. Likewise, there is no evidence before the Court as to the extent of Mr Trego’s relationship with his children other than to say he has a two year old daughter and an unborn child on the way. In those circumstances, no discount was warranted.

[24]I agree with Ms Jordan for the reasons she gives.

Summary

[25]   The starting points are unremarkable, as is the uplift, and the Judge did not err in relation to children. Most importantly, Mr Trego’s sentence is not manifestly excessive given the gravity of his offending.

Result

[26]The appeal is dismissed.

……………………………..

Downs J

17     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.