Whittaker v Police

[2017] NZHC 2747

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-125 [2017] NZHC 2747

BETWEEN

SHANE GEORGE WHITTAKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 November 2017
Appearances:	M Cole for the Appellant S Dayal for the Respondent
Judgment:	9 November 2017

JUDGMENT OF MANDER J

Introduction

[1]      Mr Whittaker was sentenced to 16 months imprisonment after being found guilty after a Judge alone trial on one charge of receiving.1  Mr Whittaker pleaded guilty to other unrelated charges of failing to answer bail, possession of a knife, and unlawfully possessing a prescription medicine.   On each of these charges he was sentenced to concurrent sentences of one month imprisonment.

[2]      Mr Whittaker appeals his sentence alleging it to be manifestly excessive.

The offending

1      Police v Whittaker [2017] NZDC 18072; Police v Whittaker [2017] NZDC 21618.

WHITTAKER v POLICE [2017] NZHC 2747 [9 November 2017]

[3]      In August last year, Mr Whittaker purchased a $10,000 to $13,000 vehicle for

$5,000. It had been stolen a day or two previously. He told Police that he had bought the car from a friend of a friend and paid cash.  While he did not know it was stolen, he checked online with a website to see if it had been reported.  It had not.  Judge Couch convicted Mr Whittaker on the basis he had been reckless as to whether or not the vehicle had been stolen, and had taken insufficient steps to ensure that it was not, particularly having regard to its cheap price.

[4]      While bailed on the receiving charge Mr Whittaker failed to appear.   This resulted in the charge of failing to answer District Court bail.  The remaining charges arose from an incident when Mr Whittaker was spoken to by Police on an unrelated matter and found to be in possession of a flick knife and Codeine tablets that had not been prescribed to him.

The sentencing

[5]      In sentencing Mr Whittaker, Judge Couch noted the maximum penalty on the receiving charge was seven years imprisonment.  He characterised the gravity of the offending as “moderate”.  The Judge said the vehicle had “clearly” been stolen and that the measures Mr Whittaker had taken to ascertain the legitimacy of the sale were “far from sufficient given the highly suspicious circumstances”.

[6]      Taking into account the fact that Mr Whittaker lost the $5,000 he paid for the vehicle, Judge Couch applied a starting point of 12 months imprisonment.  This was uplifted  by four  months  to  reflect  Mr Whittaker’s  “appalling  history  of  serious offending” which included 68 previous convictions for dishonesty offences. However, the Judge noted that Mr Whittaker’s offending had reduced significantly in the last 10 years.

[7]      Judge Couch found there were no mitigating features.  A final sentence of

16 months was imposed with leave to apply to substitute a sentence of home detention.

Jurisdiction and approach to appeal

[8]      An appeal may only be allowed if there is an error in the sentence imposed and that an alternative sentence should be imposed.2    If the sentence under appeal can properly be justified having regard to relevant sentencing principles, this Court will not substitute its own views for those of the sentencing Judge.

[9]      To interfere with the Judge’s sentencing discretion the sentence must be found to be either manifestly excessive or inappropriate.   The focus is on the sentence imposed rather than the process by which it was reached, or its component parts.3

Submissions

[10]     Mr Whittaker’s counsel, Ms Cole, submitted that, having regard to all the circumstances, the gravity of the offending should have been assessed as at the lowest end of the range. She emphasised that Mr Whittaker did make enquiries about the car and had satisfied himself that its purchase would be legitimate. Unlike in some cases, he made no modifications to the car and had been prepared to drive the vehicle around in public.

[11]     She submitted imprisonment was inappropriate because there was no need to protect the community from his behaviour.   However, because Mr Whittaker has already served four months in prison, she submitted the sentence should be reduced to time served.

[12]     Ms Dayal for the Police referred to a number of cases which she submitted supported the sentence imposed by the District Court.  Ms Cole maintains these cases are distinguishable and concern more severe offending. In Ellis v R a starting point of

18 months and an uplift for previous convictions of 12 months was upheld on appeal where stolen goods to the value of $5,000 had been received.4  Ms Cole submitted the offender in that case had a close connection with the person who had stolen the

property, whereas here Mr Whittaker had no such connection.

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ellis v R [2012] NZCA 513.

[13]     In R v Taiepa a starting point of nine months with an uplift of three months was upheld on appeal where the appellant received a stolen car and removed the interior of the vehicle and installed it in his own.5    Ms Cole submitted this, too, was more serious offending, as the appellant knew the vehicle had been stolen.

[14]     In R v Collier the appellant received a vehicle valued at $14,000.6  It was clear it had been stolen as there was no key, the vehicle had been wired and the doors remained locked.  Based on a finding that the defendant was part of a car theft ring or solely responsible for trading dishonestly in vehicles, the sentencing Judge adopted a starting point of three years and a final sentence of two years nine months. The Court of Appeal held such an inference was not available and reduced the overall sentence to one of 12 months.  Again, Ms Cole submitted that in that case the indications the car had been stolen were much clearer.

[15]     Finally, Ms Dayal referred to Drake v Police, where a starting point of 15 months was upheld on appeal although Gendall J noted it was somewhat stern.7  There the vehicle was worth $11,000 and the license plates had been changed.

[16]     Ms Dayal submitted Mr Whittaker’s offending was moderately serious because of the high value of the vehicle, the signs it had been stolen, and the fact the appellant had failed  to adequately act on  his suspicions.   Ms Dayal submitted  the Judge appropriately turned his mind to alternative sentences and gave the appellant the opportunity to  have  his  sentence  substituted  with  one  of  home  detention.    She submitted Mr Whittaker’s attitudes of resentment towards the system and his non- compliance at the time he was interviewed for his pre-sentence report suggested he would be unresponsive to a community-based sentence, and that he remained at a high risk of reoffending.

Analysis

[17]     I accept the offending in R v Ellis was more serious than in the present case. There, the appellant received the property immediately after it had been stolen in a

5      R v Taiepa [2009] NZCA 120.

6      R v Collier CA170/03, 21 August 2003.

7      Drake v Police [2015] NZHC 2252.

burglary. The sentencing Judge drew the inference that either the appellant was known to the thief as being amenable to receiving stolen property, or that he was part of a plan waiting to receive the stolen goods, and could even have arranged for the burglary to take place.   No similar inference is available here.   The Court of Appeal in Ellis observed that a starting point of between 12-18 months would have been in range.

[18]     The case of R v Collier is more analogous, although in that case there were clearer indications at the time the car was received that it had been stolen.   The offending in Taiepa was comparable to the present case but, again, was more serious because of the aggravating features of the removal of the interior of the stolen vehicle and its instalment in the appellant’s car.

[19]     A further case for comparison is Williams v Police.8     There the appellant approached a vehicle, opened it with a key which was similar, but not identical, to the original key, drove off, and later removed the registration plates. When confronted he said he was doing it on the request of a friend.  On that basis he was charged with receiving rather than theft.   The vehicle was worth $3000 and had “thousands of dollars worth” of tools in it.  The sentencing Judge adopted a starting point of 18 months, which also took into account previous convictions.   On appeal this was reduced to nine months, with a six month uplift for significant previous dishonesty offending. A total sentence of 15 months.

[20]     Drake v Police is an analogous case.   In earlier cases the proximity of the receiving  to  the  unlawful  taking  of  the  property was  close,  and  treated  by the sentencing Judges as an aggravating feature. In Drake, there was six months between the offending and the vehicle being found in the appellant’s possession.  After reviewing the authorities extensively Gendall J held that:

[23]        A review  of  the  authorities,  in  my  view,  leads  inevitably  to  the conclusion that a starting point of 15 months' imprisonment for receiving a vehicle worth $11,000 was within the available range. Admittedly, there may not have been the temporal immediacy between theft and receipt in this case, but that

does not alter the fact that the starting point was within range. I concede it might

8      Williams v Police [2015] NZHC 3285.

be considered to be a slightly harsh starting point, but it was nonetheless clearly available.

[21]     It appears that it was the value of the vehicle that influenced Gendall J to consider the starting point was appropriate.

[22]     Ms Cole sought to distinguish Mr Whittaker’s offending from that disclosed in the cases reviewed, on the basis he did not actually know the vehicle was stolen and that he was convicted only because he was reckless as to that possibility. I accept that is a material factor to be taken into account when assessing the seriousness of the offending. However, recklessness does require the defendant to have had a conscious appreciation of the risk the vehicle may have been stolen.  While Judge Couch in his sentencing remarks expressly acknowledged the limited basis upon which he found the charge against Mr Whittaker proved, I do not consider his assessment of the offending as moderate was erroneous.  Ms Cole contended it should be categorised at the lowest end.  But when regard is had to the value of the vehicle and its relatively recent theft, the Judge’s description was not inaccurate.

[23]     Inevitably, each case turns on its own particular facts and circumstances. However, the decisions to which I have referred fairly represent the range the Courts have tended to apply for offending of this kind.  Taken together, the case law reveals there to be a moderately wide sentencing range for offending of this type.

[24]     While the value of the vehicle was comparable to the value of the stolen property the subject of earlier sentencing decisions, the Court’s findings that there was no evidence that Mr Whittaker actually knew the property was stolen, and that he took some steps, albeit inadequate steps, to determine if the car was stolen, I accept are distinguishing features of the present offending.   I note the Judge also took into account that Mr Whittaker lost the $5,000 he paid for the vehicle.

[25]     When compared with other cases, the 12 month starting point applied by the District Court is difficult to reconcile with the Judge’s specific finding of recklessness, which was the express basis upon which Mr Whittaker was convicted.  I also note the Judge’s finding of steps, albeit limited, that were undertaken by Mr Whittaker to verify

whether the car was stolen.  I consider an eight month starting point would have been more consistent with the relatively unusual features of Mr Whittaker’s offending.

[26]     While Ms Cole questioned the size of the four month uplift to mark Mr Whittaker’s extensive history of dishonesty offending, I do not consider any recalibration of that uplift is required, particularly when regard is had to the imposition of concurrent sentences for the entirely unrelated offences of failing to answer bail, possession of a knife, and breach of the Medicines Act.9

[27]     The appeal is allowed.  The sentence of 16 months imprisonment is quashed and substituted with a sentence of 12 months imprisonment.   Leave to apply to substitute a sentence of home detention is carried over from the original sentence, as are the special release conditions imposed by the District Court.

Solicitors:

Moana Cole Barrister, Christchurch

Raymond Donnelly & Co, Christchurch

9      Medicines Act 1981.