Wilson v Police
[2021] NZHC 402
•5 March 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000189
[2021] NZHC 402
BETWEEN ISAAC VAUGHN WILSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 March 2021 Appearances:
T R Nicholls for Appellant
S R D D Bicknell for Respondent
Judgment:
5 March 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 5 March 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Introduction
[1] The appellant, Isaac Wilson, was sentenced by Judge Couch on 11 December 2020 to 26 months’ imprisonment on eight charges: dishonestly using a motor vehicle, driving while disqualified (twice), refusing the impairment test, possession of utensils (twice) and possession of methamphetamine, failing to stop, and possession of cannabis.1 The appellant appeals that sentence.
1 Police v Wilson [2020] NZDC 26004.
WILSON v NEW ZEALAND POLICE [2021] NZHC 402 [5 March 2021]
Facts
[2]The charges arise out of three sets of offending.
[3] Four of the charges stemmed from events occurring in the early hours of the morning of 27 August 2020. The appellant was seen by police driving a car which had been stolen 12 days earlier. The appellant failed to stop at a stop sign on a suburban Christchurch street. The police then activated their flashing lights and siren to have the appellant stop, but he failed to do so and accelerated away in excess of the 50 kilometre per hour speed limit.
[4] During the pursuit the appellant drove on the wrong side of the road. He then drove up a driveway where he was confronted by police. Mr Wilson showed signs of impairment and refused to undergo a compulsory impairment test. At that time, the appellant was disqualified from driving. These actions led to charges of driving while disqualified third or subsequent, refusing an impairment test (being his third or subsequent alcohol or drug related driving offence), and failing to stop (being his third or subsequent such offence).
[5] Three further charges arose out of events on 1 September 2020. The appellant was again driving a motor vehicle in a suburban street in Christchurch. When stopped by police, he was searched and found in possession of a methamphetamine pipe and a small amount of cannabis. A further charge of driving while disqualified third or subsequent resulted, as well as a charge of possession of utensils and a charge of possession of cannabis.
[6] The final two charges arose out of events on 11 September 2020. The appellant was in a vehicle but this time as a passenger. The police had reason to search the vehicle and found on him a point bag containing a small amount of methamphetamine. The appellant also had on his person a methamphetamine pipe. This has led to charges of possession of methamphetamine and possession of utensils.
District Court decision
[7] Judge Couch noted the two charges of driving while disqualified were the appellant’s eighth and ninth such convictions for driving while disqualified or suspended. It was Mr Wilson’s fourth conviction for impaired driving and sixth conviction for failing to stop.
[8] Judge Couch considered the lead charge of the offending was that of dishonestly using the motor vehicle as it carried a maximum sentence of seven years’ imprisonment.2 He regarded the gravity of the appellant’s offending in this regard as moderate. The vehicle was valued at $6,500 and there was no information about his use of this vehicle on other occasions. However, the Judge considered the fact that the vehicle was unlawfully used to commit other offences to be an aggravating factor. The Judge took a starting point of 12 months’ imprisonment in relation to this charge.
[9] Noting Mr Wilson’s history of similar offending, the Judge regarded the gravity of offending on all the other driving offences as serious and consequently applied an uplift of 18 months in respect of those charges. The Judge then applied a further uplift of two months for the charge of possession of methamphetamine and two charges of possession of utensils, leading to a combined starting point of 32 months’ imprisonment. However, looking at the totality of the offending, the Judge deemed it appropriate to reduce the starting point to 28 months.
[10] The Judge then identified several personal aggravating features. The Judge noted that when the appellant committed these offences, he was subject to release conditions forming part of a sentence of imprisonment imposed in April. The appellant also had a community work sentence imposed in July and the main offences here, being those committed on 27 August 2020, occurred only some four weeks after he had been released from prison. In addition, the Misuse of Drugs Act 1975 offences occurred whilst the appellant was on bail. For these reasons, the Judge applied an uplift of eight per cent.
2 Crimes Act 1961, s 226(1).
[11] Judge Couch took into account the appellant’s criminal history. The Judge acknowledged the appellant’s driving history had been considered in setting the starting point on the driving charges, but nonetheless noted the appellant has 13 other convictions for offences of dishonesty, including burglary and robbery. The Judge put particular weight on a conviction in April 2020 on two charges of stealing motor vehicles in 2019. The Judge applied an uplift of 10 per cent for the appellant’s criminal history.
[12] The Judge turned to consider the appellant’s personal mitigating factors. The Judge rejected the submission that Zhang v R applied in this case so that the appellant’s methamphetamine habit should be regarded as a mitigating factor.3 The Judge distinguished Zhang on the basis that it related to offending committed to feed a drug habit and noted none of the appellant’s offences involved theft or otherwise obtaining property to sell for drugs to feed his habit. Judge Couch did, however, reduce the sentence by 25 per cent to reflect the appellant’s prompt guilty pleas and his clear acknowledgement that his actions were wrong.
[13] Therefore, applying the methodology in Moses v R, the Judge reduced the sentence by seven per cent from the adjusted starting point of 28 months, resulting in an end sentence of 26 months’ imprisonment.4 Furthermore, on the two charges of driving while disqualified third or subsequent, the appellant was disqualified from holding or obtaining a driver’s licence for 15 months, on the charge of refusing the impairment test, he was indefinitely disqualified pursuant to s 65 of the Land Transport Act, and on the charge of failing to stop third or subsequent, the appellant was disqualified from holding or obtaining a driver’s licence for 24 months from 11 March 2022. Hence, the appellant was disqualified for 39 months in total.
Principles on appeal
[14] 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 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there
3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
4 Moses v R [2020] NZCA 296.
has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned 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”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7
Submissions
Appellant’s submissions
[15] Mr Nicholls, for the appellant, submits the starting point of 12 months’ imprisonment in relation to the lead charge of dishonest use of a motor vehicle is manifestly excessive. While it is accepted the appellant did or should have known the vehicle was stolen, Mr Nicholls submits the circumstances of the offending and short distance travelled mean the starting point was excessive. Mr Nicholls says he is instructed that the appellant drove the vehicle to assist a friend. He claims he was given the key to the vehicle, that he was advised his friend’s goddaughter needed to go to hospital urgently, and that he did not have direct knowledge the vehicle was stolen. He submits the Judge did not consider these circumstances in concluding the gravity of the offending was moderate and, taking these factors into account, the offending ought to have been regarded as less than moderate, and attracting a lower starting point than 12 months.
[16] In support of this submission, Mr Nicholls cites Oldham v Police.8 In that case, a commercial premise was broken into which stored recently imported motor vehicles. Persons entered into the office area and obtained keys to between 30 and 40 vehicles, which were then taken. The appellant received a number of vehicles from unknown persons, valued together at $440,000, and at some stage unlawfully entered into one of these vehicles. Mr Nicholls notes the starting point for the charge of unlawful entry
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
8 Oldham v Police [2017] NZHC 2602.
into a motor vehicle in Oldham was only eight months’ imprisonment for offending he submits was significantly more serious than in the present case.
[17] Mr Nicholls also contends the uplift of 18 months’ imprisonment for the appellant’s other driving offences is manifestly excessive. Mr Nicholls accepts the appellant has a poor driving record that requires a significant uplift, particularly in respect of charges of driving while disqualified and while suspended. However, the appellant relies on the starting point for the lead charge as being too high, so that the uplift given for the appellant’s other driving offences is rendered disproportionate to the starting point for the lead charge.
[18] Consequently, the appellant submits the overall starting point of 28 months’ imprisonment, even after adjustment, is manifestly excessive, and the starting point should have been reduced to 15 to 18 months. Mr Nicholls reaches this figure by reducing the starting point on the lead charge to 6 months’ imprisonment and reducing the uplift for the appellant’s driving offending to 9 to 12 months’ imprisonment.
[19] Mr Nicholls further submits the District Court Judge should not have uplifted the appellant’s sentence by 10 per cent for his previous criminal history when there had been an uplift already given for the appellant’s driving history. Counsel submits it was unjust for the appellant to be doubly punished for being convicted earlier in 2020 on two charges of stealing motor vehicles in 2019. Accordingly, the appellant submits the 10 per cent uplift for previous criminal history should not apply.
[20] Mr Nicholls also argues the District Court was wrong in its analysis of Zhang and that case should have been applied so that the appellant received a discount to reflect his methamphetamine addiction. Mr Nicholls draws attention to the summary of the judgment in Zhang, which states that:9
Addiction shown to be causative of the offending is a mitigating consideration. It may in its own terms justify a sentence discount of up to 30 per cent, although that is not to be treated as an absolute limit. Addiction will often combine with mental health issues, and the two may need to be considered in combination, although without the doubling-up of an otherwise appropriate discount. Addiction also calls for consideration of a rehabilitative response as part of sentencing.
9 Zhang, above n 3, at [10(k)].
[21] Mr Nicholls says it was not disputed that the appellant did have and continues to suffer from a methamphetamine addiction. In the Alcohol and Other Drug Assessment and Treatment Service (ADAS) report, counsel notes it was stated the appellant “would likely meet criteria for residential treatment with regards to his substance abuse”. Counsel submits the appellant has on several occasions outlined to counsel his need and desire to obtain assistance for his addiction and has instructed counsel his methamphetamine addiction was a significant factor in his offending. Mr Nicholls refers to a letter written by the appellant dated 29 November 2020 in which the appellant outlines his hope for help dealing with his addiction and says he is remorseful for his offending. For these reasons, counsel for the appellant submits a discount in the vicinity of 25 per cent would have been appropriate to take account of the appellant’s addiction.
[22] If these submissions are accepted, the end sentence will be less than 24 months’ imprisonment, bringing into consideration a sentence of home detention.
Respondent’s submissions
[23] Ms Bicknell, for the respondent, submits the starting point of 12 months’ imprisonment is not manifestly excessive. She submits it is not clear what starting point was adopted for the unlawful entry into a motor vehicle charge in Oldham. In any event, it is not clear that the offending was more serious than in the present case. The basis of the charge in Oldham was the appellant entered his partner’s car during an assault on her. The appellant took her keys while she sought help, got inside the car, and turned it on and there was no further use of the car.10
[24] In terms of setting the starting point for the dishonest use of a motor vehicle charge, Ms Bicknell refers to the following two cases:
(a)O’Sullivan v Police:11 a starting point of 12 months’ imprisonment was adopted where the appellant was charged with unlawfully taking a
10 Oldham, above n 8, at [3].
11 O’Sullivan v Police [2015] NZHC 2032.
motor vehicle, driving while disqualified, failing to stop, excess breath alcohol, resisting a police officer, and possession of cannabis;
(b)Shufflebotham v Police:12 a starting point of 12 months’ imprisonment was adopted for the charge of unlawfully taking a motor vehicle.
[25] Ms Bicknell therefore submits the appellant’s offending is analogous to the offending in these cases. Although she accepts the court may view the present offending as less serious because the appellant was not sentenced on the basis he took the car, the respondent submits the starting point of 12 months’ imprisonment was within range. In any event, the sentence for an offence under s 226(1) Crimes Act is the same whether the offence involves taking a vehicle owned by another person or using it.
[26] The respondent also submits the 18 month uplift for the driving offences was open to the Judge. The gravity of these offences was serious given the impaired and dangerous nature of the driving. The respondent notes this type of offending is not amenable to tariff categorisation.13 However, the respondent finds guidance from Samson v Police,14 where Whata J broadly categorised the starting points for this type of offending in terms of the aggravating factors present and identified a range of aggravating factors in the context of excess breath alcohol offending.
[27] The respondent submits there were one or more of the serious aggravating factors identified by Whata J present in the current offending. These were: intoxication combined with dangerous driving, committing the additional offences of driving while disqualified and failing to stop, the occurrence of the second incident of driving while disqualified only a week later, and a continuous history of driving-related offending. On this basis, the respondent submits an 18 month uplift for the four driving-related charges, across two incidents, would not have been manifestly excessive.
12 Shufflebotham v Police [2015] NZHC 3114.
13 R v McQuillan CA129/04, 12 August 2004 at [22].
14 Samson v Police [2015] NZHC 748 at [15].
[28] For the above reasons, Ms Bicknell submits the end starting point of 28 months’ imprisonment was not manifestly excessive. The two month uplift for the possession charges was not challenged. She contends it is clear the Judge properly considered the totality principle which resulted in a four month deduction from the original starting point.
[29] In terms of the uplifts applied to the starting point for previous criminal history and offending while subject to sentence, the respondent submits there was no error. Ms Bicknell cites Clunie v R for the proposition that section 9(1) of the Sentencing Act 2002 specifically recognises that offending committed on bail or subject to a sentence is an aggravating feature.15
[30] In respect of the uplift for previous convictions this specifically did not take account of the appellant’s driving convictions, but was in relation to dishonesty offending. On this basis, the respondent submits the uplift applied by the Judge of 10 per cent for the appellant’s previous criminal offending did not involve double counting.
[31] Finally, in response to the Mr Nicholls’ submission that, on the basis of Zhang, the appellant should have been afforded a discount to recognise his methamphetamine addiction, the respondent submits it was not an error to refuse to give such a discount. Ms Mills contends it was open to the Judge to find there was no causal nexus between the appellant’s methamphetamine addiction and the offending to warrant a discount.
Discussion
[32] There is no tariff judgment for the offence of unlawful use of a motor vehicle. The appellant relied on Oldham v Police, to suggest that the 12 month starting point was excessive. However, as the respondent identified, it is unclear what starting point was adopted for the unlawful entry into a motor vehicle charge in that case. I also do not accept that the facts are sufficiently analogous to use it as a comparison for an appropriate starting point. The cases provided by the respondent are of greater assistance.
15 Clunie v R [2013] NZCA 110 at [22].
[33] In both O’Sullivan and Shufflebotham, a starting point of 12 months’ imprisonment was adopted for the charge of unlawfully taking a motor vehicle. I also have regard to Galloway v Police, where a car worth $7,000 had been taken from outside a suburban address.16 Five days later the appellant was driving that vehicle and failed to stop when the police attempted to pull him over for speeding. He was disqualified from driving at the time and he drove dangerously to evade the police, far exceeding the speed limit and crossing to the wrong side of the road. The Judge noted that there was a pattern of similar offending in the appellant’s criminal history and a repeated failure to follow release conditions and rehabilitative programmes. In that case, a 12 month starting point was imposed (down from 20 months on appeal).
[34] Having considered these cases, I am satisfied the starting point of 12 months’ imprisonment imposed by the Judge was within range. The appellant was driving a stolen vehicle of similar value to that in Shufflebotham and Galloway, while he was disqualified. Like O’Sullivan, the appellant had the car for a relatively short period and the car was returned to its owner. As in all three cases, the appellant evaded police leading to a pursuit. Indeed, the offending is almost identical to Galloway, involving as it did, dangerous and erratic driving in excess of the speed limit and crossing over to the wrong side of the road. While I accept there was no evidence he had taken the car originally, the associated dangerous and erratic driving (for which he was not separately charged, but which was separately charged in Galloway), increases the gravity of this offending. I consider his explanation for why he was driving that night is implausible and, in any event, does not excuse the erratic and dangerous driving. The range of sentences imposed for such offending was canvassed in Galloway and ranged from nine months to 15 months. In the circumstances, I am entirely satisfied that the 12 month sentence was within range.
[35] Taking account of Mr Wilson’s significant history of similar offending, I consider the Judge was right to say the gravity of offending of the other driving offences was serious. These charges were: two charges of driving while disqualified, one of failing to stop, and one of refusing to undergo a compulsory impairment test. They arose on two different dates, but in close succession. Mr Wilson has been
16 Galloway v Police [2009] NZHC 3363.
convicted 11 times in the past on charges of driving while disqualified or suspended and these convictions form part of a continuous history of driving-related offending. It is clear Mr Wilson is a recidivist driving offender which exacerbates the gravity of his offending. While the sentence on these four charges might be considered towards the higher end of the available spectrum, I cannot say it is out of range.
Was the overall starting point of 28 months manifestly excessive?
[36] I have found that the sentences of 12 months for the unlawful use of a motor vehicle, and 18 months for the other four charges, including two charges of driving while disqualified, were individually within range. However, the Judge then went on to consider the principle of totality and determined the 32 months sentence of imprisonment was too high, adjusting it to 28 months. I am satisfied that this adjustment was appropriate and the end sentence of 28 months for all the charges was within range.
Was the Judge wrong to uplift the appellant’s sentence by 10 per cent for his previous criminal history?
[37] The appellant’s primary ground for challenging the uplift on the appellant’s sentence for his previous criminal history was his concern that it involved double-counting. However, as the respondent makes clear, the Judge was careful to avoid double-counting and expressly ignored the appellant’s previous driving convictions which he had already considered when imposing 18 months on the other driving related charges. The uplift solely reflected dishonesty offending, including recent convictions in April 2020 on two charges of stealing motor vehicles in 2019. Again, I consider the uplift of 10 per cent was within range.
Should the appellant have received a discount to account for his methamphetamine addiction?
[38]Judge Couch held at [11] of his decision that:
The Court in Zhang, on my understanding, was talking about offending to feed a drug habit. That is not the situation here. None of your offences involved theft or otherwise obtaining property to sell for drugs.
[39] The Court of Appeal in Zhang considered the personal mitigating factor of addiction particularly germane to methamphetamine offending. In terms of addiction, the Court made several points. First, the Court noted the implication of s 9(3) of the Sentencing Act, which provides that voluntary consumption of alcohol or drugs, other than for a bona fide medical purpose, cannot be taken into account by way of mitigation.17 The Court attended to the expert evidence demonstrating that a number of relevant mitigating considerations do arise in relation to addiction, such as the fact that strong pro-social tendencies may be overwhelmed by dependence.18 Addiction also calls into question the effectiveness of deterrence,19 and calls for consideration of a rehabilitative response as part of sentencing.20
[40] Importantly, however, the Court accepted “non-causative addiction will be of little mitigatory relevance”21 and that:22
… any such discount should be based on persuasive evidence, as opposed to mere self-reporting … Inasmuch as a stage two discount for mitigating circumstances is engaged, the onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction.
[41] The Court continued to say that addiction may logically give rise to a discount but this “depends on the extent to which it mitigates moral culpability for the offending”.23
[42] On this basis, it was not an error to refuse to give the appellant a discount for methamphetamine addiction. There was no evidence of a causal nexus between the appellant’s methamphetamine addiction and the offending. Mr Wilson’s offending was not motivated by the need to further his dependence on methamphetamine or due to any external pressure to obtain property to sell for drugs. Any consumption of methamphetamine that led Mr Wilson to engage in the offending was a voluntary act that does not mitigate his moral culpability.
17 Zhang, above n 3, at [143].
18 At [145].
19 At [146].
20 At [150].
21 At [147].
22 At [149], citing Sentencing Act, s 24(2)(d).
23 At [149].
[43] Furthermore, there was a lack of persuasive evidence before the Court to discharge the onus on the offender to establish the extent and effect of his addiction. Whilst Mr Wilson may well meet the criteria for residential treatment with regards to his substance abuse, the evidence provided does not go much further than mere self-reporting and does not demonstrate his addiction was causative of the offending. Furthermore, the suggestion he was motivated to address his addiction was inconsistent with the ADAS report of 3 December 2020, which said the appellant was “not interested in maintaining abstinence fully from methamphetamine on release from prison”.
[44]This ground of appeal fails.
Conclusion
[45] I have found there was no error in sentence and the end sentence was not manifestly excessive. Accordingly, the appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
T R Nicholls, Barrister, Christchurch
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