Witana v Police
[2015] NZHC 3306
•18 December 2015
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-425-000043 [2015] NZHC 3306
BETWEEN DWAINE ROBERT WITANA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 December 2015 Appearances:
T Cadogan for Appellant
S N McKenzie for CrownJudgment:
18 December 2015
JUDGMENT OF DUNNINGHAM J
[1] Mr Witana appeals his sentence of 15 months’ imprisonment imposed in the District Court at Queenstown on 28 September 2015.1 The sentence was passed after he pleaded guilty to the following charges:
(i) Dishonest use of a document (x2); (ii) Theft of property under $500 (x3);
(iii) Shoplifting (property valued under $500);
(iv) Receiving property (whose value was under $500); (v) Failure to comply with a prohibition on driving;
(vi) Use of fantasy type substances.
1 Police v Witana [2015] NZDC 19727.
WITANA v NEW ZEALAND POLICE [2015] NZHC 3306 [18 December 2015]
Grounds of appeal
[2] The appellant appeals the sentence on the following grounds; (a) the Judge made a mathematical error in the decision;
(b) no reduction in sentence for remorse and steps taken; and
(c) the sentence was manifestly excessive.
Background facts
First theft charge
[3] On 28 May 2015, the appellant filled the car he was driving with $50 worth of petrol. When his credit card declined payment, he said to the shop assistant that he would return within 90 minutes to pay. He did not return and is yet to pay.
Receiving property
[4] The relevant wallet contained a driver’s licence, $40 in cash and three bank cards, and was taken on 20 May 2015. One of the bank cards was later used in Ponsonby, Auckland. When arrested on 26 July 2015 on a fines warrant, the appellant was found in possession of the wallet. He claims that a friend stole it from a business address in Auckland.
Shoplifting
[5] The appellant took three pairs of socks and a female item of clothing from a clothing rack at the Warehouse, on Cameron Road in Tauranga. The appellant went into a cubicle, substituted one pair of the new socks for his own, and then left the store without paying for that pair or the other two pairs. He returned the item of female clothing to the rack. The appellant was confronted by a shop assistant and he returned to the store and gave the socks back. He later stated that he did not remember the shoplifting.
[6] As of 3 June 2012 the appellant was forbidden from driving for being unlicensed. Despite this he drove a BMW in Queenstown on 20 July 2015. He went to a Z petrol station in Queenstown, put $50 worth of petrol into the car, signed an agreement with the shop assistant saying he would return and pay within 24 hours, and then did not return. Subsequently it became clear that he had used someone else’s name and had written false phone numbers on the form.
First dishonest use of a document charge
[7] The appellant used the driver’s licence from the stolen wallet he had received to register a Mercedes vehicle in the licence holder’s name. The appellant attempted to explain this by saying that the car was the victim’s.
Second dishonest use of a document charge
[8] The appellant then used the same licence to register a BMW in the victim’s
name. The appellant contended that he had jointly purchased the car with the victim.
[9] The victim has never owned a BMW or Mercedes and never entered into any agreement with the appellant.
Third theft charge
[10] At some time on 25 July 2015 the appellant came into possession of the driver’s licence of another person. He used the licence to gain admission to numerous Queenstown bars.
Consumes GHB
[11] At approximately 2.15 am on 26 July 2015, the appellant was arrested on a fines warrant. At about 4.15 am he admitted to Police that he consumed GHB. This is a fantasy type substance proscribed by the Misuse of Drugs Act 1975.
[12] Judge Farnan took the dishonest use of a document charges as the lead offences. The Judge regarded the particular offending which was the subject of those charges as relatively minor. She therefore took a starting point of 12 months, which took account of both charges.
[13] On the basis that the appellant had at least 68 previous convictions for similar offending, the Judge uplifted the sentence by six months.
[14] The appellant was convicted and fined on the charge of driving while forbidden and was convicted and discharged on the drug charge.
[15] The Judge then used the theft charges and the receiving charge to uplift the sentence by another six months, taking the starting point to 24 months before a
25 per cent discount was allowed for the appellant’s guilty pleas.
[16] After noting the appellant’s manifested desire to correct his behaviour and a letter he had written to the Judge, the Judge settled on a six month discount, yielding an 18 month end sentence. It is not entirely clear whether the Judge intended that the appellant’s behaviour and letter would form the basis for a discount in the sentence additional to the 25 per cent for his guilty pleas.2 The Judge had stated that, but for the appellant’s letter and his counsel’s submissions, the appellant would simply have got the 25 per cent discount and “no other discount at all”.3 However, in taking six months off a 24 month sentence it does seem that the result of the Judge’s calculations was that the appellant only received the 25 per cent discount. This is an issue on appeal.
[17] In any event, the Judge then deducted a further three months after considering the totality of the offending.
2 At [25].
3 At [23].
[18] The final sentence was 15 months’ imprisonment followed by a requirement to fulfil special release conditions for drug and alcohol counselling and related physiological and mental health assessments.
Approach on appeal
[19] An appeal of sentence is governed by s 250(2) of the Criminal Procedure Act 2011. I must allow the appeal if, I am satisfied that, for any reason there is an error in the sentence imposed and a different sentence should be imposed.
[20] In Tutakangahau v R, the Court of Appeal confirmed the 2011 Act does not alter the previous approach to appeals against sentence, and an error in sentencing will include where the sentence is “clearly excessive”.4
Was there a mathematical error?
[21] The mathematical error alleged is that the District Court Judge sentenced twice for the related theft and receiving charges. The appellant relies on [22] and [28] in the judgment to support this submission. Having set the starting point for the two lead charges of using a document dishonestly, the District Court Judge stated:
[22] That then leaves me with the four theft matters and the receiving charges. I must add whatever penalties I think are appropriate by way of starting point to that starting point [sic] and uplift that I have imposed in relation to the using a document [sic]. What I could do is add a further six months on the theft charges and the receiving on their own. That would then take it to a 24-month and sentence [sic] before the discounts and any mitigating factors.
[22] She then says:
[28] In relation to the four theft charges and the receiving charges, you are sentenced to two months’ imprisonment, but that is going to be concurrent with the 15 months that I am imposing upon you in relation to the using the documents charges.
[23] In written submissions the appellant stated that the “theft and receiving charges were applied to the sentence twice, being at [22] and [28]”. While he
4 Tutakangahau v R [2014] 3 NZLR 482 (CA).
acknowledges that, in one sense, this “error” had no bearing on the final outcome, as “the second counting of the four charges led to a concurrent sentence, and Her Honour had taken into account the totality principle at [26]”, he submitted that by “inadvertently” adding the six months at [22], this led to a higher than appropriate starting point. In oral submissions however, Mr Cadogan accepted that the Crown’s explanation made sense and focused more on the second and third ground of appeal.
Conclusion on first ground of appeal
[24] This ground of appeal is simply addressed. As the respondent says, the Judge structured the end sentence this way to account for all charges which the appellant was sentenced on. It is common practice for ancillary offences to be considered as relevant reasons for adjusting the starting point on the lead offences, and then for discrete concurrent sentences to be articulated for those offences at the end of the judgment. This discrete sentence is simply to indicate what sentence the offending would have attracted had it been committed in isolation. It does not, of course, bear on the actual sentence the defendant will serve.
[25] As the appellant acknowledges the Judge, in any event, exercised her judgment to the sentence’s totality and the expression of a concurrent sentence for the ancillary offending did not in any way alter that judgment. There was no mathematical error or double counting.
No reduction in sentence for remorse or steps taken
[26] The Judge did acknowledge that in light of the information before her, it was appropriate to give both a 25 per cent discount for the appellant’s early guilty pleas and some further credit for remorse and the steps the appellant had taken to address his offending. In that regard she said:
[23] In your case, I must first give you a 25 per cent discount for your early guilty pleas. I accept that they were not necessarily entered at the absolute first opportunity, but you have been in Queenstown and I know some of those charges probably took some time to find you. Had I not received the helpful submissions from your counsel today and had I not read the letter from you, I simply would have given you the 25 per cent discount for your guilty plea and no other discount at all.
[24] However, I have taken into account what Mr Cadogan has said on your behalf. He has provided some helpful information about you. It is unfortunate that you did not tell Community Probation that information yourself. I am heartened by the letter that you have written to me. However, you need to now ‘walk the talk’ and on the basis of that letter and counsel’s submissions, I am prepared to give you some credit for your remorse and for the steps you have taken in terms of that care plan to reflect further mitigation.
[25] Accordingly, I am prepared, in total, to give you a discount of six months off the 4 months that I consider to be an appropriate penalty. That would then leave me with an 18-month end-sentence.
[27] The appellant submits, and the Crown accepts, that the sentencing judge did not appear to make any discount for remorse and steps taken to address the risk of reoffending despite saying this was appropriate.
[28] However, the Crown notes that the three month deduction in relation to the totality principle could be seen as redressing this error as the Judge stood back and looked at the sentence as a whole before making the three month discount.
Conclusion on second ground of appeal
[29] I accept that the Judge does appear to have erroneously omitted to apply a discount for remorse and the steps taken to address the appellant’s offending. For that reason, I cannot be certain whether or not the further three months taken off to reflect the totality principle reflected the Judge’s reasoning on this issue. There is, therefore, a reason to review the sentence afresh, to ensure the end sentence is not out of line with that which would have been imposed had the issue of remorse and steps taken, been expressly addressed at this stage of sentencing.
Was the sentence manifestly excessive?
[30] The third ground of appeal was that, taking into account the factors which go to the seriousness of the offending in cases involving dishonest use of a document, this was an offence at the lowest end of seriousness. That, coupled with the particularly high uplift for previous convictions, and a lack of discount for remorse, meant the end sentence was manifestly excessive.
[31] Both counsel accepted that the decision in R v Varjan, gave general guidance on the factors to take into account when assessing a defendant’s culpability in fraud cases, including using a document with intent to defraud.5
[32] The Court stated in that case:
[22] Culpability is to be assessed by reference to the circumstances in such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[33] Mr Cadogan submitted that on every factor, the document charges involved offending at the least serious end. The use of the stolen drivers licence to register two cars in another person’s name was not a use which involved the purchasing of the vehicles in terms of any monetary transaction. Furthermore, the magnitude and sophistication of the offending was minimal. There was only one victim (being the licence holder) and that person suffered no direct financial loss from the use of the licence. The impact on that victim would be limited to inconvenience. There was no serious breach of trust in that the victim was a stranger to the appellant. Furthermore, the monetary gain to the appellant was almost zero.
[34] The appellant cited the recent Court of Appeal case of Costello v R, where one of the defendants used false information about his finances to a finance company in order to purchase a $9,845 car.6 The Court of Appeal assessed the culpability of the appellant in that case as low and set a starting point of 18 months, which is six months less than the starting point used in the present case, despite there being an actual loss to the finance company.
[35] The appellant also drew the Court’s attention to Webb v R, which involved seven charges of using a document and one of obtaining by deception and benefit fraud totalling $11,608.7 The appellant in that case was originally sentenced to
100 hours community work, but that was replaced with six months’ community
5 R v Varjan CA97-03, 26 June 2003.
6 Costello v R [2015] NZCA 512.
7 Webb v R [2015] NZHC 2597.
detention when he was found unfit. That was reduced to four months’ community detention on appeal. The appellant submitted that the difference between the four months’ community detention imposed in Webb, when there was $11,608 in offending value, as opposed to the 15 months’ imprisonment in the present matter where the amount lost was only $140, was “glaring”.
[36] The Crown provided a range of comparative caselaw including Rako v R,8 where a starting point of 18 months’ imprisonment was adopted on the 11 charges of using a document to obtain approximately $1,800 from a tourist the defendant had befriended, Bennett v Police,9 where a starting point of 18 months’ imprisonment was adopted on six charges of obtaining by deception, where the defendant obtained
$3,091, and Tiopira v Police,10 where a starting point of 30 months’ imprisonment
was upheld albeit it was said to be at “the top of the available range” for 33 charges of dishonestly using a document and four charges of receiving stolen credit or Eftpos cards to obtain $11,606. The point was also made by the Court of Appeal in Rako, that culpability is not to be measured solely, or even primarily, by reference to the amount at issue.11
[37] Having regard to these, and other cases provided by counsel, I accept that
12 months’ imprisonment is on the high side, but cannot be said to be outside the available range.
[38] However, the next factor contributing to the end sentence is the uplift for previous offending. The appellant submitted that the six month uplift was too high, despite the appellant’s poor record, and referred to the case of Tamihana v R, where the Court of Appeal cautioned against increasing a sentence “merely by reason of those previous convictions” as “a prisoner should not be sentenced again for an offence which he has already expiated”.12 In Tamihana a six month uplift to a starting point of 18 months was held to be disproportionate as it had the effect of
re-punishing Mr Tamihana for earlier offending. It was considered that an uplift of
8 Rako v R [2015] NZCA 463.
9 Bennett v Police [2015] NZHC 2592.
10 Tiopira v Police [2012] NZHC 1720.
11 At [10].
12 Tamihana v R [2015] NZCA 169 at.
three months would have been justified, primarily as a deterrent given his proclivity for that type of offending.
[39] The Crown says, in contrast, that the six month uplift was appropriate given the extensive criminal history the appellant had, which the judge observed included at least 68 convictions for dishonesty offences. In support of that, it was noted that in Rako, a six month uplift was found to be appropriate where the offender had
17 previous convictions for dishonesty offences.
[40] However, in Rako, the Court of Appeal upheld the Judge’s decision to adopt a starting point of 18 months’ imprisonment for the lead offending and then apply an uplift of three months for Mr Rako’s prior convictions for similar offending. In Tiopira the uplift for 71 previous convictions, most of which were dishonesty offences, was six months on a 30 month sentence which is a 20 per cent uplift. Even in Costello, the appropriate starting point for Nicholas Costello, the first defendant, was held to be 18 months’ imprisonment, which was uplifted by six months to reflect both his previous convictions and the fact this offending occurred while he was on parole. In total, that is a 33 per cent uplift to account for two factors. Similarly, for Jonathan Costello, the other defendant, even though a six month uplift was applied to a 12 month starting point, this was to reflect both his previous criminal history and the fact his offending occurred when he was on bail.
[41] I accept, therefore, that a 50 per cent uplift for prior convictions alone, ventures into the arena of resentencing for previous convictions. In all the circumstances, and to ensure the uplift is proportionate to the starting point of
12 months, I consider an uplift of only three months should have been applied.
[42] Having regard to the failure to apply the intended discount for remorse and positive steps taken, and the disproportionately high uplift, I am satisfied that there was an error in sentencing. However, I must also consider whether it justifies a different sentence being imposed.
[43] In sentencing Mr Witana I would retain the starting point of 12 months that the District Court Judge imposed for the lead offences, then uplift that by
three months for the previous offending and six months for the other offending involved, to reach a total of 21 months.
[44] From this, I would deduct two months, or a little over 10 per cent, for remorse and steps taken. In that regard, I think the evidence of remorse and steps taken is limited to the letter he provided to the Court. His pre-sentence report noted Mr Witana’s failure to engage with interventions offered and his aggression and lack of co-operation.
[45] From the nominal end sentence of 19 months arrived at, the discount of
25 per cent for the guilty plea needs to be applied. This takes the sentence down to
14 months and one week. Looked at in the round, I see no reason to alter that sentence to reflect the totality of the offending.
[46] I consider that a sentence of 14 months and one weeks’ imprisonment is not sufficiently different from a sentence of 15 months’ imprisonment, that a different sentence should be imposed.
[47] Accordingly, the appeal is dismissed.
Solicitors:
T Cadogan, Alexandra
Preston Russell Law, Invercargill
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