Wood v Police

[2018] NZHC 1629

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000125

[2018] NZHC 1629

BETWEEN

JOSHUA RODOP WOOD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 July 2018
Counsel:	CW Farquhar for Appellant NB Porter for Respondent
Judgment:	4 July 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 4 July 2018 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

CW Farquhar, Auckland.

Crown Solicitor, Auckland.

WOOD v POLICE [2018] NZHC 1629 [4 July 2018]

The appeal

[1]    Judge B A Gibson sentenced Mr Wood to a term of imprisonment of two years and eight months after his “one man crime wave”.1 Mr Wood contends the sentence is manifestly excessive by approximately eight months.2 Police submit the sentence is comfortably within range. Central are charges of unlawfully taking a car; other car-related dishonesty; and reckless driving. Mr Wood failed to stop for Police and drove recklessly to escape them.

Facts

[2]    On 17 September 2016, someone stole Mr Ben Townend’s Mitsubishi Lancer. The car was worth $10,000. Days later Mr Wood attempted to “hot wire” it by crossing the  ignition  wires.   He   could  not.   On  21  September   2016,   someone   stole Ms Cecelia Wu’s Subaru car from her home. Mr Wood was seen driving it two days later, as captured by CCTV footage. Mr Wood was charged with unlawfully interfering with a car and unlawfully getting into a car.

[3]    On 17 December 2016, someone stole Mr Alexander McRobie’s Honda Torneo. It was worth $5,000. Mr Wood took the car the next day from colleagues, using a screwdriver to start it. Days later Police noticed the car near Mr Wood’s home. Inside his home, they found a cannabis “bong” and a glass pipe used to smoke methamphetamine. Mr Wood was charged with unlawfully taking a car, and possession of utensils for both cannabis and methamphetamine.

[4]    On the afternoon of 10 February 2017, someone broke into Mr Dion Pou’s car. And, stole his wallet. At 2.35 that afternoon, Mr Wood bought $59.29 of items using Mr Pou’s ATM card. Mr Wood was charged with using the card for pecuniary advantage.

[5]    Overnight on 1 March 2017, Mr Wood stole Mr Joel Sunde’s Mazda car worth approximately $10,000. Six days later, Mr Wood stole $40 worth of petrol for it. The

1      Police v Wood [2018] NZDC 5965 at [5].

2      In the District Court, Mr Wood accepted the sentence might be as much as two years and three months’ imprisonment.

next day (7 March 2017) Police approached the car. Mr Wood and a friend were inside. Mr Wood refused to get out and threatened the officers with a metal object. He resisted arrest. Police found a flick knife in the car, a screwdriver, torch, crowbar and homemade “ignition barrel puller”. Mr Wood was charged with possession of a knife in a public place, unlawfully taking a car, resisting Police and possession of instruments for conversion.

[6]    On 14 September 2017, Mr Wood stole Mr Ovidijus Trinkunas’ Honda Civic. The next day, he stole $40 worth of petrol. The Police helicopter was engaged. A “prolonged and dangerous pursuit” followed. Mr Wood:

(a)Repeatedly failed to stop.

(b)Drove up to 100 kilometres per hour in residential speed zones.

(c)Mounted the footpath “multiple times”. At one stage, Mr Wood “used the footpath like a road”.

(d)Ran “multiple” stop signs; and red lights.

(e)Drove close to pedestrians at speed, and into oncoming traffic.

[7]    Mr Wood abandoned the car. In it, Police found screwdrivers, vice grips and pliers, as well as a pair of knuckle dusters, a taser and knife. When arrested shortly thereafter, Mr Wood said he did not stop as he did not want to go back to jail. Mr Wood was charged with unlawfully taking a car, theft, failing to stop, reckless driving, possession of a restricted weapon and possession of an offensive weapon.

[8]    As will be apparent, much of Mr Wood’s offending occurred while on bail. On 2 June 2017, Mr Wood pleaded guilty to 17 charges:

(a)Three of unlawfully taking a car.

(b)Unlawfully interfering with a car.

(c)Unlawfully getting into a car.

(d)Two of stealing petrol.

(e)Failing to stop.

(f)Reckless driving.

(g)Possession of utensils (the cannabis bong).

(h)Possession of a methamphetamine pipe.

(i)Two of possession of an offensive weapon (the knuckle duster and the knife).

(j)Possession of a taser.

(k)Possession of implements for conversion.

(l)Using a document to obtain pecuniary advantage (the stolen ATM card).

(m)Resisting Police.

Sentence

[9] The Judge adopted a starting point of 16 months’ imprisonment in relation to Mr Wood’s first unlawful taking; see [2]. The Judge added 20 months’ imprisonment for all remaining offences, and uplifted the 36-month starting point by six months: Mr Wood has a record of dishonesty, and as observed, many of the offences were committed on bail. The Judge then mitigated the sentence by four months for Mr Wood’s “good intentions as expressed in the restorative justice report”, and then by 15 per cent for his guilty pleas.

Appeal grounds

[10]   Mr Wood takes no issue with the six-month uplift or restorative justice discount. But on his behalf, Ms Farquhar contends the Judge adopted an excessive starting point; failed to apply the totality principle; and gave inadequate discount for Mr Wood’s guilty pleas. For reasons that will become apparent, the first two points are conveniently addressed together.

Analysis

Starting point and totality

[11]   Mr Wood’s primary offence was unlawfully taking a car (x 3). The maximum penalty is seven years’ imprisonment.3 No guideline judgment exists. Case analysis is therefore necessary.

[12]   In Gibbons v Police,4 the defendant was convicted of a raft of offences committed over almost 12 months. These included three charges of unlawfully taking a car, one of unlawfully interfering with a car, and one of theft from a car. On appeal to the High Court, Ronald Young J held a starting point of two and a half years’ imprisonment in relation to the dishonesty offences was “easily … justified”.5

[13]   In Singh v R,6 the defendant took a car and unlawfully got into three others. He was also charged with three relatively minor thefts. The Court of Appeal concluded the starting point of two and a half years’ imprisonment was within the available range, albeit “near the top of that range”.7

[14]   In R Gurnick,8 the defendant was found guilty of one charge of unlawfully taking a car. The starting point appears to have been 18 months’ imprisonment. The Court of Appeal upheld the sentence. The case was a little unusual in that there were elements of “stand-over” and retribution: the victim had discovered a cannabis crop

3      Crimes Act 1961, s 226(1).

4      Gibbons v Police [2013] NZHC 2136.

5 At [28].

6      Singh v R [2011] NZCA 139.

7 At [11].

8      R v Gurnick CA286/05, 8 December 2005.

and reported it to the Police. The Court of Appeal observed linkage to “drug offending” and “an overlay of enforcement put this into the category of serious property offending”.9

[15]   In Taki v Police,10 the defendant was sentenced for one charge of unlawfully taking a car, one of theft, one of being in an enclosed yard, and two charges of breach of parole conditions. The primary offence was the unlawful taking. The car was worth

$2,000. Joe Williams J described the starting point of three years for the totality of the offending as “stern but … not manifestly excessive”.11

[16]   In Bell v Police,12 the defendant unlawfully took a car, stole the stereo from it and then drove recklessly and while disqualified. The decision pre-dates clear starting point elucidation, but it must have been at least four years’ imprisonment. Gendall J described this as “severe”, and adopted a starting point of imprisonment of more than three years (the precise figure is unclear). As with Mr Wood, Mr Bell failed to stop.

There was a “frenetic, lawless high speed” chase.13

[17]   Three other High Court decisions involve similar offending; a single instance of unlawful taking and related Police evasion: O’Sullivan v Police;14 Ratahi v Police;15 and Edwards v Police.16 Each is briefly discussed.

[18]   In O’Sullivan v Police, the defendant pleaded guilty to six charges: unlawfully taking a car, driving while disqualified, failing to stop, driving with excess breath alcohol, resisting arrest and possession of cannabis. Police observed the defendant driving  the  car  on  State  Highway  2.  He  did  not  stop,  and  was  pursued  for  17 kilometres. The defendant reached speeds of up to 150 kilometres per hour;17 drove

9      R v Gurnick, above n 8, at [25].

10     Taki v Police HC Rotorua CRI-2010-470-25, CRI-2010-470-26, 2 July 2010.

11 At [23]. The Judge’s assessment appears to have been influenced by Mr Taki’s criminal record, which disclosed extensive convictions for dishonesty. Somewhat unorthodoxly, that record was not separately analysed.

12     Bell v Police HC Napier AP58/97, 11 September 1997.

13     At p 3.

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

15     Ratahi v Police [2014] NZHC 2394.

16     Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010. See also Woolston v Police

[2017] NZHC 1079.

17     O’Sullivan v Police, above n 14, at [3]–[4].

through road spikes and kept going. He eventually stopped but then ran away, and resisted arrest. He was intoxicated too.18

[19]   On appeal, the High Court adopted a starting point of 12 months’ imprisonment for the lead charge of unlawfully taking a car. An uplift of eight months was considered appropriate for the associated offending, including the Police pursuit and driving with excess breath alcohol. The result: a global starting point of 20 months’ imprisonment.19

[20]   In Ratahi v Police, the defendant pleaded guilty to charges of unlawfully taking a car, reckless driving and failing to stop. The defendant broke into a car parked on the street, hotwired the ignition and drove away. Later that evening, Police tried to stop the car (to conduct a routine breath-test). The defendant accelerated away. He drove faster than 80 kilometres per hour in a residential speed zone; through a stop sign; and then at open road speed in 60 and 70 kilometre per hour areas.20 The defendant lost control of the car. He too ran off, but was caught.21

[21]   The High Court held a starting point of not more than 18 months’ imprisonment should be adopted for the unlawful taking, with an uplift of one month for the balance of charges.22

[22]   In Edwards v Police, the defendant pleaded guilty to charges of unlawfully taking a car, driving in a dangerous manner, driving while disqualified, unlawfully interfering with a car and breaching conditions of home detention. The defendant had stolen a car and was located the next day by Police. He drove away.23 The defendant wove through traffic; crossed the centre line several times; and drove on the wrong side of the road at speeds between 120 and 130 kilometres per hour. He also drove the wrong way up an off-ramp. Oncoming traffic forced him to make a u-turn; and he

18     O’Sullivan v Police, above n 14, at [4]–[5].

19     At [20]–[21].

20     Ratahi v Police, above n 15, at [1]–[3].

21     At [4]–[5].

22 At [22].

23     Edwards v Police, above n 16, at [4].

careered off the road.24 Like driving continued until the defendant eventually abandoned the car.

[23]   The High Court adopted a starting point of 15 months’ imprisonment for the charge of unlawfully taking a car. The Court applied an uplift of three months for associated offending.25

[24]   All this suggests a single unlawful taking charge can give rise to a starting point of at least 18 months’ imprisonment, if the offence has a significant aggravating feature or features; see Gurnick. If a defendant unlawfully takes a car and attempts to evade Police in a chase, typical global starting points range between 18 and 20 months’ imprisonment; see O’Sullivan, Ratahi and Edwards. But, an especially bad constellation can attract more; see Bell. If a defendant unlawfully takes several cars, or takes one and engages in other similar dishonesty, a starting point of two and a half years’ imprisonment or more may follow; see Gibbon, Taki and Singh.

[25]   Ms Farquhar placed significant reliance on Gibbon. There, up to $20,000 of damage was caused. However, Gibbon did not involve reckless driving or Police pursuit.26 Nor did it involve possession of various offensive weapons. Moreover, Ronald Young J did not identify a ceiling. As will be recalled, the Judge said a starting point of two and a half years was “easily reached”.

[26]   Mr Wood’s offending on 14 and 15 September 2017—see [6] and [7]— warranted a starting point of not less than 20 months’ imprisonment. After unlawfully taking a car, Mr Wood drove recklessly to evade Police. Only by chance was no one seriously injured—or worse. And, weapons were found in the stolen car, including a knife and taser.

[27]   The balance of Mr Wood’s offending, if treated separately from the 14 and 15 September offending, could have attracted the same term; see [2]–[5]. The remaining offences constituted a catalogue of crime: unlawfully taking a car (x 2); unlawfully

24     Edwards v Police, above n 16, at [4].

25 At [18].

26     The defendant took the cars on “joyrides”, thereby damaging them. However, he did not engage in reckless or dangerous driving.

interfering with a car; unlawfully getting into a car; stealing petrol; possession of utensils; possession of a methamphetamine pipe; possession of a knife in a public place; resisting Police; possession of instruments for conversion; and using a bank card for pecuniary advantage. This also addresses Ms Farquhar’s submission the Judge made no explicit allowance for totality. The Judge adopted a global starting point of 36 months—not 40 months, in turn implying a reduction of 10 percent for totality.

Guilty pleas

[28]   Mr Wood first appeared in the Waitakere District Court on 26 December 2016. As will be recalled, he pleaded guilty on 2 June 2017. Ms Farquhar contends the Judge erred in not affording a greater discount than 15 percent, as guilty pleas were foreshadowed from 16 March 2017.

[29]   I agree with the Judge. It is one thing to signal a guilty plea; it is another to enter one. Until a defendant pleads guilty, victims, witnesses and others cannot know the case is over. The same is true of everyone and everything else connected with the case—courts included. As Judge Gibson observed, the evidence against Mr Wood was strong. He admitted most of the offences to Police. There was other evidence too, including CCTV footage and footage from the Police helicopter. Fifteen percent was correct.

Result

[30]The appeal is dismissed.

[31]   I thank counsel for the quality of their submissions, especially their written submissions.

……………………………..

Downs J