Woods v Police

[2017] NZHC 3093

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-40 [2017] NZHC 3093

BETWEEN

DANIEL FRANCIS WOODS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 December 2017
Appearances:	S G Vidal for the Appellant R W Donnelly for the Respondent
Judgment:	13 December 2017

JUDGMENT OF DUNNINGHAM J

Introduction

[1]      Between 6 and 16 June 2017, the appellant, Daniel Francis Woods, embarked on a spate of offending which left him facing 12 charges. These included six charges of burglary and one charge each of; unlawfully in a yard, receiving under $500, resisting police, assaulting a police officer, sustained loss of traction, and breach of release conditions.

[2]      He pleaded guilty to all charges and was sentenced in the Invercargill District

Court on 10 August 2017, to two years and seven months’ imprisonment.1

[3]      He now appeals his sentence on the basis that:

1      Police v Woods [2017] NZDC 17796.

WOODS v NEW ZEALAND POLICE [2017] NZHC 3093 [13 December 2017]

(a)       the original starting point was too high;

(b)      the uplift applied for the receiving charge was in error;

(c)       the uplifts applied for the other offending were too great; and

(d)      in all the circumstances the end sentence was manifestly excessive.

Background to the offending

[4]      The offending which resulted in these charges began on 6 June 2017, when the appellant attempted to sell 27 stolen steel wheel rims to a scrap metal dealer in Invercargill.

[5]      Between 9 and 17 June 2017, the appellant entered various farm sheds and a workshop, and stole chainsaws, tools, and other farm equipment. Some of these items were recovered, but not all were.

[6]      On 10 June 2017, the appellant was stopped by police, because his vehicle number plates had either been removed or obscured.   Although he behaved aggressively towards the police, he was permitted to leave after explaining that he had covered his number plates to take photographs in order to sell the vehicle.  However, the appellant then drove off in such a way that he caused his tyres to skid and lose traction, and he continued to drive in this manner for a distance up the road.  As a consequence, he was again stopped by police and arrested for sustained loss of traction. He then became abusive and uncooperative. When advised that he was going to be handcuffed he threatened to assault the officer.  When police then attempted to handcuff him, a scuffle ensued in which one of the police officers sustained minor injuries.

[7]      The breach of release conditions charge arose at the time the appellant was arrested for sustained loss of traction, as he was found to have a 15 year old girl in the car with him.  At the time he was subject to a release condition not to associate with anyone under the age of 16, following his imprisonment in 2014 for sexual connection with a minor.

The District Court decision

[8]      After reciting the facts of the offending, the effects of that offending on the victims, and information provided about the appellant in the pre-sentence report, the Judge turned to the sentencing exercise.   He held that the lead charges were the burglaries.  He acknowledged that they were not of dwelling houses but nevertheless, being burglaries from rural properties, they had had a significant impact on the victims and their families. Given the number of burglaries, he considered that a starting point of two years and nine months’ imprisonment was appropriate.

[9]      To that he added an uplift of three months for the receiving charge, one month for the assault on police and for resisting police, and a further one month for the sustained loss of traction.  He also applied an uplift of one month for the breach of release conditions and uplifted  the sentence a further two months to reflect the appellant’s raft of previous convictions.  That resulted in a cumulative starting point of three years five months’ imprisonment.

[10]     The Judge then considered whether, in light of the totality principle, that sentence fairly reflected the totality of the offending involved here. He concluded that it did.  He then applied a full discount for the appellant’s guilty pleas, resulting in an end sentence of 31 months’ imprisonment.  He also ordered payment of reparation on four charges of burglary, amounting to $950.

Principles on appeal

[11]     Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.  Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2  The Court will not engage in an exercise which amounts

to mere tinkering with the sentence.3

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Maihi v R [2013] NZCA 69.

[12]     If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion.

[13]     The focus on most appeals is thus on the end sentence.  In Tutakangahau v R,4

the Court of Appeal held that:5

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

Was the starting point too high?

[14]     The appellant submits that a starting point for the burglary offending should have been in the range of 30 months instead of 33 months, saying that none of the aggravating factors identified in Senior v Police were present here.6   The rural nature of the targeted farm properties meant there was little risk of confrontation and while there were six burglaries, none of them demonstrated sophisticated planning.

[15]     The respondent, however, notes that the appellant committed six burglaries in under three weeks, and was assisted on three occasions with a co-offender acting as a look out. Furthermore, he was targeting rural sheds for tools to sell and such offending impacts directly on the livelihoods of the owners.  In addition, there is always the possibility of running into an owner, as occurred in respect of the 19 June conviction for unlawful entering.  The victim impact statements indicate the burglaries of these rural sheds have had significant impacts on the victims who are often living close by with their families in isolated areas, and are therefore more vulnerable.

[16]     Judge Callaghan’s starting point was reached having regard to the number of burglaries, their proximity in time, and their relative impacts in terms of effect on the

victims involved.  His sentencing notes provide:

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

5 At [36].

6      Senior v Police (2000) 18 CRNZ 340 (HC).

[16]     In  sentencing  you,  the  lead  charges  have  to  be  the  burglaries. Accepting that they are not of dwellinghouses, they nonetheless have had severe impact upon the victims and their families. You were the person who went onto the property to steal the items while your co-offender was the lookout. You were also the driver of the motor vehicle.

[17]      The starting point has to be imprisonment for offending of this nature. While accepting they are not serious burglaries of their kind, the number of them is aggravating. In my view a starting point of two years and nine months’ is appropriate…

[17]     The appellant submits the available range for this type of offending is between two and a half and three and a half years’ imprisonment, so the starting point adopted was well within range.

[18]     Counsel have drawn the Court’s attention to various authorities which are relied on to identify the proper starting point in this case. As the Court of Appeal held in Arahanga v R, a single burglary of a dwelling house at the “relatively minor end of the scale” attracts a starting point of between 18 months and two and a half years.7

However, as the Judge noted, these are not residential dwellings, and so the starting

point must be commensurately lower.

[19]     In McArthur v Police,8  a 16 month starting point was upheld in respect of two burglary charges, relating to the theft on a single night, of a small amount of property, from sheds on residential properties. Clearly the present offending, involving a greater number of charges, over an extended period of time, and exhibiting a greater degree of planning, is more serious.  In Chalmers v Police, the High Court on appeal considered that an adjusted starting point of 16 months, on two charges of burglary of the same rural property, was “stern” but within range.9   Again, the offending here is substantially more serious in its scope.

[20]     Overall, I consider that the starting point of 33 months adopted here was well within range for this type of offending. Indeed, the appellant’s proposed starting point

of 30 months reinforces this.

7      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

8      McArthur v Police [2014] NZHC 201.

9      Chalmers v Police [2017] NZHC 1434 at [17].

[21]     This ground of appeal fails.

Was the uplift for the receiving charge in error?

[22]     The appellant submits that there is no rationale for effectively imposing, by way of cumulative uplift, the maximum penalty of three months for receiving when this offending was not the most serious of its kind.  That is accepted, in part, by the respondent who acknowledges that, looked at on its own, the offending was unexceptionable, and an uplift which reflected the maximum penalty available, was inappropriate.

[23]     I agree.  The Sentencing Act 2002 provides that maximum penalties must be imposed where the offending is within the most serious of cases,10 and that penalties near to the maximum must be imposed where the offending is near to the most serious of cases.11   Neither of those circumstances apply here.

[24]     It follows that, on its own, the imposition of a three month uplift for the receiving charge was unjustified.   However, that is not the end of the matter.   On appeal, the focus must be on whether the end sentence as a whole was manifestly excessive.  In addition, the Court must be mindful not to engage in an exercise that amounts to mere “tinkering”.  This can only be decided after looking at the sentence that is finally imposed.

Was the uplift for loss of traction appropriate?

[25]     Having set out the factual background to the charge, Judge Callaghan did not discuss the relative seriousness of this offending in any detail.  He considered that it “is also separate and uplift of one month imprisonment is appropriate for that”.12

[26]     The maximum penalty for this offending is three months’ imprisonment.13  The appellant submits that, although he has previous convictions for dangerous driving, he

has none directly for sustained loss of traction, and accordingly this offending did not

10     Sentencing Act 2002, s 8(c).

11     Section 8(d).

12     Police v Woods, above n 1, at [20].

13     Land Transport Act 1998, s 35(2)(a).

warrant a separate uplift of one month.  In my view, there is a link between those previous dangerous driving convictions and the present loss of traction charge, such that the Judge was justified in treating this as more serious offending. While care must be taken to ensure that there has not been double-counting for that aggravating feature, given the global uplift, I do not consider the Judge was in error by imposing a small cumulative uplift for this offending.

Was the uplift for resisting and assaulting police appropriate?

[27]     The appellant submits that a one month uplift for this aspect of the offending was unwarranted. This uplift reflected two charges under the Summary Offences Act

1981. The assault charge has a maximum penalty of six months’ imprisonment,14 and

the  charge  of  resisting  police  carries  a  maximum  penalty  of  three  months’

imprisonment.15

[28]     The appellant notes that this offending occurred at the same time as the sustained loss of traction offending, presumably suggesting that this formed part and parcel of that offending. He also submits that the offending here was at the lower end of the spectrum as the police officer involved sustained only minor injuries in the form of cuts and grazes.

[29]     I consider, however, the offending is of a different kind to the sustained loss of traction offence, and a cumulative sentencing response was warranted, even though it formed part of a connected series of events.16   The fact that it was at the lower end of the spectrum is, to an extent, already reflected in the fact that the assault charge was laid under the Summary Offences Act and not the Crimes Act.  Finally, I consider the offending warranted an uplift because the summary of facts makes it clear it formed part of a clear pattern of aggressive and confrontational behaviour by the appellant towards the police on this occasion.  In the circumstances, I consider that an uplift of one month for these two offences was clearly available to the Judge.  This aspect of

the appeal fails.

14     Summary Offences Act 1981, s 10.

15     Summary Offences Act 1981, s 23(a).

16     Sentencing Act 2002, s 84(1).

Was the uplift for breach of release conditions appropriate?

[30]     The appellant submits that no uplift should have been imposed on this charge. That is consistent with his position that a one month uplift was sufficient to account for all offending other than the lead burglary charges.  The appellant emphasises that he has no previous convictions for breach of release conditions and, had he not been facing a custodial sentence for the other charges, he would not have received a prison sentence for this charge.  In reflecting the principle that the least restrictive sentence should be imposed that is appropriate in the circumstances, Ms Vidal, for the appellant, submitted that a conviction should have been entered but no other sentence imposed.

[31]     However, as the respondent submits, this was a particularly acute breach of a release condition, given that the condition was imposed following the appellant’s two convictions for sexual connection with a young person aged 12-16, in August 2014. The breach thus went to the heart of concerns raised by that previous offending. Coupled with the appellant’s noticeable lack of remorse for his present offending, this breach was especially troubling.   It was clearly separate offending, which would normally warrant a cumulative response.

[32]     In the circumstances, I am satisfied that the particular seriousness of the appellant’s breach, in the context of his previous offending, is such that a one month uplift on this account cannot be said to be manifestly excessive.

Was the sentence manifestly excessive overall?

[33]     The appellant submits that the Court should have adopted a starting point of 30 months’ imprisonment with a one month uplift for the other offending and two months for his previous convictions. Applying a 25 per cent reduction for entering guilty pleas at the first opportunity, that would result in an end sentence of 24 months and three weeks’ imprisonment.  Accordingly, the sentence of two years and seven months’

imprisonment was manifestly excessive.

[34]   However, as the respondent submits, the starting point for the burglary offending, together with the various uplifts, with the exception of the uplift on the receiving charge, tend towards the lower end of the permissible range.  Thus, while

the uplift for the receiving charge was not available to the sentencing Judge, the other aspects of sentencing do not persuade me that the end sentence of two years and seven months was manifestly excessive. In particular, I note that the Judge applied a modest two month uplift for the appellant’s relevant previous convictions which are not trifling.   They include convictions for dangerous driving in 2006, 2009 and 2014, various violence-related offences including resisting police and assaulting police, threatening to kill and behaving in a disorderly manner in 2012 and 2013, and for receiving in 2014. Many of these convictions resulted in community-based sentences and there are several further convictions for breaches of those community sentences.

[35]     Standing back and looking at the sentence as a whole, an uplift of six months on a starting point of two years nine months, which reflected a series of separate offences and a reasonably significant relevant criminal history, was not unjustified. Furthermore, the Judge, having reached a cumulative end starting point, gave careful regard to the principle of totality and concluded that it was not breached in this case.

[36]     I agree with that conclusion. For that reason, while the uplift for receiving was outside the available range, the appellant has failed to show that the end sentence, viewed as a whole, was manifestly excessive.

[37]     Accordingly, the appeal is dismissed.

Solicitors:

Southern Law, Invercargill

Preston Russell Law, Invercargill