Woodstock v Police

[2019] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI 2019-409-0088

[2019] NZHC 2070

BETWEEN

KIERAN AARON WOODSTOCK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 August 2019

Appearances:

J Lucas for the Appellant

J Whitcombe for the Respondent

Judgment:

22 August 2019

ORAL JUDGMENT OF JAGOSE J

The judgment was delivered by me on 22 August 2019.

……………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

J Lucas, Barrister Christchurch Raymond Donnelly & Co, Christchurch

WOODSTOCK v NEW ZEALAND POLICE [2019] NZHC 2070 [22 August 2019]

[1]    Kieran Woodstock appeals his sentence of two years and two months’ imprisonment, imposed by Judge A D Garland in the District Court at Christchurch on 29 May 2019.1 The sentence related to vehicle conversion,2 reckless driving,3 failing to stop,4 and recidivist driving while suspended,5 in mid-2017, and four subsequent charges of vehicle receiving6 in late-2017. He appeals the sentence as inadequately recognising his youth.

Background

[2]    Mr Woodstock was suspended from driving for three months from 29 May 2017. He nonetheless was observed driving a stolen car on 15 August 2017. He took off from police signalling him to stop, at speeds well in excess of the applicable speed limits, through and into oncoming heavy traffic, which had to take avoiding action. He was later found in possession of another three stolen cars, valued between $12,000 and

$30,000.

[3]    Judge Garland took the receiving charges as the lead offending, justifying a starting point of two years and six months’ imprisonment, uplifted by six months for the aggravating driving offences. Turning to Mr Woodstock’s personal factors, the Judge declined further to uplift for his five previous dishonesty convictions, including three for unlawfully taking motor vehicles. He gave discounts of three months for Mr Woodstock’s uneventful time on electronically-monitored bail, and seven months for early guilty pleas on three of the receiving charges, resulting in the end sentence of two years and two months’ imprisonment.

Issues on appeal

[4]    Mr Woodstock was 21 years old at the time of the offending. His counsel, Josh Lucas, says a further three to four month discount should have been applied in recognition of his youth, which is recognised as leading to poor decision-making,

1      Police v Woodstock [2019] NZDC 10396.

2      Crimes Act 1961, s 226(1): maximum seven years’ imprisonment.

3      Land Transport Act 1998, s 35(1)(a): maximum three months’ imprisonment.

4      Section 52A(1)(a)(ii): maximum $10,000 fine.

5      Section 32(1)(c) and (4): maximum two years’ imprisonment.

6      Crimes Act 1961, ss 246(1) and 247: maximum seven years’ imprisonment.

while offering larger prospects for rehabilitation. Imprisonment of such immature and vulnerable offenders is significant punishment.

Approach to appeals against sentence

[5]    I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.7 In any other case, I must dismiss the appeal.8 The approach previously taken by courts on sentencing appeals continues to apply;9 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.10 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.11

Discussion

[6]    An offender’s youth undeniably is a material consideration in sentencing,12 but:13

… [it] cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed.

[7]    An example of such seriousness can be seen in Richards v R, in relation to reckless driving:14

Offending of this kind is most commonly carried out by young, immature, male drivers. While that does not mean a discount for youth can never be appropriate in such cases, it is noteworthy Parliament increased the sanction for this kind of offending. As this Court noted in Gacitua v R, while it is regrettable that young men of unblemished character and obvious potential

7      Criminal Procedure Act 2011, s 250(2).

8      Section 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

10     At [33] and [35].

11     Ripia v R [2011] NZCA 101 at [15].

12 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77], citing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [69]; R v Chankau [2007] NZCA 587 at [26]; R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [22]; R v Mahoni (1998) 15 CRNZ 428 (CA) at 436– 437; and R v Titoko CA144/96, 11 September 1996.

13 Pouwhare v R, above n 12, at [96].

14 Richards v R [2017] NZCA 232 at [40] (footnotes omitted).

can face lengthy prison terms, “the public interest in discouraging dangerous and grossly irresponsible driving must prevail”.

Although Mr Woodstock’s lead offences are for receiving, rather than driving, offences, the overall vehicle-related nature of his offending – including exceedingly reckless driving in avoidance of police – engages similar considerations.

[8]    Judge Garland had specific regard for “the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”.15 That may be implicit regard for youth. He applied no uplift for prior offending. His guilty plea discount exceeds 25 per cent of the initial term, even although only applicable to some of the charges.

[9]    Still, it is the end-sentence that matters. The starting point rightly is not challenged.16 The absence of any discount for youth is balanced by the absence of any uplift for prior offending.17 Such uplift certainly was available, and in comparable duration to that now sought to be discounted.18 From that perspective, it cannot be said the sentence is manifestly excessive.

Result

[10]The appeal is dismissed.

—Jagose J

15     Sentencing Act 2002, s 16(1).

16     Cribb v Police HC Hamilton CRI-2010-419-0046, 8 July 2010.

17     See, similarly, Tukaki v R [2013] NZCA 411 at [18], where the Court of Appeal addressed the lack of youth discount by removing the uplift for prior convictions.

18     Rako v R [2015] NZCA 463 at [14]–[15]; Turner v R [2014] NZCA 454 at [12]; and Craigie v R

[2012] NZCA 67 at [28]–[30].