Wright v Police

[2020] NZHC 2980

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-152

[2020] NZHC 2980

BETWEEN

NICHOLAS PETER WILLIAM WRIGHT

Appellant

AND

NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS

Respondents

Hearing:

On submissions filed 23 October 2020, 5 March 2020

Appearances:

E F Nicol for Appellant

A M Harvey for Respondent

Judgment:

11 November 2020

JUDGMENT OF OSBORNE J

Introduction

[1]    On 15 September 2020, Nicholas Wright was sentenced by Judge Brandts- Giesen to four months and two weeks’ home detention and disqualified from driving for six months. He had pleaded guilty to a charge of reckless receiving and a charge of breaching a community work sentence.1 Mr Wright appeals against the disqualification on the ground the order for disqualification should not have been made.

1      Police v Wright [2020] NZDC 18928.

WRIGHT v NZ POLICE [2020] NZHC 2980 [11 November 2020]

Facts

[2]    Between 6 pm on 14 December 2019 and 10 am on 15 December 2019 the victim’s Nissan Navara (“the stolen car”), valued at $33,000, was stolen. Mr Wright came into possession of the stolen car.

[3]    On 3 January 2020, Mr Wright purchased a Nissan Navara with its own licence number (“Mr Wright’s car”). On 5 January 2020, an associate of Mr Wright changed the ownership of Mr Wright’s car into his name. On 6 January 2020, the associate purchased new plates for Mr Wright’s car on the basis that the old plates were damaged. He was issued new plates with a new licence number.

[4]    Mr Wright cut the chassis numbers out of the chassis of both Mr Wright’s car and of the stolen car. He then welded the number from Mr Wright’s car onto the chassis of the stolen car, grinding it back down to blend in (though this was still visible). Mr Wright then removed the manufacturer’s ID tag from Mr Wright’s car and riveted it onto the driver’s door B pillar of the stolen car (despite vehicles of 2018 manufacture having their ID tags on the driver’s door A pillar). This ID tag was a sticker and was peeled off, and replaced with a generic sticker half covering the glue residue left on the pillar.

District Court decision

[5]    Judge Brandts-Giesen noted the sophistication in the steps Mr Wright took to avoid detection of his receipt of the stolen vehicle. The Judge adopted a starting point of 10 months’ imprisonment, relying in particular on the value of the vehicle. He then made an uplift of three months for previous dishonesty convictions and a further one- month uplift for the breach of his community work charge, arriving at 14 months. The Judge then gave a full 25 per cent discount for the guilty pleas (which he described as “probably somewhat generous”) and a further 10 per cent discount for Mr Wright’s suffering from anxiety. His Honour thus arrived at an indicative end sentence of nine months’ imprisonment. He converted this to four months and two weeks’ home detention. The Judge also cancelled the community work sentence.

[6]    Finally, the Judge disqualified Mr Wright from driving for six months because, “a motor vehicle was involved in this offending”. His Honour explained:2

I think there needs to be a reminder not just to Mr Wright but to all those others out in the community that this sort of offending is going to result in people losing their wheels.

Principles on appeal

[7]    Appeals against sentence are as of right under s 244 of the Criminal Procedure Act 2011. They must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision) — “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.4 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5 The focus of an appellate court is “primarily … on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.6

Submissions

[8]    Ms Nicol for Mr Wright submits Judge Brandts-Giesen had no power to order disqualification from driving under s 124 Sentencing Act 2002. This was because the reckless receiving was not facilitated by the use of a motor vehicle under either limb of s 124(2) of the Act.

[9]    Mr Harvey for the Police concedes an order under s 124 should likely not have been made.

2 At [12].

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

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

6      Skipper v R [2011] NZCA 250 at [28].

Analysis

[10]   In the discussion which follows, (I have adopted with some elaboration), Ms Nichol’s submission which correctly and succinctly identified the error in the District Court’s disqualification order.

[11]   Before an order under s 124 Sentencing Act may be made, the jurisdictional threshold must be met.7 The section relevantly provides:

124     Power of court to disqualify offenders from driving motor vehicles

…

(2)A court may exercise the power [to disqualify a person from holding or obtaining a driver licence] if the person is convicted of [an imprisonable offence outside of the Land Transport Act 1998] and the court is satisfied that,—

(a)the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or

(b)a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.

[12]   Section 124 was given a narrower scope, through the threshold tests in subs (2)(a) and (b), on the recommendation of the Select Committee during the Bill’s passage through Parliament. This was to ensure s 124’s power was “more logical” by removing jurisdictional limbs with only “tenuous connections with a motor vehicle”.8 The Select Committee reported that: “[t]he amendments limit the criteria for disqualification to those which either have relevance to the commission of the offence or to avoidance of justice afterwards”.9

For example, the draft provision was amended to remove the availability of disqualification where “the offence was committed in respect of a motor vehicle”.10

7      Mathias v Police [2016] NZHC 959 at [24].

8      Sentencing and Parole Reform Bill 2001 (148-2) (select committee report) at 16.

9      Select Committee report, above n 8, at 16.

10     Sentencing and Parole Reform Bill 2001 (148-1), cl 112(2)(e).

[13]   Under s 124 as it was enacted, an order for disqualification may be made only where either the commission of the offence was “facilitated by the use of a motor vehicle” or where a motor vehicle was used by the offender “for the purpose facilitating [their] flight or avoiding [their] detection or arrest after the commission of the offence” (emphasis added).11 It is not enough that a vehicle was merely “involved with” the offending. If the purpose of disqualification from driving is understood as being to limit the capacity of the offender to offend in a similar way again,12 the “use” contemplated by Parliament must have been intended to mean (in almost every case) a motor vehicle’s primary purpose of transportation.

[14]   Furthermore, any transportation must have facilitated the commission of the offence. For example (under the broader provision in s 83 Criminal Justice Act 1985) in Leonard v Police Anderson J quashed a disqualification order where police found an offender storing cannabis in the glovebox of his vehicle. His Honour observed that: “[w]here…the transportation is merely an incident of possession as is the case here, the circumstances must be looked at carefully to ensure that an injustice is not done…” (emphasis added).13

[15]   In the present case, Mr Wright came into possession of a stolen vehicle, being reckless as to whether it had been stolen. He did not use the motor vehicle to facilitate his crime. The crime essentially consisted of the act of (recklessly) coming into possession of the vehicle. Next, he used objects (plates, chassis number and a manufacturer ID tag) from another vehicle to avoid detection of his crime, but as discussed this was not “use” of a motor vehicle as is contemplated by s 124 Sentencing Act. Ultimately, Mr Wright’s ability to drive a motor vehicle did not contribute to the offending.14

[16]   Even if there were jurisdiction to make a s 124 order here, neither Mr Wright nor the respondents were given warning that a s 124 order may be made or the

11     Subsection (2).

12     See Taiapa v R [2019] NZCA 524 at [24]–[29]; and Mathias, above n 7, at [39].

13     Leonard v Police (1988) 3 CRNZ 208 (HC) at 209-210.

14     See Mathias, above n 12, at [39].

opportunity to address the Court on the issue.15 A rehearing would have been justified on that basis also.

Outcome

[17]    The appeal will be allowed and the order for disqualification from driving under s 124 Sentencing Act set aside.

Orders

[18]The disqualification order made on 15 September 2020 is quashed.

Osborne J

Solicitors:

Public Defence Service, Christchurch for Appellant Crown Solicitor, Christchurch for Respondents

15 In South Australia, it has been found these procedural steps are required before the making of such an order for disqualification, a requirement noted in Geoff Hall (ed) Hall’s Sentencing (online ed, LexisNexis) at [SA124.1(b)], citing Wyngaarden v Samuels (1973) 4 SASR 420 (SASC); Hanley v Steel (1975) 5 SASR 242 (SASCFC); and Reeves v Police (1998) 70 SASR 451 (SASC).