Hoko v Police [2013] NZHC 2483 (23 September 2013)

Last Updated: 23 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000257

CRI-2013-404-000259 [2013] NZHC 2483

BETWEEN	DON HOKO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 September 2013
Appearances:	MB Mortimer for Appellant JB Hamlin for Respondent
Judgment:	23 September 2013

_{JUDGMENT OF WOOLFORD J}

Counsel: M Mortimer, Guardian Chambers, Auckland

_{Solicitors: Meredith Connell (B Hamlin), Crown Solicitor, Auckland}

HOKO v POLICE [2013] NZHC 2483 [23 September 2013]

Introduction

[1] The appellant appeals against a sentence of 18 months imprisonment imposed on four property related offences to which he had pleaded guilty, as being manifestly excessive.

Factual background

[2] On 10 March 2013, the appellant was stopped by Police while driving a stolen Mazda motor vehicle valued at $10,000. The appellant had no driver’s licence and had previously been prohibited from driving until he had obtained his licence. At the time, the appellant was on bail on a charge of unlawful interference with a motor vehicle committed three days previously.

[3] When he was stopped, Police found a pipe wrench and two screwdrivers, tools commonly used in the unlawful conversion of motor vehicles, in his backpack. Also located in the appellant’s backpack was a Go Pro camera, which had been stolen from a motor vehicle three days earlier. Located on the front passenger seat was another bag, which had been stolen from another motor vehicle the day before.

The bag contained miscellaneous geocaching¹ items.

[4] The appellant appeared in the Auckland District Court on 11 March 2013. After being remanded in custody, the appellant pleaded guilty on 27 March 2013, to one charge of unlawfully taking a motor vehicle, one charge of unlawfully interfering with a motor vehicle, one charge of receiving stolen property, which encapsulated the two separate thefts of property from motor vehicles, one charge of possession of instruments for conversion and one charge of driving when he had been forbidden to do so.

District Court decision

[5] On 6 May 2013, after the Court had received a pre-sentence report, the appellant was sentenced to 18 months imprisonment to be followed by release

_{conditions for six months. In his sentencing decision, Judge Gittos noted at the}

1. Geocaching is a treasure hunting game where you use a GPS device to hide and seek containers with other participants in the activity.

outset that the appellant must have only just been released from prison and commented on his 11 pages of previous convictions, mostly for property related offences. Judge Gittos also noted the probation officer’s recommendation of a further term of imprisonment. The Judge accepted that it was clear that drug abuse was a main driver of the appellant’s offending. He referred to counsel’s submissions that the appellant should be sentenced to intensive supervision, but was of the view that it was quite unlikely that the appellant would respond to a sentence of intensive supervision.

[6] Judge Gittos then commented that the community was entitled to expect a sentence that properly reflected the gravity of the appellant’s offending and deterred and denounced his criminal acts, but noted that the countervailing principles of imposing the least restrictive outcome and having regard to the appellant’s rehabilitative needs were reflected in the length of the term of the imprisonment to be imposed and the imposition of release conditions.

[7] Judge Gittos stated at [11]:²

I think the proper sentence in all the circumstances here, on these charges, all except the charge of driving while forbidden, is one of 18 months’ imprisonment to be followed by release conditions which are to prevail both special and standard release conditions until six months after the sentence expiry date.

[8] On all charges except driving while forbidden, the appellant was therefore sentenced to 18 months imprisonment followed by six months release conditions. On the charge of driving while forbidden, which is a fineable only offence, he was disqualified from holding a driver’s licence for six months.

Appeal against sentence

Approach to appeal

[9] An appeal against a sentence is a general appeal which shall be by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that

_{the High Court may quash or vary a sentence where it is “clearly excessive or}

² Police v Hoko DC Auckland CRI-2013-004-003412, 6 May 2013.

inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[10] The approach to be taken to appeals under s 121(3) was set out in Yorston v

Police where the Court said:³

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[11] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. There is nothing in the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar⁴, which deals with the proper approach to be taken by an appellate court in general appeals, to show that decision was intended to apply in appeals against sentence: see D v Police⁵ and Wright v Police.⁶

[12] When assessing whether a sentence is manifestly excessive, the Court must have regard not to the process undertaken by the Judge of the lower court but instead to the end sentence. Only when the end sentence is not within the available range will the sentence be said to be manifestly excessive. As noted by the Court of Appeal in R v MacCulloch:⁷

This Court has said on numerous occasions, for example, in R v Peters (CA

12/03, 14 May 2003), the issue of whether or not a sentence is manifestly excessive is to be examined in terms of the sentence actually passed, rather

than the process by which it is reached. In this case we consider it

appropriate to approach the matter on the basis of whether or not the lead sentences for the individual categories of offending considered by the Judge

³ _{Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].}

⁴ _{Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 (SC) at [16].}

⁵ _{D v Police HC Tauranga CRI-2008-470-22, 9 September 2008.}

⁶ _{Wright v Police HC Whangarei CRI-2009-488-47, 20 October 2009.}

⁷ R v MacCulloch [2004] NZCA 221; [2005] 2 NZLR 665 (CA) at [50].

are manifestly excessive, and then to consider whether the ultimate sentence offended against the totality principle.

Discussion

[13] There are a number of difficulties with the approach adopted by the Judge. The Court of Appeal decision in R v Taueki⁸ mandates a consistent approach to the sentencing exercise. The first step is to determine the starting point for the lead offence. The second step is to assess the aggravating and mitigating factors. The third step is to discount the sentence for a guilty plea, and the fourth step is to tailor the sentence to the individual case. In the present case, Judge Gittos did not adopt a

starting point on the lead offence of unlawfully taking a motor vehicle, nor identify an uplift to take into account the number of offences upon which the appellant was being sentenced, nor identify an uplift to reflect the appellant’s extensive previous convictions, nor specify the discount which was available for the appellant’s guilty pleas and remorse.

[14] In addition, the Judge appears to have imposed a sentence in excess of the maximum permitted by law for at least one of the offences. The charge of possessing instruments for conversion carries a maximum penalty of one year’s imprisonment. The Judge sentenced the appellant to 18 months imprisonment on that charge. There are also potential difficulties with the charge of receiving. The appellant was initially charged with two separate offences of receiving. The first charge related to the Go Pro camera. I do not have access to a copy of the second charge, which related to the geocaching items. However, the summary of facts states that the Go Pro camera was worth approximately $500, while the geocaching items had a combined value of $500. The original information in relation to the Go Pro camera specified its value at $500. Because the value of the property received did not exceed $500, the maximum sentence was therefore three months imprisonment.

[15] In Court the information was amended to include the geocaching items, with a specified value of $999, even though the summary of facts stated that their combined value was $500. If the original information relating to geocaching items

_{specified their value at $500, then the maximum penalty was again three months}

⁸ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

imprisonment. If the original information valued the geocaching items at $999, then the maximum penalty available was one year’s imprisonment. The Judge sentenced the appellant to 18 months imprisonment on the amended charge of receiving. The total value of the items specified in the information, after the amendment, was

$1,499. The maximum penalty may therefore have been seven years imprisonment. However, it does not seem right, in principle, that by combining an information with a maximum penalty of three months imprisonment and an information with a maximum penalty of either three months imprisonment or one year’s imprisonment, that the defendant would then be liable for a maximum sentence of seven years imprisonment. This reinforces the desirability of having one charge for each separate offence.

[16] There is no guideline judgment or any recognised tariff for the lead offence of unlawfully taking a motor vehicle. The appellant has seven previous convictions for unlawful taking or theft of a motor vehicle over a nine year period from 1999 to

2008. He has received a variety of sentences, including six months suspended imprisonment, six months imprisonment, an order that he come up for sentence if called upon, two years imprisonment, three months imprisonment (x 2), and 18 months imprisonment. An analysis of these sentences is instructive. The sentences of six months suspended imprisonment, six months imprisonment, two years imprisonment and 18 months imprisonment were all imposed on the appellant at the same time as sentences of exactly the same length for burglary, which carries a higher maximum penalty and were obviously the lead offences. Of the two sentences of three months imprisonment, one was imposed when the appellant was already serving a sentence of imprisonment so was made concurrent to the sentence he was already serving. The other was imposed at the same time as a sentence of 16 months imprisonment for burglary. The only time the appellant was sentenced just for unlawful taking and no other offence, was in November 2000 when he was convicted and ordered to come up for sentence if called upon.

[17] The most recent sentence of imprisonment imposed upon the appellant was

16 months imprisonment on 31 January 2013, about five weeks prior to the offending in the present case. This suggests that the appellant must have spent some time in custody prior to 31 January 2013, otherwise he would still have been in

custody in March 2013. On 31 January 2013, the appellant was sentenced on 21 charges and received 20 concurrent sentences of imprisonment. These included four charges of burglary for which he received 16 months imprisonment.

[18] Counsel for the Police cited three cases in support of the submission that the end sentence of 18 months imprisonment imposed by Judge Gittos was within the range of what was appropriate for such offending by this appellant. Counsel for the appellant cited two cases in support of her submission that the end sentence should have been in the range of 11 to 14 months imprisonment. Only one of the five cases is a Court of Appeal decision, In Singh v R,⁹ the Court of Appeal commented that a starting point of two and a half years imprisonment on the lead offence of unlawfully taking a motor vehicle was in itself not outside the available range, though it was

near the top of that range. An uplift of nine months imprisonment for the offender’s previous convictions was also thought to be high, but the Court of Appeal did not see this factor in itself as justifying interference by the Court. Later, the Court referred to the “very high” uplift for previous offending.

[19] Notwithstanding its opinion that neither figure was outside the available range, the Court thought there was something in counsel’s argument that the starting point taken by the sentencing Judge would not have been appropriate in the case of an offender without the sort of record Mr Singh had, and that therefore there was some risk that the Judge may have double-counted this factor in setting a higher starting point and, in addition, applying a high uplift. It accordingly allowed the appeal and reduced the end sentence by three months imprisonment.

[20] The Court of Appeal did not engage in an extensive review of other sentencing decisions or attempt to identify principles which might guide lower Courts.

[21] The Court of Appeal did, however, accept that the starting point in that case

may not have been appropriate in the case of an offender without Mr Singh’s record.

_{In my view, a sentencing Judge should always guard against the tendency to increase}

⁹ Singh v R [2011] NZCA 139.

the starting point in the case of an offender with a long list of previous convictions. Such a tendency has led to inconsistencies in sentencing burglars for instance.¹⁰

[22] In the present case, I am of the view that the starting point for a single charge of unlawful taking, if imprisonment is the appropriate sentence (and here counsel for the appellant accepts that a term of imprisonment is appropriate), is a term of nine to

12 months imprisonment. An uplift to take into account the number of offences upon which the appellant was being sentenced should be no more than two months imprisonment given the maximum sentence for unlawfully interfering with a motor vehicle (two years imprisonment), receiving (probably one year’s imprisonment), and possessing instruments for conversion (one year’s imprisonment). A further uplift of six months imprisonment is, in my view, also appropriate for the appellant’s extensive list of previous convictions.

[23] Adopting a starting point of 12 months imprisonment (as he was on bail and subject to release conditions at the time), and adding two months to recognise the other offences on which the appellant was being sentenced, and six months imprisonment for his previous convictions, leads to a sentence of 20 months imprisonment before any deduction for the appellant’s guilty plea and any remorse. Applying the standard 25 per cent discount for his guilty pleas, which were at the earliest opportunity, leads to a term of 15 months imprisonment. The appellant does appear remorseful and, in a handwritten letter to the sentencing Judge, expressed the earnest desire to address his drug addiction. He also seems to recognise, more so than he has done in the past, his family responsibilities, especially to his two children. Judge Gittos commented that it was to his credit that the appellant was beginning to think about what they must think of the situation. Perhaps at age 33, he is now starting to realise what the future holds for him if he continues to offend. I would allow another month for his remorse, which would lead to an end sentence of

14 months imprisonment.

[24] The appeal is accordingly allowed and the sentence of 18 months imprisonment quashed. In its place, the appellant is sentenced to 14 months

_{imprisonment on the charge of unlawfully taking a motor vehicle, together with the}

¹⁰ See comments of Court of Appeal in R v Columbus [2008] 192 at [13] –[15].

six months post release conditions recommended in the pre-sentence report, three months imprisonment on the charge of unlawfully interfering with a motor vehicle, two months imprisonment on the charge of receiving, and one month’s imprisonment on the charge of possession of instruments, all of which are concurrent. The sentence of six months disqualification on the charge of driving while forbidden stands.

.....................................

Woolford J