Gideon v Police [2014] NZHC 1065 (21 May 2014)

Last Updated: 4 June 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2013-412-36
CRI 2013-412-37 [2014] NZHC 1065

BETWEEN	JASON SAMUEL GIDEON Appellant
AND	NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS COMMUNITY PROBATION SERVICE Respondents

Hearing:	8 May 2014 (via audio-visual link)
Appearances:	S G Vidal for Appellant R P Bates for Respondents
Judgment:	21 May 2014

_{JUDGMENT OF MANDER J}

Introduction

[1] This is an appeal from a sentence imposed by Judge Crosbie of 18 months imprisonment for the unlawful taking of a motor vehicle and breach of release conditions. The appellant argues that the sentence is manifestly excessive.

Factual background

[2] On the night of 15 October 2013, the appellant approached a vehicle parked in Leith Street, Dunedin. After gaining entry, the appellant used a screwdriver to break the lock and start the motor vehicle. On 18 October, the appellant was stopped on the highway between Cromwell and Queenstown. When initially spoken to by the Police, the appellant claimed that he had purchased the vehicle, although

_{subsequently he admitted he had stolen it some three days previous in Dunedin. In}

GIDEON v NEW ZEALAND POLICE & ANOR [2014] NZHC 1065 [21 May 2014]

explanation the appellant stated he needed a vehicle to get to a job interview in

Central Otago.

District Court Judge’s sentencing remarks

[3] In sentencing the appellant, Judge Crosbie noted that the offence of unlawfully taking a motor vehicle carries a maximum penalty of seven years and is considered a relatively serious offence. While not as serious as burglary, the Judge observed the importance and value of motor vehicles to most people and the impact of such offending on a victim.

[4] The learned District Court Judge observed the difficulty at times to distinguish between the theft of a motor vehicle and the charge of unlawfully taking. In the present circumstances it was apparent that the appellant intended to retain the vehicle both in order that he could get to his work in Central Otago and for the purpose of his continued employment. A comparison was made with burglaries relating to “bland industrial commercial type properties” which attract sentences of around 12 to 18 months, whereas sentences are higher for domestic burglaries. The seven year maximum for unlawfully taking a motor vehicle was considered in that context.

[5] The District Court noted the damage done to the vehicle and that the offence was committed at a time when the appellant was subject to release conditions. The Judge took a starting point of 12 months imprisonment to which he added a further 3 months for the separate breach of release conditions charge. In that regard, Judge Crosbie noted the need to take into account the totality principle and considered the breach represented separate offending.

[6] On top of the 15 months, it appears on the face of the sentencing notes that a further 3 months were added for what the Judge considered to be the aggravating feature of the unlawful taking having occurred while the appellant was subject to release conditions. It is apparent however from the final sentence imposed that only the original 3 months cumulative sentence was imposed in respect of the breach of release conditions. A further 9 months for the appellant’s previous convictions was

however added before a 25 percent deduction made for the early guilty pleas, making a total sentence of 18 months imprisonment.

[7] Due to the need to hold the appellant accountable and to meet the purposes of both personal and general deterrence, home detention was not considered appropriate. No complaint in that regard is made on appeal.

The appellant’s submission

[8] For the appellant, Ms Vidal submits that the sentence imposed was manifestly excessive. In particular, it is argued that the starting point of 12 months imprisonment for the unlawful taking of a motor vehicle valued at $750 was at the very top end possible for a starting point and in the circumstances of this case manifestly excessive. Secondly, that the apparent uplift of 12 months imprisonment, representing as it does a 100% increase for aggravating factors, cannot properly be justified and has also resulted in the sentence being manifestly excessive.

[9] Ms Vidal is critical of the Judge for making comparisons with burglaries which carry a maximum penalty of 10 years imprisonment. Emphasis was placed on the fact that the vehicle was on the road not on private property and there was no risk of disturbing the occupants of a dwelling which are the type of inherent concerns relating to the offence of burglary of a private house.

[10] Ms Vidal made comparisons with the offence of theft, noting that for an item valued between $500 and $1,000 a maximum penalty of 12 months imprisonment is prescribed. For items in excess of $1,000 a maximum of 7 years applies. On behalf of the appellant it was submitted that in the circumstances of this case the offending was less serious than theft. Consistent with the nature of the offence of unlawful taking the vehicle was ultimately recovered. It was submitted that damage to the ignition of the motor vehicle and the incurring of towing fees to recover the vehicle should not be considered aggravating factors but are features inherent in the offence itself.

[11] Ms Vidal submitted that the total uplift of 12 months cannot be justified in the circumstances. While there ought to be some recognition of the appellant’s previous

history, it was submitted that the uplift needs to be proportionate both to the offence itself and the relevant recent conviction history. She sought to distinguish the present offending from that committed by the appellant in late 2011 and early 2012 which involved the taking of seven vehicles over a four month period and attracted a sentence of 1 year and 8 months imprisonment. Ms Vidal submitted that the present offending was not of the same order.

[12] The appellant submitted that a starting sentence of 6 months imprisonment with an uplift of 1 month to recognise that the offending occurred while the appellant was on release conditions with a further 2 months to be added for prior convictions would be appropriate. This would provide a sentence of 9 months imprisonment. With a 25% discount for early guilty pleas a final sentence of 7 months imprisonment would result.

Respondent’s submissions

[13] Mr Bates for the Crown submitted that the Court was entitled to take into account the whole of the appellant’s history which includes 21 convictions for unlawfully taking/getting into motor vehicles, numerous offences for dishonesty, including seven for burglary, two for theft, six for shoplifting, three for receiving and five for fraud. The present offending occurred a few months after the appellant’s release from prison. The sentencing Judge’s approach to such recidivism was

supported by the decision of Collins J in Kushell v Police,¹ where, despite allowing

the appeal in relation to a similar case, the appeal Court imposed a starting point of

18 months imprisonment and an uplift of 12 months to reflect prior offending of a similar type. The appellant in that case had 28 previous convictions for unlawful taking and was subject to release conditions.

[14] The final sentence of 18 months was submitted to be an appropriate response

_{to the appellant’s persistent repetitive history of dishonesty.}

¹ Kushell v Police [2012] NZHC 2380.

Analysis

[15] In determining the appropriate starting point for the offence of unlawfully taking a motor vehicle, Judge Crosbie considered the nature of the offence and the impact on the owner of the vehicle. Comparison was made with starting points in respect of burglaries. The appellant is critical of that approach and submits that a more appropriate comparison is with the offence of theft and the maximum penalties provided for that type of offence.

[16] Both approaches have their limitations. Ultimately however an appeal Court needs to be satisfied that the starting point was within the range available to the sentencing Judge. In this case, the starting point adopted by Judge Crosbie represented less than 15% of the maximum available. While the value of the vehicle in monetary terms was not relatively great the potential loss, damage to the vehicle, and the inconvenience caused was no doubt significant for the 20 year old victim. Moreover, it is apparent that the offending was akin to a theft. The appellant took the vehicle with the intention of driving it from Dunedin to Central Otago. The appellant claimed it was for the purpose of securing a job which was accepted by the District Court, however it was also apparent that the vehicle was needed by the appellant for the purpose of his continued employment. He was stopped three days after the taking and initially claimed to the Police that he had purchased the vehicle. It is apparent from the circumstances that the appellant did intend to deprive the owner of her vehicle, if not permanently at least for a lengthy period of time. This was a very different case from a joyrider taking and then abandoning a vehicle or a situation where the offender only intends for a transitory period to deprive the owner of their property.

[17] In the absence of any authorities which would indicate that the starting point of 12 months imprisonment was demonstrably out of line with sentences for this type of offending, I do not consider Judge Crosbie’s starting point as being excessive. To the contrary, Kushell v Police supports the length of sentence imposed by the District Court. This was not opportunistic offending. The appellant clearly set out to obtain a vehicle that he could convert for his own use and represents determined and premeditated dishonest behaviour.

[18] In taking a starting point of 12 months imprisonment for the unlawful taking charge, the learned District Court Judge added a further sentence of 3 months for what he described as the “separate offending” for the breach of release conditions. That breach is also referred to in the learned District Court Judge’s sentencing remarks as being an aggravating feature of the principal charge of unlawfully taking a motor vehicle. Judge Crosbie makes reference to an uplift of 3 months, however that feature has already been marked in its own right by the separate charge to which the appellant pleaded guilty and which attracted a 3 month cumulative sentence.

[19] A sentencing Judge has the option of either viewing the breach of release conditions as requiring an uplift in the sentence for associated offending when imposing a concurrent sentence, or (as I interpret the Judge’s intention) of imposing a separate cumulative sentence. While on the face of the sentencing notes it appears the sentencing Judge has done both, in fact the learned Judge in settling on his final sentence has only allowed for one 3 month increase in the sentence to reflect this feature of the appellant’s conduct.

[20] The appellant has a long and consistent history for dishonesty offending involving theft, burglary, receiving, and unlawfully taking motor vehicles. The pre- sentence report comments that this offending occurred within seven weeks of the appellant’s release from his thirteenth sentence of imprisonment. He similarly offended within two weeks of his earlier release in May 2013. The appellant’s absconding and dishonesty is described by the pre-sentence writer as being a “chronic attribute”. To mark the recidivist nature of the appellant’s conduct and his bad prior history, an uplift of 9 months imprisonment was imposed. The appellant argued that such an increase to mark this aggravating personal feature was excessive.

[21] In Beckham v R² the Court of Appeal cautioned against increasing sentences merely because of the presence of previous convictions. An uplift because of an offender’s history as a personal aggravating feature will be appropriate where those convictions indicate a tendency to commit a particular type of offence and

_{considerations of deterrence and community protection come to the fore.}³

² _{Beckham v R [2012] NZCA 290.}

³ Fry v R [2014] NZCA 174 at [7].

[22] In order for the significance of this aggravating feature to be demonstrated, an increase in the sentence was warranted. Against that however, the 9 months imposed by the learned sentencing Judge comes on top of a stern 12 month starting point for the unlawful taking and represents a 75% increase on a starting point which itself must have reflected the recidivism of the appellant and the need for personal deterrence. In my view an uplift of no more than 5 months was warranted to mark the appellant’s previous convictions and give further effect to the principle of deterrence and the need to protect the public.

[23] At the risk of tinkering, I have therefore concluded that the 9 month uplift should be reduced by 4 months to one of 5 months imprisonment. That would make a total sentence of 16 months imprisonment for the unlawful taking offence and 3 months cumulative for the breach of release conditions offence before the deduction of 25% for early guilty pleas. Applying that 25% reduction results in a total sentence of 15 months imprisonment.

[24] The appeal is allowed, and in substitution of the 18 months imprisonment a sentence of 15 months is substituted. The special conditions originally imposed remain, together with standard conditions. The order for reparation in the sum of

$424.15 also stands.

Solicitors:

Southern Law, Arrowtown

Wilkinson Adams, Dunedin