Drake v Police [2015] NZHC 2252 (17 September 2015)

Last Updated: 5 November 2015

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2015-418-000005 [2015] NZHC 2252

BETWEEN	BRETT JAMES DRAKE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	15 September 2015
Appearances:	M Zintl for Appellant C Butchard for Crown
Judgment:	17 September 2015

_{JUDGMENT OF GENDALL J}

DRAKE v NZ POLICE [2015] NZHC 2252 [17 September 2015]

The appeal

[1] On 7 July 2015 Mr Brett Drake was sentenced to 19 months’ imprisonment.¹

The sentence related to receiving a motor vehicle, possession of a Class A drug, possession of a Class C drug, three charges of wilful damage, and one charge of theft. Mr Drake now appeals against this sentence on the basis it is manifestly excessive, which is said to arise through an excessive starting point, excessive uplifts and insufficient discounts.

[2] The appeal was filed out of time. The Crown does not oppose the appeal being heard out of time. I grant leave accordingly.

Jurisdiction

[3] Mr Drake is able to appeal his sentence as of right. But to succeed he not only must establish an error, but also that a different sentence should be imposed. The fundamental touchstone is therefore not whether this Court would have imposed a different sentence at first instance, but whether the sentence imposed was within the range available.

Facts

Receiving

[4] On 11 November 2014 a Subaru motor vehicle worth $11,000 was stolen from Christchurch. Sometime between the date of the theft and 4 May 2015, Mr Drake took possession of the vehicle. The number plates had been changed and Police were unaware it had been stolen at the time. On 7 May 2015, a member of the public alerted Police to the fact that the stolen vehicle was at an address is

_Greymouth.

¹ New Zealand Police v Drake [2015] NZDC 13461 [DC Sentencing Notes].

Theft

[5] On 2 March 2015 Mr Drake filled his vehicle with petrol at Greymouth. He went inside, handed over a fuel card, and said he would return to pay. He did not. The fuel worth $109.54 led to the charge of theft.

Drug offending (x2) and two charges of wilful damage

[6] On 18 March 2015 Police attended a domestic incident at a victim’s address in Greymouth. Mr Drake was there and he had become abusive and threatening towards the victim when asked to leave the address. The victim phoned Police. While the victim did so, Mr Drake pushed a lit cigarette into the sofa, melting it. He then left the premises, during which process he smashed the left wing mirror of the victim’s vehicle. Before the Police arrived, he had taken his belongings and secreted them away in the neighbour’s garage. This property was recovered by Police upon their attendance and subsequent arrest.

[7] The recovered property was taken to the Greymouth Police station. In the course of itemising this property, 13 pills and a total of 29.13 grams of cannabis were located.

Wilful damage

[8] On 20 May 2015, Mr Drake was remanded in custody. Whilst in remand he ripped apart a mattress in the cell, which led to a charge of intentional damage.

District Court decision

[9] In the District Court, Jude Couch took the charge of receiving as the lead offence.² His Honour regarded the gravity of the offending as “well up the scale”.³

It seems the owner being deprived of the vehicle for six months, and that Mr Drake was using the vehicle as his own, were considered aggravating features of the

_{offending. A further factor was that the vehicle was valued at $11,000. A starting}

² _{At [7].}

³ At [7].

point of 15 months’ imprisonment was adopted. For the remaining charges, the

starting point was uplifted by three months’ imprisonment.⁴

[10] For the fact the offending occurred whilst Mr Drake was subject to a prior sentence (which was serious), while he was on bail, and Mr Drake’s previous offending, a further four month uplift was applied.⁵ One further uplift was added for charges relating to breach of parole. These were noted to be serious, which resulted in a further uplift of three months.⁶

[11] This led to a final adjusted starting point of 25 months’ imprisonment. From this, some credit was allowed for a guilty plea, a plea which was described as “somewhat delayed”. A discount of six months, very near the maximum, was applied.⁷ This led to an end sentence of 19 months’ imprisonment.⁸ Home detention was not considered appropriate primarily because of Mr Drake’s history.

Resolution

[12] I have now had an opportunity to read and consider in full counsel’s submissions. I do not intend to repeat them here. Rather, I will simply address the issue of whether the end sentence imposed was outside the range available, and the grounds of challenge in so doing.

Starting point

[13] I have been referred to several cases by counsel which are said to relevantly bear upon the appropriateness of the starting point.

[14] The decision in R v Collier involved receiving of a motor vehicle worth

$14,000.⁹ The sentencing Judge had taken a starting point which resulted in an end

sentence of two years, nine months’ imprisonment. In allowing the appeal, it was

_{held that, absent evidence of some wider conspiracy ring, an end sentence of 12}

⁴ _{At [8].}

⁵ _{At [9].}

⁶ _{At [10].}

⁷ _{At [11].}

⁸ _{At [12].}

⁹ R v Collier CA170/03, 21 August 2003.

months was sufficient to condemn the appellant’s actions. The Crown observes that if a full discount for guilty plea was entered in that case (at the time one third), then the starting point would have been around 18 months’ imprisonment.

[15] Sinclair v Police was a case which involved an unsuccessful appeal against a sentence of two years, six months’ imprisonment for receiving two laptops, a nail gun, a battery drill set and a Honda motor vehicle, in total worth around $10,000.¹⁰

The sentencing Judge had taken a starting point of two years, six months. It was held that the starting point was stern, but the appeal was dismissed. Of relevance in dismissing the appeal was the fact that the appellant was in receipt of the stolen property a matter of hours after the offence was committed, and the burglary obtaining the property involved entry into a property at night. Further, there was co- ordination between the appellant and the burglar, and this offending had occurred shortly after the appellant’s release from prison.

[16] In Cribb v Police, the appellant was charged with 10 counts of receiving stolen property of various values, including a boat and trailer worth more than

$40,000 and motor vehicles.¹¹ The sentencing Judge's starting point of 2 ½ years

imprisonment was not disputed on appeal.

[17] In Vansilfhout v Police, on appeal to the High Court, Priestley J stated that he would have adopted a starting point of 18–21 months’ imprisonment in relation to one charge of receiving goods to the value of $500 and electronic equipment valued at just under $4,000.¹²

[18] In Ellis v R, the Court of Appeal declined to disturb an end sentence of two years, one months imprisonment on appeal.¹³ The charge in that case was receiving stolen property worth $5,000. The starting point adopted was one of 18 months’

_{imprisonment.}

¹⁰ _{Sinclair v Police [2014] NZHC 1332.}

¹¹ _{Cribb v Police HC Hamilton CRI-2010-419-46, 8 July 2010.}

¹² _{Vansilfhout v Police HC Rotorua CRI-2006-470-2, 7 March 2006.}

¹³ Ellis v R [2012] NZCA 513.

[19] In Aurupa v Police, Duffy J considered a starting point of 6–8 months imprisonment would have been appropriate for receiving a computer worth $2,000.¹⁴

Her Honour also referred to various cases, including Beri v Police, where a starting point of 12 months’ imprisonment for receiving two laptops and jewellery was upheld on appeal.¹⁵

[20] Small v Police involved an effective term of imprisonment of 16 months in relation to receiving a stolen car valued at $7,000.¹⁶ In Irvine v Police, the appellant was sentenced to nine months imprisonment in relation to one charge of receiving a van valued at $6,500.¹⁷ Panckhurst J remarked that a starting point of 18 months’ imprisonment was probably at the upper end of the available range, but the end sentence was not disturbed.

[21] Finally, Stanley v Police appears to be somewhat of an outlier.¹⁸ The appellant was sentenced to 15 months’ imprisonment on charges of receiving a van worth $30,000 and breaching a sentence of community work. A starting point of 15 months was fixed, which was considered stern but not outside the available range.

[22] In the present case before me, the question calling for determination is whether a starting point of 15 months’ imprisonment was available to Judge Couch having regard to the aggravating and mitigating features of the offending alone.

[23] A review of the authorities, in my view, leads inevitably to the conclusion

that a starting point of 15 months’ imprisonment for receiving a vehicle worth

$11,000 was within the available range. Admittedly, there may not have been the temporal immediacy between theft and receipt in this case, but that does not alter the fact that the starting point was within range. I concede it might be considered to be a

_{slightly harsh starting point, but it was nonetheless clearly available.}

¹⁴ _{Aurupa v Police [2012] NZHC 2750.}

¹⁵ _{Beri v Police [2012] NZHC 1923.}

¹⁶ _{Small v Police HC Hamilton AP29/99, 30 March 1999.}

¹⁷ _{Irvine v Police HC Christchurch CRI-2009-409-89, 8 July 2009.}

¹⁸ Stanley v Police [2015] NZHC 1743.

Uplift

[24] As the Crown identify, the approach to uplifts for previous offending was recently reviewed by Dunningham J in Reedy v Police.¹⁹ The principles were summarised in the following way:²⁰

[19] The principles in relation to uplifting the previous offending can therefore be stated as follows:

(a) there will be no uplift for the bare existence of previous convictions — to do so would be to punish offending more than once;

(b) the permissible lines of reasoning, justifying an uplift, fall into three broad categories:

(i) previous convictions bearing upon character and culpability;

(ii) indication of predilection to offend in a specific way

(an indicator of reoffending);

(iii) the need to protect society by the imposition of a deterrent sentence.

This necessarily requires the uplift to be firmly tied to specific aspects of the offender's criminal history.

(c) the uplift must remain proportionate to the starting point fixed by the sentencing Judge.

(d) there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

[25] In this case Mr Drake has several relevant convictions. In reverse chronological order they are shoplifting (2015), two counts of wilful damage (2012), procure/possess cannabis (2012), manufacture precursor material (2007), wilful damage (1998), theft from a car and theft from a dwelling (1998), six counts of using a document for a pecuniary advantage (1997), two counts of possession of cannabis (1997). In addition, Mr Drake has a substantial history of other offending, some

_{relatable to the present offending, some more disconnected.}

¹⁹ _{Reedy v Police [2015] NZHC 1069.}

²⁰ Citations omitted.

[26] In my view, this is a case where all three permissible lines of reasoning are engaged. The general criminal history, as substantial as it is, bears upon Mr Drake’s character and culpability – he is well acquainted with the workings of New Zealand’s criminal justice system, the impact of his crimes on victims, and the consequences for so acting. Nonetheless he acted as he did. Additionally, he has many convictions, as outlined, which point towards a predilection to offend in a specific way. Finally, there is a need to impose a deterrent sentence in order to shield society from Mr Drake’s actions.

[27] That said, the uplift imposed here would be severe if it related solely to Mr Drake’s previous criminal history. But, the reality here is that it is referable to the fact the offending occurred whilst on bail, that he was at the time of offending subject to an earlier sentence imposed in 2013, and his criminal history. In these circumstances I do not consider objectionable an uplift of four months’ imprisonment.

Discount for guilty plea

[28] This ground of appeal in my view fails completely. Quite contrary to the submissions of counsel advanced before me, there is no “entitlement” to any fixed quantum for a guilty plea discount. There was no equivocation on this point in the Supreme Court’s judgment in Hessell v R.²¹ In each case, what is required is an overall assessment of all the circumstances in which the guilty plea was entered, including its timing and the strength of the prosecution case.

[29] There would be something quite artificial about affording the same discount to a person who pleads guilty at an early stage, where there is some legitimate contest which they could take, and a person who pleads at the same stage who is all but “dead to rights”. In any event, Mr Drake here was afforded very near the fullest

25% discount available. The challenge in this case, as I see it, in reality involves cavilling over the fact that Mr Drake received only an amount being very near to the

_{maximum discount rather than the absolute maximum itself. In circumstances where}

²¹ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Judge Couch noted the guilty plea was “somewhat delayed”, I have no hesitation in rejecting this ground of challenge.

Overall assessment

[30] In the end, this appeal distils down to a simple totality question of whether an end sentence of 19 months’ imprisonment for the offending I have outlined is condign in all the circumstances of the case. In advancing the proposition that it is not, Mr Zintl has focused on three discrete points. No challenge was mounted to the further uplifts applied by Judge Couch, which I take it to amount to tacit acceptance they were appropriate.

[31] When I step back and review Mr Drake’s offending in the round, and the sentence imposed, I do not consider it can be subject to impeachment on appeal. While it may be thought to be somewhat harsh, Judge Couch was entitled to focus on deterrence and denunciation in imposing the sentence.

Outcome

[32] I have not been taken to a point where I am satisfied that the end sentence imposed was outside the sentencing range available to Judge Couch. The appeal against sentence is accordingly dismissed.

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

Gendall J

Solicitors:

Hannan & Seddon, Greymouth

Raymond Donnelly & Co, Christchurch