IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CRI 2019-419-14
[2019] NZHC 842	

BETWEEN	GARY WILFRED EVANS
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	12 April 2019	
Appearances:	T C Tran for Appellant
A S Alcock for Respondent	
Judgment:	12 April 2019	
Reasons:	16 April 2019	

REASONS JUDGMENT OF DUFFY J

This judgment was delivered by me on 16 April 2019 at 12.30 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
T C Tran, Barrister, Hamilton Crown Solicitor, Hamilton

EVANS v NEW ZEALAND POLICE [2019] NZHC 842 [12 April 2019]

[1]	The appellant Gary Evans appealed against the imposition of a sentence of 12 months’ imprisonment for two offences of using a document to obtain a pecuniary advantage; failing to answer to District Court bail; being an unlicensed driver and two offences of unlawful conversion of a motor vehicle.

[2]	I allowed the appeal. The sentence of imprisonment was set aside and in its place I imposed a sentence of six months’ home detention with standard conditions and the addition of the special condition set out in the pre-sentence report.

Facts of offending

[3]	The offending arose out of two incidents, each of which involved a premeditated scheme to unlawfully convert a motor vehicle. The first unlawful conversion occurred between 18 and 19 May 2018 when Mr Evans approached the seller of a Peugeot motor vehicle, who had posted the vehicle for sale on Facebook, and offered to purchase it for the sum of $400.00. The vehicle had defects, which the owner had declared on the Facebook post. Mr Evans said he would take the vehicle to get started on the repairs and pay for it the following day. He never made this payment. Instead, on 7 August 2018 Mr Evans completed a New Zealand Land Transport Authority form forging the owner’s signature to have ownership of the vehicle transferred into his name, which is the conduct supporting the charge of using a document to obtain a pecuniary advantage. Later the vehicle was found abandoned in a carpark at Tauranga Hospital. A towing company removed the vehicle and incurred costs through storage in its yard.

[4]	Then on 19 June 2018 Mr Evans approached the owner of a BMW, which was advertised in Katikati for sale for the sum of $1,100.00. When Mr Evans spoke with the seller he asked if he could take the vehicle to show his wife. Mr Evans was permitted to do so and after leaving with the vehicle he never returned it to the seller. Over the next few days the seller exchanged text messages with Mr Evans seeking payment or return of the vehicle. Mr Evans agreed to and did make an initial payment of $100, but no further payments were made. Later Mr Evans sold the BMW to a third party for the price of $1600, however, he only ever received an initial payment of $500 from the third party.

[5]	On 25th October 2018, Mr Evans was stopped by Police and admitted he was driving without a license. The breach of bail offending relates to a failure to appear in the District Court in Te Kuiti in relation to the above charges. Mr Evans is a prohibited driver. He was unable to get transport to the Te Kuiti District Court.

Personal circumstances

[6]	Mr Evans is 67 years old and is retired. He lives with his partner in a Housing New Zealand unit. They both receive retirement benefits. Mr Evans was born in Wales and has lived in New Zealand since 1982. Mr Evans has previous dishonesty offences. The first such offence was theft by misappropriation which was committed in April 1989. The amount was significant, as I note there was reparation of $5,300 ordered as well as 100 hours community service imposed. Then in July 1997 Mr Evans was convicted of forging a cheque over $500 and ordered to pay reparation of
$4,047.00.

[7]	Mr Evans has acquired a considerable number of Land Transport Act offences for driving whilst under the influence of alcohol. He has received numerous disqualifications and in April 2010 he was sentenced to six months imprisonment for driving with excess breath alcohol, third or subsequent offence. Nonetheless, I note that before the present offending he had not offended since July 2013. The numerous drunk driving offences he has acquired suggest to me he has a severe alcohol problem. I note that the pre-sentence report states that Mr Evans started drinking alcohol to excess shortly after his wife died of cancer only a few years after they had arrived in New Zealand.

[8]	Mr Evans is seemingly an intelligent man. He achieved a mechanical and electrical engineering degree at Cardiff University. He has specialist engineering skills and at one time undertook to start and manage his own engineering business.

[9]	The pre-sentence report states that Mr Evans has limited disposable income and no other income stream. At the time of sentencing he had outstanding fines of
$892 for driving offences and $1,474.25 reparation. There were also enforcement fees which brought the total amount he owed to Court Collection Services to the sum of
$2,972.25.  Although reparation had been sought for the losses caused to the  victims

in the present offending Mr Evans was clearly in no position to pay reparation and Judge Roberts recognised this.

Sentencing decision

[10]	Judge Roberts considered the offending to involve a pattern of conduct and premeditation, which in essence, was to deceive the sellers of the motor vehicles to gain a financial benefit. The Judge took a dim view of the excuse Mr Evans offered that there had been misunderstandings with the sellers of the motor vehicles, describing the excuse  as  “nothing  short  of  contrived  nonsense.”  He  described Mr Evans as “manipulative” and “dishonest.”

[11]	The Judge’s view of Mr Evans led him to adopt a starting point of 12 months imprisonment. He uplifted this by six months and then reduced by two months to accommodate totality and four months to accommodate Mr Evans’ guilty plea. This left an end sentence of 12 months imprisonment on the lead charges of unlawful conversion of the motor vehicles.

Submissions on appeal

[12]	For Mr Evans, Mr Tran submits that Judge Roberts erred by failing to consider the imposition of a sentence of home detention. Mr Tran relies on Fomai v Police where Woodhouse J observed:1
[17]	The Judge did not refer to the possibility of home detention at all. He referred only to the submission that had been made to him that there should be a community-based sentence. This was not a reference to a sentence of home detention.

[18]	On this point, as on other relevant points, I acknowledge that a Judge sentencing in the District Court, and possibly in a busy list Court, cannot be expected to articulate every point that may be relevant. However, giving that consideration proper weight, I do not consider it is possible to infer that the Judge gave consideration to home detention. A sentencing Judge is bound to consider home detention, if it is technically available in terms of s 15A of the Sentencing Act, notwithstanding that there is no submission for a defendant that home detention should be imposed. For this reason the question of home detention needs to be assessed by this Court. It is not an assessment on appeal of the exercise of a discretion by the sentencing Judge, but an original exercise of discretion by this Court.

1	Fomai v Police [2014] NZHC 377 (footnotes omitted).

[13]	Further, in relation to a sentence of home detention Mr Tran referred to R v Iosefa where the Court of Appeal stated:2

[35] Home detention provides a sentencing Court with a further sentencing option, which is particularly relevant in light of s 16(1) of the Sentencing Act which requires the Court to have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community; and of s 16(2) which provides that the Court must not impose a sentence of imprisonment unless it is being imposed for the purposes in s 7 and those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the principles of sentencing in s 8.

[14]	In relation to Mr Evans’ circumstances, Mr Tran submitted that Mr Evans was considered by the pre-sentence report writer to be at low risk of reoffending and harm given his criminal history was largely historical. Apart from the two dishonesty related offences his offending was largely traffic related. He has ill health and is said to be in the early stages of pancreatic cancer.

[15]	Whilst it was accepted the offending involved a pattern of conduct and premeditation, it was submitted the scale of the offending was at the lower to moderate end with two sets of offending occurring at most within a duration of four months. Further, the offending was not sophisticated. It involved Mr Evans contacting sellers after they advertised their vehicles, meeting up with them, and either not paying for the vehicles after agreeing to purchase or never returning the vehicles after a test drive.

[16]	Mr Tran submitted that Mr Evans’ offer to make reparation of $400 to the owner of the Peugeot and $1,100 to the owner of the BMW by payments of $20 per week was realistic given his financial circumstances.

[17]	Mr Tran submits the Court must take into account the principles set out at s 8 of the Sentencing Act 2002, including the circumstances of the offender and the need to impose the least restrictive sentence. It was submitted that Judge Roberts failed to assess the need to impose the least restrictive outcome in accordance with the hierarchy of sentences and orders set out in s 10A of the Sentencing Act. The pre- sentence report had recommended community detention. The Judge rejected that

2	R v Iosefa [2008] NZCA 453 at [35].

sentencing option but then moved directly to imprisonment without first considering whether home detention was a real and viable alternative. It was submitted that with Mr Evans being assessed at low risk of reoffending and harm it was desirable to keep him in the community and accordingly a sentence of home detention should have been imposed.

[18]	The respondent acknowledged that Judge Roberts had not expressly referred to a sentence of home detention, but submitted that by rejecting a sentence of community detention the Judge had also implicitly considered and rejected a sentence of home detention. Accordingly, the respondent submitted there was no sentencing error of the type recognised in Palmer v R that would permit this Court to interfere with the sentence imposed.3 The respondent also referred to Tutakangahau v Rwhere the Court of Appeal noted the standard of ‘manifestly excessive’ continues to apply, so an appellate Court will not intervene where the sentence imposed is within a range that could be properly justified by accepted sentencing principles.4The respondent contended that the sentence imposed on Mr Evans was within the range of sentences for this type of criminal offending.

Analysis

[19]	I rejected the respondent’s submission that Judge Roberts had implicitly considered a sentence of home detention. In my view a sentence of home detention required express consideration. This is consistent with the requirements for a two-step process identified by William Young P in R v Vhavha:5
In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment. There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.

…

3	Palmer v R [2016] NZCA 541 at [17].
4	Tutakangahau v R [2014] NZCA 279 at [35].
5	R v Vhavha [2009] NZCA 588 at [29] - [31]. This was said in the context of a dissenting judgment where William Young P would have allowed the appeal. However, the statement of principle has subsequently been adopted by the Court of Appeal in Osman v R [2010] NZCA 199.

[31] The two-step process required for a sentence of home detention requires the Judge first to decide that the sentence which is otherwise appropriate is a short-term sentence of imprisonment (“stage one”) and then whether to commute that sentence to home detention (“stage two”)

[20]	Further, as was noted by Brewer J in Kanuta v R:6

The principles in considering a sentence appeal are well established. When considering the imposition of a period of imprisonment for a particular offence the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community’s safety. It follows from this principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act. The Court cannot impose a sentence of imprisonment unless it is satisfied:

(a)	that the sentence is being imposed for a statutory purpose or purposes that is to hold the offender accountable, or to induce in him or her a sense of responsibility, or to serve the interests of any victim or to denounce the offending or to deter or protect the community; and

(b)	that those purposes cannot be achieved by a sentence other than imprisonment; and

(c)	that no other sentence would be consistent with the statutory principles as applied to the particular case.

[21]	Whilst the Crown submitted that in light of the relevant principles Judge Roberts had imposed the appropriate sentence I could not accept that submission.

[22]	First, I considered that in order to be sure a sentencing Judge has properly followed the two-step process required by s 15A of the Sentencing Act 2002, that process needs to be expressly referred to in the sentencing notes. In the present case Judge Roberts had not referred to the possibility of home detention at all. The rejection of the sentence of community detention could not be read as an inclusive dismissal of a sentence of home detention. Thus, I was satisfied that the sentencing of Mr Evans had proceeded along the same lines as in Fomai v Police, where there was failure to refer to home detention.7 This led me to conclude that the sentencing process had miscarried.

6	Kanuta v R [2016] NZHC 436 at [37].
7	Fomai v Police [2014] NZHC 377.

[23]	Second, I was satisfied that a sentence of 12 months imprisonment for dishonesty offending that in total deprived the victims of less than $2000 was manifestly excessive. Particularly, given Mr Evans’ personal circumstances and criminal history. The historic dishonest offending revealed he was not a recidivist offender in this regard.

[24]	In my view, The particular circumstances of Mr Evans and of this offending coupled with the requirement in s 8 of the Act to impose the least restrictive sentence, necessarily led to a sentence of home detention. Whilst the offending did involve premeditation, it could still properly be addressed by a sentence of home detention. I was satisfied in all the circumstances that a sentence of six months home detention was the least restrictive sentence that could be imposed on Mr Evans.

Result

[25]	The appeal was allowed. The sentence of 12 months’ imprisonment was set aside. In its place Mr Evans was sentenced to six months’ home detention.

Duffy J