IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2019-409-000085
[2019] NZHC 1946	

BETWEEN	PHILIP LEONARD CURRIE
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	8 August 2019	
Appearances:	O K Jarvis for the Appellant
J H Whitcombe for the Respondent	
Judgment:	12 August 2019	

JUDGMENT OF NATION J

Introduction

[1]	Mr Currie pleaded guilty to burglary, unlawfully taking a mountain bike valued at $8000, driving whilst disqualified third or subsequent, unlawfully taking a motor vehicle valued at $5000 and breaching release conditions. He was sentenced by Judge Garland on 26 June 2019 to two years and six months’ imprisonment.

[2]	Mr Currie appeals the sentence on the basis that the starting point was too high, there was no discount for remorse and there was a disproportionate uplift for Mr Currie’s criminal history.

CURRIE v POLICE [2019] NZHC 1946 [12 August 2019]

Facts

Charge 1: burglary

[3]	Between Saturday 23 March and Sunday 24 March 2019, the victims had left their mountain bikes in a garage on their property. Mr Currie entered the unlocked garage and stole a Giant mountain bike valued at $800 and GT Mountain Bike valued at $600. Mr Currie admitted to the burglary.

Charges 2 and 3: taking a motor vehicle and drove while disqualified 3rd or subsequent

[4]	On Sunday 24 March 2019, the victim parked her Toyota motor vehicle on her property. The following day, she reported the vehicle stolen. Mr Currie was found driving that motor vehicle in Christchurch and admitted taking the vehicle.

[5]	Mr Currie had been disqualified from driving indefinitely by the District Court after being convicted of driving with excess breath alcohol in 2002. He admitted to driving while disqualified.

Charge 4: unlawfully taking a bicycle

[6]	On 25 March 2019, Mr Currie walked past an address and noticed a mountain bike leaning against the fence on a shared driveway. He walked down the drive and, seeing that the mountain bike was not secure, rode away on the bike. The bike was valued at $8000. On Wednesday 27 March, the Police received information from an anonymous source that this mountain bike was at Mr Currie’s address. The Police went to his address and found the mountain bike inside the doorway of Mr Currie’s home. He admitted taking the mountain bike and said he had planned to sell it to fund his addiction to drugs.

Charge 5: Breach of release condition

[7]	Mr Currie was released from prison on 21 May 2018 and was subject to approximately eight months of release conditions. He failed to report to probation as required three times and received two warning letters. On 14 January 2019, he again failed to report to his probation officer as directed and was charged.

District Court decision

[8]	The Judge noted Mr Currie is 44 years old with a long history of offending. Mr Currie has over 100 convictions that include dishonesty, driving, drug, alcohol, violence related and sexual offending along with non-compliance offending. The pre- sentence report indicated his risk of re-offending as high. It recommended a sentence of imprisonment with release conditions to deal with his alcohol and drug dependency.

[9]	Dealing first with the charge of burglary, the Judge said it carried a maximum penalty of 10 years' imprisonment. Mr Currie stole bikes to the value of $1400. The Judge adopted a starting point of six months' imprisonment.

[10]	In relation to the charges of unlawful taking and driving whilst disqualified, third or subsequent, the Judge said they carry maximum penalties of seven years and two years' imprisonment respectively. Mr Currie took a motor vehicle valued at
$5000. His Honour noted the harm to the victim, and the fact that Mr Currie was a disqualified driver and chose to ignore the Court’s order not to drive. He noted this was Mr Currie’s fourth conviction for such an offence. The overall starting point the Judge adopted for these offences was 18 months' imprisonment.

[11]	In relation to the charge of unlawfully taking a mountain bike valued at $8000. the Judge said there was a degree of premeditation involved in this offence because Mr Currie had taken the bike after walking down the driveway to investigate. He adopted a starting point of nine months' imprisonment.

[12]	On the charge of breaching release conditions, the starting point adopted by the Judge was three months' imprisonment.

[13]	The Judge took a starting point of 36 months' imprisonment. He then reduced it in light of the totality principle to an overall starting point of 30 months' imprisonment. That figure, the Judge said, reflected his overall culpability.

[14]	In terms of aggravating and mitigating factors personal to Mr Currie, the Judge noted an extensive history of dishonesty. He counted 59 convictions including seven for burglary and many for theft. Mr Currie also has two previous convictions for

breaching his release conditions. In the Judge’s view, that warranted an uplift of nine months' imprisonment.

[15]	In relation to mitigating factors, the Judge accepted that Mr Currie took responsibility early and entered guilty pleas on all charges except for the breach of release conditions charge. For that reason, he reduced the sentence by nine months.

[16]	The Judge said that, on each charge of burglary and on the charges of unlawful taking, Mr Currie was sentenced to two and a half years' imprisonment. On the charge of driving whilst disqualified, third or subsequent, he was sentenced to six months' imprisonment. On the charge of breaching the release conditions, he was sentenced to three months' imprisonment. All of those charges were to be served concurrently, meaning the total sentence was two and half years' imprisonment.

[17]	Given the Judge had imposed a sentence over two years' imprisonment, he was not in a position to impose release conditions.

Principles on appeal

[18]	Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “…court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3

1	Criminal Procedure Act 2011, ss 250(2) and 250(3).
2	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3	Ripia v R [2011] NZCA 101 at [15].

Submissions for the appellant

[19]	Mr Currie’s appeal is based on three submissions:

(a)	the starting point adopted by the Judge was too high;

(b)	no credit was given for remorse and willingness to participate in restorative justice; and

(c)	the	uplift	imposed	for	Mr	Currie’s	criminal	history	was disproportionate

[20]	Ms Jarvis for Mr Currie submitted the starting points adopted were manifestly excessive. She submitted the starting point of six months imprisonment for the burglary charge appropriately reflected the low-level nature of the offending but the starting point on the unlawfully taking of the motor vehicle and driving whilst disqualified charge, set at 18 months, was manifestly excessive. She submitted the offending was opportunistic, the vehicle was unlocked with keys already in the ignition and the vehicle was returned undamaged. Mr Currie has three previous convictions for driving whilst disqualified. She submitted it was not inevitable that a sentence of imprisonment would be imposed for this type of offending, Mr Currie’s last conviction for offending of this nature was in 1998.

[21]	Counsel for Mr Currie submitted that these three charges should have been dealt with together by imposing a starting point on the burglary charge and then uplifting this to reflect the following charges. She argued that Mr Currie stole the bikes and discovered the car with its keys inside while he was on the way to the pawn shop, that he put the bicycles in the vehicle and drove there. She submitted the offending was on the same day and at a similar time and there was a clear link between the offending in that Mr Currie acknowledged the reason for taking the bikes was to gain money for his drug habit.

[22]	The $8000 bike was recovered undamaged. Counsel submitted the starting point of nine months’ imprisonment for this offending was manifestly excessive.

[23]	Counsel for Mr Currie submitted the sentencing Judge failed to take into account Mr Currie’s remorse as required by s 9(2)(f) of the Sentencing Act 2002.

[24]	Mr Currie had written a letter of apology to each of the victims of his offending, and a letter to the Judge. The sentencing Judge outlined that the letters would "carry much more weight had they been given to the victims soon after your offending, rather than being handed to me in Court upon your sentencing".

[25]	Counsel for Mr Currie also pointed to the offer to engage in restorative justice, although the victims had declined to participate. In addition, Mr Currie expressed his remorse to the writer of the pre-sentence report. Counsel submitted those acts should have led to a separate discount.

[26]	Counsel submitted the sentencing Judge's uplift for Mr Currie’s previous convictions was disproportionate. After considering the principles of totality, the Judge reached an overall starting point of 30 months’ imprisonment. From that starting point the aggravating and mitigating factors were considered. An uplift of nine months was imposed for Mr Currie's previous criminal history.

[27]	Counsel submitted an uplift of approximately 30% was manifestly excessive and disproportionate.

[28]	Counsel acknowledged Mr Currie’s lengthy criminal history which involved 58 previous convictions for dishonesty type offending including seven for burglary. She submitted however, an uplift of nine months was disproportionate and noted his last conviction for burglary was in 2005. She argued that, while the sentencing Judge observed Mr Currie had seven previous convictions for burglary, the Judge did not appear to factor that three were in 1996 and three in 2000.

[29]	Ms Jarvis submitted the sentencing Judge's starting point of six months for the burglary charge, did not take into account that the offending was at the lower end of the scale for this type of offending and could be appropriately characterised as opportunistic. It was apparent Mr Currie was aiming to get some quick money to fuel his drug addiction. This was not a case where Mr Currie is a recidivist burglar.

Submissions for the respondent

[30]	Mr Whitcombe for the Crown emphasised in his submissions that, on appeal, the focus must be on the end sentence. He submitted the end starting point for all offending and the uplift on account of Mr Currie’s previous offending were within range. There had been an appropriate discount for totality. In the circumstances, the Judge was entitled to give no separate credit for remorse. Further detail in his submissions is reflected in the conclusions I have reached.

Analysis

[31]	I agree with the Crown’s submission that the Judge could have adopted a starting point of one year’ imprisonment for the charge of burglary. The Judge himself said a start point in the vicinity of 12 months could have been appropriate.

[32]	In R v Columbus, the Court of Appeal was concerned with an offender who faced one charge of burglar.4 He had forced entry to a garage at a residential property causing $670 of damage. He took a mountain bike, together with gardening tools and a tool box. The Court of Appeal held that the burglary was at the minor end of the scale and a starting point of one year’ imprisonment was appropriate for similar type offending.

[33]	Here, there was no damage to the garage, but this was not opportunistic or unpremeditated offending. Mr Currie had told the writer of the PAC report that he attributed his offending to synthetic cannabis and that similar offending occurred because he was out looking to “score”, and had he not found items which he could steal when he did, then he would have carried on until he found something else. In his letter of apology to the owners of the two bikes, Mr Currie said “I was targeting unsecured bikes and happened to come across your bike, I made the lazy and dishonest decision to take it”. He did not just come across the bikes that he stole. He entered onto a property and entered a garage to steal them.

4	R v Columbus [2008] NZCA 192.

[34]	In R v Columbus, the Court of Appeal considered a starting point of one year’ imprisonment could be within range for the offending there which they treated as being “at the minor end of the scale”. The Court of Appeal however referred to that offending as being “apparently opportunistic or spontaneous because Mr Columbus wanted quick money”. The offending here could not be described as “apparently opportunistic or spontaneous”.

[35]	The starting point sentence for the charge of driving while disqualified and associated theft of a motor vehicle was within range. The Judge was sentencing Mr Currie for his fourth conviction for driving while disqualified. A starting point sentence of 10 months had been considered appropriate by the High Court in Peterson v Police where the sentence was for a third or subsequent offence.5 That starting point was in line with the approach in sentencing in the High Court for similar offences.6

[36]	The car was taken at some point between 9.00 pm on Sunday 24 March 2019 and 8.00 am on Monday 25 March 2019. It had been parked on the owner’s property in Riccarton, Christchurch with the keys in it. Mr Currie was found driving the motor vehicle at 11.25 am on 25 March 2019. In the car were the two bikes he had stolen.

[37]	Again, the taking of the vehicle could not be considered to have been spontaneous or opportunistic. In his letter of apology and in talking to the report writer, Mr Currie connected the taking of the motor vehicle with his drug addiction. He was however being disingenuous in saying “I happened to come across your vehicle with the key in the ignition and unlocked, I decided out of laziness and dishonesty to take your car”. All the information before the Judge would have suggested that Mr Currie had gone out looking for something to steal to fund his drug habit. He had gone onto a property at night to locate the owner’s car and found that he could steal it.

5	Peterson v Police HC Hamilton CRI-2009-419-000011, 20 February 2009.
6	Stott v Police [2018] NZHC 1591; Opetaia v Police [2015] NZHC 2532; Yan v Police [2017] NZHC 1435; Keenan v Police [2014] NZHC 1894.

[38]	The taking of the car and his driving it were offences committed separate from the burglary and the taking of the two bikes days earlier. That burglary had occurred at some point between 10.00 am on Saturday 23 March 2019 and 5.00 pm on Sunday 24 March 2019. The theft of the car did not occur until after 9.00 pm on 24 March 2019.

[39]	The further offence of unlawfully taking a bike occurred on Monday 25 March 2019 at about 4.00 am. In committing this offence, Mr Currie had walked down a driveway towards homes. All the information before the Judge would have suggested that Mr Currie was out looking for something to steal to fund his drug habit. The bike was valuable. In his letter of apology to the owner, Mr Currie said he has been “targeting unsecured bikes”. Again, in that letter, he was somewhat disingenuous in saying to the owner that he just “happened to come across your bike”. He had been out looking for such a bike to steal and walked down a drive to take it. A starting point sentence for that offence on a standalone basis of nine months’ imprisonment was within range.

[40]	All the property taken was recovered undamaged but that was fortuitous rather than something for which Mr Currie was responsible. He had been intending to sell the bikes he had taken. He said he was on the way to a pawn shop with two of the bikes in the stolen car when he was stopped in that car on 25 March 2019.

[41]	The Judge had to sentence Mr Currie for separate offending as to the breach of release conditions. Mr Currie’s offence of failing to report related to a failure to report to his probation officer on 14 January 2019. The summary of facts indicated that he had failed to report after a number of failures to attend on other occasions and a number of warnings. The starting point of three months’ imprisonment for that offending was appropriate.

[42]	The Judge appropriately considered the totality principal by stepping back from an overall starting point of 36 months’ imprisonment that he had arrived at and adjusting that to one of 30 months’ imprisonment.

[43]	The Crown accept the uplift of nine months’ imprisonment for previous convictions was high. Mr Currie did have extensive previous convictions for dishonesty type offending including seven for burglary. Most of the dishonesty convictions are dated but, as was submitted for the Crown, that does have to be viewed in the context of Mr Currie serving an 11 year prison term imposed in 2006. The uplift was justified because of the way his previous dishonest offending required a greater emphasis on deterrence and protection for the community on sentencing.

[44]	Mr Currie’s previous dishonesty offending was associated with features of his lifestyle, attitudes and drug use, which the report writer assessed continued to leave him and the community at a high risk of his reoffending. Having regard to the Court of Appeal’s consideration of uplift in R v Columbus, the uplift was within range.7

[45]	There was no error in the Judge refusing to give additional credit for remorse.

[46]	Sentencing Judges will give credit for remorse, over and above the remorse inherent in a guilty plea, when an offender has demonstrated a true acceptance of responsibility for his offending, empathy for his victims of that offending, and a genuine commitment to address whatever issues he might need to so as to reduce the risk of further offending. Such remorse will not usually be demonstrated through brief or pro forma letters of apology as Mr Currie relied on here, or offers to participate in restorative justice meetings which are now considered as a matter of routine in the District Court. Here the sentencing Judge commented on the lateness of the letters to the victims. There was also other information which the Judge had before him which justified his decision not to give credit for the remorse.

[47]	When Mr Currie was spoken to about the valuable mountain bike, he seemingly shifted responsibility for what he had done onto the owner of the bike. He said his taking the bike was “what people like him do when people leave their stuff out”.

7	R v Columbus, above n 4.

[48]	In his letters to the victims, Mr Currie described himself as a former addict, identified synthetic cannabis addiction as being the cause of his offending and said he wanted to make changes to ensure there would not be further victims. These were admirable sentiments but the alcohol and drug assessment report from Odyssey House of 11 June 2019 suggested there had to be concerns as to the genuineness of that commitment.

[49]	The PAC report writer referred to Mr Currie’s statement that he was sorry for his actions and for any impact caused to the victims, but went on to say:

Despite his statement, the report writer did not assess any depth to Mr Currie’s expression of remorse given that he was self-focused throughout the interview, he lacks the motivation to undertake treatment and work with community corrections, and that he does not want to distance himself from antisocial associates.

Conclusion

[50]	Having regard to the above, I am not satisfied there was any error in the end sentence imposed on Mr Currie or that a different sentence should be imposed.

[51]	The appeal is dismissed.

Solicitors:
Public Defence Service, Christchurch Raymond Donnelly & Co., Christchurch.

This judgment was delivered by me on 12 August 2019 at 11.00 am. Registrar/Deputy Registrar
Date: 12 August 2019.