Abbott v Police

[2012] NZHC 884

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-000105 [2012] NZHC 884

BETWEEN  CALEB ABBOTT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         1 May 2012

Counsel:         R M Gould for Appellant

A A McCubbin-Howell for Respondent

Judgment:      1 May 2012

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal against an effective sentence of two years three months’ imprisonment imposed upon Mr Abbott by Judge Mill in the District Court at Lower Hutt  on  1  November  2011.    The  appellant  was  sentenced  on  three  charges  of burglary, one of arson, one of possession of cannabis and one of possession of a cannabis pipe.

[2]      The  appellant  had  approximately  18  previous  convictions  despite  his relatively youthful age of 18, including eight for burglary and had been released from a prison sentence of nine months for burglary offences on 6 July 2011.  These burglary offences  and  the associated  arson  (which  was  related to  one  burglary) occurred on 9 and 10 July 2011.

[3]      The pre-sentence report from the probation officer is somewhat gloomy.  It recommended a sentence of imprisonment preferably of more than two years.  The appellant had been assessed (and there is no dispute about this) of having some

serious alcohol and drug dependency problems and he posed a very high risk of

ABBOTT V NEW ZEALAND POLICE HC WN CRI-2011-485-000105 [1 May 2012]

reoffending given the recent recurrent offending within a short time of release from imprisonment, and his failure to comply with other release conditions.

[4]      Judge Mill took as a starting point three years and allowed the appellant a concession or discount of 25 per cent for the guilty plea.  He imposed the sentence of two years three months’ imprisonment on what he regarded as the lead charge, the arson offending.

[5]      Ms Gould, on behalf of the appellant, has submitted that the least restrictive sentence that should have been imposed was not a short term of imprisonment (that is two years or below) but rather a term of two years and one day and that the term of imprisonment of 27 months was harsh for a young man and she submitted that the prison sentence should be reduced so as to provide encouragement to Mr Abbott to pursue the Drug Treatment Unit programme available to him in Christchurch Men’s Prison.   Once that programme is successfully completed the prospects of parole would be greatly enhanced.

[6]      Ms Gould has assiduously done everything she as counsel could possibly do to assist Mr Abbott.  She obtained psychological and other assessments and reports, and  endeavoured  to  have  favourable  responses  to  applications  for  residential treatment programmes at Odyssey House and Moana House, but neither will accept the appellant.  The Salvation Army Men’s Hostel in Palmerston North will offer him a place upon completion of treatment programmes, but that facility is residential and does not offer treatment.

[7]      For completeness, I add that the appellant is now eligible for parole.  Indeed, he has been considered for parole by a panel on 13 April 2012 which referred to a sentence end date as being 12 October 2013 and that the appellant is presently waitlisted for the DTU Programme at Christchurch Men’s Prison.  The panel came to the view that the appellant had not demonstrated a sufficient reduction in his risk to the community to warrant release and accordingly parole was declined.

[8]      The issue is whether the sentence imposed by Judge Mill was manifestly excessive  or  inappropriate,  to  meet  the  interests  of  the  community  as  well  as

Mr Abbott.   The starting point of three years’ imprisonment was not outside the available range for multiple offending spread over two days.   The culpability was increased by reason of the arson of premises in Lower Hutt involving damage to the extent of $15,000.  The Judge said that he would not increase the starting point by reason of the appellant’s previous convictions.  Of course the proper approach is to fix a starting point without regard to mitigating or aggravating personal factors as they relate to a prisoner but factor in those considerations after the starting point is fixed.   But the Judge could well have balanced any guilty plea credit against the multiple previous convictions, especially of burglary, of the appellant.   By that I mean the appellant was particularly fortunate that the ultimate sentence was not

higher than two  years three months.   In terms  of  Hessell v R[1]  he received the

maximum discount for the guilty plea, and he could count himself fortunate that this was not substantially lower because of his aggravating personal circumstances (his criminal history).  So viewed in that way, the ultimate sentence of two years three months could not be said to be manifestly excessive.

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

[9]     I appreciate Ms Gould’s submission that the appellant needs some “encouragement” but this Court cannot tinker with proper sentences to provide psychological encouragement and an incentive to undertake programmes.   That clearly exists in any event by reason of the recent remarks and decision of the Parole Board.    The  short  position  is  that  the  appellant  is  eligible  now  for  parole  and provided he can satisfy a panel of the Board that he poses no undue risk to the community (which if he successfully completes the treatment programme at Christchurch Prison would be likely) then he may be released on parole before the expiry date of his two years three months’ sentence.  But there is no basis for this Court to interfere with the sentence properly imposed by Judge Mill.  Accordingly

the appeal must be dismissed.

[10]     I simply add that Mr Abbott can be very grateful to the efforts that Ms Gould

has undertaken on his behalf.

J W Gendall J

Solicitors:

R M Gould, Wellington for Appellant

Crown Solicitor, Wellington