Anderson v Police

[2021] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-246

[2021] NZHC 1994

BETWEEN

SCOTT CLIFFORD ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 August 2021
Counsel:	D M M Dickinson for Appellant E C Rutherford for Respondent
Judgment:	4 August 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 4 August 2021 at 11.30 am

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

ANDERSON v POLICE [2021] NZHC 1994 [4 August 2021]

Introduction

[1]    Mr Anderson appeals the sentence of two years and five months’ imprisonment imposed on him by Judge EP Paul on 14 May 2021.1

[2]    Mr Dickinson, for Mr Anderson, told me that the aim of the appeal is to have the sentence reduced to 24 months’ imprisonment, a sentence which could then be commuted to home detention to be served at Odyssey House. Odyssey House has agreed  to  admit  Mr Anderson  into  its  Te Wairua  programme  commencing  on   9 September 2021.

[3]    Mr Dickinson’s submission is that the sentence imposed by the Judge is manifestly excessive in that an additional 10 per cent discount from the starting point should have been awarded to better reflect Mr Anderson’s personal situation.

[4]    The insuperable difficulty for Mr Anderson is that I can reduce his sentence only if I find an error by Judge Paul such that a different sentence should be imposed. But, in my view, Judge Paul’s sentence was merciful and clearly aimed at assisting Mr Anderson with his newfound desire to rehabilitate himself. There is no error. Accordingly, I will dismiss the appeal.

Reasons

[5]    Mr Anderson was sentenced by Judge Paul on 28 charges2 to which he had pleaded guilty. The lead charges were six charges of burglaries of both private homes and commercial premises.

[6]    I will not describe the offending in detail. There is no need. The burglaries occurred over a three month period from August to October 2020. Mr Armstrong, during daylight, simply walked into commercial or residential premises and stole things. On two occasions he was confronted by occupants, and immediately left.

1      Police v Anderson [2021] NZDC 9365.

2      This is the number given by Judge Paul. But, the Crown counted 29 charges and, looking at the sentences handed down, I identified 27 charges. The discrepancies are immaterial to my decision.

[7]    Following some of the burglaries, Mr Anderson used stolen credit cards to make purchases. This resulted in 16 charges of dishonestly using a document.

[8]    The other charges identified by Judge Paul were two charges of receiving stolen wallets, one charge of being unlawfully in a yard, one charge of theft of a wallet and one charge of unlawfully getting into a motor vehicle. This last charge resulted in a loss to the owner of the vehicle of $1,500.

[9]    Judge Paul adopted a starting point for the six burglaries of three years and six months’ imprisonment. This is not challenged on appeal.

[10]   I consider that the starting point of three years and six months for the six burglaries was within the range available to the Judge, but was very much at the lower end of the range.3

[11]   The Judge then added three months’ imprisonment to the starting point for the other charges. The Judge said he did so to take account of totality. That brought the starting point to three years and nine months’ imprisonment. In my view, that uplift was very generous to Mr Anderson. An overall starting point of four years’ imprisonment would have been well within range.

[12]   Judge Paul then had regard to Mr Anderson’s criminal history and imposed what he described as “a nominal uplift of three months only”.4

[13]   Mr Anderson was 46 years old at the time of his offending. He has a very lengthy criminal record which includes 15 previous convictions for burglary, and a significant number of convictions for other relevant dishonesty offending. I would have adopted an uplift of around six months to reflect Mr Anderson’s history of offending.

3      See, for example, Brooking v Police [2020] NZHC 1035, where a four year starting point was adopted on similar facts, and Woods v Police [2017] NZHC 3093 where two years and nine months was adopted for significantly less serious offending.

4      Police v Anderson, above n 1, at [10].

[14]   It follows that I assess the overall starting point adopted by the Judge of four years’ imprisonment as being very light.

[15]   Judge Paul discounted the starting point by the maximum 25 per cent to take account of Mr Anderson’s pleas of guilty. I note that Mr Anderson’s first appearance on these charges was 12 November 2020 and he entered pleas of guilty on 27 January 2021. The Crown does not suggest that the discount of 25 per cent was unjustified. I accept it as being reasonable.

[16]   Judge Paul gave a further 5 per cent discount to recognise Mr Anderson’s willingness to attend restorative justice with his victims and for the fact that he did meet with one of the victims in what was apparently a positive conference.

[17]   Mr Dickinson submits that although there is no requirement for a sentencing Judge to take into account remorse and the outcome of a restorative justice conference, nevertheless Judges frequently do grant discounts for these matters and in this case a credit of more than 5 per cent is warranted. He suggests a 10 per cent discount.

[18]   I disagree. Mr Anderson caused his victims financial loss and is not in any position to offer reparation. He has expressed his remorse and it is to his credit that he attended the restorative justice conference. There was no error on the part of Judge Paul in assessing that a 5 per cent discount was appropriate.

[19]   Judge Paul had regard to a report which was provided to him pursuant to s 27 of the Sentencing Act 2002 and awarded a further 10 per cent discount in response to its contents.

[20]   Mr Anderson is a New Zealander of European descent. He had an abusive childhood (including physical and sexual abuse) and became addicted to drugs. At the time of the offending he had been recently released from prison, had lost his accommodation and was living rough on the streets. He had returned to using methamphetamine. Judge Paul  took  these  matters  into  account  in  adopting  the 10 per cent discount. In doing so, the Judge carefully weighed Mr Anderson’s commendable rehabilitative efforts while on remand against the fact that Mr Anderson

is a mature man who has had opportunities in the past to address his offending. I cannot say that the discount adopted by the Judge was not in the range available to him.

[21]   It is trite to say that when an appellate court considers whether a sentence is manifestly excessive it is the sentence itself which must be evaluated rather than the steps by which the Judge in the court below calculated it.

[22]   In this case, the Judge adopted a very low starting point and discounted it by 40 per cent. There is no basis for increasing the discount to the 50 per cent level advocated for on behalf of Mr Anderson. The final sentence of two years and five months’ imprisonment is at the lower end of the range available to Judge Paul.

[23]   Finally, I note that Judge Paul was aware that Mr Anderson had a placement in Odyssey House. The Judge commented that the sentence he imposed should not dissuade Mr Anderson from pursuing rehabilitation through Odyssey House but said that would have to wait until Mr Anderson had served his sentence. In my view, that was inevitable given the level of offending for which Mr Anderson was sentenced and taking into account his mature age and extensive criminal history.

Outcome

[24]The appeal is dismissed.

Brewer J