Anderson v Police HC Christchurch CRI-2007-409-000092

[2007] NZHC 1836

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000092

PAUL CHARLES ANDERSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 June 2007

Counsel:        R G Glover for Appellant

S L Litt for Respondent

Judgment:      14 June 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a sentence of two years imprisonment imposed in relation to offences of burglary and receiving.   There is also  a challenge to the Judge’s refusal to grant leave to apply for home detention.

[2]      The burglary was committed on 16 September last.  The appellant and a co- offender went to a rural property, a dairy farm in Eyreton, and were in the process of removing a quad bike when they were disturbed.  They were driving a truck which had a ramp suitable for driving another vehicle onto the deck.  The summary of facts indicates that on being disturbed by somebody from the farm, they drove off with the

lights of their vehicle switched off.

P C ANDERSON V NZ POLICE HC CHCH CRI-2007-409-000092  14 June 2007

[3]      The  appellant  and  his co-offender,  a  man  named  Harvey,  were  going  to defend that charge and to that end appeared in the Rangiora District Court in mid April 2007.  Belatedly, however, they changed their instructions and entered pleas of guilty.   Mr Harvey was sentenced at Rangiora by Judge Abbott who imposed a sentence of five months imprisonment, being a cumulative term on an effective sentence of about 18 months imprisonment to which Mr Harvey was already subject. I shall return to this aspect in a moment.

[4]      The offence of receiving arose subsequent to the burglary, but pre-dated it in terms of its commission.   The appellant was noticed by a police officer driving a Toyota Hilux vehicle and after a period of some time the view was formed that the vehicle had been dishonestly obtained.   The appellant was spoken to about it.   He said he had purchased the vehicle from someone called Steve for $1,500 at, what Mr Glover has described as a petrol head gathering point, the Waimakariri River. This charge was defended before Judge Erber who rejected the appellant’s evidence and  indeed  described  his  involvement  as that  he  was  up  to  his  neck  in  it  (the receiving).

[5]      The appellant is aged 30.  He has a serious record in relation to offences of dishonesty.  He had six previous burglary offences when he appeared on this matter. He had 17 or 18 previous convictions for receiving.   The convictions had been incurred  over  a  period  of about  10  years  to  2004  and  he  had  previously  been sentenced to imprisonment.

[6]      Surprisingly,  however, the  pre-sentence  report  was  relatively positive  for someone in Mr Anderson’s shoes.  It included this:

It is acknowledged that Mr Anderson has made significant changes to his life since he last offended in 2004.  Namely in maintaining fulltime employment for  the  past  twelve  months,  and  focusing  on  his  relationship  with  his daughter  and  other  family.     If  the  Court  wished  to  take  this  into consideration and look at recommending a community based sentence, community work is likely to be the most appropriate.

The situation was that he has been working as a laminator for a timber company for about 13 months.  He was residing with his mother and had taken steps through the Family Court to have contact rights to a 4 year old daughter.

[7]      Perhaps of even greater significance was a letter dated 23 April 2007 from the Salisbury Street Foundation.   The letter confirmed that Mr Anderson had successfully concluded a programme with the Foundation between October 2005 and April 2006.  In addition Mr Anderson had then continued to keep contact with the Foundation and was involved in an initiative to form a follow-up group for people who had concluded courses with that organisation.  The letter ended on this note:

Salisbury Street  Foundation is  prepared,  should Paul receive a  custodial sentence, to offer him a place on our residential programme.  This could be on parole or under Home Detention conditions.

[8]      At sentencing, Judge Erber observed:

Mr Glover asks for leniency, bearing in mind the improvement which you have made in your personal life in recent times, and particularly in view of the responsibilities of parenthood which you have.

There is a limit to what can be done here, you did not admit the burglary at an earlier time, and indeed you get very little credit for the plea of guilty on the burglary.    You  get  no  credit  for  a  plea  of  guilty  of  course  on  the receiving.   My view of the matter is that had you gone to fixture on the burglary,   the  result  would  have  been  a   term  of   about   three   years imprisonment in total, given the burglary and the receiving.

As it is you are sentenced to 12 months imprisonment on each charge, each is cumulative on the other.

[9]      With reference to home detention the Judge expressed the view that given the

“repetitive nature” of the offending, leave was inappropriate.

[10]     Mr  Glover  challenged  two  aspects  of  the  sentence:  its  length  and  the declining of leave.  With reference to the sentence, I have been given consideration information relevant to the co-offender, Mr Harvey.   He was sentenced in the Rangiora Court by Judge Abbott, whereas the appellant’s sentencing was put off and dealt  with  in  Christchurch  because  of the  further  charge  of receiving,  (so  both matters could be dealt with at the same time).  Mr Harvey received a sentence of five months imprisonment, cumulative upon the term he was already serving.

[11]     Counsel argued that this sentence is markedly disparate by comparison to the

12 months and that the latter sentence should be reviewed on that account.  However, there are some complicating features.  Mr Harvey was only 20 years of age.  He had

one previous conviction for burglary, four for receiving, two for theft and one for arson.   There was also the aspect of the totality principle since, as I have already noted, he was serving a sentence of about 18 months imprisonment and the five months was made cumulate on that term.  In these circumstances Ms Litt argued that the sentences are not disparate and it would inappropriate to intervene on that score.

[12]     It is noteworthy that the sentencing remarks in Mr Anderson’s case do not contain any reference to the sentence imposed on Mr Harvey.  This was, in my view, a serious burglary.  About the only redeeming feature is that nothing was taken, but that  reflects the circumstance that  the complainant  intervened and the  offenders made off empty-handed.  Even so, when I look at all matters in the round, it does seem to me that the 12 month sentence is out of kilter with that imposed on the co- offender.  Were it not for that fact I do not consider there would have been a basis for this Court to intervene.  But even allowing for the differences in the two men’s records and the totality aspect, I do not consider that more than nine months was appropriate in Mr Anderson’s case, given the sentence received by his co-offender.

[13]     With reference to the  receiving,  Judge Erber  had  presided at  a  defended fixture and he was obviously well-placed to  reach a view as to  the  appellant’s involvement  in relation to that offence.   I am unpersuaded that the sentence of

12 months imprisonment, given the appellant’s previous record for receiving, was excessive.  However, I reduce the total sentence by three months for the reasons that I have given, that is to an effective sentence of 21 months imprisonment rather than two years.

[14]     That leaves the question of home detention.  As noted, the Judge declined it on the basis of the repetitive nature of the offending.  He made no reference to the pre-sentence report or to the letter from the Salisbury Foundation, at least when he was considering this aspect.  Ordinarily an offender with this background could have no realistic expectation of a grant of leave when appearing for sentence on further serious dishonesty charges.  However, an important aspect of the case is the positive features in the pre-sentence report and perhaps of greater significance the letter from the Salisbury Street Foundation which, despite his most recent fall from grace, are still willing to have Mr Anderson back.  It seems to me that the personal features of

the offender needed to be weighed in the balance alongside the seriousness of the offending and that this was not done.   Whether a release to home detention will prove appropriate is for the Parole Board, but given the turnaround the pre-sentence report speaks of and the preparedness of the Foundation to have the appellant back, I am persuaded that home detention should have been left open as a possibility.

[15]     I therefore grant leave.

Solicitors:

Rupert Glover Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent