Andrew v Police

[2015] NZHC 2987

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000035 [2015] NZHC 2987

BETWEEN

MARK EDWARD ANDREW

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 November 2015
Appearances:	J A Westgage for the Appellant R D Smith for the Respondent
Judgment:	27 November 2015

JUDGMENT OF NATION J

Introduction

[1]      On 29 September 2014, Judge Phillips sentenced Mr Andrew to concurrent sentences for an effective term of two years and one month’s imprisonment on the following charges:1

(a)     male assaults female;2

(b)     intimidation;3

(c)     two charges of burglary;4

(d)     various charges of theft and obtaining by deception;5

1      Police v Andrew DC Dunedin CRI-2014-012-001409, 29 September 2014.

2      Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.

3      Summary Offences Act 1981, s 21(1)(a).   Maximum penalty three months’ imprisonment or

$2,000 fine.

4      Crimes Act 1961, s 231(1)(b). Maximum penalty ten years’ imprisonment.

5      Crimes Act 1961, ss 219, 223(d), 240 and 241. Maximum penalty three months’ imprisonment.

ANDREW v POLICE [2015] NZHC 2987 [27 November 2015]

(e)     failing to report to a probation officer;6 and

(f)     breach of community work.7

[2]      Judge Phillips gave Mr Andrew a sentencing indication on 25 September

2014.   At the time, Mr Andrew was represented by Ms Saunderson-Warner.   The Judge summarised the charges he faced and what was involved with the offending. He  referred  to  Mr Andrew’s  alcohol  addiction  as  the  main  influence  in  all  his offending.   He referred to his prior criminal history and the submissions he had received from the police and Ms Saunderson-Warner.  The Judge went through the views he would come to adopting the Taueki approach.8   He said the cumulative end sentence, after allowing for totality, would be two years and one month’s imprisonment.

[3]      Mr Andrew pleaded guilty on 26 September 2014.  He was sentenced on 29

September 2014.

[4]      On 2 October 2015, Mr Andrew filed from prison his own notice of appeal against sentence.   The notice of appeal indicated that he was appealing against sentences of more than two years for two burglaries.   In his notice he said they should have been treated the same as shoplifting involving theft of property worth less than $500 and the maximum penalty would have been thus six months’ imprisonment.

Leave to appeal out of time

[5]      Mr Andrew acknowledged that his appeal was out of time but sought an extension.   His explanation for the delay was “lack of information provided by lawyer”.  Mr Westgate, representing Mr Andrew on appeal, stressed that there would be no prejudice if leave was granted to bring the appeal.

[6]      The police oppose the granting of leave in the particular circumstances of this case.

6      Sentencing Act 2002, s 71(1)(a). Maximum penalty three months’ imprisonment or $1,000 fine.

7      Sentencing Act 2002, s 71(1)(d). maximum penalty three months’ imprisonment or $1,000 fine.

8      R v Taueki [2005] 3 NZLR 372 (CA).

[7]      Mr Smith, for the police, acknowledged that there would not be significant prejudice to the police in dealing with the appeal if it were allowed to proceed but said that the extent of the delay in this case was significant, that there were complainants involved and that the reopening of these proceedings would occasion unfairness to them.  Mr Smith acknowledged that the “touchstone” for granting an application  to  extend  time  is  the  interests  of  justice  in  a  particular  case.    He submitted that assessing the interests of justice requires a Court to have regard to the wider interests of society in the finality of decisions to be balanced against the

interests of the appellant.  He acknowledged that those factors will include:9

The strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly effected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

[8]      Mr Smith submitted, and I accept, that more recent authorities acknowledge that extension of time applications will routinely reduce to the reasons for the delay and the merits of the proposed appeal.10     He referred to the Court of Appeal’s statement that an extension will more readily be granted where the delay is short and explained than when the delay is longer and unexplained.11

[9]      Mr Smith said it was for Mr Andrew to provide sufficient information to satisfy the Court that granting leave is in the interests of justice.12   He submitted that in this case there was no satisfactory explanation.  He submitted that, on its face, Mr Andrew’s explanation for the delay could not be regarded as reasonable given this appeal arises out of a sentencing which took place after there had been a detailed sentencing indication.  Mr Andrew had the benefit of legal advice in relation to that indication from counsel who was representing him at the time.  He took time before deciding to accept that indication and pleading guilty.  There was then some further

time until he was in fact sentenced.   He had legal representation throughout that

process.

9      R v Knight [1998] 1 NZLR 583 (CA) at 587.

10     Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].

11     R v Knight, above n 9, at 57.

12     R v Davis [2007] NZCA 577.

[10]     Mr Andrew had a right to bring an appeal within 20 working days.  That right was not affected by the fact that his sentence had been imposed after a sentence indication.13     However, I note the recent observation of the Court of Appeal that “[Those] who seek to appeal against a sentence they have accepted following a sentence indication usually face an uphill battle.”14   After a considerable delay, Mr Andrew’s application for leave to appeal arises against the background of a sentence indication where he had the benefit of legal representation.  This fact can be taken into account in assessing whether there has been a reasonable explanation for the delay and whether it is generally in the interests of justice for time to be extended in a particular case.  Mr Westgate agreed that it was appropriate for the Court to take the sentence indication into account in that context and for that purpose.

[11]     In assessing the interests of justice in the circumstances of this case, my major consideration is, however, the merits of this potential appeal.

Merits of the appeal

[12]     Mr Westgate helpfully acknowledged that this Court’s focus on an appeal has to be on the end sentence which has been imposed rather than the steps by which the Judge reached that decision.   That is particularly so in this case where the Judge imposed a sentence of two years and one month on one charge of burglary after stating that the starting point for sentence on two burglary charges was nine months. The sentence of two years and one month was imposed as a convenient way of imposing a sentence for all offending.   The sentences on other charges were all concurrent.

Judge Phillips’ sentencing approach

[13]     The Judge arrived at the end sentence as follows.

[14]   The charges of burglary related firstly to his going into a Countdown supermarket on 27 January 2014, taking alcohol valued at approximately $40 and

handing it to an associate who had a cardboard box to put it in.   It was thus a

13     Criminal Procedure Act 2011, s 245.

14     Costello v R [2015] NZCA 512 at [14].

premeditated  theft.    It  was  legally  a  burglary  because  Mr Andrew  entered  the supermarket unlawfully, having been served with a trespass notice prohibiting him from going onto those premises.  The second burglary related to his again breaching a trespass notice and going into a New World supermarket on 31 July 2014 and taking alcohol valued at $11.99 and a cooked chicken valued at $14.99.   The maximum sentence on each of the two burglary charges was 10 years’ imprisonment. The Judge’s starting point for the two burglary charges was nine months’ imprisonment.

[15]     On 7 July 2014, Mr Andrew went into the Quicker Liquor outlet in Dunedin. He took and concealed three bottles of Scrumpy cider with a total value of $35.97. He went and paid for a further bottle of cider but did not pay for the concealed bottles.

[16]     On 16 July 2014, Mr Andrew stole two casks of wine and a cooked chicken

(a total value of $52) from another Countdown supermarket.

[17]     On 25 August 2014, Mr Andrew went to a restaurant in Dunedin.  He ordered food and beverages valued at $62 but on completing the meal he left without paying when  the  staff ’s  backs  were  turned.    In  relation  to  this,  he  was  charged  with obtaining credit by deception.

[18]     The  maximum  sentence  on  each  of  the  theft  charges  and  the  charge  of obtaining credit by deception  was three months’ imprisonment.   On these three charges, the Judge’s starting point was three months’ imprisonment.

[19]     On 17 September 2014, Mr Andrew was with his partner of three and a half years, having followed her to her home address.  When she refused to leave with Mr Andrew, he grabbed her by the hair and punched her once in the mouth with a closed fist.  A member of the public intervened.  The maximum penalty for this charge of male assaults female was two years’ imprisonment.  Taking into account Mr Andrew had punched a female who would have trusted him not to do this sort of thing, the Judge considered the starting point for this offence would be a further six months’ imprisonment.

[20]     On 3 March 2014, Mr Andrew was sentenced to 100 hours’ community work

on conviction for breach of community work.   He failed to report for work on 26

August and 2, 9 and 16 September.  For this breach, he was liable to a fine of $1,000 or  three  months’ imprisonment.    On  2  September  2014,  Mr Andrew  failed  to complete the required number of hours of work within the prescribed period.  The maximum penalty for that offence was three months’ imprisonment.  Given repeated breaches of such sentences, the Judge considered that the appropriate sentence for these breaches was a further three months’ imprisonment.

[21]     Mr Andrew had been barred from placing bets with the Dunedin Central TAB.  On 14 June 2014, Mr Andrew attempted to have a friend place a bet for him. The  TAB  attendant  refused  to  accept  the  bet.    Two  hours  later,  Mr  Andrew approached this attendant, stood over her and said as least “Don’t play games with me.   I will fucking have you knocked out.”   Taking into account the size of Mr Andrew as he appeared before him, the Judge considered this would have been a frightening  experience  for  the  attendant.    Mr Andrew  was  charged  with  using threatening language and threatening to injure under the Summary Offences Act

1981  with  a  maximum  penalty  of  three  months’  imprisonment.     The  Judge considered an uplift on the starting point of two months was appropriate having regard to totality.

[22]     The Judge thus arrived at a starting point for all offending of 23 months’ imprisonment.   He uplifted that by a further eight months on account of what he described as Mr Andrew’s appalling history for this type of offending, making a total of 31 months.  He allowed a credit of close to 20 per cent for guilty pleas, bringing the end sentence back  to two  years and one month.   The Judge stood back to consider the totality of sentence and decided that two years and one month was appropriate.

Submissions on sentencing

[23]     Mr  Westgate  submitted  that  the  uplift  of  eight  months  was  too  high  in proportion to the rest of the offending.  Mr Andrew had approximately 70 previous convictions for dishonesty, nine previous convictions for violence or threatening

behaviour and 17 previous convictions for breaching community based sentences or failing to answer bail.

[24]     Mr Smith pointed out that the defendant was granted bail on 13 June 2014 after the charge of threatening the TAB attendant.   All other offending occurred while Mr Andrew was on bail.  That was an aggravating feature in relation to that other offending.  Mr Smith submitted that there could have been a separate uplift in relation to the offending because of this but, with the Judge not having taken it into account in that way, the uplift of eight months for previous convictions was appropriate.

Conclusion

[25]     It  was  appropriate for the Judge to  carefully consider the totality of the offending.  It was appropriate for the Judge to treat two of the instances of theft from supermarkets as burglary because Mr Andrew deliberately entered premises with intent to shoplift when he knew that he had been barred from entering those premises through trespass notices.   He had been physically violent to his partner.   He had behaved in a particularly threatening way towards someone who should never have been in such a situation.  His threatening conduct and use of language to the TAB attendant was not an impulsive response to a particular situation but occurred several hours after her perfectly proper actions which he objected to.  The Judge noted that the explanation for all this offending lay with Mr Andrew’s alcohol addiction.

[26]     It  was  equally appropriate  for  the  Judge  to  concentrate  on  the  need  for deterrence and protection of the public from Mr Andrew’s offending.  Mr Andrew’s criminal history, his breach of community-based sentences and his breach of trespass notices all indicate that there was little scope, short of imprisonment, for protecting the public, including supermarkets and liquor outlets, from Mr Andrew’s offending.

[27]     In these circumstances, I am not satisfied that a sentence other than two years and one month’s imprisonment should have been imposed for all this offending. Accordingly, I consider that there is little merit in the appeal which Mr Andrew wishes to bring through obtaining leave to bring an appeal.

[28]     In  all  these  circumstances,  having  regard  to  the  interests  of  justice,  Mr

Andrew’s application for leave to appeal is declined.

Solicitors:

J A Westgate, Dunedin
R P Bates, Dunedin.