Andrews v Police
[2015] NZHC 2496
•12 October 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-470-10 [2015] NZHC 2496
BETWEEN ADAM KIRKHAM ANDREWS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 12 October 2015 Counsel:
N M Dutch for Appellant
R W Jenson for RespondentJudgment:
12 October 2015
JUDGMENT OF BREWER J
Solicitors/Counsel: Nicholas Dutch (Tauranga) for Appellant
Hollister-Jones Lellman (Tauranga) for Respondent
ANDREWS v POLICE [2015] NZHC 2496 [12 October 2015]
Introduction
[1] Mr Andrews was sentenced on 7 September 2015 after having pleaded guilty to the following charges:
(a) Receiving property (over $1000), which carries a maximum sentence
of seven years’ imprisonment.1
(b)Possession of cannabis plant (class C drug), which carries a maximum sentence of three months’ imprisonment or a fine of up to $500.2
(c) Breach of home detention conditions, which carries a maximum sentence of one year of imprisonment or a fine of up to $2000.3
[2] The sentencing Judge, Judge Geoghegan, imposed an effective sentence of
nine months’ imprisonment.4 Mr Andrews appeals that sentence.
Facts
Receiving charge
[3] Sometime between 27 March 2012 and 31 March 2012 a shed on Pahoia
Beach Road was broken into and items of property were stolen including a Yamaha
15 horsepower outboard motor and fuel container, and Shimano 6500 bait runner and combination rod and reel set. The Police executed a search warrant of Mr Andrews’s address on 23 February 2015 and located the stolen motor and fuel tank attached to his boat. The Police also found the combination rod and reel set in the Mr Andrews’s boat.
[4] In explanation, Mr Andrews said that he had had the motor for over a year and had bought it in November 2013 for $1,000. The Police asked Mr Andrews
from whom he had bought the motor. He replied that he needed to do some research.
1 Crimes Act 1961, ss 246, 247
2 Misuse of Drugs Act 1981, s 7(1)(a) and 7(2).
3 Sentencing Act 2002, s 80S.
4 Police v Andrews [2015] NZDC 17874.
The Police spoke to Mr Andrews again on 20 May 2015. At that time he claimed that he had bought the outboard motor from a person who he named and he claimed to have found the reel and rod set washed up on the beach at Kaituna Cut.
Possession of cannabis and breach of home detention conditions charges
[5] Mr Andrews had been sentenced to three months’ home detention with six months’ post detention conditions on 13 April 2015 at the Tauranga District Court in relation to the burglary of a shed. The shed in question was the same shed at Pahoia Beach Road from which the outboard motor, the subject of the receiving charge, was taken in 2012.
[6] A special condition of the home detention sentence was not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence of home detention. Mr Andrews confirmed that he understood the conditions of his sentence.
[7] While serving his sentence of home detention on 4 June 2015, Mr Andrews was stopped by the Police while he was driving. He consented to a search of his motor vehicle. The Police located a metal ammunition tin containing 101 grams of cannabis, 10 plastic snaplock bags, and a further 36 grams of loose cannabis.
Judge Geoghegan’s decision
[8] After summarising the facts of the offending, Judge Geoghegan identified that Mr Andrews had 13 previous convictions for drug-related offending, the last in
2011. The Judge also said that Mr Andrews had seven previous convictions for dishonesty including two for receiving, along with various breaches of Court imposed sentences. In addition, Mr Andrews had $500 of fines and reparation outstanding.
[9] The Judge said the pre-sentence report identified that apart from cannabis possession, Mr Andrews’s compliance was “adequate”, but that “adequate” was a weak endorsement. The report assessed Mr Andrews as being able to comply with a further community-based sentence and the address was suitable. The Judge said that Mr Andrews was noted as unemployed on the pre-sentence report but had since
found employment as a builder. The Judge emphasised Mr Andrews’s previous community-based and rehabilitative sentences, and noted that at the age of 40 he did not seem to be making progress.
[10] The Judge treated the receiving charge as the lead charge. He imposed a starting point of six months’ imprisonment. He said that the receiving did not appear to be opportunistic because Mr Andrews knew the victims and was very familiar with the property from which the items were stolen. The Judge said that although Mr Andrews had pleaded guilty, he had tried to explain away his actions at the time of the Police interview. The Judge increased the starting point by two months to take into account Mr Andrews’s previous convictions. The Judge then decreased the sentence by 25 per cent for the guilty plea. To reflect the totality of the offending and to take into account the fact that Mr Andrews was not in possession of a small amount of cannabis, the Judge uplifted the sentence by three months.
[11] As to home detention, the Judge noted that the amount of cannabis was not small, meaning that the breach of home detention was serious. He said that to retain the integrity of this type of community-based sentence, deterrence must be a significant factor in sentencing. Rehabilitation could be provided for by post release conditions. He imposed a sentence of imprisonment.
[12] Judge Geoghegan sentenced Mr Andrews to nine months’ imprisonment on the charges of receiving and the breach of home detention and then imposed a concurrent sentence of two months’ imprisonment for the possession of cannabis charge. Judge Geoghegan ordered also that Mr Andrews pay $3,337.27 to the victim in reparation.
Grounds of appeal
[13] Counsel for Mr Andrews, Mr Dutch, submits that Judge Geoghegan erred in the following respects:
(a) The sentence of nine months’ imprisonment on the receiving and
breach of home detention charges was manifestly excessive;
(b) Judge Geoghegan should have imposed a sentence of home detention;
and
(c) There was no basis for an order of reparation for $3,337.27.
[14] The Crown agrees that the sentence imposed by Judge Geoghegan needs to be reconsidered but for reasons different from those advanced by Mr Dutch. The Crown notes that Judge Geoghegan’s sentencing followed the earlier sentencing of Mr Andrews for burglary that took place on 13 April 2015. The Court on 13 April
2015 was unaware of the receiving charge which had only recently been laid. The respondent submits that when Judge Geoghegan came to sentence Mr Andrews, his Honour ought to have paid due regard to the totality principle by assessing the appropriate sentence for the receiving offending by determining what sentence would have been imposed had the burglary and receiving offending been dealt with together. The Judge did not and in that respect, as a matter of law, he erred.
[15] In addition, the Crown submits that the reparation order made was erroneous and also needs to be reconsidered.
Issues on appeal
[16] The issues for me are:
(a) Was the sentence of nine months’ imprisonment manifestly excessive?
(b)Did Judge Geoghegan err in not imposing a sentence of home detention?
(c) Was there a basis for an order of reparation for $3,337.27?
Approach to appeal
[17] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence
should be imposed.5 The principles behind the law are well known, and not changed by the Criminal Procedure Act 2011.6 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.7
[18] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.8
Was the sentence of nine months’ imprisonment manifestly excessive?
Appellant’s submissions
[19] Mr Dutch makes a number of submissions in support of his argument that the
end sentence of nine months’ imprisonment was manifestly excessive.
[20] The first series of submissions relates to a number of factual findings that the
Judge made. In particular, Mr Dutch submits that:
(a) The Judge relied improperly on the victim impact statement to make a factual finding that Mr Andrews was familiar with the property and that the offending was not opportunistic. This information was not included in the summary of facts.
(b)The Judge was not provided with a basis in fact to reach the conclusion that the stolen items found at Mr Andrews’s property were valued at $3,337.27. Both the summary of facts and the charging
document indicate that the value of the items received was $2,000.
5 Sentencing Act 2002, s 250.
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
7 At [33] and [35].
8 Ripia v R [2011] NZCA 101 at [15].
(c) The Judge’s inference that Mr Andrews had tendered an innocent
explanation prior to pleading guilty had no factual foundation.
[21] Relying on the authorities in R v Singh9 and Tipiwai v Police,10 Mr Dutch submits that the starting point should have been a community-based sentence. In addition, because the receiving offending occurred in 2012, that factor should have been given more weight in setting the starting point.
[22] Finally, Mr Dutch argues that the sentence structure was wrong in principle for the following reasons:
(a) The Judge was not entitled to increase the sentence by three months following the discount for the guilty plea.
(b)The uplift was disproportionate and did not bear a proportionate relationship with the starting point.
(c) There were elements of double counting of the appellant’s previous convictions in setting the starting point and uplifting the sentence on a totality basis.
Crown’s submissions
[23] The Crown submits that the burglary offending for which Mr Andrews was sentenced on 13 April 2015 and the receiving offending were sufficiently similar in kind and factually connected such that the burglary offending ought to have been taken into account by Judge Geoghegan. The Crown says that the Judge ought to have determined what the appropriate overall sentence would have been had Mr Andrews been sentenced on both the receiving and burglary charges at the same time and then adjusted the sentence for the receiving offending accordingly. Such an approach would have ensured that the total sentence imposed was not out of all proportion to the gravity of the overall offending. Accordingly, the Crown submits
that the starting point in the vicinity of six months for the receiving offending was
9 R v Singh CA17/05, 19 May 2005.
10 Tipiwai v Police HC Wanganui CRI-2007-483-14, 17 October 2007.
appropriate, but that starting point should have been reduced to three months’ imprisonment (after a guilty plea discount) in the light of the fact that Mr Andrews has served already an effective sentence of six months’ imprisonment for the burglary offending.
[24] The Crown submits also that the cannabis and breach of home detention offending effectively amounted to a single transaction and warrants concurrent sentences, cumulative on the sentence for the receiving offending. Given the large amount of cannabis and the flagrancy of the home detention breach and the maximum penalty available for the cannabis offending, the Crown submits that a sentence of one to two months’ imprisonment is appropriate (following a guilty plea discount).
[25] Ultimately, the Crown submits that the cumulative sentence imposed for the
three charges should be in the vicinity of four to five months’ imprisonment.
Outline of discussion
[26] I think it is helpful at this point to outline the approach I take to the discussion of whether the sentence was manifestly excessive:
(a) First, I will consider the factual findings that can appropriately be made about Mr Andrews’s offending. This will be relevant to the setting of an appropriate start point.
(b)Second, I will consider the starting point that should properly be imposed for the receiving charges.
(c) Third, I will consider whether the sentence for the cannabis and breach of home detention charges should be served cumulatively. If so, this requires adjustment of the global starting point.
(d) Fourth, I will adjust the sentence based on personal mitigating and
aggravating factors and Mr Andrews’s guilty plea.
(e) Fifth, I will consider the sentence on a totality basis in the light of the burglary offending and decide whether the sentence needs to be adjusted downwards.
Factual findings
[27] I turn to consider the issues that Mr Dutch raised relating to the Judge’s
interpretation of the summary of facts.
[28] I have considered a number of cases dealing with the interpretation of a summary of facts. I summarise the relevant legal principles:
(a) A guilty plea is simply an admission of the essential legal ingredients of the offence and is not an admission of any aggravating facts that may be alleged by the prosecution in the summary of facts. By pleading guilty, the offender admits that he is guilty of the offence charged and nothing more.11
(b)Where a plea of guilty is entered and the prosecutor puts before the Court a summary of facts, which is not disputed by the offender, the Judge is entitled to form his or her own view of the facts within the limits of the guilty plea and the evidence. The Judge is not bound to sentence on a view of the facts most favourable to the offender.12
(c) By entering a guilty plea, the defendant assumes an onus to identify any allegations of fact in the summary of facts capable of affecting the sentencing outcome which he disputes.13
(d)The victim impact statement is not part of the summary of facts.14 Its function is to convey the physical or emotional harm that the victim
11 R v Bryant [1980] 1 NZLR 264 (CA).
12 R v Accused (CA125/87) [1988] 1 NZLR 422 (CA); R v Mathieson CA209/02, 26 September
2002.
13 R v Grant CA240/02, 11 December 2002.
14 Curtis v Police (1993) 10 CRNZ 28 (CA) at 35
claims to have suffered.15 The victim may allege facts in the course of making the statement.16 This is information that is untested by cross- examination.17 A sentencing Judge must exercise care as to how to treat such untested material in the light of the circumstances of the case and all the material that is before the Court.18
[29] I have not seen the victim impact statement that was read out before Judge Geoghegan, although Crown counsel has a copy in the Court today. I am told that it does not add materially in its contents to the issues in this appeal. It does appear, however, from the fact that Mr Andrews was convicted of a burglary of the same shed that he was evidently acquainted with the property. But I will not, for the purpose of this re-sentencing exercise, infer from that knowledge that the offending was planned so as to count premeditation as an aggravating feature of the offending.
[30] I turn to Mr Dutch’s submission about the value of the property received. The Crown has provided me with a copy of the reparation schedule. It appears that the amount of $3,337.27 was the value of all the property taken, and not recovered, in the burglary during which the outboard motor was taken. The Crown agrees with Mr Dutch that the value of the motor was no less than $2,000, as reflected in the charge sheet and the summary of facts. I will proceed with the sentencing on the basis that the value of the items was $2,000.
[31] I am of the view, however, that there was a sufficient basis for the Judge to conclude that Mr Andrews had tendered an innocent explanation prior to pleading guilty. This was recorded in the summary of facts. Mr Andrews did not appear to challenge this fact prior to sentencing.
Sentence for receiving charges
[32] There is no tariff case for the crime of receiving. However, the decided cases
indicate that a starting point of six months’ imprisonment has been imposed where
15 Above.
16 Above.
17 At 35-36.
18 Above.
the goods received are valued at around $2,000.19 A starting point of 18 months’ (or higher) is appropriate where the value of the goods is $5,000 or more.20 While the value of the items received is a significant factor in assessing the level of criminality for the purposes of setting a starting point, it is not a determinative factor.21 Relevant aggravating features include also the number of burglaries from which the goods were received,22 the scale of the offending23 and the gap in time between the taking of the goods and their receipt by the defendant.24
[33] I have considered the decisions in R v Singh25 and Tipiwai v Police.26 I do not believe they provide assistance in setting a start point in this case. In Singh, the Court of Appeal did not set a start point. I do not wish to engage in an exercise where I am required to guess what that would have been. In Tipiwai, Gendall J’s discussion of the receiving charges is limited to the appropriate uplift that should be imposed on the starting point of the lead offence in that case, which was burglary. The uplift imposed was an aggregate uplift for several different dishonesty offences.
[34] In this case, Mr Andrews received the items following a single burglary. It is not possible to know when Mr Andrews received the property following the burglary and how close he was to that offending. The property received is valued at $2,000. In these circumstances, I consider that a starting point of six months’ imprisonment
is appropriate and within range.
19 See Aurupa v Police [2012] NZHC 2750 where appellant received a stolen computer worth
$2,000, which he then on sold to the owner of a second-hand dealership for $300. The computer was recovered with no loss to the owner. The appellant was sentenced for only one offence. Justice Duffy on appeal held that a starting point of six to eight months’ imprisonment was appropriate. See also Ngatai v Police [2015] NZHC 2249 where the appellant received clothing with security tags attached from the burglary of a retail store, and also a television and a stereo owned by Mr Rental from a separate burglary of a residential property. Justice Toogood held that a starting point of six months’ imprisonment was lenient. The value of the clothes taken was just under $900. The value of the rental television and stereo is not stated in the Judgment, but can be presumed to be no more than $1,000.
20 See Ellis v R [2012] NZCA 513 the appellant was found with $5,000 worth of stolen property a few hours after a property in Grey Lynn was burgled. See also Vansilfhout v Police HC Rotorua CRI 2006-470-2, 7 March 2006 in which the appellant was sentenced on one charge of receiving goods to the value of $500 and electronic equipment valued just under $4500.
21 Inamata v Police [2014] NZHC 3099 at [26].
22 Ngatai v New Zealand Police, above n 19.
23 R v Singh, above n 9.
24 Ellis v R, above n 20.
25 R v Singh, above n 9.
26 Tipiwai v Police, above n 10.
Sentence for breach of home detention condition and cannabis offending
[35] In my opinion, Mr Andrews should receive concurrent sentences for the breach of home detention and possession of cannabis charges and these should be served cumulatively on the sentence for the receiving charge. This is because the cannabis and breach of home detention offending is not connected in time or circumstance to the receiving charge.27
[36] Having considered the sentences imposed for similar breaches of home detention conditions,28 and that the offending amounted to a single transaction, and taking into account the amount of cannabis involved, I adopt a starting point of three months’ imprisonment on both charges.
[37] I have reached a total starting point of nine months’ imprisonment.
Adjustments for personal circumstances
[38] Judge Geoghegan uplifted Mr Andrews’s sentence to take into account his previous convictions. Mr Dutch takes issue with the Judge’s approach.
[39] An uplift for previous convictions is appropriate where there is a particular need for individual deterrence and/or a need to protect the community from continual offending.29 The purpose is not to re-punish the defendant for previous offending.30 It is for this reason that an uplift for previous convictions must be proportionate to the starting point appropriate for the circumstances of the offending.31
[40] Mr Andrews has a number of previous convictions. Prior to the receiving offending, Mr Andrews had been convicted of 36 other offences, many of which are drug offences and also dishonesty offences (including theft, burglary and receiving
property).
27 Sentencing Act 2002, s 84.
28 See, for example, Swinburne v R [2010] NZCA 568; Johnstone v Police [2013] NZHC 306 at
[5]; R v Kelly DC Nelson CRI 2009-042-3804, 9 December 2010.
29 Blackmore v R [2014] NZCA 109 at [12].
30 Above.
31 Taylor v R [2012] NZCA 332 at [46]; Blackmore v R, above n 29, at [13].
[41] I have considered Mr Andrews’s pre-sentence report. It states that the receiving offending is a continuation of Mr Andrews’s offending pattern. It notes also that the possession of cannabis and breach of home detention charges are a demonstration of Mr Andrews’s ongoing involvement with illegal drugs and his inability to make good decisions around drug-related associates. I am satisfied that there is clear need for individual deterrence in the circumstances. An uplift of three months’ imprisonment takes into account the need to deter while remaining proportionate to the nine month starting point. This results in an end sentence of
12 months’ imprisonment.
[42] I acknowledge it was incorrect for Judge Geoghegan to uplift for totality after discounting for his guilty plea. The Supreme Court decision in Hessell32 requires that the discount for a guilty plea be factored in after the sentence is adjusted for the defendant’s personal circumstances. Applying a 25 per cent discount for the guilty pleas results in an effective end sentence on all charges of nine months’ imprisonment.
Adjustment of the sentence in the light of the burglary sentence
[43] I have considered the decisions of the Court of Appeal in R v Fissenden33 and Opetaia v R34 which were provided to me by Crown counsel, as well as s 85 of the Sentencing Act 2002. These decisions, and that provision, require me to consider what the appropriate overall sentence would have been had Mr Andrews been
sentenced on both the receiving and burglary charges at the same time. I must adjust the sentence I would impose if the cumulative effect of Mr Andrews’s sentences in combination with the earlier sentence is wholly disproportionate to the overall offending.
[44] Mr Andrews has served an effective sentence of six months’ imprisonment. I
am of the view that a sentence of 15 months’ imprisonment on all charges is out of proportion to the overall offending. A sentence of 12 months’ imprisonment is
32 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
33 R v Fissenden CA364/95, 21 February 1996.
34 Opetaia v R [2013] NZCA 434.
proportionate in the circumstances. I reduce the total sentence to be served by three months to account for the totality principle.
Conclusion
[45] I have come to the conclusion that, on a totality basis, Mr Andrews should be sentenced to a total of six months’ imprisonment on the three charges. The sentence that Judge Geoghegan imposed was manifestly excessive.
Did Judge Geoghegan err in not imposing a sentence of home detention?
Legal principles
[46] When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community’s safety.35
It follows from this principle that the Court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act.36 The Court cannot impose a sentence of imprisonment unless it is satisfied that:37
(a) the sentence is being imposed for a statutory purpose or purposes – that is: to hold the offender accountable; or to induce in him or her a sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or protect the community; and
(b)that those purposes cannot be achieved by a sentence other than imprisonment; and
(c) that no other sentence would be consistent with the statutory principles as applied to the particular case.
35 Sentencing Act 2002, s 16(1).
36 Section 8(g).
37 Section 16(1).
[47] Where the sentence proper is a short-term period of imprisonment, the Judge must decide whether to commute that sentence to a sentence of home detention.38
But as the Court of Appeal has said:39
That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[48] The choice between imprisonment and home detention must be intelligible. The Judge must properly identify and weigh the factors that really count.40
Sentences of imprisonment have been quashed and home detention substituted where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.41
Submissions
[49] Mr Dutch submits that Judge Geoghegan erred in refusing to impose a sentence of home detention given the pre-sentence report, employment of Mr Andrews, his rehabilitative needs and the gravity of the offending. In support of this submission he relies on the pre-sentence report that recommends home detention. Mr Dutch argues that the main reason the Judge declined home detention was deterrence and for this reason he failed to adequately take into account the other purposes of the Sentencing Act. This, he says, resulted in the Judge minimising the importance of rehabilitation as a sentencing principle. He adds that home detention has been held to be an appropriate sentence notwithstanding a breach of trust
requiring a deterrent sentence.42
[50] The Crown submits that Judge Geoghegan was correct to decline home detention. It says that the breach of home detention was flagrant and flew in the face
of Mr Andrews’s earlier claims that he was attempting to deal with his drug issues.
38 Section 15A(1)(b).
39 Fairbrother v R [2013] NZCA 340 at [30].
40 At [31].
41 Fairbrother v R, above n 39, at [29]; Manikpersadh v R [2011] NZCA 452 at [17].
42 R v Iosefa [2008] NZCA 453; Byrne v R [2014] NZCA 32.
His conduct in that regard, according to the Crown, demonstrates an unwillingness to comply with the terms of a home detention sentence.
Discussion
[51] For my part, I agree with Judge Geoghegan that the amount of cannabis that Mr Andrews had in his possession was not an insignificant amount. Mr Andrews was lucky not to have been charged with possession for supply. He needs to be held accountable for that offending. I am not satisfied that a further sentence of home detention is proportionate to punish Mr Andrews for the combined cannabis, breach of home detention and receiving offending.
[52] Furthermore, Mr Andrews has engaged in a pattern of dishonesty offending. The pre-sentence report notes that the receiving charge demonstrates a continuation of Mr Andrews’s offending. Despite previous sentences of community work and a short sentence of imprisonment in 2010 for drugs and dishonesty offending, Mr Andrews does not appear to have taken responsibility for his actions nor exhibited an understanding of the effect that such offending can have on victims. Accountability would not be served by a further home detention sentence.
[53] I have received a letter from Mr Andrews’s mother attesting to his positive qualities as a son and a father. I have been given copies of correspondence between Mr Andrews and his young son. I accept that all of the correspondence is heartfelt and genuine. But the Judge did consider Mr Andrews’s rehabilitative needs. I quite agree with the Judge’s conclusion that these needs can be addressed by way of release conditions. As the Crown points out, the sentence of imprisonment provides for a period of time where there can be some assurance that Mr Andrews will not have access to illicit substances.
[54] Finally, I am of the view that a sentence of imprisonment is required to publicly denounce Mr Andrews’s breach of the home detention condition and to deter both him and other offenders from similar offending. I agree with Judge Geoghegan that a sentence of imprisonment is necessary to retain the integrity of this type of community-based sentence. Serious breaches of this nature are not to be tolerated.
[55] I conclude that Judge Geoghegan did not err in imposing a sentence of imprisonment.
Was there a basis for an order of reparation for $3,337.27?
[56] Mr Dutch submits that there is no basis for an order of reparation for
$3,337.27. The Crown agrees. As I have already said, that figure refers to the quantum of all of the property taken, and not recovered, in the burglary during which the outboard motor was taken.
[57] Mr Dutch says that all the property that was received was recovered by the Police during the execution of the search warrant and so no order for reparation is necessary. However, the Crown has indicated that the cost of reinstating the motor, once recovered, was $411.
[58] Section 32 of the Sentencing Act provides that the Court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer loss of property. I am of the view that Mr Andrews should pay reparation for the loss he has caused to the victim. I reduce the reparation ordered from $3,337.27 to $411.
Outcome
[59] The appeal is allowed in part. The sentence imposed by Judge Geoghegan is quashed and replaced with the following sentences:
(a) On the charge of receiving property, Mr Andrews is sentenced to four
months’ imprisonment.
(b)On the charges of breach of home detention and possession of cannabis, Mr Andrews is sentenced concurrently to two months’ imprisonment. Those sentences are to be served cumulatively with the sentence for receiving.
(c) Mr Andrews is to pay reparation in the amount of $411.
[60] I maintain the special release condition that Judge Geoghegan imposed. Mr Andrews must undertake and complete any remaining rehabilitative programmes as directed by his probation officer. This condition is to apply for six months from
the sentence end date.
Brewer J
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