Arps aka Smith v Police
[2013] NZHC 2246
•29 August 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2013-409-000071 [2013] NZHC 2246
BETWEEN HARLEY JAMES ARPS AKA DAVID JAMES SMITH
Appellant
AND
NEW ZEALAND POLICE Respondent
CRI-20130409-000072 BETWEEN
HARLEY JAMES ARPS AKA DAVID JAMES SMITH
Appellant
AND
NEW ZEALAND POLICE Resondent
Hearing: 29 August 2013 Appearances:
R G Glover for Appellant
MAV Raj for RespondentJudgment:
29 August 2013
ORAL JUDGMENT OF D GENDALL J
[1] On 17 July 2013 the appellant was sentenced by His Honour Judge Saunders in the District Court at Christchurch on burglary and dishonesty charges, and charges involving interference with a motor vehicle, assault and breach of parole conditions. The total sentence imposed was a term of imprisonment of two years and six months.
[2] The appellant now appeals his sentence, effectively on two grounds. The first is that the total sentence of two and a half years was manifestly excessive. The
second ground is that Judge Saunders allowed his recollection of the Parole Board
ARPS AKA SMITH v NEW ZEALAND POLICE [2013] NZHC 2246 [29 August 2013]
hearing relating to the appellant, to colour his view at the subsequent sentencing and, as a result, there is a suggestion that an element of bias occurred here.
[3] In response, the respondent contends that the sentence is not manifestly excessive and that in addition there was no improper conduct by Judge Saunders during the sentencing.
Background facts
[4] It seems that on 28 February 2012 the appellant was released from prison on a number of release conditions which included a condition of non-association with a former associate, Aiden Hamilton (Mr Hamilton). This condition was set to expire on 18 February 2013.
[5] On 25 January 2013 the appellant and Mr Hamilton burgled a house on Rose Street, Christchurch. Although the appellant’s instructions to his counsel, Mr Glover, involve a claim that he did not gain entry to the Rose Street house, it was found in the District Court that both he and Mr Hamilton gained entry to this house and ransacked multiple rooms at the address.
[6] As a result, the appellant was charged with burglary and breach of his parole release conditions in that he had associated with Mr Hamilton. He was released on bail.
[7] Whilst on bail, a few days later on 5 February 2013, the appellant was a passenger in a car which was stopped by the police. He was found to have a small amount of cannabis wrapped in tin foil in his back pocket. He was charged with possession of cannabis and also a second breach of his parole conditions in that he was in possession of illicit drugs.
[8] Although the appellant initially maintained not guilty pleas to the above matters, later he changed his pleas to guilty. On 5 July 2013, whilst he was on bail awaiting sentence it seems he endeavoured to gain entry into a motor vehicle. These attempts were interrupted and the appellant, it appears, left quickly and went to a nearby property where he gained entry through an insecure front door. He was
confronted by the house owner in the hallway who tried to usher the appellant out but he then struck the house owner with a backhand across his face. He left the property and police found him shortly thereafter.
[9] All these July 2013 events gave rise to an additional charge of unlawfully interfering with a motor vehicle, common assault and unlawfully being in a building.
[10] In sentencing the appellant on 17 July 2013 Judge Saunders, in the District Court, noted that the appellant’s guilty pleas on the first set of charges did not come at the first available opportunity. An aggravating feature was that the July 2013 offending occurred whilst the appellant was on bail, as I understand it, awaiting entry to the Limited Service Volunteer course at Burnham.
[11] The District Court Judge also noted that the appellant had completed the Special Treatment Unit Rehabilitation programme prior to his last release and the pre-sentence report writer had assessed the appellant as having a high risk of re- offending.
The January/February 2013 offending
[12] In the District Court, the Judge adopted a starting point of 18 months imprisonment for the burglary which took into account that it was a residential burglary and that it occurred whilst the appellant was on parole. As I understand his submissions before me today, Mr Glover, for the appellant, accepts that this was an appropriate starting point.
[13] The District Court Judge then provided for an uplift of six months for the appellant’s prior history of dishonesty. Before me, Mr Glover, took some issue with this degree of uplift and contended that it was excessive.
[14] A cumulative starting point of three months imprisonment was adopted for the second breach of the release conditions and a concurrent sentence of one months’ imprisonment on the possession of cannabis charge. The District Court Judge then applied a 15% discount from the nominal sentence of 27 months which led to an end
sentence of 23 months’ imprisonment in relation to the offending in January and
February 2013.
[15] Mr Glover, for the appellant, submitted that this end sentence of 23 months was manifestly excessive, given particularly that the appellant was a lesser offender in these matters than his co-offender, Mr Hamilton. It is suggested Mr Hamilton instigated the break-in and would seem to be the one who had taken items from the property.
[16] With respect, I take a different view from that advanced by Mr Glover here. Even if it is accepted that the appellant was a lesser offender than Mr Hamilton in the present circumstances, the uplift of six months for the appellant’s previous convictions and offending on parole was within a proper range. The appellant apparently has 34 previous convictions, including 12 for dishonesty offending, which itself includes two convictions from 2010 for burglary.
[17] In relation to the offending on 5 February 2013, the appellant was also on bail at that time and therefore I accept the District Court Judge was justified in adding a three month cumulative sentence to take into account all the circumstances of that offending. In this regard it needs to be noted also that the appellant’s prior history includes three previous convictions for breaches of court imposed community work sanctions.
The July 2013 offending
[18] As to the July 2013 offending, an end sentence of seven months imprisonment was imposed, this to be served cumulatively on the sentence of
23 months for the earlier offending. Judge Saunders noted that the appellant’s guilty pleas, as I have noted, did not come at the first available opportunity. A further aggravating feature was that this July 2013 offending occurred whilst the appellant was on bail awaiting sentence on the earlier offending and pending entry into the Limited Service Volunteer course as noted.
[19] So far as the July 2013 offending was concerned, I am satisfied that it was separate offending and, therefore, in this case cumulative sentences were
appropriate. The July offending involved two separate incidents and entry into a dwelling house at night, culminating in an assault on a house owner, whilst the appellant was on bail awaiting sentence. In this light Ms Raj, for the respondent, contended that the sentence of seven months imprisonment for this offending could be said to be generous to the appellant. I agree.
[20] In conclusion, I am satisfied that the end sentence of two and a half years imprisonment was well within the range available to the District Court Judge. I take the view that the only realistic option here was imprisonment, given the high risk of re-offending identified in the pre-sentence report and the appellant’s actions in deliberately flouting his release conditions. Electronically monitored sentences were not canvassed in the pre-sentence report and I am satisfied the Judge did not need to consider these, given the end sentence here was over two years imprisonment.
Appearance of bias
[21] Next, I turn to the second ground of appeal advanced by the appellant which relates to what is effectively a claim that there might be seen to be an appearance of bias here by Judge Saunders in giving his decision.
[22] On this, Judge Saunders had been Chairman of the Parole Board when the appellant appeared before it on 14 February 2012 on a previous parole hearing. His Honour recalled that appearance and at paragraph [5] of his sentencing notes imported into the sentencing now under appeal his recall of that hearing and matters discussed at it. The appellant appears to argue now that it is inimical to the appearance of justice being done for Judge Saunders to raise matters which were before the Parole Board, from memory and without reference to a written decision of the Board, and, in addition, that the District Court Judge should have recused himself here.
[23] Effectively, the appellant suggests here that he was entitled to be sentenced on the charges before the sentencing Court and on those charges only and that matters which were before the Parole Board should not have entered into consideration.
[24] On these aspects, paragraph [5] of the District Court Judge’s sentencing notes
states:
You were clearly in breach of your Parole conditions that were set by the Board at the time of your release and as I recall it, it was at the request of your parents and acknowledged by you that it was inappropriate that you associate with Aiden Hamilton.
[25] To give some context to this comment, the summaries of facts for both breaches of parole conditions contain the following paragraph:
On 29 February 2012 Harley James Arps was fully inducted into his sentence of Parole. The consequences of non-compliance were explained to him. He indicated he fully understood sentence requirements and the consequences of non-compliance.
[26] In my view, in making the comment he did in his sentencing notes, Judge Saunders was doing nothing more than elaborating on the summary of facts before him and recalling the reason for the parole condition. I am satisfied that no unfairness flowed from the Judge’s reiteration of the reasons for the parole conditions. The fact that the appellant was being sentenced for breaches of his parole conditions clearly required reference to the Parole Board’s decision.
[27] I am further satisfied that the Judge’s view on the appropriate sentence to be imposed on the appellant here was not coloured by the above reference. His sentencing was done in a transparent way with his reasoning clearly set out in his decision.
[28] I reject any suggestion that the Judge did not bring an impartial mind to the sentencing or was in any way biased here.
[29] I conclude that the end sentence imposed was not manifestly excessive and it is clear no additional penalty was imposed on the appellant as a result of the Judge’s recollection of the earlier Parole Board hearing.
[30] To suggest that there might need to be a general rule imposed, providing when a sentencing Judge should recuse himself or herself from a matter given a prior involvement in a Parole Board hearing is, in my view, unnecessary. The proper test
for bias in appropriate cases can be applied in individual situations. It needs to be noted here that no application was made to Judge Saunders, the sentencing Judge, to recuse himself during the hearing of this particular matter.
[31] Finally, it is acknowledged that Judges frequently sentence defendants whom they have sentenced on previous occasions, or are involved in re-sentencing parties who have not been complying with imposed earlier sentences. On these occasions it goes without saying that the Judge in question will have some recollection of previous matters, but it is clear that as long as the Judge concerned is not improperly influenced by that prior knowledge there is no need for that Judge to automatically recuse herself or himself. If concerns do arise then an appropriate application for recusal can be made to the Judge.
[32] I conclude that, in my view, there was no improper conduct on the part of
Judge Saunders during the sentencing which occurred here. [33] For all these reasons this appeal is dismissed.
...................................................
D Gendall J
Solicitors:
Rupert Glover, Christchurch
Raymond Donnelly & Co, Christchurch
0
0