Asres v Police

[2019] NZHC 2760

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-441

[2019] NZHC 2760

BETWEEN

MENASEA ASRES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 October 2019
Appearances:	G Burns for the Appellant J Kang for the Respondent
Judgment:	29 October 2019

ORAL JUDGMENT OF GAULT J

Solicitors:

Mr G Burns, Barrister, Auckland

Mr J Kang, Meredith Connell, Office of the Crown Solicitor, Auckland

ASRES v POLICE [2019] NZHC 2760 [29 October 2019]

[1]                The appellant was sentenced to nine months’ imprisonment on 23 September 2019 by Judge R G Ronayne in the Auckland District Court after pleading to various dishonesty related offences.1

[2]                He appeals his sentence on the basis the Judge double counted a factor leading to a manifestly excessive sentence. Mr Burns, for the appellant, submits the sentence should have been six to seven months’ imprisonment. The Crown submits the sentence was very much within the available range.

Facts

[3]                On 21 January 2019 the appellant came into possession of a stolen debit card and used it to purchase goods totalling $211.10. This founded the following charges:

(a)receiving (under $500);2 and

(b)dishonestly using a document.3

[4]                On 16 June 2019 the appellant stole two laptops from a study lab at Unitec University, valued in total at $2,600. This founds two charges of theft (over $1,000).4

[5]                On 4 July 2019 the appellant met an acquaintance, borrowed his phone, left and did not return it, founding a charge of theft ($500 to $1,000).5

[6]                On 26 June 2019 the appellant failed to report to Community Corrections, as required by a previous sentence of intensive supervision, founding a charge of breaches condition of intensive supervision.6

1      Police v Asres [2019] NZDC 18958.

2      Sections 246(1) and 247(c) of the Crimes Act 1961, carrying a maximum penalty of three months’ imprisonment.

3      Section 228(1)(b), carrying a maximum penalty of seven years’ imprisonment.

4      Sections 219 and 223(b), carrying a maximum penalty of seven years’ months’ imprisonment.

5      Sections 219 and 223(c), carrying a maximum penalty of three months’ imprisonment.

6      Section 70A(a) of the Sentencing Act 2002, carrying a maximum penalty of six months’ imprisonment or a fine not exceeding $1,500.

District Court decision

[7]                Judge Ronayne began by noting the appellant’s recent history of petty crime. The Judge said that sentences of supervision and intensive supervision had not worked in the past.

[8]                The Judge took a starting point of nine months’ imprisonment for the three theft charges, added three months for the January dishonest use of a document and receiving charges, then added another three months for the breach of intensive supervision and bail breaches, coming to 15 months, but then deducted two months for totality.

[9]                In terms of personal factors, the Judge uplifted by two months for the appellant’s history. The Judge declined to give a discount for youth (the appellant is 22), but did give two months for remorse, coming down to 13 months. The Judge then gave a 25 per cent discount for a guilty plea, being three months, and a further month for prospects of rehabilitation. This came to a final sentence of nine months’ imprisonment.

Approach on appeal

[10]            To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7

[11]            The court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.8 The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.9

7      Criminal Procedure Act 2001, ss 250(2) and (3).

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

9      Ripia v R [2011] NZCA 101 at [15].

Submissions

[12]            The ground of appeal is that the Judge double counted by uplifting the sentence by three months for the January dishonesty charges, and then again for previous convictions.

[13]            This requires explanation. The appellant committed a number of other offences in late 2018 to January 2019 and was sentenced for those on 25 May 2019 to intensive supervision of one year. The further January offending, which was the subject of the sentence under appeal, only came to light after he had already been sentenced in May. Mr Burns submits that, had the offending been known as at 25 May, the offending would have been incorporated into that sentence of intensive supervision. Mr Burns submits, then, that when the Judge applied a further uplift for previous criminal history, this is in effect double counting.

[14]            Putting it more generally, Mr Burns submits the overall sentence was manifestly excessive. He cited authorities for comparative purposes.

[15]            The Crown submits that the sentence overall was relatively light. Mr Kang has referred me to Lang J’s decision in Henriksen v R, where he upheld a starting point of 12 months’ imprisonment where the offender had stolen two tractors, valued at

$1,600.10 The goods were recovered. The Crown submits the present offending is more serious than in Henriksen, given the value of the goods and that they have not been recovered, so the sentence is overall in range.

Discussion

[16]I do not consider the appeal can succeed. This is for two reasons.

[17]            First, and primarily, I agree with the Crown that the sentence overall is in range for this offending. I say that notwithstanding the cases referred to by Mr Burns, including the case of Henry involving the same nine month sentence for offending of greater financial value but involving commercial premises.11 Here, the victim impact

10     Henriksen v R [2015] NZHC 2572.

11     Henry v Police [2016] NZHC 800; Samuels v Police [2019] NZHC 694.

was not solely financial. As I have said, the appeal court’s focus is on the final sentence, rather than how that sentence was reached.

[18]            Secondly, I do not consider the Judge double counted. It is not clear whether, if the January offending had come to light earlier, the sentence imposed on the appellant in May would have been the same. The exercise becomes extremely hypothetical. I do not consider the uplift of three months was excessive for the offending. Even if the offending would have attracted a less harsh penalty if it came to light earlier, the appellant is unfortunately the author of his own misfortune. He could have admitted to the offending earlier. I also do not consider that the uplift for previous convictions was excessive. The uplift did not take account of the January dishonesty offending, as that did not form a part of the appellant’s criminal history. I do not consider, therefore, there was double counting.

Conclusion

[19]The appeal is dismissed.

Gault J