Atkinson v Police HC Wanganui CRI 2010-483-48
[2010] NZHC 1697
•20 August 2010
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2010-483-48
PETER ANTHONY ATKINSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 20 August 2010
Counsel: J Younger for Appellant
J Woodcock for Respondent
Judgment: 20 August 2010
JUDGMENT OF JOSEPH WILLIAMS J
In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4.00pm on the 20th August 2010.
Solicitors:
Jacinda Younger, Barrister, PO Box 694, Wanganui
Crown Solicitors, Wanganui
ATKINSON V NEW ZEALAND POLICE HC WANG CRI-2010-483-48 20 August 2010
Introduction
[1] Mr Atkinson appeals against his sentence of two months’ imprisonment imposed by Judge Clapham in the District Court on 16 August 2010.
Background
[2] It appears that all three charges arose out of events over a period between midday 20 May 2010 and early morning 21 May.
[3] False statement to police:
a) Mr Atkinson called 111 and asked for police assistance saying that there were 40 people fighting with baseball bats on the street.
b)Four police officers were dispatched, travelling under lights and sirens.
c) When they arrived, they found Mr Atkinson still talking to the call taker. There was no-one on the street.
[4] Theft of garden sprinkler:
a) Mr Atkinson entered a private address and removed and took a sprinkler timing device that was attached to the hose.
[5] Theft of camera:
a) Mr Atkinson went to a school in the early hours of 21 May and removed from a school bag that had been left on a bike a camera owned by the school. It was valued at $1,100.
[6] The appellant has 24 previous convictions although none relates to property based dishonesty offending. He has been convicted for being unlawfully in a yard and has three convictions for giving false details to the police.
District Court decision
[7] The Judge identified at [7] the requirement to protect the community and, in particular, schools. The Judge considered the false statement offence the more serious charge presumably because it had the effect of directing almost all of the police resources available in Whanganui to where he was located. That, the Judge said, had a particularly serious impact on members of the community. The Judge therefore identified denunciation, deterrence and protection of the community as relevant principles.
[8] Indeed the Judge considered that this offending was so serious that Mr Atkinson would otherwise have been liable to the maximum sentence in respect of that charge, but a one-third discount was given for his early guilty plea. Two months was also entered for the theft of the camera charge and a term of seven days’ imprisonment was entered for the theft of the sprinkler timer charge. All to be
served cumulatively.[1]
Appellant’s submissions
[1] By s 57 of the Sentencing Act 2002 the court is able to impose community work cumulatively or concurrently and, if no direction is given, the sentences are concurrent.
[9] Counsel for the appellant made the following submissions:
a) The appellant had no previous convictions for this type of offending, had made full admissions before any complaints had been made, and had offered an early guilty plea.
b)The appellant’s offending occurred while intoxicated. He now has no recollection of the events which are alleged to have taken place.
c) The appellant has made a promise to his mother and children that he will not drink anymore.
d)The appellant was attending voluntarily alcohol and drug counselling through “Hapai Mauri Tangata”.
e) Despite previous breaches of community work, Mr Atkinson exhibits a preparedness to change.
f) The appellant contends that a community based sentence is appropriate in the present case.
Respondent’s submissions
[10] The respondent argued that although the learned Judge treated the false call to the police as the lead offence, a sentence of imprisonment could nonetheless be justified on the theft charge in respect of the camera. It was implicit in this submission that the Crown accepted that making a false statement in this case would not have justified a prison sentence.
[11] In respect of the theft charge the Crown referred to R v Ropiha and R v Falaloa.[2] In Ropiha the defendant stole $5,000 in cash and equipment from a tourist bus. He was given two years’ imprisonment. In Falaloa $2,500 in cash and cheques was obtained by way of bag snatch at a bank. The penalty was 21 months’ imprisonment.
[2] R v Ropiha HC Rotorua CRI 2004-463-74 22 July 2004; R v Falaloa HC Napier AP54/98, 23 September 1998.
[12] The respondent argued that on the basis of these authorities the camera theft (valued at $1,100) combined with the other offending in this case could amply justify a short prison term.
[13] The respondent also argued that the court should defer to the special expertise of courts that deal with this type of offending on a daily basis – see R v D.[3]The respondent argued that the learned Judge must have been prompted into imposing a short sharp prison sentence on the basis of the reference in the pre-sentence report to the appellant’s lack of insight into his offending or its alcohol-based causes. It was this combined with the appellant’s history of non-compliance with conditions of
[3] per Heath J at [66].
sentence that led to him opting for the more serious penalty he imposed.
Discussion
Approach on appeal
[14] An appeal against sentence is a general appeal under s 115 of the Summary Proceedings Act 1951.[4] By s 119 that appeal is by way of rehearing. Under s 121 the High Court is to hear and determine every general appeal and make such order in relation to it as the court thinks fit. The court may confirm the sentence, or under s 121(3)(b) quash or vary the sentence if it was manifestly excessive.
[4] Most recently confirmed by Stevens J in McPike v Police HC Auckland CRI-2010-404-151, 28 June 2010 at [12].
[15] There is some debate as to whether the Supreme Court decision of Austin, Nichols & Co Inc v Stichting Lodestar is applicable to appeals against sentence.[5] In D v Police Heath J considered that there was nothing to indicate that Austin Nichols was intended to apply to appeals against sentence.[6] Stevens J agreed with this approach in McPike v Police at [14].[7] Thus:[8]
[5] [2007] NZSC 103; [2008] 2 NZLR 141, see in particular at [16].
[6] HC Tauranga CRI-2008-470-22, 9 September 2008.
[7] HC Auckland CRI-2010-404-151, 28 June 2010.
[8] McPike v Police HC Auckland CRI-2010-404-151, 28 June 2010 at [14].
Austin Nichols has not changed the appellate approach to sentencing. Section 121(3) of the Summary Proceedings Act allows the High Court to intervene on appeal where a sentence is clearly excessive or inadequate or inappropriate. The High Court should not, however, intervene where the sentence is within a range that can be justified by accepted sentencing principles.
This case
[16] Imprisonment in a case like this is a particularly tough sentence in my view and it was incumbent on the sentencing Judge to set out in some detail why a sentence further down the penal hierarchy was not more appropriate even accepting his starting point that denunciation and deterrence were primary considerations.
[17] Here the Judge did not go through the analysis required by s 8(g) of the Sentencing Act 2002: that is that the sentencing Judge must impose the least restrictive outcome appropriate in accordance with the s 10A hierarchy:
a) discharge or order to come up for sentence if called on;
b) sentences of a fine and reparation;
c) community-based sentences of community work and supervision;
d)community-based sentences of intensive supervision and community detention;
e) sentence of home detention;
f) sentence of imprisonment.
[18] Plainly, the sentences contained in (a) and (b) would be inappropriate. Accepting the Judge’s view that this offending required denunciation and deterrence as well as community protection and accepting as well the caution expressed in the pre-sentence report that Mr Atkinson does not believe that there are aspects of his lifestyle that need to be changed, I accept that the sentences contained in (c) would also be inappropriate. But that still left intensive supervision, community detention and home detention to be considered and discounted before imprisonment was imposed.
[19] There is also an issue with the term of imprisonment imposed. The learned
Judge looked to making a false statement as the lead offence. That carries a
maximum term of three months. Section 8(c) of the Sentencing Act 2002 requires that the court must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate. Section 8(d) goes on to provide that the court must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.
[20] In the present case, the offending is not near the most serious. One can envisage much worse scenarios – such as making false statements to facilitate other offending, or as in Bell v Police[9] out of spite against another. There is none of that here.
[9] HC Christchurch CRI-2007-409-66, 12 July 2007.
[21] The respondent meets this difficulty by arguing that the theft charge in relation to the camera justifies imprisonment. The cases relied upon are Ropiha and Falaloa but both cases are premeditated thefts of secure premises. This case appears on the facts as I read them to have been a purely opportunistic act. The appellant appears to have discovered a bag left on a bike in school grounds in the small hours
of the morning of the 21st. And unlike Ropiha and Falaloa the appellant has no
previous record of dishonesty offending in relation to property. [22] Imprisonment for this theft also seems stern.
[23] The respondent submits based on the pre-sentence report that the Judge felt moved to impose incarceration because of the appellant’s history of alcohol-related anti-social behaviour and his refusal to accept that his life needs to change. For example, the report writer said:
It was clear from discussion with Mr Atkinson that he does not believe that there are aspects of his lifestyle that need to be changed. He states that he has not had contact with the associates he had spent time with prior to the current offending. His explanation for his offending on this occasion demonstrates his complete denial of any responsibility as well as a lack of insight or understanding of the implications and potential risks of further similar behaviour. In my opinion unless Mr Atkinson is prepared to accept
and address the underlying factors of his offending there remains a risk of further similar behaviour the nature of which poses a risk of harm to the public.
[24] The reporting officer’s summary of Mr Atkinson’s attitude to community- based sentencing was particularly instructed in this regard:
In discussing the various community-based options available with Mr Atkinson, it was apparent that whilst he has indicated that he would be willing to comply with any order imposed by the court, there is no real recognition on his part that there are issues in relation to his behaviour and the lifestyle that need to be addressed. In view of this together with his unwillingness to accept any real responsibility for the current offences, I do not believe that there would be any value, at this stage, in imposing a supervision order.
Conclusion
[25] Although the learned Judge does not address these considerations in detail, I accept the respondent’s submission that these must have been to the forefront of his mind when he imposed what was a clearly stern sentence. It was in his mind to impose a short sharp shock in the hope that this would jolt the appellant from his uncaring attitude to his ongoing offending. We shall see whether it works.
[26] On reflection I see that the sentence was a rational choice from the penal options available to the sentencing Judge, and accept that he saw the appellant and made his assessment. It would be inappropriate for me to upset that assessment on appeal when I have not had that advantage.
[27] The appeal is dismissed accordingly.
Joseph Williams J
0
1
0