Bain v Police

[2015] NZHC 3219

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-109 [2015] NZHC 3219

BETWEEN

TIPENE BAIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 December 2015
Appearances:	L Drummond for Appellant C E Martyn for Respondent
Judgment:	15 December 2015

JUDGMENT OF MANDER J

[1]      The appellant, Ms Tipene Bain, appeals a 12 month sentence of imprisonment imposed by Judge Couch on a charge of dishonestly using a document.

[2]      Following the establishment of an apparent friendship with an elderly man in December 2014, Ms Bain took the man’s EFTPOS card, and over the course of two days utilised it some 43 times to obtain goods and cash worth a total amount of

$5,838.77.   Ms Bain did not have permission to use the card, and as a result was charged with a representative count of dishonestly using a document.

[3]      After pleading guilty to the charge on the morning of her trial in July 2015, a

12 month sentence of imprisonment was imposed cumulatively on an 18 month sentence imposed three months earlier in April.1   She appeals the 12 month sentence on the basis that it is manifestly excessive when combined cumulatively with her

existing 18 month sentence.

1      New Zealand Police v Bain [2015] NZDC 13684 [July Sentencing Offending].

The appeal

[4]      The appeal against the 12 month sentence was sought to be advanced on a number of bases.  These included that the sentencing Judge did not properly consider the totality principle and had fallen into error in examining the offending in isolation. It was further submitted that the uplift to account for previous convictions  had resulted in a “double counting”.

[5]      In order for Ms Bain to succeed, she will need to show there was an error in the sentence, and that a different sentence should have been imposed.2   In making the submission that the sentence imposed was manifestly excessive, Ms Bain will need to establish the sentence was outside the range reasonably available at first instance.3

Important, for present purposes, is the observation of Toogood J in Larkin v Ministry of Social Development:4

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[6]      The appeal fundamentally reduces to the issue of whether an end sentence of

31 months imprisonment for the totality of Ms Bain’s offending contravenes the totality principle, and whether the overall sentence imposed is “wholly out of proportion to the gravity of the overall offending”.5     It is therefore necessary to review the other offending for which Ms Bain was sentenced to 18 months imprisonment in April.

[7]      For completeness, it is to be noted that the appeal was filed out of time. However, the Crown takes no issue with that point, and leave is granted.

2      Criminal Procedure Act 2011, s 250(2).

3      In Tutakangahau v R [2014] NZCA 279 at [35], the Court of Appeal confirmed that the test set out in s 250(2) did not change the previous approach taken to appeals against sentence under the

Summary Proceedings Act 1957, insofar as while s 250 makes no reference to “manifestly excessive”, the principle is “well ingrained” in the approach taken by the Courts to appeals against sentence.

4      Larkin v Ministry of Social Development [2015] NZHC 680 at [26].

5      Sentencing Act 2002, s 85.

April sentencing offending

[8]      On 14 April 2015, Ms Bain was sentenced to 18 months imprisonment by

Judge Saunders.6  That sentence related to the following offending:

(a)      Theft of goods and equipment worth $630 (4 months concurrent) – In March 2014, Ms Bain was at an address from which she removed a television attached to the wall and a DVD player.  These items were worth approximately $450.  She also took a pair of jeans and running shoes worth an estimated $180.

(b)Theft of goods worth $50 in April 2014 (2 months concurrent) – Ms Bain was on a public street in Christchurch.  Her victim was driving when  she  observed  Ms  Bain  on  the street  complaining of  having pains.  The victim offered to give Ms Bain a ride to the doctor.  She got into the victim’s vehicle and asked her to drive to different locations for about half an hour prior to visiting the doctor.  When Ms Bain finally left the victim’s car, the victim noticed that $10 cash, her driver’s licence and two keys were missing from her handbag.

(c)      Possession of a syringe (3 months cumulative) – In August 2014, Ms Bain injected herself, using a hypodermic needle, in the bathroom of a tavern.  She was disturbed by a member of the public, at which point she tried to dispose of the needle by flushing it down the toilet.  The police were called and, after consenting to a search of her bag, two capped  needles  were  discovered  one  containing  residue  of  clear liquid.

(d)Breach of community work (2 months cumulative) – Ms Bain was sentenced to 100 hours community work in April 2014, in relation to charges of shoplifting and failing to answer District Court bail.  After

being sent a warning letter, Ms Bain failed to report for her sentence

6      New Zealand Police v Bain [2015] NZDC 6135 [April Sentencing Offending].

and provided no reason for this.  At the time of the breaches, 97.75 hours remained outstanding on the sentence.

(e)       Theft of $180 in September 2014 (2 months concurrent) – Ms Bain stole $180 from a wallet.

(f)       Using a document causing loss in the sum of $3,387 in November

2014 (9 months cumulative) – Over the course of two days, Ms Bain appropriated  another  man’s  EFTPOS  card  without  his  permission. She made numerous purchases with the card.

(g)Failure to answer District Court bail in January 2015  (2 months concurrent)

May sentencing

[9]      In addition, Ms Bain was sentenced to one month cumulative in May 2015 for a charge of wilful trespass and shoplifting which occurred in January of that year.7     Ms Bain had been trespassed from a shopping centre after being caught shoplifting.  Sometime later, she entered the shopping centre and took clothing worth

$235.  Ms Bain was also before the Court on a charge of being an unlicensed driver and failing to comply with a prohibition, in respect of which she was convicted and discharged.

Ms Bain’s submissions

[10]     Ms Bain submitted that the sentencing Judge should not have treated the remaining dishonesty offending in isolation from the other offending for which she had been sentenced in April.  That is undoubtedly correct, however, Ms Bain came before the sentencing Court at a later time on a discrete offence of dishonesty, and the sentencing Judge was required to deal with her in relation to that charge.  It could not be treated as some type of “wash up” offence.   The Court obviously had no jurisdiction to review the approach taken  by the earlier sentencing Judge.   The orthodox  approach  was  to  consider  the  appropriate  sentence  for  the  discrete

offending with which she was charged, by reference to the combined effect of that sentence  and  the  previous  sentence  which  Ms  Bain  was  currently  serving.    In essence, this is simply a variation of the challenge to the sentence based on totality. It is the overall combined effect of the sentencing which must be the focus.

[11]     In sentencing Ms Bain, Judge Couch uplifted a starting point of 12 months imprisonment by four months to take into account her previous convictions.   It is submitted on  her behalf  that  this  approach  led  to  a  “double-counting”.   Again, however, it is apparent that this is really a variation of the totality argument which I will address presently.   Ms Bain submitted that if all matters had been dealt with together there would not have been a separate uplift for previous convictions in relation to this charge alone.  The fact remains, however, that Judge Couch had to deal with the single charge that was before him.

[12]     While an uplift of one-third for previous offending is substantial, Ms Bain’s long and near relentless history of offending, involving over 80 previous convictions for dishonesty shows no sign of abating.   It is no doubt linked to her apparent drug dependence.  The protection of the public was an inevitable consideration which was required to be given some weight by the sentencing Court.   Ultimately, again, the totality principle is the mechanism for assessing the propriety of the overall sentence imposed, of which any uplift for previous offending is but a component.

[13]     The same applies in respect of the credit extended to Ms Bain for the entry of her plea on the morning of her trial.  Ordinarily that might have expected to have attracted no credit.  It is not apparent the basis by which the Court sought to justify the deduction for such a belated plea.  However, Judge Couch extended a discount of two months adjusting the starting point to one of 14 months imprisonment.   This equated to a discount of over 14 per cent.  This perhaps illustrates the reverse side of the coin in terms of assessing the overall effect of the cumulative sentence and whether there has been any breach of the totality principle.  It is the ultimate effect of the combined sentences which must be the focus.

Totality

[14]     There can be no issue that the sentence of 12 months, standing in isolation, could not be considered manifestly excessive.  Rather, Ms Bain submitted that the combined effect of the 12 month sentence when coupled with the earlier terms of imprisonment of 18 months and one week resulted in the overall sentence being “wholly out of proportion to the gravity of the overall offending”.

[15]     Ms Bain acknowledged that Judge Couch did make reference to the principle of totality in his sentencing remarks.   Indeed, the sentencing Judge adjusted the sentence that would otherwise have been imposed of 14 months by two months, specifically in recognition of that consideration.  Effectively, Ms Bain’s complaint is that the adjustment should have been greater.   She submitted the failure to do so resulted in the sentence being manifestly excessive, and argued that any cumulative sentence should have been limited to one of between 6-9 months.

[16]     The Crown submitted that the sentence of 31 months was well within the available range, having regard to the nature and extent of Ms Bain’s offending.  The scale of the offending was emphasised by reference to the number of charges, the value of the losses involved, and the added aggravating feature that much of it was committed whilst on bail for earlier offending.8

Decision

[17]     The Court of Appeal in Haywood v R has recently reinforced the approach to be taken by sentencing Courts to the application of the totality principle and the need to ensure the combined sentence appropriately reflects the gravity of the overall offending.9    Fogarty J, in delivering the judgment of the Court, observed that the imperative of the totality principle is not met by simply making some adjustment to the second cumulative sentence, but by ensuring the total period of imprisonment reflects the overall offending.

[18]     As in the present case, the appellant in Haywood had already been sentenced on an earlier occasion.  The Court of Appeal, however, emphasised the need to focus from the outset on the overall effect of the total sentence, notwithstanding that the offending before it  was  limited to  only a part  of the offender’s  wider criminal conduct.10    While the Court emphasised that this should be the guiding analysis, it acknowledged that the appropriate result can only be achieved by adjusting the second sentence, as the first sentence is already in place.11

[19]     The difficulty for Ms Bain is that, apart from the assertion that the ultimate end sentence of 31 months is manifestly excessive, she can point to no authority or guidance from a review of sentences imposed for similar offending to aid her in that contention.  A sentencing Court must evaluate the appropriate response to Ms Bain’s continued offending over a lengthy period, and the likelihood of its repetition.  There are several factors which support the conclusion that a stern sentence was warranted.

[20]     Firstly, Ms Bain is clearly a recidivist offender who has been involved in sustained offending, involving multiple victims on many occasions.  Her offending is premeditated and deliberate.  It shows no sign of abating and results in direct losses to others.  Secondly, Ms Bain has received many terms of imprisonment in the past. Where community-based sentences have been tried she has proven unable to abide by their terms.  Sadly, the only response can presently be one of imprisonment, and it has not been argued otherwise on appeal.  Thirdly, it follows that in the absence of Ms Bain addressing the underlying causes of her offending, which effectively has become a way of life for her, sentencing Courts will have little option but to place a premium on the protection of the community.

[21]     In sentencing an offender for a combination of offending it can be difficult to make accurate comparisons between different cases in order to achieve a consistent overall approach.  The individual circumstances of the offender, and the offending, and the combination of offences will inevitably vary.  The Crown has made reference to the approach of Lang J in Tiopira v New Zealand Police, where upon a review of cases involving multiple use of stolen credit cards or cheques, the learned Judge

concluded that as a general proposition a starting point of around 12-18 months imprisonment will be appropriate when the offending results in losses of around

$2,000-$3,000.12

[22]     The Crown submitted that the 12 month sentence of imprisonment imposed by Judge Couch was well within the available range, and could have been higher. Similarly, the sentence of Judge Saunders of nine months for the November 2014

EFTPOS card fraud of $3,387 arguably could have been sterner and was no doubt tempered by the Judge’s awareness of the need to ensure the sentence reflected the overall criminality of the multiple offences for which Ms Bain was for sentence in April.    Ms  Bain’s  argument  is  that  Judge  Couch’s  approach  should  have  been similarly tempered.

[23]     An individual Court’s assessment of the response to a series or combination of offending may legitimately differ.   As I gleaned from Ms Bain’s argument, it essentially distilled to a submission that had she been sentenced in April, because of the approach taken by the Court to the sentencing exercise at that time, a 12 month sentence would not have been imposed.  When calibrated against that approach, 12 months should be viewed as excessive.  That, however, is not the test.  Rather, the overall sentence resulting from the imposition of the 12 month term is what must be assessed against the totality of the offending.

[24]     The success of the appeal turns on whether the overall 31 month sentence was  manifestly  excessive  and  resulted  in  a  sentence  that  was  wholly  out  of proportion to the gravity of the overall offending.   I have not been brought to the position where I can conclude that the sentence can be so described.  The combined sentence represents a response to Ms Bain’s sustained offending between March

2014 and January 2015, which must be assessed against her long history of equally sustained offending over the course of many years.

[25]     In cumulatively adding a sentence of imprisonment on a previously imposed term, the Court is required to be mindful of the combined effect of the two sentences.

While another Judge may have imposed a lesser sentence on a cumulative basis, I

12     Tiopira v New Zealand Police [2012] NZHC 1720 at [12].

have not been brought to the point where I can conclude the 12 month sentence was outside the range of sentence available to Judge Couch in the exercise of his discretion.

[26]     Judge Couch expressly had regard to the totality principle in arriving at his final sentence calculation, and adjusted the sentence he was otherwise inclined to impose.   The level of that adjustment also represents an  exercise of discretion. Again, while another Judge may have provided a greater allowance, the adjustment was  made  having  regard  to  the  totality  of  Ms  Bain’s  offending  and  by  direct reference to the sentencing that had taken place in April.

[27]     In the absence of finding the resulting 31 month sentence to be manifestly excessive, the appeal must be dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch

Linda Drummond Barrister, Christchurch