Beri v Police

[2012] NZHC 1923

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IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2012-476-000008 [2012] NZHC 1923

ADRIAN CARL BERI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 July 2012

(via Audio Visual Link)

Appearances: J B Lovely for the Appellant

A R McRae for the Respondent

Judgment:      31 July 2012

ORAL JUDGMENT OF HON. JUSTICE FRENCH Re Appeal Against Sentence

Introduction

[1]      Mr Beri was convicted and sentenced to 13 months imprisonment in respect of the following charges:

(i)       Unlawful possession of a firearm. (ii)   Two breaches of community work. (iii)          Two charges of receiving.

[2]      He now appeals his sentence.

BERI V NEW ZEALAND POLICE HC TIM CRI-2012-476-000008 [31 July 2012]

Factual Background

[3]      In February 2011, Mr Beri was found in unlawful possession of a firearm, having been seen by neighbours wandering around his property with a loaded bolt action rifle.

[4]      Police were called.   The house was searched and ammunition found.   Mr Beri’s motor vehicle was also searched.   Police discovered two laptops and some jewellery, all of which was identified as having been stolen in recent burglaries.

[5]      As a result of those discoveries, Mr Beri was charged with being in unlawful possession of a firearm and with receiving.

[6]      Mr Beri pleaded guilty to the firearms charge and was sentenced to 175 hours community work.

[7]      Two days after his induction into the community work sentence, he failed to report.  As a result, he was breached and another 40 hours community work was added in July 2011.

[8]      The record notes that the sentencing Judge gave Mr Beri a final warning.

[9]      However, there was further non-compliance resulting in a formal warning letter from Probation on 22 July 2011.

[10]     As  at  19  October  2011,  Mr  Beri  had  only  completed  17  hours  of  the community work sentence.

[11]     This  was  a  breach  of  s 58  of  the  Sentencing  Act  2002,  prompting  the department to apply for a review of the sentence.  That meant Mr Beri was subject not only to a charge of breaching the community work sentence but also subject to a review of the sentences that had been imposed in May and July 2011 on the firearms charge and the first breach of community work.

[12]     Then in February 2012, Mr Beri committed another receiving offence.  This time receiving a motorbike, knowing it was stolen.   While the bike was in his possession, it was painted black.

[13]     On 13 April 2012, he pleaded guilty to this motorbike receiving and the earlier 2011 receiving of the laptops and the jewellery.  He was then remanded for sentencing.

The District Court sentencing

[14]     The information before the sentencing Judge included a pre-sentence report. It told the Judge that Mr Beri is 29  years of age with a reasonably significant criminal history, appearing on a variety of charges since 1999.  There was a previous conviction for breach of community work in 2008.

[15]     In the opinion of the report writer, the factors contributing to his offending were identified as relationships, lifestyle, attitude and drug use.  The report writer assessed Mr Beri as having low motivation to address the offending related factors and low motivation to commit to any rehabilitative programme.  He was recorded as showing little remorse and having low ability to comply with a community-based sentence.

[16]     The report further noted that Mr Beri lived with his mother, together with two of his children. The children are in the care of their grandmother.

[17]     The report further noted that Child, Youth and Family Service locally have raised concerns about any electronically monitored sentence being served at the home address because of the presence of the children.

[18]     At the time of writing the report, there was some uncertainty as to the attitude of the Christchurch social worker who was managing the case.

[19]     The report concluded that, in the absence of certainty about the suitability of home detention, a sentence of imprisonment was recommended.

[20]     A second  report  was  filed by the probation  officer  a  few days  later,  on

21 May 2012, the report writer now having had the opportunity to confer with the Christchurch social worker.  The new report advised the Judge that the Christchurch social  worker  did  not  object  to  Mr  Beri  completing  a  sentence  of  home  or community detention at his mother’s home on the understanding that the youngest child  attended  a  day  care  centre  when  the  grandmother  was  not  available  to supervise.

[21]     The supplementary report concluded:

On this basis, the electronic sentences of home/community detention are available for consideration should the Court not wish to imprison Mr Beri on these charges.

[22]     In his sentencing notes, the Judge identified the “specially relevant purposes of sentencing” as being the need to denounce Mr Beri’s offending, to hold him to account, to deter him personally from offending again, and to rehabilitate him.

[23]   After referring to significant problems concerning non-compliance with community work sentences throughout the country, including Canterbury and in particular Timaru, and after discussing the seriousness of receiving, the Judge went on to say:

I am satisfied that sentences of less than imprisonment are precluded by your offending   record,   your   unresponsiveness   to   the   sentences   previously imposed, your non-compliance with community-based sentences, the needs [sic] to denounce your offending and to deter you and others from such offending and also having regard to the reservations rightly expressed by the Community Probation Service as to your suitability.  These factors outweigh the mitigating factors, such as they are.

[24]     The Judge then granted the application for review, cancelled the sentences of community work, and sentenced Mr Beri to imprisonment for four months on the unlawful possession of a firearm charge and to two months concurrently on the breach of community work.

[25]     Turning to the current charges, the Judge said he took the receiving of the computer and jewellery as the lead offence and imposed a sentence on a totality basis.  He identified the appropriate starting point to be a term of imprisonment for

12 months, from which he deducted three months on account of Mr Beri’s guilty pleas.  That resulted in a sentence of nine months which, added to the four months for the other charges, made a total of 13 months imprisonment.

[26]     The  Judge  then  imposed  a  concurrent  sentence  of  imprisonment  of  four months on the receiving of the motorbike and two months on the second breach of community work.  Standard conditions of release and special conditions were also imposed.

Grounds of appeal

[27]     On  appeal,  the  focus  was  on  the  Judge’s  decision  not  to  impose  home detention or community detention, or a mixture of either of those two sentences with intensive supervision.[1]

[1] Subject presumably to s 19 Sentencing Act 2002

[28]     Mr Lovely acknowledged that such an appeal involves an appeal against the exercise of a discretion.  Accordingly, he accepted that it was incumbent on him to satisfy me that the Judge had erred in principle, had taken irrelevant factors into account, ignored relevant factors, or that his decision was plainly wrong.

[29]     What is relied upon as error is as follows:

(i)The Judge failed to take into account that by the time of sentencing the uncertainty over the availability of home detention had been resolved.

(ii)The Judge erred in finding Mr Beri was a “current” drug user and therefore unsuitable for an electronically monitored sentence when there was no evidence to support that contention.

(iii)The Judge erred in taking into account that Mr Beri is a self-employed internet  server  and  software  engineer  as  a  reason  against  home

detention, when properly analysed that should have been a factor in

favour of home detention, especially having regard to s 15 Sentencing

Act 2002.

(iv)     The    Judge   failed   to   take   into   account    Mr    Beri’s    childcare

responsibilities.

(v)      The Judge was wrong to rely on general problems of non-compliance with community work sentences, when Mr Beri’s criminal history did not support him being one of the 30 percent of offenders who breach the sentence.

(vi)The Judge failed to take into account the early guilty plea, the low level nature of the offending, and the fact that Mr Beri had never been to prison before.

[30]     Mr Lovely reminded me of the reasons for the creation of the sentence of home detention and submitted that the purposes and principles of sentencing mandated an electronically monitored sentence and that, in effect, the Judge had used imprisonment as a default sentence.

Discussion

[31]     I have carefully considered all of Mr Lovely’s arguments.  As will be readily apparent, he has said everything that could possibly be said on behalf of Mr Beri in support of this appeal.

[32]     However, I am not persuaded that appellate intervention is warranted. [33]    In particular, I note the following:

(i)The 22 May 2012 supplementary pre-sentence report did not actually recommend home detention.   All that it stated was that it was now available for consideration.    The Judge was aware of the supplementary report, expressly referring to it and clearly taking it

into account.

(ii)In determining that Mr Beri was not an  appropriate candidate for home detention,  the Judge  was,  in  my view,  entitled  to  take into account the fact that he would be working from home anyway.  The relevance of that is that the deterrent effect of home detention would be reduced because of those circumstances.

(iii)The  guilty  pleas  were  not  all  early.    It  could  be  said  that  the concession the Judge gave was actually quite generous.   I refer in particular to the fact that the receiving of the laptops and the jewellery occurred in February 2011.  Yet a guilty plea was not actually entered until April 2012, which, even taking the earthquake into account, is a late guilty plea.

(iv)As regards the Judge’s reference to Mr Beri being a current user of drugs, the pre-sentence report actually stated that Mr Beri acknowledges using drugs.  The report was written on 18 May 2012 and the sentencing was on 22 May 2012.  The report uses the present tense and it was not challenged by counsel at sentencing.   In those circumstances, I consider that the Judge was right to describe Mr Beri as a current drug user and entitled to rely on that as a reason why he was not a suitable candidate for home detention.

(v)I also consider that the Judge was entitled to take into account the need to preserve the integrity of the community work sentence.  That bears on general deterrence.   Mr Beri may not have six or seven convictions for breach of community work but his conduct in 2011 and 2012 demonstrates a complete contempt for Court orders.   The Judge was right, in my view, to identify him as a person who was non-compliant with community-based sentences.

(vi)There is also the further factor, pointed out by Mr McRae, namely that the report shows that Mr Beri was not minded to address his

offending related factors and had low motivation to participate in rehabilitative programmes.

[34]     In short, looking at all the circumstances of this case, I consider the decision that the Judge reached was clearly one that was open to him.

[35]     I can find no error of reasoning, no relevant factors ignored and no irrelevant factors taken into account.

[36]     I am mindful too of what has been said by the Court of Appeal[2], namely that there is no prevailing presumption as such in favour of home detention and that in cases where denunciation, individual and general deterrence are of particular significance the Court will seldom interfere in the sentencing Judge’s assessment of home detention as a realistic alternative or not.

[2] R v Edmonds [2009] NZCA 152 and R v Taiepa [2009] NZCA 120

[37]     I am also mindful of what was said in another Court of Appeal case[3], where the Court talked about affording greater weight to the views of the sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried.  As the Court of Appeal said the sentencing Judges from those jurisdictions will “be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.”

[3] R v D [2008] NZCA 254

[38]     I am further satisfied that a sentence of 13 months imprisonment was within range, having regard to the circumstances of the offending and the circumstances of the offender.

Outcome

[39]     There is no basis on which it would be proper for me to interfere.

[40]     Accordingly,  I  have  come  to  the  clear  view  that  the  appeal  should  be dismissed and the sentence confirmed.

Solicitors:

RSM Law, PO Box 557, Timaru

Gresson Dorman & Co, PO Box 244, Timaru