BETWEEN HARMYN PHILLIP MACPHERSON Appellant AND NEW ZEALAND POLICE Respondent

[2023] NZHC 3743

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000108

[2023] NZHC 3743

BETWEEN

HARMYN PHILLIP MACPHERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 December 2023
Appearances:	MJL Olphert for the Appellant A Maino for the Respondent
Judgment:	18 December 2023

JUDGMENT OF HARVEY J

[on an appeal against sentence]

This judgment is delivered by me on 18 December 2023 at 4 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Olphert Law, Rotorua

Gordon Pilditch, Office of the Crown Solicitor, Rotorua

MACPHERSON v POLICE [2023] NZHC 3743 [18 December 2023]

Introduction

[1]    On 12 September 2023, Harmyn MacPherson was sentenced for recklessly receiving a vehicle; escaping custody; two charges of assaulting a person in a family relationship; three charges of failing to answer District Court bail; and for charges of failing to report to community work and intensive supervision. Judge Hollister-Jones sentenced the appellant to one year, ten months’ imprisonment and six months’ release conditions. This was imposed as 10 months’ imprisonment on the receiving charge with a 12 months’ cumulative sentence of imprisonment on the assault charge. The remainder of the sentences were imposed concurrently. The Judge also cancelled two other sentences.

[2]    Mr MacPherson now appeals that decision. He argues that the length of sentence was manifestly excessive. In particular, the appellant submits that:

(a)The Court failed to correctly apply the totality principle.

(b)A three-month uplift for the appellant’s history was excessive.

(c)The discounts applied were too low with the overall result that the end sentence was manifestly excessive taking account of all matters before the Court.

[3]The Crown opposes the appeal.

The offending

[4]    A Mitsubishi Triton utility vehicle valued at $24,000 was stolen at the end of July 2020. Sometime between then and 14 August 2020, the appellant and his partner came into possession of the vehicle with a stolen rear plate and an altered front plate. Mr MacPherson and his co-offender both told Police it had been purchased a week earlier for $1,500 and they had put the false plates on themselves.

[5]    On 25 November 2022, Police went to Kaingaroa to execute a warrant to arrest the appellant concerning the receiving charge. The appellant was said to be angry, defensive and verbally aggressive. He refused to be handcuffed and ran out the back door through the back gate.

[6]    In June 2023, there appellant was with his partner and threatened to burn down her mother’s house. This was followed by pushing and shoving. Three days later after she had been subject to a biopsy, the appellant punched her on the right ear and threw a can of tomato sauce striking her above the left ear. The appellant forced his partner into a wall, abused her and told her she should die. The next day the appellant locked her outside, verbally abused her and pushed her over. Their child was present during the offending.

[7]    The appellant had been sentenced to intensive supervision and failed to report while also completing only six of 160 hours community work.

District Court decision

[8]    The Judge clustered the appellant’s offending into three separate sets with three cumulative starting points: the receiving charge; the two family violence charges; and the charges concerning escaping, breach of sentence and failure to answer bail (the non-compliance charges). A nine-month starting point was applied for the receiving charge. The Judge then applied a starting point of 12 months’ imprisonment for the two assault charges, which was to be cumulative on the previous sentence. For the appellant’s non-compliance charges a starting point of six months’ imprisonment was applied, also cumulative. With a total starting point of two years, three months’ imprisonment, the Judge then reduced this to account for totality by three months. For the appellant’s relevant history, the Judge uplifted the total starting point by three months’ imprisonment. He then applied a 20 percent discount for plea while determining that there were no other discounts available. This resulted in an end sentence of 22 months’ imprisonment.

Approach on appeal

[9]    This Court’s approach to sentence appeals is well-settled. The appeal must be allowed if the Court is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.1 The sentence below must be shown to be manifestly excessive or wrong in principle.2

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

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

Submissions

[10]   Mr Olphert accepted that there are three separate sets of offending with the receiving of the stolen vehicle being the lead charge. Counsel did not contest the nine- month starting point. However, counsel contended that a six month uplift for the other two sets of offending is appropriate on a global basis rather than multiple separate uplifts as applied by the Judge. Two to three months’ uplift for the appellant’s criminal history was also considered appropriate. Counsel cited Short v Police3 and Cross v Police4 arguing that the approach in these cases should be adopted.

[11]   As to guilty plea, counsel submitted that the full 25 per cent should have been applied rather than the 20 per cent that was. There was a slight delay, counsel acknowledged, but even so the full discount should have remained available. Counsel also contended that a five per cent reduction for the combined factors of remorse and rehabilitation was supported by the appellant’s letter and to a limited extent the pre- sentence report. In short, Mr Olphert argued that a final sentence of 16 months’ imprisonment would have been more appropriate. To avoid doubt, counsel confirmed that home detention was not available and in any event was not sought by the appellant.

[12]   Ms Maino submitted that an end sentence of 22 months’ imprisonment was not manifestly excessive. While it is acknowledged that the sentence could have been constructed in a number of ways, on appeal this Court’s focus must be on the end sentence. Overall, Ms Maino argued that the end sentence of 22 months’ imprisonment for all the charges the appellant has been convicted of was not manifestly excessive. Counsel submitted that after setting a global starting point of two years and three months the Judge reduced this by three months to account for totality. He then lifted that by three months to account for the appellant’s history. There were then discounts of 20 per cent for the plea, but no others. This then resulted in the appropriate sentence, according to counsel.

3      Short v Police [2022] NZHC 2158.

4      Cross v Police [2020] NZHC 3474.

Discussion

[13]   The second sentence of the latest pre-sentence report dated 4 September 2023 makes the point that it is evident that the appellant “is unwilling to comply with Court imposed orders or sanctions”. Imprisonment was therefore inevitable and counsel sensibly did not seek a non-custodial sentence. The report writer noted the appellant’s lack of remorse for his offending; his propensity for violence, and attitude of entitlement; his poor problem-solving skills and a disregard for Court-ordered sanctions. The report identified that the appellant would benefit from attending non- violence programmes. Reference was made to the appellant working for Rotorua Forest Haulage as a loader for some two years before his offending.

[14]   As mentioned, Mr Olphert takes issue with the Judge’s end sentence. Counsel argued that a single global uplift should have been applied rather than multiple separate uplifts and that six months was appropriate. Counsel also contended that two to three months uplift for the appellant’s history was justified.

[15]   As foreshadowed, counsel cited this Court’s decision in Short v Police where a 20 month sentence was reduced on appeal to 15 months’ imprisonment. Counsel also cited Cross v Police where a starting point of 36 months’ imprisonment led to an end sentence of two and a half years. The appeal was allowed on the basis that the end sentence was manifestly excessive because the starting point of 36 months was unjustified, with the result that the sentence was reduced to 21 months’ imprisonment on all charges. Mr Olphert implored this Court to adopt those authorities in the context of this appeal.

[16]   The offending is different in kind, and the Judge was entitled to impose cumulative sentences. However, as to totality, I agree with appellant counsel that a greater reduction is appropriate. So instead of three months as the Judge granted, I consider five months as a deduction for totality is justified.

[17]   As to the issue of guilty plea discount, counsel acknowledged that the delay was in part due to “the defendant constantly failing to appear” but that it was never his intention to avoid responsibility. That said, he does make the point that despite the delay, once charges were withdrawn and amended at case review, guilty pleas were

entered. At first blush, the submission that the full discount should be available given the appellant’s failure to appear when required is a curious one. That said, I do acknowledge Mr Olphert’s argument that as Mr McPherson is a shift worker, with children in care of himself and his partner and who herself had a methamphetamine addiction, and living in Kaingaroa some distance from Rotorua, all of this must have had some impact on his attendance. By a narrow margin, I am prepared to conclude that the full guilty plea discount should have been available which means an additional five percent discount.

[18]   Regarding remorse and prospects of rehabilitation, counsel  argued  that a five percent reduction should be available for the combined factors of the appellant’s level of remorse, his demonstrated insight and a desire for rehabilitation. Sensibly, counsel balanced this with reference to the appellant’s lengthy criminal history. Once again, by a very narrow margin, taking account of the appellant’s letter, I agree that some acknowledgment of these factors is appropriate to the extent of five percent.

[19]   In summary, I accept Mr Olphert’s submissions that the end sentence was incorrect for the reasons argued. I consider that the appropriate sentence, after adjusting the starting point for totality and deducting a further ten percent, is one year, six months’ imprisonment.

Decision

[20]   The appeal against sentence is allowed and the sentence of one year, ten months’ imprisonment is set aside.

[21]The appellant is sentenced to one year, six months’ imprisonment.

[22]   For the avoidance of doubt, all concurrent sentences and conditions remain undisturbed.

Harvey J