Bruce v Police HC Christchurch CRI 2010 409 24

[2010] NZHC 344

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2010 409 024

DEBI SUSAN BRUCE

Appellant

v

POLICE

Respondent

Hearing:         23 March 2010

Appearances:  R G Glover for Appellant

D J Orchard for Respondent

Judgment:      23 March 2010

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against a sentence of 19 months imprisonment imposed in

relation to 12 separate counts.  The offending extended over a relatively long period. Some of the offending was committed while the appellant was on bail.  Guilty pleas were entered in relation to the bulk of the charges on the first or second appearance. The appeal is out of time and leave is sought accordingly.

[2]      Ms Bruce is 33 years of age, unemployed, and the mother of four children. Sadly two of those children suffer health issues, and in the case of one of them the issues are extremely serious. Two of the children are looked after by the appellant’s

mother and the other two by the children’s father.   Throughout most of her life the

BRUCE V POLICE HC CHCH CRI 2010 409 024  23 March 2010

appellant has been a drug addict.  Mr Glover reports that she is now relatively stable

on methadone treatment.

[3]      The appellant’s previous record is relatively extensive.   She has convictions

for dishonesty and failing to comply with Court orders.  On this occasion the charges faced  were: breach  of  community  work; breach  of  bail  (5); driving  while disqualified  (2);   receiving;   using  a  document;   and  obtaining by deception.   She was  also  resentenced  in  relation  to  the  community  work  sentence.  For  present purposes it is unnecessary to go into the particular sentences that were allocated to particular charges.

[4]      When  sentencing  the  Judge  accepted  that  the  appellant  was  in  the  grips  of morphine  addiction  and  that  she  had  led  a  chaotic  lifestyle  which  “is  a  shame because you  have four children and ordinarily and otherwise I am sure you would be a good member of our society”.

[5]      Aggravating  factors  identified  by  the  Judge  were,  first,  multiple  offending; and, secondly, some of the offending was committed while she was on bail.  On the mitigating  side  the  Judge  allowed  credit  for  the  guilty  pleas  with  a  comment  that many of them were at the first opportunity.  Adopting a starting point of “around two years imprisonment” the Judge said:

I am going to give you a credit for your ultimate guilty pleas and while I will not enunciate  that  in  terms  of  months  the  end  sentence  is  going  to  be  19  months imprisonment.   That  means  you  are  going  to  receive  five  months  credit  for  your guilty plea.

Following  that  the  Judge  split  the  19  months  between  the  various  charges.   Some were cumulative and others were concurrent.

[6]      Mr Glover advanced two primary grounds of appeal.  First, that the discount, which  he  calculated  at  20.8%,  was  insufficient.   In  his  submission  it  should  have been  closer  to  one  third  which,  if  that  submission  is  accepted,  would  mean  that instead  of  a  discount  of  five  months  the  discount  would  be  seven  months  plus. While Mr Glover accepts that the Judge was not obliged to go into a mathematical calculation  as  to  the  discount  arising  from  each  plea,  he  emphasised  that  the

appellant  pleaded  guilty  at  the  first  available  opportunity  to  at  least  seven  of  the charges.  In other words, the discount should, in Mr Glover’s submission, have been close to the maximum available under R v Hessell [2009] NZCA 450.

[7]      Mr Glover was also critical of the approach adopted by the Judge.  On Mr Glover’s analysis this involved the Judge adopting a starting point, then indicating the final sentence, with the difference representing the discount for the guilty pleas.

In Mr Glover’s submission this was wrong in principle and resulted in an insufficient discount being allowed.

[8]      The other primary ground of appeal is that various matters were not factored into  the  sentencing  exercise  by  the  Judge.              Specifically,  the  terminal  cardiac problems   of   the   youngest   daughter,   the   apparently   terminal   situation   of   the appellant’s  stepfather  (by  whom  she  was  brought  up)  and  the  fact  that  the  older daughter has health and psychiatric problems.  While Mr Glover acknowledged that some  of  the  information  relating  to  the  older  daughter  was  not  before  the  District Court  Judge,  his  submission  is  that  the  other  matters  gave  rise  to  considerations under s 8(h) and should have been taken into account by the Judge.  Absence of any reference to them by the Judge indicates that they were not taken into account.

[9]      It  is  unnecessary  to  traverse  Mrs  Orchard’s  submissions  on  behalf  of  the police  in  any  detail.   Suffice  to  say  that  her  submission  is  that,  regardless  of  the means   by   which   it   was   reached,   the   discount   was   appropriate   in   all   the circumstances.   As to the second  ground, her submission was that it can be safely inferred that the Judge was aware of the appellant’s personal problems and, although not mentioning them, nevertheless factored them into the final sentence.

[10]     Starting with the issue of the discount, I accept that in the case of many of the charges a guilty plea was entered at the first available opportunity.   Obviously that should  weigh  heavily  in  the  final  discount. However,  at  the  other  end  of  the spectrum  there  is  at  least  one  charge  where  the  guilty plea  was  entered  at  the  last moment.  At best that plea would attract a discount something below 10%.

[11]     I  also  accept  that  in  terms  of  Hessell  it  is  appropriate  to  take  an  overview, which is obviously the approach adopted by the Judge.  On the other hand, at least at first  reading,  there  may  be  a  suggestion  that  the  Judge  adopted  an  unorthodox approach to the discount in the way claimed by Mr Glover.  But at the end of the day the  issue  is  whether  the  discount  of  20.8%  was  manifestly  inadequate  in  all  the circumstances.  While it may not have been particularly generous, on the information currently available I could not say that it was manifestly inadequate.  And even if the discount should have been greater, there would not have been much in it, possibly a month or so.

[12]     The next issue is whether the Judge factored into the sentencing exercise the various matters mentioned by Mr Glover.  Put another way, was the end sentence of

19 months imprisonment manifestly excessive?   It is clear that the health problems

of the children, which are, of course, extremely  sad  for  everyone  involved,  were squarely  before  the  sentencing  Judge. It  is  also  relevant  that  the  two  children suffering  acute  health  problems  are  in  the  care  of  the  appellant’s  mother,  not  the appellant.   While the Judge did not specifically mention these matters, it would be unsafe to infer that he did not have them in mind.

[13]     On  the  critical  issue  whether  the  sentence  of  19  months  was  manifestly excessive, I am afraid that, despite Mr Glover’s extensive and helpful submissions, I have not been persuaded that it was.  The appeal is dismissed.

Solicitors:            Crown Solicitor, Christchurch

R G Glover, Christchurch