C v Police HC Christchurch CRI 2008 409 143

[2008] NZHC 1463

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008 409 143

C

Appellant

v

POLICE

Respondent

Hearing:         18 September 2008

Appearances: D Dickson for Appellant

D L Elsmore for Respondent

Judgment:      18 September 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      The appellant was one of four young offenders involved in interfering with, and stealing from, motor vehicles.  All the offenders pleaded guilty and they were sentenced  by  four  different  Judges.    Three  were  discharged  without  conviction subject to a payment to a charity.  On the other hand, the appellant was convicted and ordered to come up for sentence within nine months if called upon.  He was also ordered to pay Court costs.

[2]      This appeal is based on disparity.  In essence it is Mr Dickson’s submission that there is nothing to distinguish the four offenders.  They were all 17 years of age

C V POLICE HC CHCH CRI 2008 409 143  18 September 2008

and first offenders.  All of them had pleaded guilty.  They were acting together and they were all equally culpable.

[3]      For  the  respondent  Ms  Elsmore  noted  that  the  sentencing  Judge  had considered   and  rejected  the   appellant’s  application  for  a  discharge   without conviction under s106 of the Sentencing Act 2002.  She submitted that there was no error in the exercise of that discretion and that the disparity issue can be resolved on the basis that the appellant was one of two people involved in actually taking items from the vehicles.

[4]      Viewed  in  isolation  no-one  could  criticise  the  sentence  imposed  by  the District Court Judge.  He was not, of course, aware of the other sentences.  However, with the benefit of the overall picture it is clear that there is a disparity between the sentence imposed on the appellant and those imposed on his co-offenders.

[5]      The test in terms of R v Lawson (CA59/82 and CA70/92, 22 September 1982) is whether a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.  It is an objective test.  In my view that test is satisfied in this case.

[6]      As Mr Dickson emphasised, the personal circumstances relating to all four offenders are very similar.  The only possible distinction might be in terms of the actual offending.  However, to the extent that the group was using a motor vehicle in which they were all travelling to commit the offences, they were all in this together. To my mind they are all equally culpable.  Thus there is no sound basis on which the disparity could be justified.

[7]      The appellant has indicated a willingness to pay $750 to the Salvation Army. Subject to that payment this appeal will be allowed, the conviction will be quashed and the appellant will be discharged without conviction.  Perhaps I should add that all the offenders are extremely lucky to escape without conviction.

Solicitors:           Crown Solicitor, Christchurch

D Dickson, Christchurch