Carbines v Police
[2014] NZHC 439
•12 March 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2013-488-000049
CRI 2013-488-000050
CRI 2013-488-000051 [2014] NZHC 439
BETWEEN RUSSELL OGILVIE CARBINES Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 11 March 2014
Appearances: M J Kidd for Appellant
M Smith for Respondent
Judgment: 12 March 2014
(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]
This judgment is delivered by me on 12 March 2014 at 4pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Kidd Legal, Henderson, Auckland
Crown Solicitor, Whangarei
CARBINES v NEW ZEALAND POLICE [2014] NZHC 439 [12 March 2014]
Introduction
[1] On 10 October 2013, the appellant was sentenced by Judge G Davis in the District Court at Whangarei to a term of imprisonment of two years and seven months, on four charges of burglary, three charges of driving while disqualified, and one charge each of theft, dangerous driving, and failing to stop.1 The appeal is on the grounds that the sentence is excessive in the circumstances.
[2] The appeal was filed one day out of time, and an extension of time is sought. No opposition was raised by the respondent. Accordingly, time is extended for the appeal to be brought.
Background
[3] Between 22 and 25 May the appellant and an associate committed a burglary at a property in Waitakere, stealing three passports, a bottle of whisky, and torches. On 25 June 2013, the appellant and his associate committed a burglary at another property at Waitakere, stealing a laptop computer, external hard drive, play station games, makeup, a bracelet, concert tickets, a passport, and an iPod. Between 1 and 9
July 2013, the appellant committed a burglary at a property at Whangarei, and stole tools and other items from a garage. The fourth burglary was also of a property in Whangarei, on 10 July 2013. The appellant stole two laptops, a digital camera, and old cell phones.
[4] The theft offence was on 11 July 2013, when the appellant and an associate stole property from a van parked on the road.
[5] The appellant acknowledged driving while disqualified, on three occasions. Then on 11 July 2013, the appellant was disturbed breaking into a vehicle. The Police attempted to stop him on the road, but the appellant failed to stop and drove off at speed. To avoid being apprehended, he overtook a number of vehicles on a dangerous piece of road. The appellant could not be located on that occasion. The
appellant also drove while disqualified on 16 May and 17 June 2013.
1 Police v Carbines DC Whangarei CRI-2013-088-2009, 10 October 2013.
District Court sentencing
[6] Judge Davis took the burglary charges as the lead charges. Aggravating factors were that the burglaries primarily involved residential dwellings, and were targeted as being unoccupied (thus involving premeditation or planning). The Judge also inferred that the passports had been stolen to be sold into the “criminal underworld”, leading to a conclusion that the appellant’s culpability was at the upper end of the scale.
[7] By reference to Senior v Police, the Judge adopted a starting point of two years six months imprisonment, accepting that the appellant’s offending fell within the lower end of the “spree burglar” category, and applied an uplift of 12 months to take account of the remaining charges.2 The Judge did not apply an uplift on account of the appellant’s previous convictions for dishonesty offences, and driving while disqualified.
[8] The Judge did not consider there were any mitigating features in respect of the offending, or personal to the appellant, but applied a discount of 25 per cent for the appellant’s guilty plea, noting that it was the maximum credit available. The end result was, therefore, a sentence of two years seven months imprisonment. The appellant was sentenced to two years imprisonment on each of the burglary charges (to be served concurrently), and to seven months on each of the charges of driving while disqualified, to be served concurrently as to each other, but cumulatively on the burglary sentence. The Judge sentenced the appellant to imprisonment for one month on the charge of dangerous driving (to be served concurrently). The appellant was convicted and discharged on the charge of failing to stop. The appellant was also disqualified from holding or obtaining a driver’s licence on each of the charges of driving while disqualified, and to a further disqualification of three months in respect of the charge of failing to stop.
Approach on appeal
[9] Some of the offences were charged under the Summary Proceedings Act
1957, and some under the Criminal Procedure Act 2011. Pursuant to s 397 of the
2 Senior v Police (2008) 18 CRNZ 40 (HC).
Criminal Procedure Act, proceedings commenced before the commencement date of that Act are to be dealt with in accordance with the law as it was before commencement. This means that both Acts apply to this appeal. However, the procedure is the same under both Acts.
[10] Under s 250 of the Criminal Procedure Act, a sentence appeal must be allowed if the appellate Court is satisfied that for any reason there is an error in the sentence imposed, and that a different sentence should be imposed. That is similar to the “error principle” that was applied to sentence appeals under the Summary Proceedings Act.3
[11] The appellate Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Submissions on appeal
[12] For the appellant, Mr Kidd submitted that at sentencing, the Judge did not have before him any report concerning the appellant’s drug addiction. He submitted that he has been instructed by the appellant that he had a drug addiction of some three years standing, but the Judge at sentencing was not asked to call for a drug and alcohol report. Accordingly, he submitted, the District Court Judge did not make any reference to the appellant’s drug problem, but approached sentencing solely on the basis of a “standard” burglary sentence. He submitted that, as such, the sentence was appropriate in the circumstances of the offending. However, he submitted that there has been a miscarriage of justice, in that the sentencing proceeded on the wrong footing because the Judge did not have information as to the appellant’s drug addiction. He submitted that if the Judge had had such information, he would have sentenced the appellant differently. For example, he could have applied a significant discount to enable the appellant to undergo treatment.
[13] In this respect, Mr Kidd referred to an affidavit sworn by Mr Melwin
Rodrigues, which annexes a report prepared by Mr Rodrigues. The report and affidavit were clearly prepared in February 2014, thus some time after the appellant’s
3 See Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].
sentencing. Mr Rodrigues’ occupation is “social housing support person”, and he says he is a “provider of therapeutic drug and alcohol support”. Mr Kidd asks that this be taken into account in support of the appeal, under ss 334 and 335 of the Criminal Procedure Act.
[14] For the Crown, Mr Smith first submitted that Mr Rodrigues’ report should not be received, as it contains no “fresh” information that would not have been available at sentencing. He further submitted that, in any event, the report would not necessarily support a “rehabilitative” sentence.
[15] On the wider issue as to whether the appellant should be re-sentenced in this Court, Mr Smith submitted that this Court is being asked to, in effect, substitute itself for the Parole Board. He submitted that, as the appellant has been sentenced to a term of imprisonment of more than 24 months, his release is in the hands of the Parole Board. Corrections staff have care of the appellant, and can assess his motivation and his readiness to undergo rehabilitation. By contrast, the High Court is not now in any position to assess the appellant.
[16] Mr Smith further submitted that the appellant is now, or very soon will be, at the stage of being assessed by the Parole Board. The Parole Board will be able to assess the appellant’s rehabilitation prospects, whether in the community or in the prison setting.
[17] Mr Smith further submitted that to succeed on appeal, the appellant has to point to an error in sentencing. He submitted that there was nothing excessive in the sentence imposed, given the nature of the offending, the appellant’s conviction history, and the discounts given. Mr Smith further submitted that there was no error in the Judge having not called for a drug and alcohol assessment. He submitted that the sentencing Judge was not required to call of such an assessment and there was no obligation on him to request one.
[18] In the circumstances, Mr Smith submitted that the appeal should be dismissed.
Discussion
[19] I turn first to the application to receive Mr Rodrigues’ affidavit and report. Pursuant to s 335(2) of the Criminal Procedure Act, the report may be received on appeal if “it thinks it necessary or expedient in the interests of justice”.
[20] Mr Rodrigues says that the appellant requires treatment in the form of behavioural therapy for his methamphetamine use, and he requires encouragement of non drug-related activities. Mr Rodrigues referred to a possible recovery plan, involving forming a trusting relationship with support workers, and the development of a “re-enablement plan”. He also suggests the appellant’s participation in “social inclusion” activities.
[21] Mr Rodrigues refers to attendance at a Department of Corrections programme, or another 12-step recovery programme, designed to address the appellant’s offending in a supportive environment. Mr Rodrigues expresses his view that the appellant “will require ongoing work to help him engage in these suggestions in a more meaningful and sustained manner, as they focus on key issues that would help him to move on, in the future”.
[22] I am not persuaded that the information in Mr Rodrigues’ report could not have been obtained and put forward on his behalf at sentencing. However, I am prepared to receive it for the purposes of the appeal hearing, but I am not persuaded that it would have led the Judge to impose a different sentence. This is because it expresses some uncertainty as to the appellant’s understanding of his offending, and his motivation and ability to benefit from therapy.
[23] As the sentence itself was not challenged, other than with respect to whether a different sentence would have been imposed had a drug and alcohol assessment been provided, I turn to Mr Kidd’s submission that this Court should now re- sentence the appellant, and impose a “rehabilitative” sentence incorporating a treatment programme. I accept Mr Smith’s submission that there was no error in the Judge’s sentencing: the Judge was not obliged to call for a drug and alcohol assessment when one was not sought.
[24] I accept Mr Smith’s submission that the appellant’s involvement in treatment programmes is now a matter which both can and should be a matter for the Parole Board. The appellant has now completed several months of his sentence, and will be in a position to submit to the Parole Board that he is a suitable candidate for therapeutic intervention. The information provided can be put before the Parole Board for its consideration. It is not appropriate for this Court to intervene.
[25] Accordingly, the appeal is dismissed.
Andrews J