Carrington v Police C Christchurch CRI-2011-409-000047

[2011] NZHC 563

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000047

BETWEEN  CHAD ADAM CARRINGTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 June 2011

Appearances: C M Yardley for Appellant

N M Robson and K Basire for Crown

Judgment:      3 June 2011

ORAL JUDGMENT OF THE COURT

Solicitors:           Crown Solicitor, Christchurch

C M Yardley, PO Box 13706, Christchurch

CARRINGTON V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000047 3 June 2011

[1]      The appellant pleaded guilty to two charges of taking a motor car and of stealing property from the cars.  He also pleaded guilty to a charge of breach of a liquor  ban.    On  19 April  2011  in  the  District  Court  at  Rangiora  Judge  Erber sentenced him to nine months’ imprisonment on the two charges of taking motor cars.  On the charges of theft he was sentenced to concurrent terms of imprisonment of one and two months.  He was convicted and discharged on the breach of the liquor ban charge.

[2]      The appellant appeals against the sentence of imprisonment of nine months. Counsel submits that the sentence was manifestly excessive and that a sentence of imprisonment was inappropriate.   She submits a sentence short of custody should have been imposed.

[3]      On 20 April 2010 the appellant’s associate took a Subaru motor car.   The appellant was picked up by him and they subsequently used the vehicle to drive from Christchurch to Timaru and stole property from the car.  The next day they both took a second Subaru from a property in Highfield.  They stole a wallet from that vehicle. They then abandoned the first car before returning to Christchurch in the second Subaru.  Both vehicles were damaged.  The Judge ordered reparation in relation to the damage, suspended until the end of the prison sentence.

[4]      At the time of the offending the appellant was 19. When sentenced he was 20 years old.  The Judge took a start point of 12 months’ imprisonment and applied a discount of 25 per cent for the prompt pleas of guilty which led to the end sentence of nine months’ imprisonment.

[5]      In support of the appeal Ms Yardley provided further material to the Court, a letter from an employer, a drain layer who had recently employed the appellant, and was prepared to re-employ him if he was released from prison and also a letter from Holly House, a support agency, providing support to the appellant’s partner and young child at present.  It is the opinion of that organisation that the appellant and his partner would be better able to identify and establish whether or not they were able to parent either as a couple or individually if they could follow the Family

Group Conference recommendations sooner rather than later.  Ms Yardley submits that that is an important factor that was not before the District Court Judge.

[6]      She also submits that in sentencing the appellant to imprisonment the Judge rejected the recommendation of an experienced, probation officer, who suggested something other than imprisonment could be the appropriate sentence in this case, noting of course the requirement that the Court must impose the least restrictive outcome appropriate in the circumstances.

[7]      She also noted the Judge seemed to consider the appellant was employed at the time as an agricultural labourer when in fact he had been working most recently with the drain laying firm.  She emphasised the importance to the appellant’s partner and his child of the appellant’s presence and also that the offending had occurred in April 2010 and that the appellant had met the partner in May 2010 and had, putting it colloquially, “settled down” since then.

[8]      I deal first with the issue of whether or not imprisonment was the appropriate sentence in this case.

[9]      As this Court noted in Edwards v Police[1]  there is no tariff for this type of offending  which  regrettably  is  all  too  common.    However,  a  review  of  cases, including Jackson v New Zealand Police,[2]     Kanara v Police,[3]     Prasad v Police,[4]

[1] Edwards v Police HC Auckland CRI-2010-404-000103, 11 May 2010.

[2] Jackson v New Zealand Police HC Wellington CRI-2007-485-000062, 20 August 2007.

[3] Kanara v Police HC Auckland CRI-2006-404-000383, 8 December 2006.

[4] Prasad v Police HC Napier AP 50-01, 13 December 2001.

Hall v Police[5] and Castle v Police[6] suggests that Courts have taken a starting point of

[5] Hall v Police HC Christchurch CRI-2003-409-000097, 18 December 2003.

[6] Castle v Police HC New Plymouth AP32/02, 14 August 2002.

12 months’ imprisonment for offending in this type of case. Against that Ms Yardley submits that the appellant has been sentenced to imprisonment in the past, that has not worked,  and that the probation officer was recommending something different in this case.   In relation to that I note the probation officer observed that one might argue the appellant’s previous extensive history only leaves the option of a custodial sentence,  but  it  is  his  belief  that  such  a  sanction  might  be  avoided  given  the

appellant’s current circumstances.  The probation officer then considered community

based  sanctions  such  as  community detention  or  intensive  supervision  with  the possibility of community work.

[10]     However,  in  the  annexed  home  detention  report  the  probation  officer recorded that he was not convinced the appellant would be able to cope with the rigors  of  home  detention,  noting  the  number  of  convictions  the  appellant  had amassed in relation to failure to comply with release conditions, bail conditions and impositions imposed such as prohibition from driving.   The probation officer was concerned the appellant’s impulsive behaviour could lead to a breach of home detention conditions.

[11]     I note that in his sentencing remarks Judge Erber directed himself to the probation officer’s reports and the suggestion that something short of imprisonment could be an option in this case.   However, after referring to the passage from the report I have noted the Judge observed that:

That being the case it is extremely difficult to see what the basis for admission to intensive supervision is concerned, and having considered it I reject it.

[12]     Despite Ms Yardley’s submissions that something short of imprisonment was the appropriate sentence in this case, and could have been considered by the Court – it was considered by the probation officer and the Judge.   Indeed her submissions had been directed at home detention.

[13]     In the circumstances of this offending and this offender, however, I cannot accept  the  submission  that  imprisonment  was  an  inappropriate  response  by  the Court.

[14]     It has been suggested that the appellant ceased or has changed his way of life and offending pattern since his relationship with his partner commenced in May

2010.  However, the probation officer noted that the partner’s mother had reported he was stoned on the evening of 17 February a matter of days before he was due for sentence and there was also the matter of an alleged drink driving offence that occurred during that period that he was with his partner as well.

[15]     I  do  not  overlook  his  and  his  partner’s  personal  circumstances  but  the appellant’s personal circumstances are only one of the relevant factors and there are other considerations that the Judge and this Court are required to have regard to in relation to sentencing including denunciation and deterrence.

[16]     The  appellant’s  past  record  counts  against  him  and  counted  against  the argument for a sentence less than imprisonment.  Although only 20 at the time of sentencing he had a number of previous convictions for offending of dishonesty and taking motor vehicles and burglary.

[17]     I note he had in excess of 25 convictions since turning 17, including 10 convictions for unlawfully interfering with motor vehicles or taking motor vehicles. A sentence of imprisonment could not be described as inappropriate in this case and in terms of the start point, having regard to the authorities, 12 months was within range.  The Judge gave a full discount in terms of the Supreme Court decision in

Hessell[7]  for the early guilty pleas.   The end sentence of nine months cannot be

described as manifestly excessive.

[7] R v Hessell [2009] NZCA 450.

[18]     The appeal is dismissed.

Venning J