Cassidy v Police

[2017] NZHC 3079

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-392

CRI-2017-404-393 [2017] NZHC 3079

BETWEEN

KAHU CASSIDY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 December 2017
Counsel:	A M M Ives for Appellant D S Houghton for Respondent
Judgment:	12 December 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 December 2017 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

CASSIDY v POLICE [2017] NZHC 3079 [12 December 2017]

Solicitors/Counsel:

Annabel Ives (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

Introduction

[1]      Mr Cassidy appeals the sentence of 20 months’ imprisonment handed down against him on 6 September 2017 by Judge J Jelas.1   The submission made on behalf of Mr Cassidy is that this sentence is manifestly excessive when the totality of his offending is appreciated.

[2]      Mr Cassidy is a prolific offender.  His criminal and traffic history amounts to

11 pages.    Mr Cassidy  is  31 years  old.    When  he  came  before  Judge  Jelas  for sentencing, her Honour noted it was relevant that the offending for which he was to be sentenced occurred only weeks into a sentence of 18 months’ supervision imposed on him on 1 February 2017. All of the offending was committed while he was subject to that sentence.

Background

[3]      The charges fell into three categories.  The first related to the theft of a wallet which contained an eftpos card.   Mr Cassidy used the eftpos card 19 times and obtained cash and goods to the total of $6,020. There was no prospect of reparation.

[4]      The second involved breaches of protection orders. On 30 July 2017, in breach of the protection order, Mr Cassidy went to the protected person’s address.   They began to argue and Mr Cassidy hurled abuse at the victim and continuously called her obscene names.  He was asked to leave the address but refused to do so, eventually falling asleep on a couch.  When he woke, he again began yelling at the victim and again refused to leave.  Some hours later the victim decided to telephone the Police and, while on the phone to the Police, Mr Cassidy grabbed the cellphone from her and broke it in half.

[5]      The third category is represented by a single charge of breach of community work.  Mr Cassidy had accumulated 290 hours of community work, of which he had

performed 53 hours. The Department of Corrections asked for the outstanding amount of community work to be cancelled, and this was done by Judge Jelas.

Appeal

[6]      The Judge structured her sentence in this way:

•    Theft of the wallet and use of the eftpos card – 16 months.

•    Breaches of protection order – four months.

•    Breach of community work – three months.

•    Uplift for previous convictions – two months.

•    Credit for guilty pleas – five months (20%).

[7]      Ms Ives, in careful submissions, submits that Judge Jelas made a number of errors in reaching her overall starting point of 23 months’ imprisonment, and the end point of 20 months’ imprisonment.

[8]      The Judge decided that the leading charges should be the theft of the wallet and then using the eftpos card.  On those charges, the Judge adopted a starting point of 16 months’ imprisonment. Ms Ives submits that the Judge wrongly placed reliance on Wright v Police.2    Ms Ives submits that while the offending in Wright may have been fraud of a similar value, the offending itself was considerably more serious because it involved a breach of trust in an employment relationship. The charges were theft by a person in a special relationship and the offending appears to have been premeditated  and  sophisticated,  occurring  over  a  period  of  some  10 months. Furthermore, the 15 months starting point adopted in Wright incorporated an uplift for relevant previous convictions.

[9]      I agree that a 16 months starting point is stern.   While I accept that the offending in Wright is more serious than Mr Cassidy’s offending, I note that Judge Jelas’s starting point is not just for the 19 uses of the eftpos card but also for the theft of the wallet. That occurred in a context where Mr Cassidy had befriended the victim at a bar, offered him a ride home and stole the wallet en route.  I also take account of the Crown’s submission that there is no tariff case here and, having regard to cases such as Costello v R3  and Colman v Police,4  the 16 months starting point, although stern, cannot be said to be out of range.

[10]     In my view, a starting point of 14 to 16 months was available to the sentencing

Judge.

[11]     Ms Ives also criticises the uplift of four months’ imprisonment imposed by the Judge for the breaches of the protection order. Her submission is that if these charges had been the only charges for which Mr Cassidy had been sentenced, then a non- custodial outcome would have been appropriate.  This is because Mr Cassidy has no history of breaching protection orders and has no convictions for being violent towards the protected person.

[12]     First, I note that the maximum sentence for breach of a protection order is three years’ imprisonment.   My examination of the caselaw leads me to conclude that sentencing outcomes are very fact-dependent, but multiple breaches unsurprisingly attract the higher sentences.  Ms Ives might well be correct that standalone charges in this case would not have been met by a sentence of imprisonment.   But, because imprisonment was inevitable on the lead charges, the breaches had to attract an uplift to the starting point.   Ms Ives submits that two months’ imprisonment would be appropriate, and I agree that had the Judge imposed that uplift then it would be within range.  My view is that four months was stern but, given the facts as I have outlined them, the breaches were not technical or trivial and I am not prepared to say that an

uplift of four months was out of range.

3      Costello v R [2015] NZCA 512.

4      Colman v Police [2014] NZHC 3215.

[13]     Finally, Ms Ives criticises the uplift of three months for breach of community work as being excessive because it is the maximum sentence for the offence.  The offence cannot be said to be the worst of its kind and Ms Ives puts emphasis on

Mr Cassidy having performed 53 hours of his outstanding period.  I agree.  An uplift of two months was appropriate.

[14]     Ms Ives does not criticise the Judge’s uplift of two months for Mr Cassidy’s previous record of offending.

[15]     Ms Ives submits that a greater than 20 per cent discount for pleas of guilty could have been given.

Decision

[16]     As Ms Ives recognises, on an appeal against sentence the appellate Judge’s task is to decide whether the sentencing Judge made an error such that a different sentence should be imposed.  It is the end sentence that must be looked at, against the totality of offending, to see whether it is inside or outside of the range available to the sentencing Judge. It is open for defence counsel to criticise individual components of the sentence and, if accepted, the overall effect of the errors identified might well take the end sentence imposed out of the range available to the sentencing Judge.

[17]     In this case, I assess the totality of Mr Cassidy’s offending in narrative form as follows:

Mr Cassidy, a recidivist offender, was sentenced to a term of 18 months’ intensive supervision with community work.  Within a very short period of time he began offending again. He was, of course, still subject to the terms of his previous sentence. The offending was in different categories.

First, he befriended a victim, stole his wallet, and obtained a benefit of $6,020 which he cannot possibly repay.   In a different category of offending, he breached a protection order twice in relatively serious circumstances. He went to the home of the protected person, argued with her heatedly, twice refused to leave and broke her cellphone when she was telephoning the Police to prevent her from continuing contact with the Police.   Finally, in the third category, he has been non-compliant with his sentence of community work. He has had cancelled 237 hours of community work.

[18]     I accept Ms Ives’s criticisms to the extent that I have indicated.  Against the narrative I have just given, I cannot say that a sentence of 20 months’ imprisonment is manifestly excessive.  I take into account that the uplift of two months given by the Judge to mark Mr Cassidy’s previous criminal record was very light. An uplift of four months’ imprisonment would have been well within range. Further, the Judge did not give an uplift for the fact that this offending was committed while Mr Cassidy was subject to his sentence of intensive supervision. A further uplift of two to three months was called for.

[19]     Bearing in mind that a sentence is always a point on a range, I cannot say, overall, that the sentence was manifestly excessive.

[20]     The appeal is dismissed.

Brewer J