Christie v Police HC Christchurch CRI-2011-409-000025

[2011] NZHC 394

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000025

DANIEL MARTIN CHRISTIE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 April 2011

Appearances: G Hay for Appellant

D Elsmore for Respondent

Judgment:      1 April 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against a sentence of two and a half years’ imprisonment. The offending involved the theft of handbags (5) by snatching them from women who were out shopping or taking them out of cars, interfering with a motor vehicle by taking it, and possession of a syringe.  Guilty pleas had been entered at an early stage.

[2]      The appellant is 37 years of age.  He is a recidivist offender and the probation officer’s report was very negative.   Before this offending he had accumulated something over 100 previous convictions.  It was reported by the probation officer

that he displayed no remorse or victim empathy.

CHRISTIE V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000025 1 April 2011

[3]      When  imposing  sentence  the  Judge  noted  his  previous  record,  lack  of remorse and absence of rehabilitative prospects.  The Judge saw the protection of the public as a major consideration.  On each of the theft charges the Judge imposed a maximum sentence of three months imprisonment.  They were all cumulative.  An additional one year was imposed for the motor vehicle offence and a further cumulative three months for possession of the syringe.  There was no reference to the guilty plea.

[4]      Mr Hay submitted that the sentence is manifestly excessive.  He noted that the guilty plea had not been taken into account and submitted that the Judge had been too severe when he imposed the maximum penalty in respect of the theft charges on a cumulative basis.  In his submission a more appropriate sentence would have been two months cumulative on each of the theft charges together with the sentences imposed by the Judge in relation to the other charges (which would have produced a sentence of two years and one month’s imprisonment before any discounts).  Mr Hay submitted that there should have been a discount of at least 20% for the guilty plea.

[5]      While  Ms  Elsmore  acknowledged  that  the  guilty  plea  should  attract  a discount she submitted that the strength of the case against the appellant in relation to each offence was such that a discount in the order of 15% would have  been appropriate.  As to the remainder of the sentence, Ms Elsmore submitted that the Judge was entitled to take a stern view of this recidivist offender who was taking advantage of vulnerable victims and displaying absolutely no remorse.

[6]      This offending was after the Supreme Court released its decision in R v Hessell.    Thus  the  maximum  discount  for  the  guilty pleas  is  25%.    In  all  the circumstances I am satisfied that a 20% discount is appropriate.  Thus, adopting for the moment the Judge’s starting point of two and a half years imprisonment, the sentence comes down two years’ imprisonment once the guilty pleas are taken into account.

[7]      To my mind, however, a sentence at that level would still offend the totality principle. The nature of the thefts needs to be kept in perspective.  Even allowing for

the appellant’s previous record and attitude they could not justify five cumulative sentences that represented the maximum available.  Although I can well understand the Judge’s frustration, I believe that I must reduce the sentence by a further three months to accommodate the totality principle.  This will produce a final sentence of one year and nine months’ imprisonment.

[8]      The appeal is allowed. The sentence of two and a half years’ imprisonment is quashed and replaced with a sentence of one year and nine months’ imprisonment. That will be achieved in the following way:   the sentences of three months’ imprisonment on the theft charges are quashed and cumulative sentences of two months’ imprisonment (making a total of 10 months’ imprisonment) are substituted; the sentence of one year for interfering with the motor vehicle is replaced with a cumulative  sentence  of  eight  months’ imprisonment;  and  the  sentence  of  three months’ imprisonment for the possession of the syringe will stand.

[9]      Now that the sentence is below two years’ imprisonment the question of special conditions needs to be considered. There will be the following conditions:

(a)       That the appellant is to complete a drug rehabilitation programme to the satisfaction of his probation officer.

(b)He is to complete a rehabilitative programme to address the  causes of his offending to the satisfaction of his probation officer.

Solicitors:

G A Hay, Christchurch

Raymond Donnelly & Co, Christchurch