Cornelissen v Police
[2020] NZHC 2139
•24 August 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-488-0029
[2020] NZHC 2139
BETWEEN VINNIE ANTONIO CORNELISSEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 August 2020 Appearances:
N J Moore for the Appellant
B M O’Connor for the Respondent
Judgment:
24 August 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 24 August 2020 at 4.30 pm Registrar/Deputy Registrar
Date:
CORNELISSEN v NEW ZEALAND POLICE [2020] NZHC 2139 [24 August 2020]
[1] On 19 June 2020 Judge H B Shortland sentenced the appellant, Vinnie Cornelissen, to two years and five months’ imprisonment and disqualified him from driving for 13 months.1 Mr Cornelissen had pleaded guilty to a wide range of relatively low-level offending between July and December 2019. The offending comprised a single charge of burglary;2 two charges of unlawfully getting into a motor vehicle;3 two charges of driving while disqualified;4 two charges of breach of release conditions;5 a single charge of unlawfully getting into a motor vehicle;6 and a charge of failing to stop.7
[2] Mr Cornelissen appeals against his sentence on the grounds it was manifestly excessive. Specifically, Mr Cornelissen contends that Judge Shortland erred by:
(a)failing to adjust the starting point to address the totality of the overall offending;
(b)failing to give sufficient discounts for personal mitigating factors and guilty pleas; and
(c)declining to impose a sentence of home detention.
The District Court decision
[3] Judge Shortland identified Mr Cornelissen’s offending as a series of sprees and deemed a cumulative sentence appropriate. However, for offending occurring within a spree Judge Shortland proposed that the offences would “be grouped together in terms of a concurrent sentence and added to the overall total cumulative sentence”.8 His Honour then configured a starting point as follows:
1 Police v Cornelissen [2020] NZDC 11684.
2 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
3 Section 226(2). Maximum penalty 2 years’ imprisonment.
4 Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty 2 years’ imprisonment.
5 Sentencing Act 2002, s 96(1). Maximum penalty 1 year imprisonment.
6 Crimes Act 1961, s 226(1). Maximum penalty 7 years’ imprisonment.
7 Land Transport Act 1998, ss 52A(1)(a)(i) and 114(1). Maximum penalty $1,000 fine.
8 At [3].
(a)five months’ imprisonment for the breach of parole charges in July and December 2019;9
(b)seven months’ imprisonment to reflect the driving while disqualified, unlawfully getting into a motor vehicle and failing to stop beginning in Kerikeri on 17 August 2019;10
(c)12 months’ imprisonment for a burglary carried out in Warkworth on 25 October 2019;11
(d)six months’ imprisonment for driving while disqualified in Hamilton on 5 November 2019;12
(e)six months’ imprisonment for unlawfully taking a motor vehicle in Hamilton on 8 December 2019;13 and
(f)three months’ imprisonment for the further charge of unlawfully getting into a vehicle in Hamilton on 15 December 2019.14
[4] This resulted in an overall starting point of 3 years and 3 months’ (39 months) imprisonment. From here Judge Shortland proceeded to consider appropriate deductions and stated: 15
I take into consideration what your Counsel has said, I have seen your apology letter. I do not give it much credit because it has come right at the end. I see the cultural report, a place an emphasis on that. I see there are issues of drugs but that is not so much of a mitigating factor. There have been guilty pleas in all matters. I do apply the Hessell discount. What I do sense is that maybe it is time for you to address some issues. On those matters I give a deduction of 10 months. That brings it down to two years five months.
9 At [20].
10 At [21].
11 At [20].
12 At [22].
13 At [23].
14 At [23].
15 At [24].
[5] At the end of the judgment Judge Shortland initially seemed to suggest that while home detention was presently unavailable Mr Cornelissen might be able to make an application once he had spent further time in prison. This was clearly wrong, but Judge Shortland subsequently apologised for his error and confirmed that rather than being able to apply for home detention it would be parole that Mr Cornelissen could apply for.16
The appellant’s position
[6] Ms Moore, on behalf of the appellant, submitted that Judge Shortland erred by setting a starting point that was too high. Although no issue was taken with the discrete starting points for the individual ‘sprees’ identified by Judge Shortland, Ms Moore submitted that His Honour failed to adjust the starting point to address the overall totality of the offending, and that a deduction of six to nine months was appropriate.
[7] Ms Moore also submitted that Judge Shortland failed to apportion the relevant discounts clearly and adequately. Rather than the total discount of 10 months awarded, equivalent to just over 25 per cent, Ms Moore submitted that Judge Shortland’s reference to applying “the Hessell discount” meant that a full 25 per cent deduction for guilty plea under Hessell v R should have been given, together with discrete deductions for remorse and factors raised in the s 27 report. Beyond this, Ms Moore submitted that where an end sentence is on the cusp of home detention and imprisonment, as it is in this case, a further deduction for time spent on remand should have been provided to bring the sentence under two years.
[8] Finally, Ms Moore submitted that with an appropriately adjusted starting point and/or adequate discounts the end sentence ought to be less two years’ imprisonment, thereby warranting the consideration of home detention. Having regard to the need to impose the least restrictive outcome, as well as the significant restrictions imposed by home detention and the rehabilitative purposes it will serve, Ms Moore submitted that
16 At [28]. For completeness, prior to noting the ability to apply for parole Judge Shortland first incorrectly found “You can use the credit you have had in prison to reduce [the sentence] further and I will allow you to apply for home detention and then the proper date can be sorted form there… At the conclusion of whether you are granted home detention or not, you more than likely will have the opportunity to have release conditions. I hope you can build on those cultural matters raised in the s 27 report”. Later on, Judge Shortland then stated, “I apologise for the confusion in the matter, but I want to re-emphasise that this really is a matter that requires imprisonment…”.
a sentence of home detention was appropriate, particularly with reference to comparable cases.17
Discussion
[9] Mr Cornelissen’s appeal against sentence is governed by the Criminal Procedure Act 2011, and s 250(2) provides that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss his appeal.18 The measure of error that must be shown, is that the sentence is “manifestly excessive”.19 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[10] I begin my analysis by addressing the issues taken with the starting point, namely that the starting point adopted by Judge Shortland was too high as there was no adjustment to reflect the principle of totality. In short, I do not find this submission persuasive. Judge Shortland, at the outset of his analysis, adopted a starting point of three years and three months’ imprisonment. This starting point reflected the totality of the entirety of the offending; there was not just a single set of offending but multiple sets (or sprees), spread over a considerable time period and geographically distinct. Recognising this, Judge Shortland systematically went through and broke down how he had arrived at this cumulative starting point, with each of the individual components identified clearly, providing for the totality assessment within those groupings. Having regard to the nature of the offending, the number of charges, the temporal and geographical spread of the offending, the fact that the offending was committed while Mr Cornelissen was subject to release conditions and the offences post 13 November 2019 were committed while on bail, the starting point adopted by Judge Shortland was well within the available range. In fact, as Mr Annandale submitted, a further uplift may have been warranted to acknowledge the aforementioned aggravating factors as well is Mr Cornelissen’s significant criminal history.
17 Ms Moore referred to Benson v Police [2018] NZHC 296; and Kent v Police [2017] NZHC 1160.
18 Section 250(3).
19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
[11] Likewise, I disagree with Ms Moore’s submission that when Judge Shortland stated he would “apply the Hessell discount”, he intended to apply the full discount available, being 25 per cent. The reality is that Judge Shortland was not precise about what he meant. A “Hessell discount” is in fact an appropriate discount given to reflect the making of a guilty plea, for which a discount of up to 25 per cent is available depending on the circumstances of the case with a full 25 per cent generally granted if a defendant pleaded guilty at the first available opportunity.20
[12] In this case, despite some complexity arising from the fact that different charges were called in different courts on different dates it is nonetheless clear that Mr Cornelissen did not enter pleas of guilty on the first available opportunity, and indeed after his initial arrest and appearance in Court went on to breach bail and commit further offences. In the circumstances it is clear that a 25 per cent discount was not available, and instead something in the vicinity of a discrete 15 per cent deduction for the guilty pleas would have been appropriate.
[13] As Judge Shortland gave a total discount equivalent to 25.6 per cent, it follows that the total deduction awarded for other factors including remorse (to which, as noted, Judge Shortland did “not give … much credit”) and the cultural report prepared by Louise Henare, upon which Judge Shortland noted he placed some emphasis on, was approximately 10 per cent. This discount essentially corresponded with Ms Moore’s submission, both at sentencing and at appeal, on what was an appropriate discount for these matters. Having read the letter provided by Mr Cornelissen and the cultural report I agree that such a discount was entirely within range.
[14] As a result, I conclude the deductions given by Judge Shortland were within range and not otherwise in error.
[15] This leaves Mr Cornelissen with his original end sentence of two years and five months imprisonment. This was, and remains, well outside a short-term
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 as modified by Moses v R [2020] NZCA 296.
sentence,21 and there can be no basis for a further discrete deduction for time served as urged by Ms Moore, simply so that home detention can be considered. Instead, the appeal must be dismissed.
[16] In any event, although I accept that the cultural report now evidences a genuine desire on the part of Mr Cornelissen to avoid further offending and an ostensibly suitable address to serve home detention was identified, I nonetheless consider home detention would not have been appropriate. As I discussed with Ms Moore, the address proposed was, what appears to have been, an isolated rural address in Northland with a friend not mentioned as significant in the cultural report, and with no identified plan as to what will occur when the other occupant was away working.
[17] In circumstances where Mr Cornelissen is an admitted methamphetamine addict who is in clear need of treatment to address a wide range of issues, I am not satisfied that Mr Cornelissen would be capable of complying with a sentence of home detention, noting that much of the current offending was carried out in breach of release conditions or while on bail. In short, imposing a sentence of home detention on Mr Cornelissen would have been setting him up to fail, thereby imposing a consequential risk to the public. Had it been a short-term sentence I would have looked at reserving leave to apply if a suitable residential or similar wraparound programme was available to treat his issues. Given the final end sentence however, such an option does not stand for consideration.
Decision
[18]The appeal is dismissed.
Powell J
21See Parole Act 2002, s 4. A short-term sentence “means a sentence of imprisonment that is a determinate sentence of 24 months or less”.
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