Cribb v Police HC Hamilton CRI 2010-419-46

[2010] NZHC 1218

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-419-46

GRANT JAMIE TAAMA CRIBB

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 July 2010

Appearances: T Sutcliffe for the Appellant

R Annandale for the Crown

Judgment:      8 July 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 8 July 2010

At 9.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3240

Counsel:       T Sutcliffe, PO Box 19021, Hamilton 3244

CRIBB V POLICE HC HAM CRI 2010-419-46  8 July 2010

[1]      Mr Cribb pleaded guilty to 10 charges of receiving stolen property:

a)       Seven charges of receiving property greater than $1000, pursuant to ss 246 and 247 of the Crimes Act 1961.  These charges each carry a maximum penalty of seven years imprisonment;

b)One charge of receiving property less than $500, pursuant to ss 246 and 247 of the Crimes Act.  This charge carries a maximum penalty of three months imprisonment;

c)       One  charge  of  receiving  property  greater  than  $300  pursuant  to s 258(1)(a) of the Crimes Act 1961 (pre 1 October 2003).  This charge carried a maximum penalty of seven years imprisonment; and

d)One charge of receiving property between $100 and $300 pursuant to s 258(1)(b) of the Crimes Act (pre 1 October 2003).   This charge carried a maximum penalty of one year imprisonment.

[2]      Some of the property in question was of high value, including, for example, a boat and trailer worth more than $40,000, two vehicles worth over $25,000, a quad bike worth $11,000 and a ride-on mower.  Judge Connell, in the District Court, said that the facts indicated that Mr Cribb was not just receiving stolen property, but that a fair inference could be drawn that he was also dealing in that property (at [7]).

[3]      On 21 April 2010 Judge Connell sentenced Mr Cribb to a term of 18 months imprisonment and ordered him to pay $5,900 in reparation.  Judge Connell declined to order home detention.

[4]      The 18 month term of imprisonment was arrived at by adopting a starting point of two and a half years for the more serious (over $1000) receiving charges. This figure was reduced by 12 months (40%) to take account of Mr Cribb’s early guilty plea and previous lack of convictions, giving a final sentence of one and a half years imprisonment.  Other sentences were imposed concurrently.

[5]      Mr Cribb has appealed that sentence on the grounds that:

a)       Judge Connell failed to give a discount for the assistance given by Mr Cribb to the police in relation to apprehending another offender; and

b)        In relation to his refusal to impose a sentence of home detention.

[6]      It is relevant that after Judge Connell’s sentencing of Mr Cribb his assistance to police continued and the police accept that Mr Cribb was in fact pivotal to the prosecution and conviction of the other offender identified by him.

[7]      It  is  not  in  dispute  that  the  starting  point  of  two  and  a  half  years  was appropriate.   Nor is it in dispute that Judge Connell did not give a discount for Mr Cribb’s  assistance  to the  Police.   On  my reading of  the  sentencing notes  it appears that while Judge Connell was aware that some assistance had been given, he was not aware of its extent or of the likely assistance that Mr Cribb was likely to render in future.  In any event, and as I have noted, the assistance was not a factor he took into account in reaching his end sentence.

[8]      Mr Annandale for the  Police quite properly accepted that an  appropriate discount in the circumstances of the case (based on the relevant authorities including R v Hessell[1] and R v Hatfield[2]) would be as much as a further 25 to 30 per cent.

[1] R v Hessell [2010] 2 NZLR 298; (2009) 24 CRNZ 612.

[2] R v Hatfield CA337/06, 14 December 2006.

[9]      Having considered the relevant parts of those decisions together with the helpful review of other authorities contained in the judgment of Andrews J in A v R[3], I consider that an appropriate custodial sentence in this case would have been nine months imprisonment.  That term would be arrived at by taking the starting point and discounts applied by Judge Connell and subtracting from that a further 30 percent discount in recognition of the assistance provided by Mr Cribb to the Police.

[3] A v R HC Whangarei CRI-2009-488-000003, 25 February 2008.

[10]     The  question  that  then  remains  is  whether  or  not  a  sentence  of  home detention should also be substituted at this point.

[11]     I  accept  Mr  Annandale’s  submissions  about  the  caution  that  must  be exercised when determining whether the sentencing judge was wrong not to impose a sentence of home detention.  Mr Annandale referred me, in particular, to the cases of R v D[4]at [66]; Ebdell v Police[5]at [35] and Andrews v Police[6] at [26]. I also accept that Judge Connell in this case did conduct an evaluative exercise as required by the Sentencing Act in reaching his decision. In relation to the home detention issue he

said at [17] of his sentencing notes:

For  a  sentence  of  home  detention,  there  are  these  factors  –  you  are remorseful; you are at low risk of reoffending; you have no related previous convictions and you have acknowledged your offending by way of early pleas of guilty; and then making an offer of reparation.   Against home detention are these – the fact that this is serious offending; that there is a degree of commerciality, not simply a matter of receiving hot property but a matter of then commercially utilising it to make money; very high value placed on many of these items that you received; this offending spanned a period of some two years; it was repeated; it was persistent and you did not desist from it at any stage.

[4] R v D [2008] NZCA 254.

[5] Ebdell v Police HC Christchurch CRI-2009-409-4831, 30 July 2009.

[6] Andrews v Police HC New Plymouth CRI-2008-443-23, 5 November 2008.

[12]     Mr Annandale also pointed out that the offending in question spanned a considerably larger period than that noted here by Judge Connell.

[13]     Nonetheless, in my view the facts before me are materially different from those before Judge Connell.  In particular, and for the reasons I have recorded above, counsel are for all intents and purposes agreed that the appropriate end point (if a custodial sentence was found to be appropriate) would be half the sentence imposed by Judge Connell, namely nine rather than eighteen months imprisonment.   In addition, there is the fact that Mr Cribb has now spent nearly three months in prison. It seems that time already served prior to the appeal being heard may well be a

relevant factor in a case such as this: R v Hall.[7]

[7] R v Hall [2008] NZCA 207.

[14]     In summary, it seems to me that because the nature and extent of Mr Cribb’s co-operation with Police was not fully known to Judge Connell, this was necessarily a matter relevant to sentencing that was not taken into account by him.  In turn, the significant effect that Mr Cribb’s co-operation would have had on the end sentence

imposed was also a relevant matter that necessarily could not have been taken into account  by  Judge  Connell  when  considering  the  home  detention  issue.  By themselves   these   would   appear   to   constitute   grounds   for   interfering   with Judge Connell’s  exercise  of  discretion,  in  terms  of  the  authorities  to  which Mr Annandale referred me.

[15]     As  well,  and  although  I  accept  that  in  weighing  up  the  purposes  and principles of sentencing Judge Connell was particularly and quite properly focused on the importance of deterrence in this case, it is plain that in appropriate circumstances  the  need  for  deterrence  can  also  be  met  by  a  sentence  of  home

detention: R v Iosefa[8]at [41]. And here, the time that Mr Cribb has already spent in

custody in my view adequately meets any particular and additional need to deter that may have existed.

[8] R v Iosefa [2008] NZCA 453.

[16]     Accordingly, and in this case I am satisfied that home detention is the “least restrictive sentence that is appropriate in the circumstances” in terms of s 8(g) of the Sentencing Act.

Result

[17]     On the basis that the appropriate end custodial sentence would, in Mr Cribb’s case, have been one of nine months imprisonment it seems clear that a sentence of four and a half months home detention would have been appropriate as at his sentencing  date  of  21  April  2010.    As  he  has  now  been  in  prison  following conviction and sentence for a little over two months, the sentence should at this point be one of two and a half months home detention.  I record in passing that this was the approach adopted by Andrews J in the similar case of A v R to which I have already referred at [9] above.

[18]     The  appeal  is  accordingly  allowed  and  the  sentence  of  imprisonment  is quashed.  The appellant is sentenced to home detention for a period of two and a half months on the following conditions (taken from the Pre-Sentence Report and agreed by Mr Annandale to be appropriate in the event that home detention was ordered) :

a)        Upon release from imprisonment Mr Cribb is to travel directly to

80 Beerescourt Road, Hamilton and to await the arrival of a Probation

Officer and monitoring company representative;

b)Mr  Cribb  is  to  reside  at  80  Beerescourt  Road,  Hamilton  for  the duration of the sentence;

c)        Mr Cribb is to undertake and complete grief related counselling to the satisfaction of the service provider and the Probation Officer.

[19]     Standard post-detention conditions are to apply for a period of six months.

Rebecca Ellis J