Cuesta v Police

[2012] NZHC 941

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-442-12 [2012] NZHC 941

CAESAR JULIUS CUESTA

v

NEW ZEALAND POLICE

Hearing:         7 May 2012

Counsel:         J Webber for Crown

I Miller for Appellant

Judgment:      7 May 2012

In  accordance  with  r  11.5,  I  direct  the  Registrar  to  endorse  this  judgment on 7th May 2012.

JUDGMENT OF WILLIAMS J

[1]      On 3 April this year, the appellant Caesar Cuesta was sentenced to seven months’ imprisonment on one count of obtaining an item valued at less than $500 by deception and three counts of attempting that offence.  Mr Cuesta was also ordered to  pay  $448.99  in  reparation  in  relation  to  the  completed  offence.    A release condition was imposed requiring him to undertake treatment for problem gambling, such conditions to extend six months beyond expiry date for the sentence.   The sentence was constructed cumulatively with two months each for two of the attempts and the one completed offence, and one month for the last attempt.

[2]      As of today’s date, the appellant has spent three months in prison less three days.  He will be eligible for release in 17 days.

CAESAR JULIUS CUESTA V NEW ZEALAND POLICE HC NEL CRI-2012-442-12 [7 May 2012]

The offending

[3]      The four offences follow a very similar pattern. The first offence occurred on

23 January 2011, when the appellant went to the Tauranga Warehouse and took two printer ink cartridges from the shelf, and asked for a refund for them claiming that he had lost his receipt.  This was refused and the appellant left the store.  The appellant attempted the same ploy at Office Products Depot in Napier on the 8 February 2011 but was again refused.

[4]      The third offence, on the 17 December 2011, was the only successful and complete offence. At Bunnings Warehouse in Nelson, the appellant went to the trade desk and asked for an insinkerator receipt which he said was for tax purposes.  He then took an insinkerator from the shelf valued at $448.99 and took it to the counter where he received a refund.

[5]      The fourth offence occurred on 10 February 2012 in Nelson Briscoes, where the defendant took a Kenwood mixer from the shelf and asked for a refund, although he claimed to have lost the receipt.  When the police arrived, the appellant claimed to be seeking a receipt for a previous purchase of the same item, and was simply holding the product as an example of the one he purchased.

The Judge’s decision

[6]      The Judge noted that the four incidents were similar in nature, but occurred in different  centres  on  four  separate  days  spanning  from  17  December  2011  to

10 February 2012 (this does not seem to be correct: the offending spans over one year, from 23 January 2011 until 10 February 2012).   He also noted that, as the appellant had 200 previous convictions for dishonesty offences, deterrence and accountability are of paramount importance.

Submissions

[7]      Mr Miller for the appellant submitted that the sentence of seven months for this  offending  was  manifestly  excessive.    He  argued  that  imposing  cumulative

sentences was wrong in principle, and  the sentence imposed for each  case was excessive.

[8]      Mr Webber for the Crown, responsibly accepted that the learned Judge had erred in proceeding on the basis that the maximum sentence on the attempt counts was the same as that for the completed offence.  In fact, by the terms of s 311(1) of the Crimes Act, attempts will carry a penalty equal to half the maximum punishment for a completed offence unless the attempt penalty is expressly prescribed elsewhere in the Act.  This meant that the maximum available for each of the attempts was one and a half months, not the three months in the Judge’s mind.

[9]      The effect of this is that the total maximum sentence for this offending was seven and a half months, meaning the appellant was sentenced in this case to 93% of the maximum.

[10]     Mr Webber nonetheless argued that the penalty could be justified in light of his extensive history of dishonesty offending for which he has received both community-based and custodial sentences, together with drug offending in 2001.

Analysis

[11]     Whether one approaches this on a cumulative maximum basis or in totality terms, a sentence set at 93% of the maximum is manifestly excessive.   Looked at overall, a sentence of six months for the total offending (including uplift for conviction history) seems appropriate.  Whether that is constructed on the basis of two-thirds of each maximum (making five months), plus a one month uplift, or a starting point overall of five months with a one month uplift, does not really matter. That would peg the sentencing back to 80% of the statutory maxima – an overall sentence more consistent with the balance to be struck between the seriousness of the offending in this case and the appellant’s lengthy history of similar offending.

[12]     The appeal is allowed.  The sentence of seven months’ imprisonment is set aside and replaced with a sentence of five months and three weeks (essentially time served).

[13]     The appellant is ordered to pay reparations in the sum of $448.99, and a release condition is also imposed that he undertake any treatment for problem gambling and complete it to the satisfaction of the responsible probation officer, such

condition to extend six months beyond the expiry date of this sentence.

Williams J