Doctor v Police - [2017] NZHC 1084

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2017-441-11 [2017] NZHC 1084

BETWEEN
SONNY DOCTOR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 May 2017

Appearances:

E J Forster for the Appellant
C R Stuart for the Respondent

Judgment:

23 May 2017

ORAL JUDGMENT OF MALLON J

Introduction

[1] Mr Doctor pleaded guilty to six charges of using a document for pecuniary advantage,1 and two charges of theft, one relating to goods valued at over $1,0002 and the other relating to goods valued at under $500.3 He was sentenced to 10 months home detention by Judge Winter in the Napier District Court.

[2] He appeals against his sentence. He says it was manifestly excessive because the starting point was too high. He also submits there was an unjustifiable disparity between his sentence and the sentence of his co-defendant.

Facts

[3] The offending involving breaking into cars, stealing belongings, including
Pay Wave cards, and using those cards to purchase petrol, alcohol, food and tobacco. On 24 September 2016 Mr Doctor obtained and used a stolen Pay Wave card at local

1      Crimes Act 1961, s 228 (maximum penalty seven years imprisonment).
2      Section 223(b) (maximum penalty seven years imprisonment).
3      Section 223(d) (maximum penalty three months imprisonment).

DOCTOR v POLICE [2017] NZHC 1084 [23 May 2017]

petrol stations. On 26 September 2016 he obtained and used another Pay Wave card at two petrol stations (spending a total of $122.20) and at a McDonald’s store (spending $59.40). On 30 September 2016 he obtained and used another stolen Pay Wave card at Z Energy (spending $52.60).

[4] On 8 October Mr Doctor was in his brother’s car with two others. The car had false licence plates. They filled the car with petrol (to the value of $113.60) at Caltex and drove off without paying. The group then went to Bluff Hill lookout. One of his co-offenders used a screwdriver to smash a window on a vehicle. A handbag was removed from the vehicle which contained the victim’s Pay Wave card. Mr Doctor made two separate purchases using this at the Four Square. The card was used at two other locations to obtain alcohol and tobacco.

Personal circumstances

[5] Mr Doctor is 21 years old. He has a limited conviction history. It includes one relatively minor dishonesty offence for which he was sentenced to 80 hours community work and ordered to pay reparation of $407.26. He has not previously been sentenced to imprisonment or community or home detention.

[6] Mr Doctor signalled his guilty plea at the first case management review hearing. He told the pre-sentence report writer he was not proud of what he had done and accepted he would have to take the consequences. At the time of sentencing he had been living with his mother which the District Court Judge considered had led to Mr Doctor showing “some remorse and a modest improvement in [his] attitude”. There had been no issues with his compliance with bail.

Sentencing of co-offender

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 1084
Decision Date: 23 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Doctor v Police involves an appeal by Mr Sonny Doctor against his sentence for multiple charges of using a document for pecuniary advantage and theft. Mr Doctor, who pleaded guilty, was sentenced to 10 months of home detention by the Napier District Court. He appealed, arguing that the sentence was manifestly excessive, primarily because the starting point was too high, and that there was an unjustifiable disparity between his sentence and that of his co-defendant, his brother Jason. The court was tasked with determining whether the sentence imposed by the District Court was appropriate, particularly in light of Mr Doctor's personal circumstances and the comparative sentencing of his co-offender.

The central legal issues the court had to decide were whether the starting point for Mr Doctor's sentencing was correctly determined and if the discount applied for his guilty plea was adequate. Additionally, the court needed to assess whether there was a disproportionate disparity between Mr Doctor's sentence and that of his co-defendant. The court also considered whether the overall sentence was within the appropriate range for the nature and extent of the offending.

The court found that the starting point for Mr Doctor's sentence was indeed too high, acknowledging that the offending, while serious, was unsophisticated and occurred over a short period. The court agreed that the value of the property taken was relatively low. It was determined that a starting point of 12 months imprisonment was appropriate, but given Mr Doctor's limited criminal history and his guilty plea, a 20% discount was suitable. This resulted in an end sentence of just under 10 months imprisonment, which appropriately converted to a sentence of five months home detention. The court concluded that the original sentence of 10 months home detention was excessive and thus allowed the appeal, reducing the sentence to five months home detention while maintaining the post-detention conditions.

In summary, the appeal was allowed, and the sentence was reduced from 10 months home detention to five months home detention.

Orders