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

[7]      Mr Doctor’s brother Jason was sentenced earlier for his involvement in the same offending.  The District Court Judge (Judge G A Rea) adopted a starting point of 12 months for the dishonesty offences for Jason.  He uplifted that by four months to reflect Jason’s past history, which he described as being “liberally sprinkled with dishonesty offences”.   The sentence was then reduced by four months for Jason’s

guilty plea.  This meant an end sentence of 12 months imprisonment.  Jason was also sentenced on driving charges but this did not increase the term of imprisonment.

Mr Doctor’s sentence in the District Court

[8]      The Judge adopted a starting point in this case of 29 months imprisonment for the dishonesty offending.   He then reduced the sentence by eight months for Mr Doctor’s “personal and offending related mitigation” matters which gave an end sentence of 21 months imprisonment.

[9]      The Judge then noted that Jason Doctor had received an effective sentence of

12 months imprisonment.   The Judge’s remarks about this are confusing.   As  I interpret them he understood Jason to have been “facing more serious charges” (but this does not appear to be correct apart from the driving offending which did not increase his sentence).  The Judge appears to have considered that Mr Doctor should also receive a 12 month imprisonment sentence for parity reasons but, because his conviction history was more limited and his attitude had improved, the sentence should be 10 months home detention.   The 10 months home detention sentence, however, was just under half of the original 21 month sentence the Judge had come to.  So it is not clear there was any reduction for parity other than the fact that the sentence was one of home detention.

Submissions

[10]     Mr Doctor submits the end sentence was manifestly excessive.  He says that a starting point of around 12 months imprisonment would have been at the top of the range for the relevant offending.  With a discount for mitigating factors including his guilty plea, the top sentence for this type of offending should only have been around eight months imprisonment which would convert to four months home detention.

[11]     The Police concede that the starting point was too high.   It nevertheless submits that the end sentence was within the available range albeit at the very upper limit of that range.

My assessment

[12]     I agree with the parties the starting point was too high.  It was unsophisticated offending, which took place over a short period of time, and the value of the property taken was low, described by the Judge as a “modest amount” and, as counsel for Mr Doctor submits, in the hundreds rather than the thousands.4

[13]     I  consider  it  was  more  serious  than  the  shoplifting  cases  referred  to  by Mr Doctor’s counsel where six months imprisonment was an appropriate starting point.   I also regard it as more serious than Horrell, which Mr Doctor’s counsel accepts, involving one incident where six months imprisonment was also the starting point.5   I consider it to be at the bottom end of the 12 to 18 month range referred to

in Tiopira.6    I agree with Judge Rea, in sentencing Jason, that a 12 month starting

point was appropriate.

[14]     I consider Mr Doctor’s limited history does not warrant any uplift.  I consider his guilty plea to be the only mitigating factor which warrants a discount.   Mr Doctor’s  counsel  submits  that  a discount  for the guilty plea at  the time it  was signalled would be in the 15 to 20 per cent range.  The Police submit a discount of about 15 per cent would be appropriate.   I acknowledge Mr Doctor’s attitude has improved and he is said to be remorseful but there is nothing particular about this to suggest a further discrete discount should be made.   However taking a generous approach to the discount for the guilty plea by applying a 20 per cent discount would mean an end sentence of just under 10 months imprisonment.   I consider this is appropriately converted to a sentence of five months home detention.

Result

[15]     Accordingly  the  appeal  is  allowed.    The  sentence  of  10  months  home detention is quashed.  It is replaced with a sentence of five months home detention. The post detention conditions remain in place.

Mallon J

4      R v Varjen CA97/03, 26 June 2003 at [32].

5      Horrell v Police [2016] NZHC 820.

6      Tiopira v Police [2012] NZHC 1720.