Doherty v Police HC Auckland CRI 2010-404-98

[2010] NZHC 1431

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-98

BETWEEN  TRACY HUGH DOHERTY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 August 2010

Counsel:         J-F O'Halloran and J Edgar for Appellant

E R Harrison for Respondent

Judgment:      16 August 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Public Defence Service, PO Box 21-448, Henderson

Crown Solicitor, PO Box 2213, Auckland

DOHERTY V NEW ZEALAND POLICE HC AK CRI 2010-404-98  16 August 2010

The appeal

[1]      Mr Doherty appeals against an effective sentence of three years and nine months imprisonment, imposed in the District Court at Waitakere on 16 March 2010. The appeal is brought on the basis that the sentencing Judge misapplied the totality principle,[1] resulting in an end sentence that was manifestly excessive.

The offending

[1] Sentencing Act 2002, s 85.

[2]      Between  9  January  and  15  September  2009,  Mr  Doherty  engaged  in  a prolonged series of criminal activities.  Most of the charges that he faced arose out of burglaries  at  commercial  premises,  primarily  in  Albany.    On  those  occasions, Mr Doherty was alleged to have received stolen property.  On one other occasion he was involved as a burglar.  In addition, there were other charges before the Court.

[3]      The  precise  charges  to  which  Mr  Doherty  pleaded  guilty  were:  five  of receiving stolen property (between 9 January and 15 September 2009), one of burglary (14 September 2009), one of forgery (between 26 July and 14 September

2009), one of theft of a motor vehicle (between 11 September and 15 September

2009), one of unlawfully possessing ammunition (15 September 2009), one of possessing instruments for burglary (14 September 2009) and one of driving while disqualified, on a third or subsequent occasion (14 September 2009).   It is unnecessary to go into detail about each of the offences.  It is sufficient to say that the stolen items held by Mr Doherty had a significant value.

[4]      Evidence relating to Mr Doherty’s offending was gathered after his car was stopped on 14 September 2009 and searched.  It was on that occasion that the Police ascertained that Mr Doherty was driving while disqualified.  Subsequently, a search of a dwelling at Blockhouse Bay revealed further evidence.

[5]      At the time of the offending Mr Doherty was aged about 41 years.  He has been convicted previously on many offences of dishonesty and there are more than

20 occasions on which he has been before the Court for driving while disqualified. Mr Doherty has been before the criminal courts since 1984.  The regularity of his visits in that regard over a period of some 26 years needs to be taken into account fully on sentencing.

[6]      The   District   Court   Judge   took   the   view   that   Mr   Doherty   was   a Methamphetamine addict who appeared to have engaged in the criminal activities giving rise to the present charges in order to feed that habit.  The probation officer who prepared a pre-sentence report said that Mr Doherty presented as “an opportunistic offender with limited insight and remorse into his offending”.

Sentencing in the District Court

[7]      In the District Court, Judge Moore approached sentencing by imposing both concurrent and cumulative sentences, designed to reach an end point that would reflect the totality of the offending.   The issue is whether that goal was in fact achieved.

[8]      Again, without going into detail, the structure of the Judge’s sentencing notes do not reveal, in a transparent fashion, the starting point taken for the overall offending.   Nor does it clearly articulate the way in which the various cumulative and concurrent sentences were imposed in order to ensure that the totality of the offending was adequately marked.  In particular, I do not discern from the Judge’s sentencing notes an attempt, at the end, to ascertain whether the cumulative effect of the sentences imposed did in fact reflect the totality of the offending.

[9]      That point is adequately made by reference to the end sentence imposed of three years and nine months imprisonment.   Nowhere can it be found in the sentencing notes how that particular figure was checked for totality purposes.

[10]     Extrapolating the figures on an arithmetical basis indicates that the only way in which that end sentence could have been reached was by using a starting point to

reflect all offending of five years imprisonment; that starting point would have taken into  account  aggravating  personal  factors  such  as  Mr  Doherty’s  prior  criminal history  and  the  commission  of  offences  while  subject  to  a  community-based sentence.

Competing submissions

[11]     Ms O’Halloran, for Mr Doherty, submitted that the lack  of transparency meant that it was not possible to be sure that the sentence was tailored to reflect the totality of the offending.   She was also concerned about cumulative sentences imposed;  particularly  one  in  respect  of  a  charge  of  theft  of  a  motor  vehicle, something for which a cumulative term of four months imprisonment was added.

[12]     Ms Harrison, for the Police, submitted that the Judge’s end sentence was justifiable when one took account of the period of the offending, the serious crimes committed, Mr Doherty’s past criminal history (both in respect of offences of dishonesty and disobeying Court orders) and the credit for guilty plea of no more

than 25% justified in terms of Hessell v R[2].

Analysis

[2] Hessell v R [2010] 2 NZLR 298 (CA) at [15].

[13]     In this type of case, where there are a number of offences that each require discrete consideration but the offending has all taken place within the same period of time, it is helpful to undertake the sentencing exercise by reference to a lead offence, taking into account aggravating factors that affect the whole of the offending.  In that way it is then possible to factor into the equation aggravating features personal to the offender  and  to  take  account  of  mitigating  factors  before  finally  making  an

allowance for any guilty pleas.[3]

[3] See R v Taueki [2005] 3 NZLR 372 and Hessell v R [2010] 2 NZLR 298 (CA).

[14]     My concern, in this case, is that a starting point of five years imprisonment cannot be justified.   Even though that figure is not mentioned anywhere in the

sentencing notes, it is clear that figure must have been used as a starting point if arithmetically the end sentence is to be justified.  The starting point being too high, it is necessary to re-consider the sentences to be imposed.

[15]     Approaching the question of sentencing afresh, I consider that all dishonesty related offending should be taken together.   On that basis, concurrent sentences would be imposed in respect of the burglary, receiving stolen property, forgery, theft of a motor vehicle offences and possession of instruments for burglary offences.  It would mean that cumulative sentences should be imposed on the discrete offences of unlawfully possessing ammunition and driving while disqualified.   In addition, it would be necessary to accumulate a short period of imprisonment to respond to remission of fines that the District Court Judge ordered.

[16]     While it was open to the District Court Judge on the dishonesty offending to factor in prior offences of that type as part of the aggravating features of the offending,[4]  I prefer to undertake the exercise by regarding those factors as personal to the offender.

[4] R v Columbus [2008] NZCA 192 at paras [13]-[15].

[17]     In my view, the appropriate starting point for the dishonesty offending was one of three years.  To that needed to be added a period of six months to reflect the prior history and the fact offending occurred while Mr Doherty was subject to a community-based sentence.  That would leave a starting point of three years and six months imprisonment for the dishonesty offences alone.

[18]     In  my view,  a  period  of  six  months  should  be  added  in  relation  to  the remaining offending.   That can be done adequately, in my view, by imposing concurrent sentences (as between themselves) of four months imprisonment, in respect of the driving while disqualified and possessing ammunition charges and by imposing a cumulative sentence of two months imprisonment to reflect remission of fines in excess of $10,000.

[19]     That would leave an end starting point of four years imprisonment from which the 25% credit authorised by Hessell v R[5] would be deducted, leaving an end sentence of three years imprisonment.

Result

[5] Hessell v R [2010] 2 NZLR 298 (CA) at [15].

[20]     The  appeal  is  allowed.    The  sentences  of  imprisonment  imposed  in  the District Court are set aside and the following sentences of imprisonment are substituted.

Dishonesty offences

a)        In respect of the burglary charge, a term of imprisonment of three years

b)        On each of the two receiving charges involving amounts of less than

$1000 (the hair material and the bed linen) a period of imprisonment of two months imprisonment is imposed

c)        On each of the remaining receiving charges a sentence of 18 months is imposed

d)On the theft of a motor vehicle charge, a period of imprisonment of four months is imposed

e)        On the forgery charge, a period of imprisonment of three months

f)        On the instruments for burglary charge, a period of imprisonment of six months is imposed.

Each of the sentences set out in (a) to (f) above are imposed concurrently.

Other offences

g)        On the possession of ammunition charge, Mr Doherty is sentenced to four months imprisonment

h)On  the  disqualification  charge,  Mr  Doherty  is  sentenced  to  four months imprisonment

i)In lieu of remission of fines, Mr Doherty is sentenced to two months imprisonment.

The sentences in (g) and (h) above are concurrent as between themselves but cumulative on the effective sentences set out in (a)-(f) (inclusive) and (i) above. That makes an effective end sentence of three years imprisonment.

[21]     All other sentences imposed in the District Court stand.

P R Heath J