Doughty-Maaka v Police

[2019] NZHC 87

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2018-416-25

[2019] NZHC 87

BETWEEN

WILLIAM DAVID JACK DOUGHTY-MAAKA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 February 2019 (via AVL)

Counsel:

S Taylor for Appellant

C C Gullidge for Respondent

Judgment:

5 February 2019

JUDGMENT OF SIMON FRANCE J

[1]Mr Doughty-Maaka appeared for sentencing on two charges:

(a)receiving a broken mobile telephone, value less than $500;1 and

(b)failing to attend an assessment he was required to undertake as part of a temporary protection order.2

Cumulative sentences of 100 hours and 40 hours community work were imposed.3 Mr Doughty-Maaka appeals the severity of this sentence on the ground that it was manifestly excessive, with particular focus on the 100 hours for the receiving charge.

1      Crimes Act 1961, ss 246 and 247(c), maximum penalty three months’ imprisonment.

2      Domestic Violence Act 1995, s 51T, maximum penalty six months’ imprisonment.

3      New Zealand Police v Doughty-Maaka [2019] NZDC 5019, 12 November 2018.

DOUGHTY-MAAKA v POLICE [2019] NZHC 87 [5 February 2019]

[2]        On 31 July 2018, a person’s home was burgled. Taken were two televisions, two speakers, five watches, medical equipment associated with diabetes management and a broken mobile phone. Mr Doughty-Maaka was originally charged with the burglary and alternatively with receiving all items. However, a search of his home turned up only the broken phone. Eventually the charge was amended to receiving that item and a guilty plea immediately entered.

[3]        The facts concerning the other charge are somewhat confused. On the basis of the summary of facts, the non-attendance was either January 2016 or January 2017. Action by way of a summons was first taken on the non-attendance in September 2017 and eventually Mr Doughty-Maaka was sentenced in November 2018. This was either 22 or 34 months after the non-attendance. Either way it is a very long time for such a matter. The deterrence aspect of any sentence is rather lost.

[4]        Like the original sentencing exercise, appeals of this sort do not lend themselves to great analysis. This is Mr Doughty-Maaka’s first receiving offence but he has other property convictions, the most recent being unlawfully getting into a vehicle in March 2017. It would also appear the receiving offence was committed shortly before the expiry of a one year sentence of supervision.

[5]        Those points noted, this remains a first conviction for receiving of a single item of very little value. The Crown referred to Selwyn v New Zealand Police which involved an offence where the value of the received item was between $500 and

$1,000.4 The difference between the two offences is that receipt of an item valued between $500 and $1,000 has a maximum penalty of one years’ imprisonment,5 whereas receipt of an item valued under $500, as here, has a maximum penalty of three months’ imprisonment.6 The cases discussed in Selwyn v New Zealand Police suggest that 100 hours for a single low value item is too high.7 The current sentence implies  a starting point of 125 hours which in my view is at least 50 hours too much.

4      Selwyn v New Zealand Police [2013] NZHC 107.

5      Crimes Act 1961, s 247(b).

6      Crimes Act 1961, s 247(c).

7      Above n2, at [16]–[23].

[6]        The appeal is allowed. The sentence of 100 hours is quashed and in its place  a sentence of 60 hours is imposed, meaning a final total sentence of 100 hours.

Simon France J