Douglas v Police

[2013] NZHC 1031

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0074 [2013] NZHC 1031

BETWEEN  ANDREA CATHERINE DOUGLAS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 April 2013

Appearances: J A G Moroney for Appellant

S G J Locke for Respondent

Judgment:      9 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 9 May 2013 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Thode Utting & Co, Auckland:  [email protected]

Meredith Connell, Crown Solicitor, Auckland:  [email protected]

DOUGLAS V POLICE HC AK CRI-2013-404-0074 [9 May 2013]

Introduction

[1]      The  Appellant  appeals  against  a  sentence  of  11  months’  imprisonment

imposed by Judge N R Dawson in the District Court at North Shore on 19 February

2013.1

[2]      The relevant charges and sentences imposed are as follows.

Assault and threatening to kill

[3]      These charges arise from an incident at a Mitre 10 store on 28 January 2012 (“Mitre 10 charges”).  The Appellant pleaded not guilty to these charges.  She was convicted following a defended hearing before Judge D A Burns on 1 October 2012.2

Judge Dawson sentenced the Appellant to six months imprisonment on the assault charge and four months on the threatening to kill charge, the sentences to be served concurrently.

Possession of cannabis, possession of methamphetamine and possession of an offensive weapon

[4]      These charges (“drugs/weapon charges”) were laid on 2 November 2012 and the Appellant pleaded guilty to them on 7 December 2012.  Judge Dawson sentenced the Appellant to two months’ imprisonment on the cannabis and methamphetamine charges, to be served cumulatively on the Mitre 10 charges but concurrently with each other, and one month’s imprisonment on the weapon charge, to be served cumulatively.

Breach of a sentence of community work

[5]      The breach occurred in May 2012, the Appellant pleaded guilty on 5 July

2012 and she was remanded for sentence.  Thereafter the date for sentence on this

1 Police v Douglas DC North Shore CRI-2012-044-492, 19 February 2013.

2 Police v Kloet DC North Shore CRI-2012-044-493, 1 October 2012.

charge was delayed several times, so that the matter could be dealt with along with other charges.  The Judge sentenced the Appellant to two months imprisonment for the breach, to be served cumulatively.

Grounds of appeal

[6]      The Appellant appeals on the following grounds:

(a)       the  Judge  erred  in  failing  to  apply  the  principle  of  totality  in sentencing;

(b)the Judge erred in sentencing the Appellant when she was to be before the Court on other matters two days later; and

(c)       the Judge erred in failing to properly consider a sentence of home or community detention.

Discussion

[7]      The sentence on the assault charge must be reduced by two months.  That is because the Judge purported to remit fines of $11,694.52 that had been imposed on the Appellant, and in lieu added two months imprisonment to the sentence on the assault charge, taking it to six months.3   It is common ground that the Judge did not have jurisdiction to remit the fines as he did.   The order remitting the fines is quashed, the fines are reinstated and the sentence on the assault charge is reduced to

four months’ imprisonment.

[8]      I do not consider there is any basis for an appeal on the point [6](a) above. There were three discrete groups of offending, the Appellant has numerous convictions and a total sentence of nine months’ imprisonment does not in my view

offend the totality principle.

3 Police v Douglas, above n 1, at [18].

[9]      Nor is there any merit in [6](b).  The other matters before the Court were two charges of theft less than $500 (“theft charges”) on which the Appellant was to be sentenced in a matter of days.   An adjournment is in the exercise of a Judge’s discretion and there could be no basis for interfering in a decision to refuse an adjournment sought on such a ground.

[10]     As for [6](c), counsel for the Appellant submits that the Judge was required to impose the least restrictive outcome appropriate in the circumstances and that he did not give adequate consideration to this requirement.   The matters advanced in support of this ground of appeal are as follows.

[11]     First, the Court had directed the preparation of a pre-sentence report with community  and  home  detention  appendices  when  entering  convictions  on  the Mitre 10  charges  and  the  drugs/weapon  charges.4     However,  the  report  and appendices had not been prepared as at the date of sentence and counsel sought an adjournment (apparently supported by the representative of Corrections who was present in Court). The Judge refused the adjournment.

[12]     As Crown counsel submits, the Court did have the pre-sentence report that had been prepared in respect of the theft charges, and that report included a short paragraph to the effect that a suitable address was available for an electronically monitored sentence and the Appellant was willing to serve such a sentence. Accordingly, the Judge knew that such a sentence was available if he considered it appropriate.

[13]     Secondly, the Judge said:5

[17]      Ms Douglas, you continue to re-offend.   You do not comply with community-based sentences when they are imposed and therefore prison must be the starting point in sentencing you today.   Given your ongoing offending of a similar nature, the need for deterrent [sic] requires that a sentence of imprisonment be imposed and not one of home detention or community detention.

4 See: Information CRN 1204400586 “Record of Hearing” entry dated 1 October 2012; and

Information CRN 12044006789 “Record of Hearing” entry dated 17 December 2012.

5 Police v Douglas, above n 1.

[14]     Counsel for the Appellant submits that the Judge was mistaken in saying that the Appellant did not comply with community-based sentences.  Despite the breach of community work to which I have referred, the Crown accepts that the Appellant had completed such sentences in the past satisfactorily.

[15]     Despite that error, I accept the submissions of Crown counsel that it is clear the  Judge  considered  that  a  custodial  sentence  was  required.    Earlier  in  his sentencing remarks the Judge had referred to the Appellant’s previous convictions including 139 convictions for dishonesty offences, three for possession of weapons,

17 convictions for offences against the person, nine for drug related offending.  The Judge remarked that the assault for which the Appellant was to be sentenced was aggravated by the fact that she had attacked the head of the victim.   The passage from the Judge’s sentencing note, to which I have referred above, makes it clear that the Judge considered that a sentence of imprisonment was required.

[16]     For those reasons, I dismiss this appeal subject to the orders referred to in [7], the effect of which is to reduce the total sentence to nine months’ imprisonment.

..................................................................

M Peters J