Franklin v Police
[2015] NZHC 2406
•2 October 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-419-000030 [2015] NZHC 2406
BETWEEN KERI GEORGE JUNIOR FRANKLIN
Appellant
AND
THE POLICE Respondent
CRI-2015-419-000032
BETWEEN KERI GEORGE JUNIOR FRANKLIN Appellant
ANDTHE POLICE Respondent
Hearing: 30 September 2015 Counsel:
W N Dollimore for the Appellant
J E Tarrant for the RespondentJudgment:
2 October 2015
JUDGMENT OF DUFFY J
This judgment was delivered by me on 2 October 2015 at 11.30am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….
Solicitors:
Crown Solicitor, Hamilton
Counsel:
W N Dollimore, Barrister Hamilton
FRANKLIN v THE POLICE [2015] NZHC 2406 [2 October 2015]
[1] The appellant, Keri Franklin, pleaded guilty in the District Court and was sentenced on a charge of theft of a television. He was also re-sentenced on two shoplifting offences, possessing needle/syringe for cannabis and possessing a cannabis plant. The total sentence imposed was 13 months’ imprisonment. He appeals on the basis that the sentence was manifestly excessive.
Background
Summary of Facts
[2] The summary of facts states that at approximately 12:45 pm on 26 June 2015
Mr Franklin and an associate entered a Dick Smith store in Hamilton and approached the television display area. Mr Franklin picked up a television, valued at $699. Mr Franklin and his associate left the store via the front entrance of the store.
Prior offending for which Mr Franklin was re-sentenced
[3] At the time of the present offending, Mr Franklin was serving a sentence of
90 hours community work for the drug related and shoplifting offences referred to above.
[4] The two drug charges related to an incident on 13 April 2015. Police were speaking to Mr Franklin at his home address. Police located a cannabis bong beside the couch in the living room. Police invoked the Search and Surveillance Act 2012 and detained Mr Franklin. They searched the property, locating a plate containing chopped up cannabis leaf, which had been prepared to be smoked.
[5] The two shoplifting charges arose out of incidents on 22 February 2015. Mr Franklin was observed on CCTV uplifting a “trade flame” blow torch kit valued at $69.00 from a Bunnings store in Cambridge. He left the store without paying for the item and left in a vehicle. Police were called to Bunnings.
[6] Mr Franklin then went to a Countdown Supermarket and concealed nine packets of meat, which had a total value of $128.50, on his person. He exited the
store making no attempt to pay for the items. He returned to his vehicle in the car park. Police observed the vehicle, searched it and located the items.
[7] Mr Franklin has an extensive criminal history which primarily consists of shoplifting, theft and burglary offending. He also has convictions for receiving and several convictions for wilful damage and assault.
Sentencing in the District Court
[8] Mr Franklin appeared before Judge Burnett in the Hamilton District Court on
28 July 2015. The Judge noted that the maxim penalty for the charge of theft was one year’s imprisonment.1 The Judge referred to the fact that the offending occurred within a very short time of Mr Franklin being sentenced to community work on two thefts and drug offending, which in turn had been committed within a very short time of Mr Franklin being released from a short term of imprisonment for thefts, breaching community work and common assault.
[9] The Judge then noted that Mr Franklin had 52 convictions for shoplifting, five for receiving, that he had waived his right to a pre-sentence report and probation had indicated in Court that a community-based sentence with release conditions would not be recommended by them.
[10] Noting that the theft offence related to an item under $1,000, that the theft was close to this upper limit, and the offending was brazen, the Judge adopted a starting point of six months’ imprisonment. She uplifted this by 12 months to take into account Mr Franklin’s previous convictions. She then gave a 25 per cent discount for an early guilty plea. The result was an end sentence of 12 months’ imprisonment.
[11] Then Judge cancelled Mr Franklin’s sentence of community work, and in its place she added a cumulative sentence of one month’s imprisonment, allowing for Mr Franklin having completed approximately one third of the community work
hours.
1 Crimes Act 1961, ss 219 and 223(c).
Appellant’s submissions
[13] Mr Franklin appeals on the basis that:
(a) The sentence was manifestly excessive;
(b)The sentence hearing was unfair and he was not given an opportunity to be heard on the imposition of a cumulative sentence of one months’ imprisonment which was substituted for the sentence of community work; and
(c) An uplift of 12 months’ imprisonment for his previous convictions
was too high.
[14] First, Mr Franklin accepts that the starting point of six months that was adopted was appropriate for the theft of the television. However, he submits that the
12 months’ uplift, representing a 200 per cent increase from the starting point, was incorrect. An uplift for previous offending may be given as it may be an indication of; character and culpability, the need for greater deterrence and the risk of reoffending. However, this uplift must be proportionate. Mr Franklin submits that an uplift in the range of two months for previous convictions would be appropriate.
[15] In addition, Mr Franklin submits that while the Judge gave a 25 per cent discount for the early guilty plea, she did not give a discrete discount for remorse. The appellant’s genuine remorse was shown in his letter lodged with the appeal.
[16] Finally, Mr Franklin submits that his counsel was not given the opportunity to be heard on the cancelling of the community work sentence. At the hearing the appellant indicated that he would resume his community work on completion of the sentence of imprisonment if this Court considered that sentence should be suspended under s 78 of the Sentencing Act 2002.
[17] Mr Franklin submits that an end sentence of six months would appropriate.
[18] The respondent filed submissions to the effect that the sentence imposed was not manifestly excessive. However, at the hearing the respondent responsibly and sensibly acknowledged the following:
(a) There was no evidence the Probation Service sought to have the sentence of community work cancelled and substituted with another sentence. Thus there was no basis for the addition of one months’ imprisonment to the sentence.
(b)An uplift that is 200 per cent of the starting point is outside the range of permissible uplifts as shown by relevant case law.
Relevant Legal Principles
[19] This appeal is brought under s 250 of the Criminal Procedure Act 2011 (CPA). Accordingly, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed.2 Section 250 of the CPA was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.3 Accordingly, the appellant must demonstrate some error on the part of the sentencing court, in that the sentence is manifestly excessive or wrong in principle.4
Pre-sentence report
[20] Section 26 of the Sentencing Act 2002 deals with pre-sentence reports. This section is expressed in permissive terms, so that the court has discretion whether to require a report. The section states:
(1) Except as provides in section 26A, if an offender who is charged with an offence punishable by imprisonment is found guilty or pleads guilty,
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
4 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
the court may direct a probation officer to prepare a report for the court in accordance with subsection (2).
[21] Section 26A provides that if a court is considering a sentence of community detention or home detention, it must direct a probation officer to prepare a pre- sentence report for the court. The established practice is that an offender should not be sentenced to imprisonment except in rare and exceptional circumstances without a pre-sentence report.5
[22] In the present case in the District Court Mr Franklin elected to forego the preparation of a pre-sentence report. He acknowledged his guilt at the earliest opportunity and sought to have the matter completed as soon as possible.
Was the sentence manifestly excessive?
[23] Mr Franklin relies on four cases to demonstrate that the sentence imposed was outside the available range.
[24] The first case is McMurtrie v Police. In this case the appellant had pleaded guilty to six charges of theft and one charge of possession of cannabis. He appealed a sentence of 12 months’ imprisonment, with special release conditions to apply for a period of six months. The offences arose from incidents between 3 December 2014 and 3 January 2014; on five different occasions the appellant and his partner stole groceries and, on one occasion, a bottle of perfume. The appellant was charged with one of the theft charges and granted bail, he was further remanded on bail for one more of the theft charges and subsequently for two of the theft charges and possession of cannabis. The appellant had eight previous convictions for shoplifting. On appeal Clifford J took the charge of theft over $500 as the lead charge and adopted a starting point of six months’ imprisonment. He considered that an uplift for previous convictions was unnecessary, gave a one months’ uplift for offending
whilst on bail and a cumulative sentence of one month for the cannabis offending.
5 R v Toki [2007] NZCA 335 at [5]. In Wirihana v Police the appellant had accepted a sentence indication of nine months’ imprisonment. On appeal the Court held that by doing so she had expressly waived her right to a pre-sentence report. Kós J found that in the sentences the Judge was not wrong to proceed without the report, although he noted that it was not a practice otherwise to be endorsed. He dismissed the appeal against the sentence but reserved leave to apply for home detention: see Wirihana v Police [2012] NZHC 2838.
Allowing for a 25 per cent discount for the early guilty plea, the end sentence came
to six months’ imprisonment.6
[25] In Kennedy v R the appellant appealed a sentence of nine months’ imprisonment on six charges of theft. On appeal, Miller J noted that the appellant had a lengthy criminal history which exceeded 10 pages; 36 of the appellant’s previous convictions were for shoplifting. Miller J accepted that cumulative sentences were appropriate on the six charges and substituted an end sentence of eight months’ imprisonment. All of the charges in this case related to amounts under
$500.7
[26] In Kelly v R the appellant had 23 previous shoplifting convictions, as well as convictions for burglary and receiving stolen property. She had been sentenced for a further four shoplifting charges, one of breach of bail and one of breaching a community work order. Two days later, she shoplifted a perfume gift set. Two months after that, she shoplifted grocery items from a supermarket she had been banned from entering. She was remanded on bail for these charges, but the following day she stole perfume valued over $500. She was sentenced for the theft over $500 charge, the three earlier shoplifting charges, breaching a trespass notice, and breaching a community work order. Toogood J considered that a starting point of four or five months imprisonment would have been appropriate, with the following uplifts: two months for the appellant’s previous convictions; two months for offending whilst on bail and whilst serving sentence of intensive supervision and community work; three months for the less serious theft charges; and one month for breach of community work. Toogood J considered that adjusting the sentence for totality and to reflect the appellant’s background would result in a sentence of nine to ten months imprisonment, and a 25 per cent discount for early guilty plea would produce a sentence, at the top end, of up to seven and a half months’ imprisonment. However, his Honour dismissed the appeal, stating that while the sentence imposed
was stern; to change it would amount to tinkering. In the course of his judgment,
6 McMurtrie v Police [2015] NZHC 1031.
7 Kennedy v Police [2013] NZHC 714.
Toogood J noted that “not a great deal of assistance can be obtained from comparing
recidivist shoplifting cases because the circumstances are infinitely various.”8
[27] The final case relied on is Howard v Police. This was an appeal against a sentence of six months’ imprisonment and six months’ release conditions on six charges of theft. Two of the charges related to theft of goods worth between $500 and $1,000. Thomas J allowed the appeal and imposed a sentence of 250 hours community work and 12 months’ supervision. Thomas J considered that the Judge had focused too heavily on denunciation and deterrence and had not considered whether the sentence imposed was the least restrictive sentence available in the
circumstances.9
[28] In light of these cases, I consider that a starting point of six months’ for the charge of theft was appropriate. However, I accept that the uplift of 12 months’ given for the appellant’s previous convictions was in error.
[29] In Tiplady-Koroheke v R, in the context of an assault charge, the Court of Appeal noted that previous convictions could indicate a tendency to commit the particular type of offence for which the offender is convicted or could bear on the issue of character. It stated that issues of deterrence and protection of the public
might require an uplift.10 However, the Court of Appeal has warned against uplifting
for previous offending as a matter of course.11 The Court considered it important that there be some proportionality between the starting sentence and any uplift. The number, seriousness, date, relevance and nature of the previous convictions is relevant.12 In Manuel v Police Whata J noted that an uplift that exceeds the starting point on the lead charge and is significantly greater than the previous sentences must
give cause for thought.13
8 At [36].
9 Howard v Police [2015] NZHC 150.
10 Beckham v R [2012] NZCA 290 at [84] as cited in Tiplady-Koroheke v R [2012] NZCA 477 at
[23].
11 O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [41].
12 See Kushell v Police [2012] NZHC 2380 at [10]. This case involved charges of unlawful taking.
The Court noted that an “uplift of 100 per cent of the starting point is very unusual” at [15].
13 Manuel v Police [2015] NZHC 133 At [14]. The uplift in this case represented 66 per cent of the original sentence. His Honour considered that the end sentence of 11 months’ imprisonment was manifestly excessive. The appellant was charged with three charges of theft, one charge of driving whilst suspended, one charge of failing to answer DC bail, one of failing to answer police bail and
[30] When it comes to the case law relied upon by the respondent in its written submissions it is clear that the uplifts referred to never exceeded 100 per cent of the starting point, let alone exceed it by 200 per cent.14
[31] As I have set out above, Mr Franklin has 52 to previous convictions for shoplifting; 14 of these offences were committed within the last two years. This clearly justifies an uplift. Given the number and frequency of Mr Franklin’s previous shoplifting offences, I consider that an uplift of not more than four months’ imprisonment, or two thirds of the starting point, would be appropriate. I also consider that an uplift of one month’s imprisonment, to reflect the fact that this offending occurred whilst Mr Franklin was subject to a sentence of community work, would be appropriate.
[32] This comes to an adjusted starting point of 11 months’ imprisonment.
[33] Mr Franklin relies on a letter which appears to have been written by him to the sentencing Judge. He says that he is very sorry and remorseful for the act he had committed and he realised that he “had been travelling down this path for some time now and have come to realise that it leads nowhere.” He also noted that his partner was pregnant and this was the main factor motivating him to change. He apologised for the loss he has caused the victim of the offending.
[34] As Mr Franklin’s counsel notes, where remorse is shown on a proper and robust assessment of all of the circumstances, it should be taken into account separately from a discount from a guilty plea.15 Given that this offending occurred approximately eight months’ after Mr Franklin’s last shoplifting offence and while he was completing a sentence of community work for that offending, I do not consider that this letter demonstrates remorse which should be taken into account over and
above a 25 per cent discount which recognised Mr Franklin’s early guilty plea.
one of breach of community work.
14 R v Columbus [2008] NZCA 192: one charge of burglary and theft. A starting point of 18 months imprisonment with an uplift of 12 months for 89 previous convictions including 13 for burglary
and 34 for property related offences; Ripia v R [2011] NZCA 101: a starting point of two years two months imprisonment and an uplift of 12 months for previous offending; Vainu v R [2014] NZCA 375: a starting point of seven years imprisonment and an uplift of 18 months to reflect previous convictions.
15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
[35] Accordingly, this comes to an end sentence of eight months one week’s imprisonment, which shows the sentence imposed in the District Court to be one that is manifestly excessive.
[36] Finally, is the issue of the charges for which the appellant was resentenced.
[37] Section 78 of the Sentencing Act 2002 is relevant. It provides:
78 Effect of subsequent sentence of imprisonment
(1) Subsection (2) applies if an offender who is subject to a community- based sentence is subsequently sentenced to—
(a) a term of imprisonment of not more than 12 months; or
(b) 2 or more terms of imprisonment to be served concurrently, each term of which is not more than 12 months; or
(c) 2 or more terms of imprisonment that are cumulative, the total term of which is not more than 12 months.
(2) If this subsection applies, the court must either—
(a) order that the community-based sentence be suspended; or
(b) order that the community-based sentence be suspended for the duration of the period in which the offender is detained under the sentence or sentences of imprisonment.
(3) If the court suspends the community-based sentence under subsection (2)(b), it may, if it thinks fit, remit, suspend, or vary any conditions of the sentence imposed by the court, or impose additional conditions.
(4) The court must not vary any existing condition or impose any new condition of a kind referred to in section 52(2)(b) or
54I(3)(b) (which involves prescription medication) unless the
offender—
(a) has been fully advised by a person who is qualified to prescribe that medication about the nature and likely or intended effect of any variation or new condition in relation to the medication and any known risks; and
(b) consents to taking the prescription medication.
(5) If a community-based sentence is suspended under subsection
(2)(b),—
(a) except as provided in paragraph (b), the offender must report to a probation officer as soon as practicable, and not later than 72 hours, after being released from detention; and
(b) an offender who is sentenced to community detention must report within 24 hours after being released from detention, unless the 24 hours elapses on a weekend or public holiday, in which case the offender must report on the next working day; and
(c) the sentence does not resume until the offender has reported to a probation officer as required by paragraphs (a) or (b).
(6) Subsection (7) applies if an offender who is subject to a community- based sentence is subsequently sentenced to—
(a) a term of imprisonment of more than 12 months; or
(b) 2 or more terms of imprisonment to be served concurrently, each term of which is more than 12 months; or
(c) 2 or more terms of imprisonment that are cumulative, the total term of which is more than 12 months.
(7) If this subsection applies, the community-based sentence is suspended.
[38] Mr Franklin was sentenced to 90 hours community work.16 On my reading of the section, the Judge would have had to suspend the sentence under s 78(7). The practical effect of this, unless the sentence of imprisonment were quashed on appeal, is that the sentence would be cancelled when the prison sentence ended.17
[39] Also potentially relevant is s 68 of the Act. Under this section, where an offender is convicted of an offence punishable by imprisonment, the probation officer or the offender may apply in accordance with s 72 of the Act for an order that there has been a change of circumstances and apply to the court to vary, cancel or cancel the sentence and substitute another sentence. Despite the respondent’s initial submissions, there is no evidence that there was such an application in this case. The Court does not have jurisdiction under s 68 where no application has been made.
Accordingly, I consider that s 78 is the better section to apply in this case.
16 Defined as community-based sentence under s 44(1) of the Act.
17 Section 80(5).
[40] As I have come to a sentence of less than 12 months’ imprisonment, there is a discretion either to suspend the community work sentence, in which case it will be cancelled when the sentence of imprisonment comes to an end, or to suspend it for the duration of the prison sentence, in which case it will resume after Mr Franklin has served his sentence of imprisonment. I consider the latter approach to be preferable here. Mr Franklin is some way through the hours, and it may be hoped that continuing serving the community work sentence may have a rehabilitative effect, especially given his avowed motivation to change his behaviour.
Result
[41] The sentence imposed in the District Court is manifestly excessive and accordingly it is set aside. In its place I impose a sentence of eight months one week’s imprisonment.
[42] I direct pursuant to s 78(2)(b) that the sentence of 90 hours community work is suspended for the duration of the present sentence of imprisonment.
Duffy J
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