Gemmell v Department of Corrections

[2018] NZHC 1918

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000029 [2018] NZHC 1918

BETWEEN

MYCHAL SEAMUS GEMMELL

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	31 July 2018
Appearances:	J Alchin-Boller for Appellant A Pell for Respondent
Judgment:	31 July 2018

ORAL JUDGMENT OF GORDON J

Solicitors:           Crown Solicitor, Hamilton

Grantham Law, Hamilton

GEMMELL v DEPARTMENT OF CORRECTIONS [2018] NZHC 1918 [31 July 2018]

Introduction

[1]      Mr Gemmell appeals a sentence of seven months’ imprisonment and an order to pay $200, imposed by Judge PS Rollo in the Hamilton District Court on 7 June

2018.1   The sentence arose from two charges of breaching a condition of parole and

one charge of wilful damage.  Mr Gemmell pleaded guilty to all three offences at an early stage. The issue on appeal is whether that sentence is manifestly excessive.

Background and facts of the offending

[2]      Mr Gemmell was released from prison on parole in June 2017.  He had been imprisoned for offences committed in August and September 2014.  His offending included a violent assault, and wilfully damaging the victim’s cellphone.  On release, the appellant was under a parole condition not to associate with the victim.

[3]      On 12 May 2018, Mr Gemmell confirmed to Police that the victim had been present at his address. A verbal altercation had occurred. The appellant was sentenced to come up if called upon for a period of six months.  This was the first charge for breach of parole conditions.

[4]      On 7 June 2018, Mr Gemmell went to the victim’s address.  He wanted his gang vest, which was in the victim’s vehicle.  She refused to give Mr Gemmell her keys and locked herself in her house.  He broke a car window and obtained his vest before leaving.  This resulted in the second breach of parole conditions and wilful damage charges.

Sentencing decision

[5]      Sentencing before the District Court took place in the absence of a pre-sentence report at the request of Mr Gemmell. The Judge described the breaches of parole as a serious matter.  He relied on several High Court decisions, from which he reasoned

1      Police v Gemmell [2018] NZDC 11525.

that a breach of parole conditions goes to the heart of rehabilitating offenders and protecting the community.2

[6]      The Judge did not adopt discrete starting points for each offence but noted that he had taken into account the early guilty pleas.  On the wilful damage charge the Judge imposed a sentence of one month’s imprisonment and reparation in the sum of

$200 to be paid in $25 instalments on release. For the first breach of parole conditions, he sentenced Mr Gemmell to two months’ imprisonment, and for the second breach of parole conditions the Judge imposed a sentence of four months’ imprisonment.  The three sentences were imposed cumulatively, resulting in a final sentence of seven months’ imprisonment along with the reparation payment.

Approach on appeal

[7]      Section 250(2) of the Criminal Procedure Act 2011 provides:

(2)      The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

[8]      In any other case, the court must dismiss the appeal.3

[9]      A sentence may be set aside where it is manifestly excessive.4    Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached.5   The Court will not intervene where the sentence is within range. But, if the Court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.6

2      Jenkins v Department of Corrections [2014] NZHC 2895; Johnson v Department of Corrections

HC Hamilton CRI-2009-419-93, 13 April 2010; and McLean v Police HC Invercargill CRI-2007-

425-34, 1 October 2007.

3      Criminal Procedure Act 2011, s 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

5      Kumar v R [2015] NZCA 460 at [81].

6      Tutakangahau v R, above n 20, at [30].

Arguments on the appeal

[10]     Ms Alchin-Boller submits that if it is accepted the Judge gave a full 25 per cent guilty plea reduction, a starting point in the range of 9 to 10 months must have been adopted.    But  she  submits  a  lower  starting  point,  in  the  region  of six  months’ imprisonment, was warranted.   With a 25 per cent reduction for guilty pleas, that results in an end sentence of four and a half months.  Ms Alchin-Boller submits that a

sentence in that range reflects the totality principle in the Sentencing Act 2002, to which the Judge did not expressly have regard.

[11]     For the respondent, Mr Pell submits the Judge properly viewed the offending as serious and was correct to impose cumulative terms of imprisonment. He notes the Judge did not apply any discrete uplift for the appellant’s five previous convictions for breaches of supervision and community work orders.  Mr Pell submits that having regard to the aggravating factors in this case a starting point of around six to eight months’ imprisonment was warranted for the parole breaches. Following an uplift for the wilful damage and history of non-compliance, the sentence of seven months’ imprisonment is in range.

Discussion

[12]     It is not clear from the District Court judgment what starting point was adopted for each offence, nor whether a full guilty plea reduction was applied to each offence. I therefore consider it necessary to conduct the sentencing exercise afresh.  As noted earlier, the Court is concerned with the end sentence, not the process employed to reach it.

[13]     The  lead  sentence  is  the  second  breach  of  parole  conditions,  where

Mr Gemmell went to the victim’s address. That offending is, in my view, more serious than two of the cases referred to by the Judge.7    In Jenkins v Department of Corrections, Lang J adopted a five-month starting point on appeal, for an offender who had gone to Northland for two days in deliberate breach of parole.8  In Johnson v

7      The Judge also had regard to McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007, but Mr Pell responsibly acknowledges that involved more serious offending than in this case.

8      Jenkins v Department of Corrections [2014] NZHC 2895.

Department of Corrections the appellant committed two breaches of parole by leaving his address and failing to report to a probation officer.9  Allan J found the sentence of

6 months’ imprisonment was in range in light of the serious and deliberate breaches and because the appellant had previously breached those parole conditions. Both those cases involved breaches of general conditions to appear.

[14]     In this case Mr Gemmell breached a condition intended to protect the victim of his earlier offending.  That offending was serious.  Mr Gemmell took the victim’s cellphone, snapped it in half, and in front of her children he grabbed her and dragged her on the floor, stomped on her legs, dragged her to the hallway and punched her three times to her head. Mr Gemmell then followed her into her bedroom and stabbed her twice in the leg with a screwdriver which resulted in two puncture wounds.

[15]     Although the conduct giving rise to the breach was of shorter duration than in the two cases I have referred to, having regard to the interests of the victim in this case which the condition was designed to protect, I consider that the breach is more serious than the breaches in those earlier cases.

[16]     Mr Gemmell was on notice about the importance of that condition, having been sentenced to come up if called for the earlier breach.  The second breach shows a disregard for the importance of the condition and the prior warning. I would therefore adopt a starting point of six months imprisonment for that offence.

[17]     The first breach was comparatively less serious.  It involved the victim going to  Mr Gemmell’s  property, rather than  any intentional  or deliberate conduct  on

Mr Gemmell’s part.  I note also that at the time of the breach an order to come up if called was considered appropriate, suggesting it was not deemed to be a serious breach at that time.  I therefore consider an uplift of only one month is appropriate to reflect the first breach.

[18]     I do not consider it necessary to impose a further uplift for the wilful damage charge. When deciding whether to take a cumulative approach, a Judge may consider the time the offences occurred, the overall nature of the offending and the relationship

9      Johnson v Department of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010.

between the offences.10  The wilful damage offence occurred at the same time as, and for the same purpose of, the conduct underlying the second breach.   I therefore consider that a sentence of imprisonment of one month should be imposed on the wilful damage charge, concurrently with the sentence for the second breach.  I would not disturb the Judge’s order for reparation.

[19]     I therefore adopt a starting point of seven months’ imprisonment.

[20]   Next, I turn to Mr Gemmell’s personal circumstances.   No mitigating circumstances have been identified.   Mr Pell submits that the Judge could have imposed an uplift for prior breaches of supervision and community work orders.

Mr Gemmell breached a supervision order in 2007, he breached bail in 2012 and has four convictions for breaching community work orders between 2008 and 2014.  No further  breaches  have  been  recorded  since  that  point,  reflecting  the  fact  that

Mr Gemmell has been in prison.  These breaches show a concerning disregard for court orders. Having regard to Jenkin, where Lang J imposed an uplift of two months for an extensive criminal history, I consider an uplift of one month would be appropriate in this case.

[21]     That brings the sentence to eight months’ imprisonment.

[22]     As both counsel accepted, a full 25 per cent reduction in sentence for the early guilty pleas is warranted in this case, resulting in a final sentence of six months’ imprisonment.

[23]     I have reached the view that a lower sentence is appropriate in this case.  I do not consider that interfering with the sentence imposed by the Judge would be “mere tinkering”, as the proposed reduction amounts to around 15 per cent of the sentence.11

10     Sentencing Act 2002, s 84(3).

11     It is frequently acknowledged by the Court of Appeal that small reductions in small sentences can be appropriate and do not amount to unjustified interference with a lower court’s discretion. See,

for example, Helsby-Knight v R [2015] NZCA 315; Maihi v R [2013] NZCA 69; and Keown v R

[2010] NZCA 492.

Result

[24]     The appeal is allowed and the sentence of seven months’ imprisonment is quashed.  I impose a sentence of six months’ imprisonment.

Gordon J