Georgeson v Police HC CHCH CRI 2009-409-000217

[2010] NZHC 119

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI-2009-409-000217

CRI-2009-409-000218

KENNETH HUNTER GEORGESON

Appellant

v

POLICE

Respondent

Hearing:         18 February 2010

Appearances:  J D Bell for Appellant

K Basire for Respondent

Judgment:      18 February 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      The appellant was convicted in the District Court following a guilty plea on two  charges:  one  of  robbery,  the  other  of  theft.  He  was  sentenced  to  a  term  of imprisonment of two years, eight months, with a minimum non-parole period of one year, four months.

[3]      The facts of the offending were as follows.

[4]      On 3 November 2008 the appellant entered the back yard of a Christchurch property.  There, he removed a pair of bolt cutters from his backpack and attempted

GEORGESON V POLICE HC CHCH CRI-2009-409-000217  18 February 2010

to  cut  a  bicycle  lock  which  was  securing  an  ADX  mountain  bike.   The  bike  was valued at $600.

[5]      While  on  bail  for  that  offence  the  appellant  committed  the  robbery. The victim  of  the  robbery  was  an  89  year  old  woman  who  had  just  finished  her supermarket shopping and was in the process of putting the groceries into her car. The  appellant  approached  the  victim  from  behind  and  told  her  she  had  left  some goods back in the supermarket.  When she turned around, he reached into her pocket and  grabbed  her  wallet. There  was  then  a  struggle,  the  victim  holding  onto  the appellant.   He was on a bike and backed away from her, in the process pulling her down.   She was unable to hold on and fell to the ground.   He then rode off on his bike with her wallet, and subsequently removed $65 in cash.

[6]      As a result of the fall, the victim received grazes to her chin, nose, forehead and  left  knee.           She  also  received  bruising  to  her  right  elbow,  left  wrist  and  both knees.   In addition to her physical injuries, the victim impact report stated that she was, as could only be expected, emotionally affected by the incident.

[7]      The information before the District Court Judge included the probation pre- sentence report.  It told the Judge that the appellant has an extensive criminal history, with 18 previous convictions for theft and one of aggravated robbery.  It also told the Judge that the appellant has a serious alcohol and drug problem.   According to the report, he was not at all motivated to address that problem and engage in treatment, describing it as a waste of time.  The report writer considered the appellant to be at high risk of reoffending and recommended imprisonment.

[8]      In imposing an end sentence of two years, eight months, the Judge adopted the following reasoning process. First, he identified the robbery as the lead offence.

He accepted that the violence was at the lower end of the scale, but also noted that it was directed at a defenceless 89 year old woman. The Judge took as his starting point a term of imprisonment of three years, then added an uplift of 12 months on account of the appellant’s record and the fact that this offending had occurred while on bail. That  took  the  sentence  up  to  four  years. From that, the Judge gave  the appellant a one-third discount for his early guilty plea, resulting in an end sentence

of two years, eight months.  The Judge went on to say that because he had taken the theft  into  account  as  an  aggravating  feature  of  the  robbery,  he  considered  any sentence in respect of that offence should be concurrent, otherwise there would be double counting.

[9]      As regards the minimum non-parole period, the Judge stated:

[15]     In my view the test under s 86 which requires me not only to hold you accountable for the harm done to the victim and denouncement of the conduct and deterrence of further offence is the protection of the community from you as the offender.  All aspects of that test are met. I consider that a

50 percent non-parole period is appropriate in your case.   It is unlikely that you could be considered as suitable for release in any event any earlier than

that given that there is work to be done, I believe, in the institution before you can reduce your risk.

[10]     On  appeal,  counsel  Mr  Bell  submits  the  end  sentence  was  manifestly excessive having regard to:

i)the   low   level   of   violence,   Mr   Bell   submitting   that   the offending  could   most   accurately  be   described   as   a   pick- pocketing gone wrong;

ii)       the unjustified uplift of 12 months; and

iii)the   Judge’s   failure   to   take   the   appellant’s   remorse   into account, the remorse being evidenced by the early guilty plea, efforts  to  assist  with  the  recovery  of  the  victim’s  wallet,  an apology letter and an offer of reparation.

[11]     In  support  of  these  contentions,  Mr  Bell  submitted  that  the  low  level  of violence and the fact that it took place in an open space (the supermarket carpark) meant the offence was less serious than the offending in the decision of R v Taimanu CA377/02, 20 February 2003, a case which was mentioned by the sentencing Judge and  in  which  the  Court  of  Appeal  had  said  an  appropriate  starting  point  was  two years, nine months.

[12]     I accept the points that are made by Mr Bell, but on the other hand it is highly arguable that the injuries in Taimanu were less serious than the injuries that occurred here.     It  could  also  be  argued  that  offending  in  a  supermarket  carpark  is  serious because elderly people are entitled to feel safe in such a public place and may indeed be off guard at such a venue.

[13]     All  in  all,  my  own  view  is  that  it  cannot  be  said  that  a  three-year  starting point, having regard to the case law, was out of range.   It was a starting point that was undoubtedly open to the Judge.

[14]     Nor do I accept that the uplift of one year on account of the previous record and  offending  while  on  bail  could  be  said  to  be  wrong  in  principle  or  contrary to authority. The previous record was significant. Mr Bell submitted that it was wrong to  give  as  much  as  12  months,  because  the  appellant  had  been  on  bail  for  some considerable time.  I am afraid I am unable to accept the logic of that argument.  The fact of the matter is, he was on bail.

[15]     I also do not accept the submission regarding remorse.   It is clear from the

Court of Appeal decision in R v Hessell CA170/09, 2 October 2009, that a discount

for  remorse  is  generally  to  be  regarded  as  having  been  included  in  the  significant discount received for an early guilty plea.  Remorse is only to be taken into account as an additional factor if the remorse is exceptional.  It cannot be said the remorse in this case would qualify as exceptional and therefore, in my view, the Judge was not required to give any discount greater than the one-third he gave.

[16]     The Judge’s sentencing notes are comprehensive and well reasoned.   In my view,  the  end  sentence  of  two  years,  eight  months,  cannot  be  described  in  the circumstances of this case as manifestly excessive.

[17]     As  regards  the  minimum  non-parole  period,   Mr  Bell  submits  that  the appellant’s  long  history  of  offending  is  typical  of  those  who  have  battled  with alcohol  and  drug  abuse,  but  was  not  of  a  quality  or  nature  which  would  justify  a minimum period of imprisonment.

[18]     The  Judge’s  decision  to  invoke  s  86  is  of  course  a  decision  involving  the exercise of a discretion.  I am satisfied that the Judge has addressed the relevant test and  has  considered  all  relevant  factors.  I  am  unable  to  identify  any  error  of reasoning or principle such as would warrant appellate intervention.

[19]     I am therefore satisfied that the grounds for the appeal have not been made out.  It is dismissed, and the sentence confirmed.

Solicitors:
J D Bell, Christchurch
Crown Solicitor’s Office, Christchurch