Graham v Police
[2018] NZCA 112
•23 April 2018 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA467/2017 [2018] NZCA 112 |
| BETWEEN | ANDREW REX GRAHAM |
| AND | NEW ZEALAND POLICE |
| Court: | Cooper, Ellis and Katz JJ |
Counsel: | Applicant in person |
Judgment: | 23 April 2018 at 11 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Andrew Graham seeks leave to appeal against a judgment of Edwards J in the High Court.[1] Her Honour dismissed an appeal by Mr Graham against a sentence imposed upon him in the District Court, but allowed an appeal relating to a subsequent sentence.
[1]Graham v Police [2017] NZHC 442.
By way of background, on 5 October 2016 Mr Graham was sentenced by Judge Hikaka, in the District Court at Manukau, to 25 months’ imprisonment for a range of dishonesty offending and one breach of bail (“the October Sentence”).[2] Mr Graham had stolen items (a laptop, phones and the like) from cars or workplaces and had dishonestly used six bank cards to withdraw money and make purchases.
[2]New Zealand Police v Graham [2016] NZDC 19932.
Subsequently, on 30 November 2016, Mr Graham was sentenced by Judge Ingram to a further nine months’ imprisonment, to be served cumulatively with the October Sentence, for his thirteenth breach of a protection order granted in favour of his former partner (“the November Sentence”).[3]
[3]R v Graham [2016] NZDC 24310.
Mr Graham appealed both sentences to the High Court. Edwards J dismissed his appeal against the October Sentence but allowed his appeal against the November Sentence. Her Honour considered Judge Ingram’s imposition of a nine‑month sentence of imprisonment was excessive, and replaced it with a cumulative sentence of three months’ imprisonment.
Mr Graham, now self-represented, seeks leave to bring a second appeal against both sentences.
Approach to application for leave to bring a second appeal
Second appeals in criminal cases are not available as of right. The Criminal Procedure Act 2011 requires convicted persons to obtain leave to bring a second appeal.[4] The Court of Appeal’s jurisdiction to give leave for a second appeal is limited to circumstances where the Court is satisfied that:[5]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[4]Criminal Procedure Act 2011, s 253(1).
[5]Section 253(3).
Mr Graham did not suggest that his appeal involves a matter of general or public importance. Rather, his view is that a miscarriage of justice has occurred. This Court has previously confirmed that not every error will give rise to a miscarriage of justice.[6] Rather, the concept extends “to an error, irregularity or occurrence in or in relation to the appeal that has created a real risk that the outcome of the appeal was affected”.[7]
The proposed appeal
[6]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
[7]Jackson v Police [2017] NZCA 374 at [29].
Mr Graham’s proposed grounds of appeal are essentially that:
(a)In relation to the October Sentence, Judge Hikaka erred by:
(i)misstating the facts to which he had pleaded guilty;
(ii)describing his criminal history as mostly dishonesty offences when that is not literally true; and
(iii)not ordering further reparation when it was reasonably available.
(b)In relation to the November Sentence, Judge Ingram erred by imposing the additional sentence on a cumulative rather than concurrent basis.
The alleged misstatement of facts by Judge Hikaka is relatively minor. Mr Graham was convicted on six charges of dishonestly using a document. In each case, the victim’s bank card had been stolen shortly before Mr Graham used the card to make purchases or withdrawals. The corresponding summaries of facts did not specify who had taken the bank cards.[8] Judge Hikaka’s sentencing notes, however, refer to Mr Graham as having stolen and used one card, and also refer to him either stealing or coming into possession of others. Mr Graham takes exception to being referred to as the thief (or possible thief).
[8]Although Mr Graham was initially charged with receiving or stealing two of the bank cards, those charges were later withdrawn.
Realistically, only two scenarios were available on the facts. Mr Graham was the thief, or he had received the stolen bank cards from the thief. In either case, he then dishonestly used them. The most serious aspect of Mr Graham’s offending was the loss and damage he had caused by smashing a car window; stealing a laptop, phones and wallets; and using the six victims’ cards to make purchases and withdraw money. It made little difference to his overall culpability whether he had stolen the bank cards himself, or received them from a third-party thief before then dishonestly using them. Any error by the Judge in referring to Mr Graham as the thief (or the possible thief) was not likely, in our view, to have impacted the sentencing outcome.
Mr Graham’s next proposed ground of appeal is that Judge Hikaka stated that most of his previous criminal history was for dishonesty offending. On Mr Graham’s calculation, however, only 53 of his 117 previous convictions are for dishonesty offences. There is nothing in this point. On any analysis, Mr Graham has a very significant history of dishonesty offending, which was relevant for sentencing purposes.
Similarly, there is nothing in the points Mr Graham seeks to raise regarding the issue of reparation. His first point (that the Judge did not factor the value of a recovered drill into the reparation calculation) is simply wrong. As for his second point (that greater reparation should have been ordered, with a corresponding reduction in his prison term), Mr Graham’s limited employment history weighed against such a course. An offer of reparation must be genuine and capable of fulfilment.[9] Further, an offer will be given significant weight only to the extent that it represents a genuine effort to accept responsibility for the offence.[10] Judge Hikaka cannot be criticised for exercising caution in the circumstances.
[9]Sentencing Act 2002, s 10(2).
[10]See R v Singh (2003) 20 CRNZ 158 (CA) at [16]; and R v Conochie HC Rotorua CRI‑2003‑070‑5357, 30 May 2005 at [28]–[32].
Finally, there is also no appearance of a miscarriage arising out of the fact that the October Sentence and the November Sentence were imposed cumulatively. The offending involved different victims and different types of offending. The imposition of cumulative sentences in such circumstances was appropriate.
For the reasons outlined, there is no appearance of a miscarriage, and the criteria for leave to file a second appeal are not met.
Result
The application for leave to bring a second appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent