Graham v Police

[2017] NZHC 442

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000031

[2017] NZHC 442

IN THE MATTER OF

an appeal against sentence

BETWEEN

ANDREW REX GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 March 2017
Counsel:	M B Meyrick for the Appellant L B T Belk for the Respondent
Judgment:	15 March 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 15 March 2017 at 11.30 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GRAHAM v POLICE [2017] NZHC 442 [15 March 2017]

Solicitors:    Berman and Burton, Auckland

Kayes Fletcher Walker Limited, Auckland

Introduction

[1]                 Mr Graham pleaded guilty to 11 charges of dishonesty related offending and one charge of breach of bail. He was sentenced to 25 months’ imprisonment for that offending by Judge Hikaka on 5 October 2016 (October sentence).1

[2]                 On 30 November 2016, Mr Graham pleaded guilty to breaching a protection order and was sentenced to nine months’ imprisonment cumulative on the existing sentence (November sentence).2

[3]                 Mr Graham appeals both sentences. He challenges the October sentence on the grounds that the uplifts to take into account the totality of the offending and his previous convictions were too high and led to a manifestly unjust sentence.

[4]                 He appeals the November sentence on the grounds that the Judge failed to take into account the October sentence in determining an appropriate sentence.

The offending

[5]The October sentencing was for the following charges:

(a)Six charges of take/obtain/use credit bank credit card for pecuniary gain;3

(b)Theft ex car (over $1,000);4

(c)Theft ex car (under $500);5

1      New Zealand Police v Graham [2016] NZDC 19932.

2      R v Graham [2016] NZDC 24310.

3      Crimes Act 1961, s 228. Maximum penalty is seven years’ imprisonment.

4      Crimes Act 1961, s 223(b). Maximum penalty is seven years’ imprisonment.

5      Crimes Act 1961, s 223(d). Maximum penalty is three months’ imprisonment.

(d)Theft property (under $500);6

(e)Shoplifts (under $500);7

(f)       Theft ($500 – $1,000);8 and

(g)       Failure to answer District Court bail.9

[6]                 Only the summary of facts for five of these offences was located prior to the appeal hearing. The parties were nevertheless agreed that the appeal should proceed. The events giving rise to these charges are therefore taken from the summary of facts available, and the October sentencing notes.

[7]                 The dishonesty charges relate to thefts of a laptop, cellphones, a drill off a building site, a wallet and its contents, and groceries. There was also one instance where the complainant was at the emergency department at hospital and Mr Graham stole that person’s card and used it at least three times, obtaining a benefit of over

$600. Some of the thefts were from places of work, and the taking of property from behind shop counters. One of the charges involved smashing a window and stealing a laptop, causing approximately $2,600 worth of damage and loss.

[8]                 The November sentencing was for the thirteenth breach of a protection order. That order had been issued in favour of Mr Graham’s former partner. Mr Graham lives in the Waikato and his former partner lives in Auckland. They have two children together. The summary of facts records that there has been a long history of family violence between the defendant and the complainant with police attending a total of 48 incidences between the couple.

[9]                 In the early evening of 11 May 2016, the complainant returned home to find Mr Graham waiting in his car on her front lawn inside her property. He ignored her requests to leave. He took the complainant’s baby from the complainant’s car and

6      Crimes Act 1961, s 223(d). Maximum penalty is three months’ imprisonment.

7      Crimes Act 1961, s 223(d). Maximum penalty is three months’ imprisonment.

8      Crimes Act 1961, s 223(c). Maximum penalty is one year’s imprisonment

9      Bail Act 2000, s 38. Maximum penalty is one year’s imprisonment or a fine of $2,000.

followed her into the house holding the baby. He continued to ignore requests to put the baby down and  for  him  to  leave.  The  complainant’s  daughter  considered  Mr Graham was intoxicated and called the police.

District Court sentences

[10]              In determining Mr Graham’s October sentence, Judge Hikaka referred to the pre-sentence report which recommended a sentence of imprisonment and reparation. He also took into account Mr Graham’s good family support and employment prospects.

[11]              The Judge also referred to Mr Graham’s extensive criminal record, which stretches back to 1984. The Judge observed that Mr Graham had been in trouble from the ages of 14 to 47, and that his past convictions mainly related to dishonesty offending.

[12]              The Judge took a starting point of 12 months for the lead offence, but did not specify which offence that was. He then applied an uplift of 12 months to cover the remaining charges before the Court. A further uplift of 12 months was imposed to recognise previous convictions. That led to a total starting point of 36 months.

[13]              The Judge then allowed a 20 per cent discount for guilty pleas which he regarded as generous given that some pleas were entered the day before or the day of trial. That led to a sentence of 28.8 months. The sentence was further reduced by 3.8 months to take into account remorse and Mr Graham’s ability to pay reparation by virtue of his job prospects. Reparation was ordered in respect of a number of the charges.

[14]              In the November sentencing, Judge Ingram noted that this was Mr Graham’s thirteenth breach of the protection order. The Judge observed that Mr Graham had shown that he was unable to control himself in relation to protection orders and that Mr Graham needed to “get the message” that if he breached a protection order then a serious penalty would be paid.

[15]              The Judge adopted a starting point of nine months’ imprisonment and applied an uplift of three months for Mr Graham’s previous convictions for breach of a protection order. He considered that was a relatively generous uplift in the circumstances. A three month credit was given for the guilty plea which resulted in

the end sentence of nine months. A cumulative sentence was imposed as the Judge regarded the dishonesty offending and the breach of protection order to be completely separate events. Leave to apply for home detention was denied. There was no release conditions imposed because Mr Graham was already subject to a parole board sentence.

Grounds of appeal

[16]              Mr Graham does not take issue with the starting point of 12 months adopted on the lead charge in the October sentence. He challenges the uplift of 12 months imposed for the other offences. He says that the other offences were of a similar nature but less serious and that if any uplift was required, it should have been a maximum of three to six months.

[17]              In terms of the 12 month uplift for prior convictions, Mr Graham says that the uplift effectively sentences him twice for prior offences. He says this is “double jeopardy”. Mr Graham submits that an uplift of three months would meet  Sentencing Act requirements.

[18]              In relation to the November sentencing, Mr Graham submits  that  the  District Court Judge erred by failing to take into account the totality principle which required the Judge to have regard to the total effect of the two sentences of imprisonment being served cumulatively.

[19]              The police submit that the uplifts applied in the October sentencing were within range and did not lead to a manifestly excessive sentence. However, it is accepted that the November sentence failed to take into account totality principles and that lead to an excessive sentence being imposed. The police submit that an appropriate sentence would have been in the region of two to three months’ imprisonment.

Approach on appeal

[20]              Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

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

(b)a different sentence should be imposed.

[21]              In any other case, the Court must dismiss the appeal.10 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.11

Analysis

October sentence

[22]              Mr Graham challenges the uplifts applied by Judge Hikaka to reflect the totality of the offending, and previous convictions.

[23]              The Court of Appeal has stressed on a number of occasions that it is the end sentence which is relevant on appeal, and not the process by which it is determined.12 That precludes an approach which focuses solely on the uplifts applied without considering all components of the sentence which make up the sentence as a whole.

[24]              I have therefore approached this appeal by considering whether the overall starting point of 24 months adopted by the Judge was within range for the 12 charges based on the information currently before the Court.

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

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

12     Mita v R [2012] NZCA 137 at [28]; Ripia v R [2011] NZCA 279.

[25]              In R v Duncan, the Court of Appeal observed that considerations relevant to setting a starting point for theft include the nature and value of the item stolen, whether the offending involves breaking into property, whether the offending was spontaneous or premeditated, and the effect on victims.13 The Court of Appeal made reference to the cases which the Judge had relied on in setting a starting point in that case. Those cases included Ropiha v Police,14 where approximately $5,000 worth of property had been stolen and a starting point of two and a half years’ imprisonment was adopted. In Falaoa v Police,15 a single theft of $2,500 was taken in cash and cheques, and an end sentence of 21 months’ imprisonment was regarded as stern, but was nevertheless upheld.

[26]              In this case, the starting point of 24 months was adopted for 12 separate charges. The offending was against a range of different victims. The police calculated the total value of property taken (in terms of the charges for which summary of facts are available) to be $4,800. The total value of property taken for all charges is likely to be higher than that.

[27]              Mr Graham’s offending involved smashing a car window to steal a laptop and briefcase. In other cases, he stole a cellphone and credit card while the victim was at the family doctors. He also stole a handbag from the staff room in the maternity hospital while the victim attended a medical emergency. Those victims were particularly vulnerable. That type of offending also suggests an element of pre- meditation.

[28]              I consider the cumulative effect of all these factors make Mr Graham’s offending more serious than the offending in Ropiha and Falaoa. By comparison with the starting point and the end sentences in those cases, the starting point of 24 months’ imprisonment appears lenient.

13     R v Duncan [2009] NZCA 408 at [8].

14     Ropiha v Police HC ROT CRI-2004-463-074, 22 July 2004.

15     Falaoa v Police NC NAP AP54/98, 23 September 1998.

[29]              Mr Graham’s second challenge is to the 12 month uplift for his prior convictions. He says such an uplift punishes him again for those offences.

[30]              In Reedy v Police, Dunningham J reviewed the authorities in relation to uplifts for previous offending and summarised the relevant principles as follows:16

[19]      The principles in relation to uplifting the previous offending can therefore be stated as follows:

(a)there will be no uplift for the bare existence of previous convictions — to do so would be to punish offending more than once;

(b)The permissible lines of reasoning, justifying an uplift, fall into three broad categories:

(i)previous convictions bearing upon character and culpability;

(ii)indication of predilection to offend in a specific way (an indicator of reoffending);

(iii)the need to protect society by the imposition of a deterrent sentence.

This necessarily requires the uplift to be firmly tied to specific aspects of the offender's criminal history.

(c)the uplift must remain proportionate to the starting point fixed by the sentencing Judge.

(d)there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).

(footnotes omitted)

[31]              Applying the principles set out in Reedy, I consider Mr Graham’s previous convictions bear upon his character and his culpability. Mr Graham has over 100 prior convictions. Sixty three of those convictions are for dishonesty related offending.17 He has received a number of sentences of imprisonment for these convictions. His

16     Reedy v Police [2015] NZHC 1069 at [19].

17     This number includes charges for unlawfully taking/getting into/interfering with motor vehicles.

record shows a sustained pattern of offending with no discernible break. As the Judge noted, Mr Graham has been committing these types of offences for 33 years.

[32]              Mr Graham’s extensive criminal record indicates a predilection to commit dishonesty type offences, and places him at high risk of committing these offences in the future. Clearly a significant uplift was required to protect society, denounce his conduct, and to fulfil the principle of deterrence.

[33]              Nevertheless, I accept that an uplift in the order of 12 months’ imprisonment, as against a starting point of 24 months, was at the very upper level of what might be considered appropriate in the circumstances. But even if the uplift was outside the appropriate range, the low starting point adopted by the Judge means that any error did not result in a manifestly excessive sentence. In that respect, it cannot be said that Mr Graham has been punished twice for previous offences.

[34]              It follows that the October sentence was not manifestly excessive in my view. The appeal against that sentence must be dismissed.

November sentence

[35]              Mr Graham challenges the November sentence on the basis that the Judge did not have regard to the term of the October sentence in fixing that sentence.

[36]              In Skelton v R, the Court of Appeal stated that “the correct approach at the second sentencing is for the Judge to ask what the appropriate overall sentence would have been if the offender had been sentenced on all charges at the same time”.18

[37]              The police accept that the Judge did not approach Mr Graham’s sentencing on this basis, with the result that the sentence for breach of a protection order was excessive.

18     Skelton v R [2011] NZCA 35 at [33].

[38]              Some guidance on an appropriate end sentence which reflects totality principles may be gained from Mitchell v R.19 In that case, the appellant was convicted of four breaches of a protection order following trial. The breaches involved four voicemail messages left by Ms Mitchell for her former partner. The appellant had previously breached the protection order on a number of occasions. The sentencing Judge adopted a starting point of eight months’ imprisonment on all four charges, which was then reduced to reflect the fact that the appellant had been recently sentenced to two years and one month imprisonment for other offending. The Court of Appeal observed that the starting point of eight months was towards the top end of the range, but approved the reduction for totality, noting that it may have even required a slightly shorter term as an end sentence.

[39]              In light of the Court of Appeal’s comments, a starting point of nine months, uplifted by a further three months for prior breaches was excessive in my view. Standing back and considering  what  sentence  would  have  been  appropriate  if  Mr Graham had been sentenced for all offences at the same time, I consider a cumulative sentence of three months’ imprisonment would reflect the culpability of Mr Graham’s offending and his history of past breaches, and would also be consonant with totality principles.

[40]              The appeal from the November sentence is accordingly allowed. The sentence of nine months is set aside and a cumulative sentence of three months’ imprisonment is imposed for breach of the protection order.

[41]              In summary, that leads to an end sentence of 25 months’ imprisonment for the October offending, and a sentence of three months’ imprisonment for the breach of protection order. The effective end sentence is accordingly 28 months, or two years and four months’ imprisonment. I am satisfied that this effective end sentence accords with totality principles.

Result

[42]The appeal from the October sentence is dismissed.

19     Mitchell v R [2015] NZCA 442.

[43]              The appeal from the November sentence is allowed. The sentence of nine months’ imprisonment is set aside, and replaced with a sentence of three months’ imprisonment cumulative on the October sentence.

Edwards J