Gray v Police HC Christchurch CRI-2007-409-000104
[2007] NZHC 1838
•14 June 2007
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2007-409-000104
NATHAN RURU GRAY
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 14 June 2007
Counsel: G A Hay for Appellant
Z R Johnston for Respondent
Judgment: 14 June 2007
ORAL JUDGMENT OF PANCKHURST J
[1] This is an appeal against an effective sentence of two years two months imprisonment imposed upon a 20 year old offender who was sentenced essentially in relation to one charge of assault with intent to injure and two charges of burglary. More correctly, the first charge required a resentencing for reasons to which I will refer in a moment.
[2] The Judge in the District Court also dealt with associated offences of breach of supervision and breach of a community work order at the same time and made an order for payment of reparation in the sum of $11,187. Almost all aspects of the
sentence are under challenge in one way or another.
N R GRAY V NZ POLICE HC CHCH CRI-2007-409-000104 14 June 2007
[3] To explain the case it is best to go back to the first offence in time which was committed on 2 January 2006. The appellant, with two co-offenders, attacked a
17 year old youth in the street. He was subjected to a nasty assault comprising essentially punches to the face. The appellant was sentenced on that matter and a further charge of common assault in the District Court in May 2006. He was sentenced to community work of 250 hours on the most serious assault and supervision for a period of nine months. However, his response with reference to that sentence was subsequently described in the present pre-sentence report as desultory and woeful. In short, he did little or nothing to meet his obligations with reference to either supervision or community work.
[4] To make matters worse on 28 July 2006 the appellant was involved in a burglary of commercial premises. Property of quite considerable value was taken being jewellery, cash and also there was damage caused to the premises. Then finally on 24 January 2007 the appellant, with others, was involved in a house burglary committed in the early hours of the morning. People were present asleep within the house and indeed woke up as a result of the intrusion. Gear to a value of about $1,200 was taken by the appellant and his co-offenders.
[5] By the time he appeared for sentence on 23 April on the two burglary charges application had been made to have the appellant’s earlier sentences of supervision and community work cancelled and for him to be resentenced with reference to those. Judge Erber imposed a sentence of eight months on the assault with intent to injure. With reference to the two burglaries he imposed a sentence of 18 months, producing the end effective term of two years two months. With reference to the charges of breaching the sentences of supervision and community work he imposed two months, concurrent.
[6] The appellant’s personal circumstances are outlined in the pre-sentence report. He turned 20 in September 2006. The report indicates that his problems are largely associated with over-consumption of alcohol and keeping bad company. He had 10 previous convictions for offences ranging from burglary down to driving matters. All of these offences had been met, until this occasion. with community- based sentences.
[7] What, then, is the basis of the appeal? Mr Hay has challenged the sentences of imprisonment as clearly excessive on a number of grounds. First he has pointed out that the Judge did not fix a starting-point and make any allowance for the pleas of guilty to the burglary charges. In fact there was no reference to there having been pleas of guilty. Those charges resulted in a first appearance on 26 March 2007. The guilty pleas were entered about a week later on 2 April. Hence it was a case which required a discount at, or near, the maximum for pleas of guilty.
[8] Ms Johnston argued that I should postulate that the Judge was well aware of the pleas and made due allowance for them. On that basis he would have needed to start at a point of about two years three months imprisonment in order to arrive at the
18 month terms.
[9] The second ground of appeal is that the sentencing remarks contained no focus upon the appellant’s age and the need to have regard to his reformation and reintegration back into society. This was a first sentence of imprisonment for him and he has what Mr Hay aptly described as a “modest list” of previous offences. Counsel drew attention to an oft quoted statement of principle contained in R v Mahoni (1998) 15 CRNZ 428 (CA) where the Court said that:
The principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is well established. See R v Titoko unreported, 11 August 1996, CA114/96 where this Court drew attention to s 7 of the Criminal Justice Act and art 37(b) of the United Nations Convention on the Rights of the Child. It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in. However, the principle is not absolute and there are situations where it must yield to the public interest, see for example R v Wilson [1989] 2 NZLR 308.
[10] Ms Johnston rightly pointed out that this was hardly a classic case for the application of the principle discussed in Mahoni. The appellant is no mere youth. He is now 20 years of age and, what’s more, there is really nothing in the way of positive indicators in the pre-sentence report in relation to his desire for, and prospects of, reformation.
[11] Although there was no great emphasis placed upon the sentence for the assault with intent to injury by Mr Hay, Ms Johnston has referred to one authority which relates to somewhat similar offending. This is the case of Fenton v Police Palmerston North AP 11/2000 10 February 2000, a decision of Gendall J. There a sentence of seven months for a somewhat similar offence was imposed, but in the final result, on appeal, that sentence was suspended for a period of 12 months. It seems to me that a sentence of eight months for this particular offence was at the very upper range for an offence of that kind. I will return to this aspect in a moment.
[12] There is also complaint made in relation to the sentences imposed for the breaches of community work and supervision. The gist of the argument was that given the appellant was resentenced to eight months imprisonment for the underlying offence, it was inappropriate that he should receive prison sentences for the two breaches. I disagree. They were subsequent and different offences which were, in any event, met with concurrent terms of imprisonment, so that the effective outcome for the appellant is not of particular moment.
[13] There is also a challenge to the reparation order but I shall return to that aspect shortly.
[14] The first question is the appropriateness of the sentence of imprisonment. I am persuaded that the sentence imposed is clearly excessive. Ms Johnston referred to a number of cases where persons appeared on a first offence of burglary (these were the appellant’s second and third such offences) and significant sentences of imprisonment were upheld in this Court. I have reviewed those cases and I agree with the proposition made by counsel. As always, however, there is difficulty in comparing one case with another. My clear impression is that the various cases to which I was referred involved offenders of mature years and typically offenders who had records, if not for burglary, at least for other serious offending.
[15] I do not minimise these two burglaries. They were both serious examples of that offence. Even so, it seems to me that as a starting-point of no more than two years imprisonment was appropriate. Given the promptness with which the pleas of guilty were entered, I consider an allowance of eight months from the two years was
required to produce an effective sentence of 16 months imprisonment. That, I consider sufficient to mark offences of the present kind involving commercial premises on the one hand and the violation of a dwelling where there were people asleep on the other.
[16] With reference to the assault with intent to injure, it clearly was a separate offence, unconnected to the burglaries and required a separate penalty. But in my view a cumulative sentence of four months was as much as the offence could carry. This produces an end sentence of 20 months imprisonment. I do not see this as a case where the otherwise appropriate sentence should be reduced on account of the appellant’s immaturity and the need to build into the sentence what Mr Hay referred to as a rehabilitative element. The appellant is 20, the pre-sentence report is less than positive, and I consider there is sufficient recognition of his immaturity and that this is his first sentence of imprisonment in the revised sentences which I have already indicated.
[17] However, given a sentence of 20 months imprisonment, the issue of home detention arises. I do not, of course, have the benefit of the District Court Judge’s views on that aspect. It seems to me that a grant of leave is appropriate. This is a first sentence of imprisonment. The appellant is only 20 years of age. Despite the negatives aspects of the pre-sentence report he was in work at the time of this offending. On balance I consider that his personal circumstances, even after taking account of the seriousness of the burglaries, does warrant a grant of leave so that the door is left open for him to go to the Parole Board.
[18] The figure of $11,187 imposed by way of reparation was roundly criticised by Mr Hay on the grounds that it made no allowance for the circumstance that both burglaries were committed with co-offenders. The appellant has been fixed with the full amount of reparation for both offences without any deduction to recognise this circumstance. Correctly, Ms Johnston drew attention to authorities which establish that it is permissible to fix one offender with the full amount of reparation, regardless that there are co-offenders, the more so where they have not been apprehended which I think may be the case in this instance.
[19] However, I have another concern about the sentence of reparation. It is a requirement of the Sentencing Act that the means of the offender be examined before reparation is fixed. A report was obtained which indicated the appellant earned of the order of $300 a week and that he was prepared to make reparation in a figure of
$20 a week. In these circumstances I regard the sentence of reparation as unrealistic on account of the appellant’s means, particularly given the fact that he is to be imprisoned as well.
[20] I therefore quash the order to make reparation in the figure of $11,187 and fix reparation in the sum of $3,000 to be applied on a pro rata basis as between the two complainants. It remains for the appellant to arrive at an arrangement for payment of that, presumably after his release from prison.
[21] The sentences in relation to the two breaches will stand but remain concurrent with the revised sentence which I have indicated.
[22] There is one further aspect. The application to cancel the sentences of supervision and community work and for the appellant to be resentenced on the assault with intent to injure did not extend to the simple assault charge which was dealt with at the same time. This also attracted a sentence of community work,
120 hours. The two sentences were imposed in tandem and there is every reason to suppose that they should likewise have been dealt with in tandem in the context of the resentencing exercise.
[23] Ms Johnson raised this concern and indeed suggested that the appeal might be adjourned so that she could obtain better instructions about it. However I did not think that was the appropriate course. Instead I make a direction to the Probation Service to consider that aspect of the matter so that it may be brought back before the District Court to be appropriately resolved.
[24] Finally, although Mr Hay suggested that special conditions may be appropriate, in the absence of any guidance from the pre-sentence report, I fix standard conditions of release in relation to the reduced sentence of imprisonment.
Solicitors:
Gilbert Hay Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent
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