Greenwood v Police

[2016] NZHC 2951

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000358 [2016] NZHC 2951

BETWEEN

SAMUEL MORGAN GREENWOOD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 December 2016
Counsel:	P Eastwood for Appellant P J Arnold for Respondent
Judgment:	6 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

P Eastwood, Auckland.

Meredith Connell, Auckland.

GREENWOOD v POLICE [2016] NZHC 2951 [6 December 2016]

The issue

[1]      This is a sentence appeal in form but a conviction appeal in substance.

[2]      On 27 September 2016, Judge Jelas sentenced the appellant to a term of

25 months’ imprisonment.1      Mr Eastwood  contends  the appellant  pleaded  guilty because the appellant reasonably apprehended the Judge was going to impose home detention.   He contends the convictions should be quashed so the appellant has a fresh election, or in the alternative, home detention should be imposed.

Background

[3]     The appellant’s convictions arose from his involvement in a re-birthing operation.  Readers could be forgiven for not knowing what that means.  Re-birthing in   a   criminal   context   involves   the   removal   of   registration   plates,   vehicle identification  number  (VIN)  tags  and  chassis  plates  from  stolen  vehicles  and replacing them with identifiers from legitimate but run-down vehicles in order to conceal the vehicle’s identity.

[4]      Most of the charges were laid on 20 October 2015.  Police executed a search warrant at the appellant’s property after a raft of vehicle thefts in the area.   They found four stolen vehicles in his driveway.  The identifiers on most of these vehicles had been interfered with.  Three had modifications intended to disguise their identity. Hence the four charges of knowingly receiving stolen vehicles.

[5]      A search of the appellant’s house revealed two .22 rifles, and .22 ammunition.

This resulted in two Arms Act charges.

[6]      On a bail check Police observed a white Mitsubishi Pajero believed to be one of three stolen from the North Shore a week earlier.  When it was checked its VIN and registration plates had been removed.  The chassis number had been interfered

with. This resulted in a fifth receiving charge, laid 6 November 2015.

1      Police v Greenwood [2016] NZDC 19009.

[7]      On 13 November 2015, the appellant was found to be driving.  He had earlier been disqualified from driving.   He was charged with driving while disqualified, being a third or subsequent offence.   Police impounded his vehicle.   It was later identified  with  the  help  of  the  owner  as  being  stolen  a  week  earlier.     On

18 November 2015, the appellant was charged with theft of this vehicle.

Events in the Court below

[8]      Judge  Jelas  gave  a  sentence  indication  on  6  July  2016.    Her  Honour considered the first four receiving charges the lead offences.  The Judge adopted a starting point of two-and-a-half years’ imprisonment, which was increased by six months having regard to the later offending, and a further month for the appellant’s criminal history. That took the sentence to three years and one month imprisonment.

[9]      The  Judge  observed  if  the  appellant  accepted  the  sentence  indication  he would likely be given the full discount for pleading guilty resulting in a sentence of two years and three months’ imprisonment.

[10]     The appellant  next  appeared  on  13  July 2016.    Mr Eastwood  raised  the possibility of electronically monitored bail as a mitigating factor.   He invited the Judge to consider home detention and order reports consistent with that option.

[11]     The   Judge   initially   hesitated.      Her   Honour   noted   compliance   with electronically monitored  bail  conditions  was  a relevant  factor,  but  discretionary. Ultimately, the Judge agreed to order a report to consider home detention as a possible sentencing option.   The Judge said she would be prepared to revisit the sentence indication if there was a particularly positive pre-sentence report.   The Judge said if the mitigating features brought the appellant within the statutory threshold she would consider home detention. The appellant then pleaded guilty.

Sentencing

[12]     The appellant was sentenced on 27 September 2016.  The Judge was troubled by the pre-sentence report.  It recorded the appellant had not taken responsibility for the offending, and tended to minimise its seriousness:2

For sentencing today I now have the benefit of the Probation Service report of 9 September 2016.   The report puts in doubt your acceptance of responsibility for the offending.  You said you pleaded guilty because that was the advice of your lawyer and that you were not aware the vehicles in question were stolen.  You further explained that you had accumulated the multiple four wheel drive vehicles because you liked them and intended to use them on the farm.

It  was  the  opinion  of  the  report  writer  that  you  tended  to  justify  and minimise the offending; you made the remark that you had lost a significant sum of money spent modifying the vehicles in question for your own use.  It was the opinion of the report writer that you essentially failed to appreciate these were stolen items that you had obtained unlawfully.

It is also recorded that you made the comment that you did not think the offending was very serious and appeared to take the stance of a victim, having regard to making reference to the fact that you yourself had spent a considerable sum of money on the vehicles converting and making the changes that you did to them.

[13]     The Judge concluded there was nothing in the report that would warrant a departure from the sentence indication.  The Judge deducted three months for time spent on restrictive bail.   After applying a 25 percent discount for the appellant’s guilty pleas, the Judge settled on a sentence of two years’ and one month’s imprisonment, or 25 months.  The Judge observed this was above the threshold for home detention, but noted even if she could impose that sentence, the overall circumstances of the offending, including its seriousness and the fact much of it occurred while on bail, meant that sentence would not have been imposed.

The appeal

[14]   Mr Eastwood contends the Judge’s remarks gave rise to a reasonable apprehension on the appellant’s part he would be sentenced to a term of home detention, or in the very least that sentence was likely.  He submitted the appellant’s

guilty pleas were induced in consequence of that belief.

2      Police v Greenwood, above n 1, at [2]–[4].

Analysis

[15]     In  situations  such  as  this  the  Court  of Appeal  has  identified  the  correct approach:3

Finally, in relation to challenges such as the present, regardless of whether the challenge is made to the sentencing judge or on appeal, it is necessary to keep the correct focus.  It is not a protracted inquiry into fault, nor into the merits of the accused, nor into the merits of the sentence actually imposed. A sentence indication generates an expectation.  If it is relied upon, and then for whatever reason the expectation is not met, the accused must be given the opportunity to vacate the pleas.  What is in issue is the integrity of the sentence indication system.

It  follows  from  what  we  have  said  that  we  consider  the  focus  of  the questions of law identified for this appeal to be incorrect.  The inquiry is not on what defence counsel should or should not have done or understood. Likewise, issues about the predictability and correctness of an uplift of this magnitude are equally not the correct focus.

It is plain on the material before us that Mr Taylor did not plead on the basis of an understanding that the sentence would be of this length.  That is what matters.

[16]     I am quite satisfied the appellant had no legitimate expectation he would receive a sentence of home detention, or an expectation that sentence was likely. First, there is no evidence before me as to what, if anything, the appellant thought. Mr Eastwood submitted this was a reasonable inference from the record.  I disagree. The record is clear that while the Judge indicated she might be prepared to consider that sentence, the Judge went no further.  The Judge also made it clear the sentence of imprisonment was likely.

[17]     Second, and for the same reason, the appellant did not have a reasonable expectation he would receive a sentence of home detention, or an allied expectation that sentence was likely.  The Judge was careful in her remarks and nothing that she said could be fairly understood to have induced the appellant’s pleas of guilty.

[18]     The appeal is dismissed.

……………………………..

Downs J

3      Taylor v R [2013] NZCA 55 at [23]–[25].