H v Police HC Timaru Cri-2007-476-9

[2007] NZHC 234

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2007-476-000009

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 March 2007

Counsel:         W N P van Vuuren and T D Lawrence for Appellant

A R MacGougan for Respondent

Judgment:      30 March 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      Mr H   appeared in this court on 6 March before Judge Crosbie in relation to a charge of theft.  He had been stealing pork products from his employer.  At the relevant time he was working as a butcher for the complainant company.

[2]      The ruge that was being employed was to weigh cartons, attribute to them an underweight and then make payment for the cartons on the basis of the underweight. On the day of his apprehension Mr H   was caught in possession of four cartons which had been under-weighed to the extent of product worth $258.   However a search was made of a freezer at his home which contained a further amount of

product valued at about $330.  More than that, however, the appellant was straight-

H V NZ POLICE HC TIM CRI-2007-476-000009  30 March 2007

forward with the police and in the end result the conclusion was reached that he had taken, over a period of time, produce to a value of $1,832.

[3]      He is a man aged 33  years, working as  a butcher  with  the complainant company at the relevant time.  As a result of the offending, unsurprisingly, he lost his employment.  This is his first offence.

[4]      Judge Crosbie rightly regarded the offending seriously and identified as the primary consideration that it was theft as a servant where the trust which is essential to  the  employment  relationship  had  been  abused.    He  indicated  that  he  had considered obtaining a pre-sentence report as a sentence of imprisonment was in contemplation.  But in the end result, secure in the knowledge that reparation could be  made,  he  determined  that  a  sentence  of  community  work  was  appropriate.

180 hours  were  ordered  and  the  offender  was  given  a  final  warning  which  I understand to be directed to the proposition that should he appear again on a like charge, a sentence of imprisonment would be likely.

[5]      Why, then, is it said that this sentence was clearly excessive or inappropriate? Ms Lawrence, in support of the appeal, has said that in her experience 180 hours of community work is high for an offence of this kind.  But her major argument was that the present sentence was disparate by comparison to that imposed on another offender just two days later.  She was a fraction hampered with reference to the other offender through an inability to access authoritative information about that case.

[6]      Perchance, counsel who appeared for that person was present in court in relation to another appeal which I am to hear shortly.  I thought it appropriate to hear from the horse’s mouth, so to speak, a little bit more about the other case.   What transpired was this.   He, too, was a first offender, about 40  years of age, who likewise was employed by the same company.   Over an extended period he had taken produce which the complainant’s firm thought was valued in the range of over

$20,000.  He was on-selling it to a retailer who was in turn selling it to the public I presume.  In the end result on the basis of the best information available, following an assessment made with reference to both the offender and the retailer, reparation was fixed in a sum of about $17,000.  What sentence did this man receive?  He was

sentenced by the same Judge to 200 hours community work, ordered to make reparation and did not receive a final warning.

[7]      Ms MacGougan has submitted that the problem appears to lie with the second sentence rather than the first, that is that the second sentence was unduly lenient rather than that the first sentence was clearly excessive.   I must say that I tend to agree.

[8]      Had this case come before me in isolation and with reference to Mr H   alone, I doubt very much whether there would be any basis for me to differ in relation to the sentence imposed at first instance.  However, when the two cases are laid side by side, and given that they were determined by the same Judge only two days apart, it does impress me as a case where there is such disparity in outcome as to give rise to a legitimate sense of grievance on the part of the present appellant.

[9]      For that reason alone I consider that the appeal does need to be allowed to some extent.  I reduce the order for community work to 125 hours.  I also quash the final warning which was imposed it being, in my assessment, inappropriate for a first

offender appearing in relation to an offence of this kind.

Solicitors:

Petrie Mayman Clark, Timaru for Appellant

Gresson Dorman & Co, Timaru for Respondent