Henry v Police

[2021] NZHC 573

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000031

[2021] NZHC 573

BETWEEN

VALINTINE JAMES HENRY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 March 2021
Appearances:	N N Mani and R E V Slade for Appellant D A McGivern for Respondent
Judgment:	19 March 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 19 March 2021 at 3.30 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors:

Meredith Connell, Auckland Public Defence Service, Auckland

HENRY v NEW ZEALAND POLICE [2021] NZHC 573 [19 March 2021]

Introduction

[1]    The appellant, Valintine Henry, was sentenced to 20 months’ imprisonment by Judge Collins in the Auckland District Court on 22 January 2021.1 Mr Henry had pleaded guilty to two charges of dishonestly using a document and to one charge of receiving.

[2]    Mr Henry now appeals his sentence. He says that the Judge did not give him credit for remorse, that as a result the sentence is manifestly excessive and that the Judge failed to impose the least restrictive sentence available. The Crown supports the sentence, submitting that it is within the available range given Mr Henry’s offending and his culpability.

Background facts

Dishonestly using a document – first charge

[3]    On 29 November 2019, HL parked his vehicle on Cliff Road in St Heliers. There was a passenger in the vehicle, SG. They left the vehicle, leaving some of their belongings in it. When they returned to the vehicle a short time later, they found that the front passenger’s window had been smashed and that SG’s handbag and its contents, valued at approximately $450, had been stolen. One of the items that had been in the handbag was an ASB credit card. Mr Henry used that credit card at a service station in Glen Innes later in the day to purchase two items with a combined value of $111.50.

Dishonestly using a document – second charge

[4]    On 30 August 2020, RB was in her vehicle in Ronaki Road, Mission Bay. Her sister, JM, was with her. They left the vehicle after locking it. JM’s satchel was on the back seat of the vehicle. It contained an iPhone and a debit card issued by a British bank. The combined value of the items was approximately $1,400. When they returned to the vehicle approximately half an hour later, they discovered that the left rear window of the vehicle had been smashed and that the satchel was missing. Later

1      Police v Henry [2021] NZDC 968. (The judgment erroneously records that the sentencing proceeded on 22 January 2020).

on the same day, Mr Henry was captured on CCTV at a service station in St Heliers Bay Road using the stolen debit card to purchase items to the value of $77.50.

The receiving charge

[5]    On 18 September 2020, an employee of a construction company was using a surveying camera mounted on a tripod in Mechanics Bay, Tamaki Drive. At approximately 4.25 pm, a Toyota vehicle drove past the site. The driver of the vehicle

– a male – was seen looking towards the area where the surveying camera was being used. About three minutes later, the vehicle headed back in the opposite direction. It stopped briefly. A female got out of the vehicle, picked up the camera and tripod and placed them in the rear of the vehicle. The vehicle then sped off.  Two  days later,  Mr Henry went to a Cash Converters store in Glen Innes. He was in possession of the surveying camera and tripod. He pawned the items to Cash Converters for $200. The camera was valued at $60,400.

Sentence indication

[6]    Mr Henry sought a sentence indication.2 The Judge, in giving the indication, adopted a starting point for all three charges of 20 months’ imprisonment and uplifted this by six months to recognise Mr Henry’s criminal history. He indicated that he was prepared to allow a 20 per cent discount if guilty pleas were entered, and noted that there might be other discounts available depending on the reports obtained. The Judge recorded as follows:

No Judge favours sending people to prison. If there if is a genuine and realistic option to that, that is what I would favour but I am not promising it, it would depend upon the reports.

[7]    The sentence indication was accepted on the same day and Mr Henry was remanded in custody. The Judge called for a pre-sentence report, and directed that enquiries be made about a restorative justice conference. The matter was called before the Court in early December 2020 but sentencing was then adjourned to allow the restorative justice conference to proceed. Sentencing ultimately proceeded on 22 January 2021.

2      Police v Henry DC Auckland CRI-2020-004-008090, 12 November 2020.

District Court sentencing decision

[8]    The Judge treated the receiving charge as the lead charge. He referred to the sentence indication and adopted the starting point he had then indicated. This was the starting point contended for by counsel for Mr Henry – namely 18 months’ imprisonment for the receiving charge. He uplifted that starting point by two months to take into account the additional offending, and then by a further six months to reflect Mr Henry’s “extraordinarily long list of previous convictions”.3 That took the starting point to 26 months’ imprisonment. The Judge then allowed Mr Henry a discount of 20 per cent for the guilty pleas (five months two weeks, which he round up to six months), leaving an end sentence of 20 months’ imprisonment.

[9]    The Judge noted the submission advanced for Mr Henry that a community based sentence was appropriate. He recorded that a restorative justice conference had been held with one of the victims, RB, and that at that conference, Mr Henry had disclosed more serious offending than that with which he had been charged. The Judge expressly recorded that Mr Henry could not be punished for that. He then went on to say:4

… but nor am I going to give you credit by way of remorse and attempts to make amends when you use the mechanism that you would call an (sic) aid to do that, use that same mechanism to make admissions of far more serious offending.

The Judge noted that the probation officer who had prepared the pre-sentence report recommended a sentence of intensive supervision but stated that he did not regard that as a realistic option. Accordingly, he sentenced Mr Henry to 20 months’ imprisonment on the charge of receiving and to two months’ imprisonment on each of the other charges, all to be served concurrently. He imposed standard and special release conditions, to apply for a period of six months post the sentence expiry date.

3      Police v Henry, above n 1, at [4].

4 At [8].

The appeal

[10]   The appeal is brought pursuant to s 244(1) of the Criminal Procedure Act 2011. The fact that Mr Henry received and accepted a sentence indication does not affect his right to appeal the sentence imposed.5

[11]   This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.6 This Court does not start afresh. Nor does it simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error by the original sentencer, whether intrinsically or as a result of additional material submitted on appeal. If there is an error, the Court will then consider whether that error is material and whether it has resulted in a manifestly excessive sentence. The focus is on whether the sentence imposed is within range, rather than the process by which it was reached.7

Submissions

[12]   Mr Mani, for Mr Henry, did not challenge the starting point sentence for the receiving charge or the uplifts for the other offending and for Mr Henry’s criminal history. Rather, he argued that the sentence imposed was manifestly excessive because the Judge did not give Mr Henry credit for remorse and for his attempts to make amends. He also argued that the Judge erred in failing to consider alternatives to a sentence of imprisonment and in failing to consider the least restrictive sentence available. He argued that the least restrictive sentence was a sentence of intensive supervision. In the alternative, he argued that, at the least, Mr Henry should have been granted leave to apply for home detention.

[13]   Mr McGivern, on behalf of the Crown, submitted that there was ample material before the Judge which suggested that the remorse expressed was not genuine. He noted Mr Henry’s criminal history and that he had failed to acknowledge his offending to the pre-sentence report writer. It was further argued that the purposes and principles of sentencing required the imposition of a custodial sentence.

5      Criminal Procedure Act 2011, s 245.

6      Section 250(2).

7      Tutakangahau v R [2014] NZCA 279 at [30]-[36].

Analysis

[14]   As noted, there was no challenge to the Judge’s finding that the charge of receiving was the lead offence or to the starting point sentence adopted for that offending. Nor was there any challenge to the uplifts for the additional offending and for Mr Henry’s criminal convictions. The appeal is of narrow compass – should there have been a discount for remorse and/or did the Judge err when he imposed a sentence of imprisonment, rather than a community based sentence?

[15]Mr Mani argued that Mr Henry’s remorse was shown in a number of ways:

(a)Mr Henry attended a restorative justice conference with RB. Her sister, JM, was the victim of the August 2020 offending. In the course of the conference, Mr Henry admitted to disposing of JM’s iPhone. That phone had been inside the satchel that was taken, along with SG’s debit card. Mr Henry had not been charged in relation to the theft of the satchel or of the iPhone.  It was argued that this  openness  showed  Mr Henry’s acceptance of responsibility. I was also told by counsel that Mr Henry has not previously attended a restorative justice conference. It was submitted that the  report  of  the  conference  discloses  that  Mr Henry exhibited real insight into his offending and its impact on JM. He apologised and his apology was accepted. It was submitted that this evidences genuine remorse.

(b)At the conference, Mr Henry said that he intended to pay reparation to JM. He said that, if reparation was not ordered by the Court, he would make private arrangements to pay $100 per week, once he was released from custody. An initial payment was made by Mr Henry of $50 on 15 January 2020. There is no evidence that any further payments have been made, although I was  told  by  Mr  Mani  that  a  member  of  Mr Henry’s family has been making some payments on his behalf whilst he has been in custody.

[16]   Insofar as I am aware, there is no other indication of remorse. Mr Henry did not write a letter expressing remorse to the Judge.

[17]   There are other matters which suggest that Mr Henry is not truly remorseful. When he was spoken to by the probation officer for the Provision of Advice to Courts report, he denied the offending. He said that he was not the person who had stolen the surveying camera; rather he said it was his ex-partner and her friend. He asserted that the police were wrong when they prepared the summary of facts asserting that he was in the vehicle at the time. He admitted entering the Cash Converter’s shop to pawn off the surveying camera, but he explained that by saying that he made a stupid mistake, believing what his ex-partner had told him. He denied that he was the offender in relation to the two charges of dishonestly using documents; he said that he had been given the cards to use and that he was not aware that they had been stolen. He said that he was not involved in obtaining the cards. He said that police officers tended to make things up, just to get files off their desks. He said that the police typically arrived at his address, saying that it is him, and knowing that he is an “easy arrest … to get their figures up”. He asserted that the police make things up. He asserted that he had been wrongly charged and that he entered guilty pleas, because no matter what he said, no-one would believe him.

[18]   Remorse by a defendant is a mitigating factor recognised by the Sentencing Act 2002.8 Whether a defendant is genuinely remorseful is a question of fact and judgement. True remorse requires acceptance of responsibility for the offending in issue, and a defendant claiming to be remorseful bears the onus of showing that his or her remorse is genuine.9 A Court can properly be sceptical of claimed remorse where the circumstances indicate that it is not genuine.10 Where a Court is faced with a recidivist offender, it is entitled to place little weight on an expression of remorse.11 Expressions of remorse by defendants who contest aspects of their offending or who are reluctant to accept responsibility have to be properly and robustly assessed.12 Remorse is not necessarily shown simply by entering guilty pleas.13 The Courts look for something tangible, such as attendance at a restorative justice conference. Judges are required to evaluate all the circumstances bearing on claimed remorse. Credit can be given at sentencing for remorse where it is genuine, but not if it is nothing more

8      Sentencing Act 2002, s 9(2)(f).

9      Section 24(2)(d); Moses v R [2020] NZCA 296 at [24].

10     R v Lambert CA456/05, 4 April 2006 at [25].

11     R v Ngamo [2009] NZCA 512 at [9].

12     Williams v R [2012] NZCA 176 at [15].

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

than “crocodile tears” as a result of the circumstances the defendant finds him or herself in.

[19]   In the present, the Judge was entitled to be sceptical of the claimed remorse notwithstanding that Mr Henry attended a restorative justice conference with the sister of one of his victims. First, Mr Henry’s comments to the author of the Provision of Advice to Courts report are at odds with his attitude only a few weeks later at the restorative justice conference. Secondly, while it seems that Mr Henry made an initial payment by way of reparation, there is no evidence to suggest that any additional payments have been made. Thirdly, Mr Henry has an appalling history of dishonesty offending. He started offending at age 17. He has offended on a very regular basis ever since and amassed over 150 convictions. He has been sentenced to more than 60 terms of imprisonment. Much of his offending involves dishonesty related matters – for example, unlawfully converting a motor vehicle, receiving, theft, shoplifting, unlawfully entering a building, burglary, possession of instruments for conversion, using a document for pecuniary advantage, unlawfully getting into a vehicle and being unlawfully in an enclosed yard. He has multiple convictions for most of these offences.

[20]   I do not consider that the Judge erred when he declined to grant Mr Henry a discount for the remorse claimed. Given the circumstances of this case, the Judge was entitled to conclude that the remorse expressed was not genuine and to decline to allow a discount for it.

[21]   Nor do I consider that the Judge erred by refusing to grant leave to Mr Henry to apply for home detention or by declining to impose a community based sentence.

[22]   In the pre-sentence report, it was noted that Mr Henry’s mother did not then consent to her son staying at her address. She told the report writer that she had given Mr Henry “ample opportunities in the past to get his act together” but that her entreaties had fallen on “deaf ears”.  Mrs Henry also said that she had custody of   Mr Henry’s three children and that she wanted to protect them from being exposed to their father’s criminal behaviour.

[23]   The Judge at sentencing referred to a letter which he had received from      Mr Henry’s mother. A copy of that letter has been made available to me and it is confirmed in a supporting affidavit (which was not available to the Judge). Mrs Henry records her consent to her son serving an electronically monitored sentence at her house and explains her change of position by saying that she was upset with her son when she spoke to the report writer.

[24]   Be this as it may, I agree with the Judge that Mr Henry is not a suitable candidate for a community-based sentence. His criminal record tells strongly against him. As noted, he has amassed over 150 convictions and he has been sentenced to more than 60 terms of imprisonment. The offending in respect of which he was sentenced by Judge Collins was not an aberration. It was similar to very many other offences he has committed in the past. He was assessed as posing a high risk of reoffending and he has failed to comply with community-based sentences and other Court orders in the past. The offending in respect of which Mr Henry was being sentenced occurred while he was subject to a sentence of intensive supervision.

[25]   In my judgment, the Judge did not err in imposing a sentence of imprisonment. A sentence of imprisonment was necessary to denounce Mr Henry’s offending. It was also necessary to, yet again, try and deter Mr Henry from reoffending, as well as to try and protect the public from Mr Henry’s manifest dishonesty. A sentence of imprisonment best gives effect to the relevant purposes and principles of sentencing in this case.

[26]   For the reasons I have set out, I do not consider that any error was made by the sentencing Judge. The sentence imposed was not manifestly excessive. The appeal is dismissed.

Wylie J