Henry v Police HC Gisborne CRI-2011-416-000009

[2011] NZHC 274

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-416-000009

BETWEEN  JOHN EMMANUEL HENRY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 March 2011

Counsel:         A W Clarke for Appellant

C R Walker for Respondent

Judgment:      30 March 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 30 March 2011 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Burnard Bull & Co (Gisborne) for Appellant

Crown Solicitor’s Office (Gisborne) for Respondent

HENRY V POLICE HC GIS CRI-2011-416-000009 30 March 2011

[1]      On  30  June  2010  the  appellant  pleaded  guilty  to  charges  of  attempted aggravated robbery and aggravated robbery.  He was one of three offenders.

[2]      On 1 December 2010 he was sentenced by Judge DM Wilson QC in the

District Court at Gisborne as follows:[1]

[1] R v Katipa & Ors DC Gisborne CRI-2010-016-001265, 1 December 2010.

[20]      I think the appropriate starting point for you is four and a half years. You are entitled to credit for a degree of cooperation, your frank confession and the steps that you have already taken to try and remain offence-free in the future.   You have been in custody for about six months awaiting this outcome.  For those various factors I give you a credit of 10 months.  You are also entitled to a full 25 percent reduction for your pleas of guilty at an early time.

[21]      The overall effect of that is that the sentence for you is one of two

(2) years and nine (9) months.  Please stand down.

[3]      Mr Henry now seeks leave to appeal his sentence out of time.

[4]      The ground for the proposed appeal is that at the date the appellant pleaded guilty to the charges the sentencing regime applicable to him was that expounded in the Court of Appeal’s judgment in  Hessell v R.[2]    However, by the date of the

sentence this regime had been altered significantly by the Supreme Court,[3]  and it

was that decision which was followed by Judge Wilson.

[2] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

[3] Hessell v R [2010] NZSC 135.

[5]      The appellant contends that in fairness he should have received the 33% reduction in sentence which he submits he would have received if he had been sentenced earlier while the Court of Appeal’s decision was still being applied.  The appellant cites the Court of Appeal’s decision in R v Tai[4] for the proposition that this decision:[5]

... requires a sentencing Judge to tailor any sentence to reflect the discounts allowable under the Court of Appeal’s decision in Hessell if pleas of guilty were entered at a time when it was the precedent authority.

[4] R v Tai [2010] NZCA 598.

[5] Synopsis of  submissions in  support  of  application for  leave  to  appeal and  appeal against sentence, dated 28 March 2011, at para 4.1.

[6]      The Crown opposes neither the application for leave to appeal out of time nor the appeal against sentence. The Crown submits:[6]

The Court of Appeal in R v Tai held that, where a guilty plea was entered at a time where the Court of Appeal Hessell decision was the guiding authority, the guilty plea should reflect the discounts allowable in that decision. Accordingly, a full 33 percent discount should have been given to the appellant who pleaded while R v Hessell was operative.

[6] Synopsis of respondent’s submissions on appeal against sentence, dated 27 March 2011, at para 6.

[7]      I disagree that R v Tai is authority for the proposition put forward by the appellant and accepted by the Crown.

[8]      R v Tai was a Solicitor-General’s appeal against sentence.  The only issue was whether the sentencing Judge had adopted the correct starting point.  The Court of Appeal heard the appeal on 28 September 2010 (before the release of the Supreme Court’s decision in Hessell) and delivered its judgment on 8 December 2010 (after the release of the Supreme Court’s decision in Hessell).

[9]      The Court of Appeal allowed the Solicitor-General’s appeal, finding that the starting point was too low.   It then faced the dilemma of how to calculate the discount for the early guilty plea.  It decided:[7]

[7] At [25]-[26].

[25]      Potter J allowed a three month discount for Mr Tai’s involvement in a restorative justice meeting. The Solicitor-General did not quarrel with that. The Judge then allowed a one-third discount (17 months) for an early guilty plea.    That  discount  was  entirely  orthodox  on  the  basis  of  the  then controlling  authority  for  guilty  plea  discounts,  this  Court’s  decision  in Hessell v R. At the time we heard this appeal, that remained the controlling authority.   The  Solicitor-General  took no  issue  concerning the  one-third discount.  Since the hearing, however, the Supreme Court has reversed this Court’s decision in Hessell and has ruled that discounts for guilty pleas need more flexible evaluation than our guideline had suggested. More importantly for current purposes, the Supreme Court fixed the maximum discount for a guilty plea at 25 per cent. A proper application the Supreme Court’s criteria to the circumstances of this case would have yielded a smaller discount than the maximum 25 per cent.

[26]      Notwithstanding that, we have decided that the only fair course here is to allow a one-third discount.  Mr Tai pleaded guilty in accordance with the current appellate authority, which dictated he should get a  one-third discount.  That was still the law at the time of the hearing of this appeal.  It

would seem unfair to deprive him of the full discount simply because this decision has been reserved longer than we would have wished.

[10]     In other words, the Court of Appeal did what was fair to Mr Tai in the circumstances of his case.  It did not lay down any general rule.  Recently, French J in sentencing an offender reviewed the cases in this area and found:[8]

Differing views have been expressed and I am grateful to Mr Dawkins for the research he has undertaken regarding the authorities.   It is clear from those authorities that the majority of them appear to favour the full third being given, and that is the approach I have also decided to adopt.  It is, I should add, an approach endorsed by the Crown in this case.

[8] R v MacDonald HC Dunedin CRI-2010-002-000715, 10 February 2011, at [24].

[11]     In any appeal against sentence the ultimate question for this Court is whether the end sentence, however it may have been structured, is manifestly excessive or not.

[12]     In this regard I note that Mr Clarke in his oral submissions expanded his ground of appeal by suggesting that if a full Court of Appeal Hessell analysis was applied to Mr Henry’s case then an even more favourable outcome might accrue to him than merely re-calculating the guilty plea discount.   However, Mr Clarke was unable to advance that submission beyond its general expression.

[13]     For my part, I see no error in Judge Wilson’s approach to the underlying sentencing considerations.  I am assisted in this regard by Venning J’s analysis of the case in an appeal against sentence brought by one of Mr Henry’s co-offenders.[9]

[9] Singh v Police HC Gisborne CRI-2010-416-000009, 4 February 2011.

[14] Indeed, in looking at the case afresh, I would myself find it difficult to justify the credit of 10 months for the factors quoted at [2] above. I would not find the end sentence manifestly excessive, save for the point of consistency of sentences to which I now advert.

[15]     Venning J  in  Singh  accepted  that  the  appellant  in  that  case  should  have received a 33% discount having regard to the comments of the Court of Appeal in

R v Tai.[10]  It would be inconsistent and unfair not to do the same for Mr Henry.

Outcome

[10] At [15].

[16]     The application for leave to appeal is granted.

[17]     The appeal against sentence is allowed.    The sentence of two years nine months’ imprisonment is quashed.   It is replaced with a sentence of two years six

months’ imprisonment.

Brewer J