Horrell v Police
[2016] NZHC 820
•28 April 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-91 [2016] NZHC 820
BETWEEN MICHAEL HORRELL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 April 2016 Counsel:
M Ryan for Appellant
C Cross for RespondentJudgment:
28 April 2016
RESULT JUDGMENT OF DUFFY J
This reasons for judgment was delivered by me on 28 April 2016 at 10 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Meredith Connell, Auckland
HORRELL v NEW ZEALAND POLICE [2016] NZHC 820 [28 April 2016]
[1] On 26 April 2016 I delivered a result judgment in which I allowed Mr Horrell’s appeal against sentence and quashed the sentences imposed in the District Court. In their place I imposed a total sentence of 8 months’ imprisonment and directed the payment of $600.00 reparation. My reasons for doing so now follow.
[2] On 26 February 2016 Judge Sinclair imposed concurrent sentences of: (a) 13 months’ imprisonment on six dishonesty charges; and (b) three months imprisonment on a driving while disqualified charge. Mr Horrell was also convicted and discharged on a careless driving charge; disqualified from driving for one year and ordered to pay reparation of $2000.
[3] Mr Horrell did not appeal against the sentence for the careless driving offence or the period of disqualification from driving. He appealed against the remainder of the sentences on the basis that they were manifestly excessive and that Judge Sinclair erred in imposing an order for reparation of $2000.
Facts
[4] Mr Horrell was sentenced in relation to eight charges, which in turn related to two separate instances of offending.
Driving offences
[5] On 8 August 2015, Mr Horrell was driving a vehicle near Te Aroha township in the Waikato. He lost control of his vehicle, which continued approximately 55 metres along the verge before hitting a road side culvert and rolling on to its roof. The road and weather conditions at the time were good and Mr Horrell was unable to explain why he had crashed his vehicle.
[6] At the time when the accident occurred, Mr Horrell was indefinitely disqualified from holding or obtaining a driver’s license.
Taking documents for pecuniary advantage
[7] On 30 August 2015, Mr Horrell visited a neighbouring property where the victim resided. The victim opened the door and Mr Horrell entered the house, where unbeknownst to the victim, Mr Horrell gained access to the victim’s debit card. He then left the premises in a vehicle with an unknown associate.
[8] Later that night,1 Mr Horrell used a BNZ Visa Debit card belonging to the victim in two separate paywave transactions at a Z Energy petrol station. The total amount of money transferred was $58.80.
[9] Mr Horrell and his unknown associate then travelled to a different Z Energy petrol station, where he used a BNZ Bank card belonging to the victim to withdraw
$600 cash from an ATM machine.
[10] Approximately three hours later, Mr Horrell’s associate attempted to use the victim’s BNZ Visa Debit card to make a purchase of $74.35, at which point the card was declined.
Victim impact statement
[11] The victim stated that Mr Horrell’s actions have caused him to feel scared to the point where he no longer answers the door to any person. He stated that he is very scared about seeing Mr Horrell again. He has found it difficult to cope with the loss of his savings and says that dealing with the BNZ Bank in the aftermath of the offending has been very difficult. The victim felt that he was targeted because he was different and alone and appeared quiet and nerdy. He has subsequently installed cameras at his front door to help him to cope with his anxiety.
[12] The victim’s mother stated that he suffers from a genetic growth problem and as a result feels vulnerable in stressful and social situations. She stated that the victim lost a significant sum of money as a result of the offending and has
subsequently incurred additional costs to secure his home. She stated that he is too
1 The offending took place after midnight and therefore occurred on 31 August 2015.
nervous to open the door, has become obsessive over security and is often depressed and scared.
Personal circumstances
Prior convictions
[13] Mr Horrell has a lengthy criminal record spanning 25 pages and 344 convictions, including 235 previous convictions for dishonesty offences and 2 previous convictions for driving whilst disqualified (third or subsequent). Mr Horrell has been sentenced to a term of imprisonment on 21 occasions.
Pre-sentence report
[14] Prior to the District Court hearing the probation officer recommended a sentence of imprisonment.
[15] The probation officer noted that Mr Horrell had a worrying trend of reoffending and that over the past 5 years alone, he had amassed 54 convictions for violence, theft, fraud, driving offences and non-compliance. He had served several terms of imprisonment within the same period.
[16] The probation officer found that Mr Horrell was moderately remorseful and presented as a man who wanted to get out of the cycle of offending. He requested an electronically monitored sentence with absence only allowed to attend programmes and probation commitments. However the probation officer noted that type of sentence was not suitable for recommendation because Mr Horrell had other outstanding active charges.
[17] The probation officer assessed Mr Horrell as presenting a medium risk of harm to others but found that he presented a very high risk of re-offending.
District Court decision
[18] Mr Horrell originally faced nine charges, including a charge of theft in relation to an alleged taking of the victim’s wallet. However, the theft charge was dropped and Mr Horrell pleaded guilty to the remaining charges, as set out below:
Offence Section / Act Maximum penalty Obtaining a document for
pecuniary advantage x2
Crimes Act 1961, s
228(a)
7 years imprisonment Using a document for
pecuniary advantage x3
Crimes Act 1961, s
228(b)
7 years imprisonment Attempting to use a
document for pecuniary advantage
Crimes Act 1961, ss
66, 72 and 228(b)
7 years imprisonment Driving while disqualified,
3rd or subsequent
Land Transport Act
1998, ss 32(1) and
32(4)2 years imprisonment or
$6,000 fine
Careless driving Land Transport Act
1998,
s 37(1)$3,000 fine
[19] Judge Sinclair described the facts of the offending. She then considered the pre-sentence report and particularly acknowledged Mr Horrell’s extensive history of criminal offending. The Judge identified the need to hold Mr Horrell to account for the harm he had caused to the victims, to denounce the conduct and to deter Mr Horrell from re-offending in the future. She also noted the need to impose the least restrictive outcome in the circumstances.
[20] Judge Sinclair considered that the offending was relatively serious, saying:
[14] Mr Horrell, this was concerning offending in relation to the dishonesty offences. You pushed past the owner (and the occupier) of his home and entered the privacy and sanctity of his home. You took advantage of him by taking his possessions and using his cards.
[15] The way in which the cards were taken, in my view, sits at the higher end of the spectrum of this type of offending. In my view, your offending showed some planning and premeditation and it continued over several days, with the utilising of the cards and taking out of money.
[21] Ultimately, the Judge determined that a starting point of 12 months imprisonment would be appropriate in respect of the dishonesty offences. She then imposed an uplift of 4 months imprisonment in respect of the driving offences and a further uplift of four months imprisonment to reflect Mr Horrell’s previous offending.
[22] Judge Sinclair allowed a discount of two months to reflect Mr Horrell’s offer of reparation to the victims and allowed a full discount of 25 per cent to reflect Mr Horrell’s guilty pleas.
[23] The final sentence was 13 months imprisonment in respect of the dishonesty offences. Judge Sinclair imposed a sentence of 3 months imprisonment in respect of the charge of driving while disqualified (to be served concurrently) and imposed a further disqualification from driving for 1 year. Mr Horrell was convicted and discharged on the careless driving charge.
[24] Judge Sinclair also made an order that Mr Horrell pay $2000 in reparation. Of that amount, $1200 was to be paid to the complainant and $800 to his mother.
Appellant’s submissions
[25] Mr Ryan, for Mr Horrell, submitted that Judge Sinclair erroneously sentenced Mr Horrell on facts which included a withdrawn assertion of theft. This error caused the Judge to adopt a higher starting point than what should have been set.
[26] Mr Ryan suggested that an appropriate starting point for the dishonesty offending would have been around six months’ imprisonment, with an uplift of three months’ imprisonment in respect of the driving offences. He submitted that a further uplift of three months would be appropriate to reflect Mr Horrell’s previous offending. When adjustments had been made for a guilty plea and remorse this would result in an end sentence of around eight to nine months’ imprisonment.
[27] Mr Ryan submitted that reparation to the complainant of not more than $608 ought to have been imposed, this amount representing what was wrongly deducted from his debit card.
Respondent’s submissions
[28] The Crown accepted that the appeal should be allowed and submitted that Mr Horrell should be subject to an end sentence of ten and a half months’ imprisonment, reparation of $600 and disqualification from driving for one year.
[29] The Crown acknowledged that Mr Horrell appeared to have been sentenced on facts which included reference to a withdrawn charge of theft and was prepared to accept that Mr Horrell ought to have been sentenced on facts which removed reference to the entry to the victim’s home and theft of the wallet. The Crown further acknowledged that the charges on which Mr Horrell was sentenced related to Mr Horrell obtaining $608.80 from his use of the victim’s card.
[30] The Crown submitted that a starting point of nine months’ imprisonment on the dishonesty charges would be appropriate, with an uplift of four months in relation to the driving offences. Mr Horrell had six previous convictions for driving whilst disqualified and lost control of his vehicle for no discernible reason. The Crown further submitted that a lesser uplift of three months should be imposed for Mr Horrell’s previous convictions. The Crown accepted that a further discount of two months would be appropriate to reflect Mr Horrell’s offer to make reparations as well as a 25 per cent discount in respect of the guilty plea.
[31] This resulted in a final sentence of ten and a half months imprisonment.
[32] In respect of the reparation, the Crown acknowledged that Judge Sinclair was not legally entitled to impose an order of reparation in respect of the complainant’s mother. The Crown further acknowledged that the reparation order in respect of the complainant himself should not exceed $600.
[33] The Crown submitted that the disqualification from driving for one year should be upheld.
Appeal against sentence
[34] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[35] In any other case, the Court must dismiss the appeal.2
[36] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.3 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.4
[37] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:5
(a) There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[38] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.6
Analysis
[39] Both parties agreed that Judge Sinclair erred when she sentenced Mr Horrell on facts which included the withdrawn charge of theft. It appears that these facts
2 Criminal Procedure Act 2011, s 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
4 At [33] and [35].
5 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
6 Ripia v R [2011] NZCA 101 at [15].
point for the offending and in setting the amount of reparation.
[40] Both parties agreed that an appropriate order of reparation would require Mr Horrell to pay between $600 and $608 to the victim. Accordingly I set aside the reparation order made by Judge Sinclair and replaced it with a reparation order of
$600 to be paid to the victim.
[41] The applicant and the Crown disagreed as to an appropriate starting point for the offending. The Crown referred to Tiopira v Police where Lang J held that a starting point of 12 to 18 months would be appropriate where obtaining by deception type offending results in losses of around $2000 to $3000 (which is significantly higher than the present case).7
[42] One other relevant case is Palmer v Police.8 In that case the offender appealed against a sentence of 18 months’ imprisonment in relation to charges of causing loss by deception. The appellant and his partner had used an EFTPOS card belonging to an elderly woman to withdraw a total of $10,200 over five days. The offending itself was opportunistic rather than premeditated. Woolford J held that an appropriate starting point for the fraudulent use of an EFTPOS card or similar offending, involving sums in the region of $10,000 would be between 6 to 18 months’ imprisonment. Ultimately, Woolford J imposed a starting point of 9 months in relation to the lead offence.
[43] In light of the two cases referred to above I considered that a starting point of six months’ imprisonment for the dishonesty offending was appropriate. Here, there were six dishonesty charges over the period of one night which had resulted in a loss to the victim of $608. In Palmer it was not clear to me how many charges were laid however the period of dishonesty that spanned five days and led to a loss for the victim of $10,200. As the present offending was so closely related in time and nature and since the level of the loss involved was significantly lower, I considered it
appropriate to adopt a starting point of six months’ imprisonment for all the
7 Tiopira v Police [2012] NZHC 1720.
8 Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009.
account for Mr Horrell’s criminal history, which was considerable.
[44] I then uplifted the sentence by a further three months to take into account the disqualified driving offence (third or subsequent). I acknowledge that it would have been possible to adopt a cumulative approach to sentencing in respect of this offence. However, discussion at the hearing ultimately proceeded on the basis that all of the offences would be sentenced concurrently. In any event I consider that when dealing with a number of short sentences, a concurrent approach to sentencing will often produce a simpler result which appropriately reflects the totality of the offending.
[45] The Crown accepted that Mr Horrell should receive a full 25% discount for guilty pleas as these were made once the withdrawal of the disputed theft charge occurred. The Crown also accepted that Mr Horrell’s offer to pay reparation should receive a further discount as this reflected remorse on his part.
[46] Judge Sinclair had given Mr Horrell a two month discount for remorse. Discounts for mitigating factors are usually recognised by percentages. I considered that a further 5% discount was appropriate recognition of remorse, which took the total discount for mitigating factors to 30%. That brought the sentence down to 8.4 months, which I considered should be rounded down to eight months’ imprisonment.
Result
[47] The appeal against the sentences imposed on the dishonesty charges and the disqualified driving charge was allowed as was the appeal against the reparation order of $2000.
[48] The sentence of imprisonment imposed in the District Court was set aside and replaced with concurrent sentences of 8 months’ imprisonment on the two charges of obtaining a document by pecuniary advantage and the three charges of using a document for pecuniary advantage and the one charge of attempting to use a document for pecuniary advantage.
3 months’ imprisonment to be served concurrently with the other sentences.
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