Laing v Police

[2012] NZHC 1680

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000035
CRI-2012-409-000036
CRI-2012-409-000037
CRI-2012-409-000038

CRI-2012-409-000039 [2012] NZHC 1680

JAMIE ROBIN LAING

Appellant

v

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing:         11 July 2012

Appearances: T Aickin for the Appellant

M Zintl for the Respondent

Judgment:      11 July 2012

ORAL JUDGMENT OF HON. JUSTICE FRENCH Appeal Against Sentence

Introduction

[1]      Following guilty pleas, the appellant, Mr Laing, appeared for sentence in the

District Court on the following charges:         Two charges of burglary.

LAING V NEW ZEALAND POLICE & Anor HC CHCH CRI-2012-409-000035 [11 July 2012]

Two charges of theft.

One charge of being unlawfully in an enclosed yard.         Possession of instruments for burglary.

Assault.

Breach of community work.

Unlawfully interfering with a motor vehicle.

[2]      He also appeared for re-sentence on a charge of receiving and a charge of breach of intensive supervision.

[3]      Mr Laing had previously been sentenced for those last two offences to a four month period of community detention, but the community detention sentence was cancelled as a result of his removing his electronic bracelet.

[4]      He was sentenced to a total term of imprisonment of 18 months and now appeals that sentence.

Factual background

[5]      The factual background is somewhat complicated and is as follows.

[6]      In  2011,  Mr  Laing  accumulated  some  22  convictions.    These  included burglary, assault, driving, dishonesty, non-compliance, and drug related offences.  It appears that within six weeks of being sentenced to community work and intensive supervision in March 2011, he breached both those sentences.  In December 2011, he was sentenced to 351 hours of community work, and in relation to the breach of intensive supervision and a receiving charge, he was sentenced, as I have already said, to four months community detention.  On 17 December 2011, he removed the electronic bracelet.  On 21 December, he failed to report for community work.

[7]      Those actions prompted an application for re-sentencing in relation to the breach of intensive supervision and receiving charges, and also resulted in the laying of a charge for breach of community work.

[8]      In February 2012, Mr Laing was charged with robbery by assault.  That was later downgraded to theft and common assault.

[9]      While on bail, he unlawfully interfered with a vehicle in February 2012 and then, on 3 March 2012, embarked on a crime spree, in the course of which he broke into two cars, stole various items and was found unlawfully on private property.

[10]     His  explanation  for  the  offending  was  that  he  was  desperate  for  money because he could not pay his rent or buy food.

[11]     Two of the cars were parked in residential driveways.   According to the victim impact reports, the victims said the offending made them feel scared and frightened. The offending occurred in the early hours of the morning.

[12]     The information before the Judge included a pre-sentence report.

[13]     The report told the Judge that Mr Laing is 19 years of age, immature, with a poor attitude and a propensity to blame others instead of taking responsibility for his own actions.  Substance abuse was identified as a factor in the offending.  He was assessed  at  high  risk  of  re-offending.    The  report  noted  that  312.5  hours  of community work were still outstanding.

[14]     On a more positive note, the report recorded some expression of remorse and an offer of reparation.  Most of the property taken had been recovered but there were still some items missing.

[15]     The report concluded by recommending imprisonment.

The District Court sentencing

[16]     In her sentencing notes, the District Court Judge identified deterrence as an important consideration, noting that she was also required to have regard to the totality principle.

[17]     In arriving at an end sentence of 18 months imprisonment, the Judge adopted the following methodology.

[18]     She structured her analysis by looking first at the February and 3 March offences and taking a starting point of 12 months imprisonment.

[19]     She then adjusted that figure upwards for three months on account of the previous  convictions  and  another  three  months  for  the  fact  that  the  offending occurred while on bail and while Mr Laing was subject to a sentence of community detention

[20]     The Judge then turned to the re-sentencing for the receiving and breach of intensive supervision charges, stating that although she could go “reasonably high” in terms of re-sentencing, she decided to add only another two months.

[21]     The Judge said she then had to factor in what to do with the assault, the theft charge and the breach of community work.   The Judge said that realistically that alone would be four months imprisonment but “that would be manifestly excessive if I added that on to what I have already got to which is 20 months but I am going to add another one month on so it is 21 months’ imprisonment.”

[22]     Having arrived at 21 months imprisonment, the Judge then considered the issue of credit.  She said she had decided to give Mr Laing a credit of 20 percent for his guilty pleas.  As regards the guilty pleas, the Judge stated that “the credit here is close to the maximum but it is not 25 percent across the board.”

[23]     That meant the end sentence was 18 months.

[24]   The Judge then imposed post-release conditions and made an order for reparation in the sum of $400.00 in relation to the assault and theft charge, and further sums of $398.25 and $465.00 in relation to the items taken from the motor vehicles.

Grounds of appeal

[25]     On appeal, counsel accepts that imprisonment was an appropriate sentence but submits that the length  of the sentence was  manifestly excessive  in  all the circumstances and offended the totality principle.

[26]     In support of that general submission, Ms Aickin advanced the following arguments.

[27]     First, she submitted that the uplift of six months from the starting point was excessive, bearing in mind:

(i)        Mr Laing’s age and the principles about age articulated in the Court

of Appeal decision in Churchward1.

(ii)The fact that Mr Laing had never been sentenced to imprisonment before.

(iii)      The nature of the offending, it being petty and impulsive offending.

Ms Aickin submitted that Mr Laing was not on a par with Columbus2

and that the burglaries were at the lower end. (iv)       Mr Laing’s personal circumstances.

(v)       His early guilty pleas, his remorse and willingness to pay reparation.

(vi)Mr  Laing’s  willingness  to  address  the  underlying  causes  of  his offending.

[28]     Ms  Aickin  further  submitted  that  the  Judge  had  erred  in  not  affording Mr Laing the maximum 25 percent credit for his guilty pleas.  These, she submitted, were made at the earliest possible opportunity.  The delay in entering a guilty plea in respect of the February assault matter was due to downgrading of the offences.  As soon as the lesser offences were substituted, a guilty plea was entered.  There was a

delay of three appearances in respect of the burglary charges but that was explicable

1 Churchward v R [2011] NZCA 531.

because of disclosure issues and discussions about the nature of the offending.  Mr

Laing had never denied his culpability.

Discussion

[29]     It is well established that the focus of an appellate Court should be on the end sentence rather than the means by which the sentencing Court has arrived at its decision3.

[30]     I have carefully considered all of the submissions that Ms Aickin has made on behalf of Mr Laing, and she has made them well. However, I am satisfied that the end sentence of 18 months was well within range and not manifestly excessive given the totality of the offending.

[31]     As Mr Zintl for the Police submits, the total sentence imposed did reflect the offending and Mr Laing’s overall criminality.  If anything, it could arguably be said that the sentence was relatively lenient, and I refer in particular to the adjustments. Technically, as Ms Aickin points out, the offending did not occur while Mr Laing was subject to community detention because that sentence had been suspended.  But offending on bail alone is a serious matter and is taken seriously by the Courts.

[32]     I am also unable to detect any error of reasoning in the Judge’s decision. Importantly, she was clearly cognisant of the totality principle and, as the extracts I have quoted from the judgment show, the Judge did indeed apply it.

[33]     I accept it is debatable that a 25 percent discount for the guilty pleas would have been justifiable.  However, as the Supreme Court has emphasised in Hessell4, that is a matter of discretion and, in any event, as I have said, my focus must be on the end sentence rather than the constituent parts.

[34]     I am, as I have said, satisfied that the end sentence was well within range.

3 R v Xie [2007] 2 NZLR 240.

[35]     It follows from what I have said that, in my view, appellate intervention is not warranted.

[36]     The appeal is accordingly dismissed.

Solicitors:

T Aickin, Christchurch
Raymond Donnelly & Co, Christchurch,  [email protected]