Ledgerwood v Police

[2014] NZHC 1145

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000010
CRI-2014-412-000011

CRI-2014-412-000012 [2014] NZHC 1145

ZACHARY JAMES DAVID LEDGERWOOD

v

NEW ZEALAND POLICE

Hearing:	27 May 2014 (via audiovisual link to Christchurch)
Appearances:	B P Kilkelly for the Appellant C E R Power for the Respondent
Judgment:	27 May 2014

ORAL JUDGMENT OF PANCKHURST J

Introduction

[1]      Mr Ledgerwood appeals against a sentence of nine months’ imprisonment imposed in relation to an assault, multiple offences of using a document and a single burglary.

[2]      The essential ground of the appeal is a disparity argument relevant to the multiple offences of using a document.   These involved Mr Ledgerwood and his brother.   The appellant feels a sense of grievance because his brother received a slightly lesser sentence for the using a document charges.   But it is necessary to examine the circumstances in which that occurred in order to assess the merit of the

ground of appeal.

LEDGERWOOD v NEW ZEALAND POLICE [2014] NZHC 1145 [27 May 2014]

The facts

[3]      The assault was committed in June 2013 and the appellant was convicted after a defended hearing.  It was apparently a relatively commonplace street assault. The burglary was the third offence in the sequence and was committed in December

2013.  The appellant and an associate went onto a private property at 12.45 am in the morning.  They stole, or were in the process of stealing, alcohol from a fridge in a patio  barbecue  area  when  they  were  disturbed.     They  made  off,  but  were apprehended by the police nearby.  In terms of burglaries it was entry through a gate into a closed yard area, rather than into a residential house itself.

[4]      The Judge viewed the assault and the burglary as secondary offences by comparison to the use of a document charges.   Those offences were committed between September and October 2013.  The appellant’s brother was living with his grandmother.   He obtained the PIN number for her credit card.  After leaving her home and moving in with the appellant the two of them used the credit card on 10 occasions in relation to transactions totalling $809.  The brother, I note, was 25 years of age; the appellant 22 years of age.

The sentence

[5]      Sentencing occurred before Judge Neave in April this year.   He treated the using  the  document  charges  as  the  lead  offences  and  fixed  a  starting  point  of

16 months,  although  that  figure  included  an  uplift  for  the  appellant’s  previous offending record and was also a global figure relevant to the burglary and assault charges.  From it the Judge made a deduction of four months for what he termed the appellant’s willingness to make changes in his life and also to pay reparation.  The suggested 12 month term was then reduced by a quarter, or three months, in recognition of prompt guilty pleas to the document charges.  That produced the end sentence of nine months’ imprisonment and the Judge also ordered the payment of reparation in the sum of $404 at $10 per week.  The other two charges of burglary and assault were met with lesser concurrent terms.

[6]      The pre-sentence report contains this assessment:

Mr Ledgerwood has previously been subject to rehabilitative sentences, he has received all appropriate interventions, it is now time for Mr Ledgerwood to implement what he is saying and what he says he knows.  Until he starts implementing these changes only punitive sentences are realistic.  Should the term of imprisonment be short, release conditions with special conditions [are] promoted.

Reparation has not been sought in this instance, although, as I noted, it was ordered.

Offending history

[7]      Some idea of the appellant’s previous offending history can be gained by looking at the last significant sentence he received, one of three months’ imprisonment imposed in August 2012.  He was before the Court on nine charges, including drug offences, escaping, breach of intensive supervision, threatening to kill, assault and a firearms matter.  This type of offending is typical of his previous history.

The submissions

[8]      In the end result Mr Kilkelly principally relied upon a single submission that the sentence the appellant received was disparate by comparison to the sentence imposed upon his brother.   The brother was sentenced by another Judge and on a separate occasion.  The effective sentence he got for the using a document charges was seven months’ imprisonment, which was imposed cumulatively to produce an end sentence of two years seven months imposed in relation to injuring with intent, burglary and some other offences for which concurrent terms were imposed. Importantly,  the  Judge  in  that  sentencing  said  that  the  10  offences  of  using  a document would ordinarily have attracted a starting point of 12 months in his view, but the need to adopt a totality approach meant that he adopted nine months as the start point sentence for those charges.  The end sentence of seven months for using a document reflected a reduction for guilty pleas entered at the first reasonable opportunity.

Evaluation

[9]      In my view it is only necessary to go to the sentencing remarks in relation to the brother in order to see that any sense of grievance asserted by the appellant is

misplaced.  He did receive an effective sentence of nine months, but first of all that sentence is reflective of not only the using a document charges, but the two other offences upon which he was sentenced as well.  That is because the Judge adopted a

16 month starting point reflective of all the offending.

[10]     Moreover, there is simply no basis to suggest that the term received by the appellant was disparate by comparison to that of his brother.  His brother may have been slightly more culpable in relation to the document charges, but at the end of the day the sentencing exercise in his case was dominated by the fact that the Judge had to adopt a totality approach.   This is necessarily destructive of the comparative exercise that is needed where a disparity argument is advanced.   In short, a comparison, or at least a meaningful comparison, cannot be drawn between the two sentences imposed and there is no basis for a sense of grievance.

Conclusion

[11]     All the points I have made are raised forcefully in the Crown submission, which concludes on the note that, if anything, this was a generous sentence.  I agree. The appeal is dismissed.

Solicitors:

B P Kilkelly, Barrister, Dunedin

Wilkinson Adams, Dunedin