M v Police

[2018] NZHC 1230

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000160

[2018] NZHC 1230

BETWEEN

M

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 March 2018 and 24 May 2018

Appearances:

N R Rout for the Appellant

C J Bernhardt for the Crown on 22 March 2018; and S Bicknell Young for the Crown on 24 May 2018

Judgment:

29 May 2018

JUDGMENT OF DUNNINGHAM J

[1]                 On 3 October 2017, the appellant was sentenced to two years and two months’ imprisonment for a variety of charges.1 He now appeals on the basis that the sentence is manifestly excessive because the Judge double counted a factor. The appellant also wishes to introduce new evidence related to his health which, he submits, justifies an additional discount. A further issue was raised when this matter was first called on  22 February 2018. That was whether the appellant should also receive a discount for assistance he could give the Police on an unrelated criminal matter. The hearing of the appeal was adjourned to allow the respondent to consider the merits of this assertion.

1      The charges were: two counts of burglary, theft from a car, driving while suspended, unlawful possession of explosives, possession of utensils, breaching the Medicine Act 1968, breaching community work and two counts of breaching intensive supervision.

M v NEW ZEALAND POLICE [2018] NZHC 1230 [29 May 2018]

[2]                 If he is successful in reducing his sentence to a short term of imprisonment on any of these grounds, the appellant seeks leave to apply for home detention.

[3]                 Leave is required to bring the appeal as it was filed shortly after the time limit for filing the appeal. However, the circumstances of the late filing are fully explained by counsel for the appellant, Mr Rout. I accept that there is no prejudice to the respondent and that leave should be granted.

Background facts

[4]                 In July 2016, the appellant was sentenced to nine months’ intensive supervision for obtaining by deception. Then, in November and December 2016, he was sentenced to community work. He failed to comply with those sentences and was charged with two breaches of intensive supervision and one breach of community work. The appellant was charged for two failures to report in March 2017. In June 2017, the appellant failed to report for community work as directed.

[5]                 In early July 2017, the appellant engaged in a series of offences. He entered an enclosed yard and took a moped valued at approximately $2,000. The appellant entered a dwelling house via an insecure door and took various items valued at over

$1,500. In the early hours of the morning, the appellant broke a car window, entered the vehicle and took clothing and personal items valued at $1,100.

[6]                 The appellant was found driving a stolen vehicle while suspended. When stopped by police he was found in unlawful possession of ammunition, utensils, and non-prescribed medicine.

District Court decision

[7]                 The Judge considered that the burglaries were the lead charges. He regarded the gravity of the offending as serious given that the properties were suburban, the stolen goods were of substantial value, and the offending was purely for personal gain. He set a starting point of 18 months’ imprisonment.

[8]                 The Judge found that the theft from the motor vehicle was also serious. He applied an uplift of four months to recognise that. He gave a further four month’ uplift for all the other offending.

[9]                 The Judge considered that the fact the burglaries were of dwelling houses was a statutory aggravating factor, so he applied a three month uplift. He applied two further three month uplifts to recognise that the July offending was while the appellant was on bail and subject to sentence, and for the appellant’s extensive criminal history. That brought the sentence up to 35 months.

[10]              The Judge then gave full credit for the early guilty pleas, reducing the sentence to 26 months.

Principles on appeal

[11]              Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3

Submissions

Appellant

[12]              The appellant submits that the sentence was manifestly excessive because the Judge double counted the fact the burglaries were of dwelling houses. He mentioned this both when setting the start point, and when giving an uplift for aggravating factors of the offending. Mr Rout, for the appellant, submits that, having factored it into the initial starting point, there was no call for an uplift. The difference is significant for the appellant as it elevates the sentence from a short term to a long term sentence.

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Ripia v R [2011] NZCA 101 at [15].

[13]              The appellant also seeks to introduce evidence that he has been recently diagnosed with cirrhosis of the liver and Hepatitis C, Genotype 3. The prison is unable to facilitate the treatment the appellant wishes to source for his Hepatitis C through a “Buyers Club”. Mr Rout submits that this evidence meets the test for admission on appeal and should give rise to a further discount on compassionate grounds.

[14]              Finally, Mr Rout advised that his client had information in relation to a serious crime and he wished to assist the police as a confidential informant. The information was relayed to his client from a third party. Although it is information given after initial sentencing and does not relate to his own offending, there is clear procedure for affording the appellant a discount to his sentence in these circumstances.4 Furthermore, he says the appellant has put himself in danger by disclosing this information to the police and that, of itself, warrants a discount.

[15]              The police have now considered the statement made by the appellant. They cannot, at this stage, say that he has provided real and tangible assistance, but rather the information will be the subject of “ongoing assessment” as it does “tie in” with other information the police are aware of. That said, the Police acknowledge the “effort and intent” of the appellant in providing a statement.

[16]              Mr Rout accepts, in those circumstances, that there could not be a substantial discount for assistance to authorities but, as a matter of policy, such assistance should be encouraged by a modest discount. In the appellant’s case, a discount of only two months would bring the sentence to a length where leave to apply for home detention could be granted.

[17]              In the event his sentence is reduced to two years or less, the appellant seeks leave to apply for home detention. Two factors prevented the appellant being sentenced to home detention in the District Court. The first was the length of sentence. The second was that no suitable address was available. However, the appellant has recently reconnected with his parents. They reside in a small rural community, which is away from the influences he has had in Christchurch. The appellant’s parents wish to help him and are offering to support him in their home after release.

4      R v Accused (293/92) (1993) 10 CRNZ 397.

Respondent

[18]              In respect of the alleged double counting of an aggravating factor in setting the sentence for burglary, Ms Bicknell Young queries whether there was a double counting. The Judge referred to the burgled properties simply as “suburban properties” in setting a starting point before taking into account aggravating factors. He then referred to the fact they were “people’s homes” as an aggravating factor which is where he took into account  that  they were dwelling places.  In  any  event,  the  21 month starting point (including the uplift) for two residential burglaries was well within range and, indeed, could have been higher.

[19]              The respondent highlights the case of Arahanga v R, where the Court of Appeal held that dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years, six months’ imprisonment.5 In that case a four year starting point was upheld for two dwelling house burglaries carried out in the early hours of the morning where two offenders were involved. One of the houses was occupied and a van was unlawfully taken, along with high value items. A nine month uplift was also upheld which took into account the appellant’s three previous burglary convictions other violent offending and that he was still subject to sentence.

[20]              In Hetariki v Police, I upheld a starting point of 18 months’ imprisonment for a daytime dwelling house burglary where the appellant gained access to and took property worth only $150.6 An increase of four months was given for another daytime dwelling house burglary where  the  appellant  did  not  gain  access.  An  uplift  of 12 months was given to reflect  the  appellant’s  criminal  history,  which  included 15 previous burglaries. The respondent submits that these cases show that a 21 month starting point (including the uplift) for two residential burglaries was well within range and, indeed, could have been higher.

[21]              Ms Bicknell Young also referred to R v Columbus to support the appropriateness of the eight month uplift for the other offending.7 There, a six month

5      Arahanga v R [2012] NZCA 480 at [78].

6      Hetariki v Police [2015] NZHC 2461.

7      R v Columbus [2008] NZCA 192.

uplift was given for two charges of theft under $500 and charges of possession of a cannabis pipe and leaf. Counsel submits that the offending here was far more serious so the eight month uplift was justified.

[22]              As the sentence imposed was well within range and all the other uplifts were orthodox, the overall sentence could not be said to be manifestly excessive.

[23]              The relevance of the new evidence on the appellant’s health issues was addressed at the March hearing. The respondent’s view was that nothing raised in the further evidence provided warranted a discount in sentence.

[24]              In terms of the discount sought for assistance to authorities, Ms Bicknell Young pointed out that, as long as the appeal judgment was suitably anonymised, there could be no real threat to the appellant’s safety. In addition, as no tangible assistance had been provided, it would set a “dangerous precedent” to afford a discount simply for passing on what is, at this stage, unsubstantiated information about a possible crime.

Analysis

Should the new evidence be accepted?

[25]              In order for new evidence to be received on appeal, it must be shown to be fresh, credible and cogent.8 Evidence which the appellant knew at the time of trial is unlikely to qualify as fresh evidence.9

[26]              The information about the appellant’s health has only been discovered since the trial, so it is fresh evidence. Although it has not been tendered in affidavit form, the evidence as to whether the appellant’s preferred treatment can be provided to him in prison appears to be credible as far as it goes, as it is from an Otago Corrections Facility nurse. The content is relevant to the personal circumstances of the appellant and would have been considered by the Judge had it been available at the time of sentencing.

8      R v Bain [2004] 1 NZLR 638 (CA) at [22], endorsed by Noble v R [2010] NZSC 85 at [2]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

9      Fairburn v R [2010] NZSC 159 at [33].

Does the new evidence affect the sentencing exercise?

[27]              However, the evidence does not satisfactorily address what treatment he is able to receive in prison for his diagnosed medical condition, nor what consequences will result if the treatment his family wish to source through a “Buyers Club” is not received. While it has been confirmed that he cannot receive that treatment in prison, no details are supplied about what the proposed treatment is or its efficacy, nor is there information about what the consequences will be for the appellant if he does not receive it.

[28]              In any event, the Corrections Act 2004 obliges the Department of Corrections to assess a prisoner’s medical needs when he or she is received at the prison and to prepare a management plan for that prisoner.10 The prisoner is also entitled to receive medical treatment that is reasonably necessary.11 Given these statutory obligations, I consider that I can assume that medical treatment that is reasonably necessary to manage the appellant’s medical conditions will be provided.

[29]              A reduction in sentence has been found to be appropriate where imprisonment will increase the suffering which a medical condition will otherwise produce, or where adequate and appropriate care cannot be provided within the prison system.12 Substantial reductions have been made in circumstances where the defendant has extreme ill health and a low life expectancy, or where the defendant has disabilities which the prison would struggle to deal with.

[30]              However, it is not clear on the limited evidence provided how the appellant’s health will be affected by being in prison or by being denied access to what the Corrections facility medical staff describe as an “off-licence medication”. I have no basis therefore for concluding that a shorter sentence should be imposed on medical grounds.

10     Corrections Act 2004, ss 49 and 51.

11     Section 75.

12     R v S CA75/94, 21 June 1994.

Was the sentence manifestly excessive?

[31]              I accept there is some uncertainty as to whether the Judge double counted the fact that an aggravating feature of this offending was that the burglaries were of dwelling houses. The distinction between his reference to “suburban properties” as a relevant factor to setting the initial starting point and then to “people’s house” as an aggravating factor is not clear to me. However, I concur with the respondent that the end starting point reached of 21 months was well within range for this type of offending having regard to the guidance in Arahanga. I therefore do not consider, even if there was double-counting, that the starting point was too high.

[32]              The appellant does not take issue with the other aspects of the sentence imposed by the Judge and I accept that they are within the available range.

Should there be a discount for assistance to authorities?

[33]              As the Court of Appeal noted in R v Accused, “[t]he principle that assistance given to the authorities, whether connected with the offence for which the appellant was dealt with or otherwise, merits recognition in sentencing is clearly established”.13

[34]              Furthermore, the Courts have recognised that assistance given after sentencing could still be relevant and warrant a reduction on appeal. The rationale for the Courts giving recognition to co-operation with authorities is simply that the public interest is served by obtaining information or assistance regarding criminal activity.14

[35]              As Whata J said in Mori v Police, the question of a discount for assistance to authorities is a matter of discretion having regard to:15

(a)The gravity of the offender’s own offending;

(b)The nature of the offence or offences that the offender has helped to clear up;

(c)The nature, extent and quality of the assistance given. Where the assistance is significant, a significant reduction in sentence may properly be allowed;

13     R v Accused, above n 4, at 402.

14     R v Accused, above n 4, at 402.

15     Mori v Police [2013] NZHC 225 at [19].

(d)Any personal danger faced or likely to be faced by the offender. When co-operation is given at the cost of personal danger it deserves generous recognition.

[36]              In that particular case, it transpired on appeal that the appellant had offered to give evidence against her co-offender, although, in the end, that was not required because the co-offender pleaded guilty. Whata J considered the assistance was significant but did not consider that she was in danger as a consequence of offering to give evidence. He awarded a discount of 15 per cent.

[37]              At this stage, it is impossible to say whether the information provided by the appellant has been of utility to the Police. They certainly do not appear to have acted on it in any way, which suggests its utility is low. However, it is information about what would, if verified, be a serious crime. Clearly if it was of assistance, it would merit a reduction.

[38]              Although Mr Rout has submitted that the appellant has put himself in danger by giving his evidence, it is not clear why this is so. It does not appear to be evidence which would require this witness to testify in the future. Rather, it is information of the type that might fortify the police to continue their investigations which may lead to evidence of a crime. The information given would not, of itself, be relied on at trial. I therefore consider this witness will be fully protected by maintaining his anonymity.

[39]              All that really remains is whether a willingness to provide information to the police about a potentially serious offence, which is credible enough on its face to warrant further investigation, should be the subject of a discount. Unfortunately, I do not consider the information has reached a threshold where a discount is warranted. The Court must be careful, as a matter of policy, to differentiate between passing on information that may suggest an offence has been committed, and that which tangibly or materially advances an investigation or a prosecution. That cannot always be known until the Police have completed their assessment of that information.

[40]              In the present case, while it may be that the information does prove useful, that position has not yet been reached. It would be premature for this Court to reduce a sentence simply because information of unknown quality has been passed on. For this

reason, I am not prepared to reassess the sentence to take account of assistance to authorities.

Conclusion

[41]              The sentence imposed on the appellant was not manifestly excessive, either as a result of the potential double counting or when the (limited) new evidence regarding his ill health is considered. The information provided by the appellant is not of sufficient utility to justify a reduction. Consequently, home detention is still not available and the appeal is dismissed.

Suppression

[42]              At the hearing on 24 May, I made an order suppressing all details of the information given to the police by the appellant and suppressing the appellant’s name and identifying details. This judgment has been anonymised to reflect those orders.

Solicitors:

Better Lawyers Limited, Christchurch Raymond Donnelly & Co., Christchurch