MacDonald v Police
[2020] NZHC 3217
•7 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-375
[2020] NZHC 3217
BETWEEN ANTONY JONATHAN DONNY MACDONALD
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 7 December 2020 Appearances:
M Pitch for the appellant
R M Thompson for the respondent
Judgment:
7 December 2020
ORAL JUDGMENT OF JAGOSE J
Counsel/Solicitors:
M Pitch, Lawyer, Auckland Meredith Connell, Auckland
MACDONALD v NEW ZEALAND POLICE [2020] NZHC 3217 [7 December 2020]
[1] Antony MacDonald appeals his sentence of 24-and-a-half months’ imprisonment, imposed by Judge P J B Winter in the District Court at Auckland on 14 August 2020,1
Background
[2] Mr MacDonald was sentenced on a raft of predominantly burglary and dishonesty offending on dates between 23 January 2018 and 3 September 2019 at various central Auckland backpacker accommodation.2 He has an extensive history of comparable offending during and preceding that period, more or less continuously since attaining adulthood in 2006. Mr MacDonald now is 32 years old.
[3] Mr MacDonald pleaded guilty to that offending after accepting the Judge’s sentencing indication of a 15 per cent discount from an end starting point of 30 months’ imprisonment, with the possibility of further discounts for any additional mitigating factors accepted at sentencing.3
[4] The Judge’s sentencing indication was structured from 15 months’ imprisonment for the lead burglary charge, uplifted by 10 months for the other burglaries, a further month for the dishonesty offending, and four months for his prior offending. He declined to impose any uplift for offending while on bail.4
Decision under appeal
[5] On sentencing Mr MacDonald, the Judge had regard for “very helpful” PAC and s 27 reports, which noted Mr MacDonald as being “a recidivist offender”,
1 Police v MacDonald [2020] NZDC 18270.
2 Burglary x 6, Crimes Act 1961, s 231(1)(a) (maximum penalty 10 years’ imprisonment); loss by deception (over $1,000), Crimes Act 1961, ss 240(1)(d) and 241(a) (maximum penalty 7 years’ imprisonment); loss by deception (less than $500) x 2, Crimes Act 1961, ss 240(1)(d) and 241(b) (maximum penalty 3 years’ imprisonment); use document for advantage x 2, Crimes Act 1961, s 228(1)(b) (maximum penalty 7 years’ imprisonment); possession of utensils, Misuse of Drugs Act 1975, s 13(3) (maximum penalty 1 years’ imprisonment and/or $500 fine); wilful damage, Summary Offences Act 1981, s 11(1)(a) (maximum penalty 3 months’ imprisonment and/or
$2,000 fine); breach of release conditions, Parole Act 2002, s 71(1) (maximum penalty 10 years’ imprisonment and/or $2,000 fine).
3 Police v MacDonald CRI 2019-004-0284, 17 June 2020 at [4]–[5]. The Judge calculated the discount as leading to an end sentence of 26-and-a-half months’ imprisonment. A 15 per cent discount from 30 months’ imprisonment is 25-and-a-half months’ imprisonment.
4 At [2]–[3].
characterised by alcohol and substance abuse and an unstructured lifestyle, but recorded positive aspects of his life, including children, modest work history, some musical talent, and pro-social friends.5
[6] Having regard also for legislative sentencing factors, the Judge restated his indication’s 15 months’ imprisonment on the lead burglary charge, and uplifts of 10 and four months respectively for the other burglaries and his previous convictions. But the Judge added “an uplift for the fraud of two months and a further uplift for offending whilst on bail”, taking him to a starting point of 31 months’ imprisonment (meaning the last uplift was valued at zero).6
[7] The Judge then added a further four months for breach of release conditions, and – having regard for Mr MacDonald’s “very deprived upbringing … directly related to [his] drug addiction” – factored in a 15 per cent discount additional to the 15 per cent discount for his guilty pleas. Applying that 30 per cent discount to the 35-month starting point,7 the Judge arrived at an end sentence of 24-and-a-half months’ imprisonment, which he noted to be “outside the parameters of a sentence which may be served in the community”.8
[8] For Mr MacDonald, Maxine Pitch says the Judge erred in diverging from both his sentencing indication and the standard approach to discounting, and failing to apply a discrete discount for remorse. She contends for an end sentence of between 18 and 21 months’ imprisonment, which would enable conversion to home detention as the least restrictive outcome if a suitable address was available.
Approach to appeals against sentence
[9] I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.9 In any other case, I must dismiss the appeal.10 The approach previously taken by courts on sentencing appeals continues to
5 Police v MacDonald , above n 1, at [3]–[8].
6 At [14].
7 In delivering this oral judgment, I misstated ‘30 per cent’ as “30-month”.
8 Police v MacDonald , above n 1, at [16]–[18]. The Judge reissued his sentencing notes to correct his previous calculation of an end sentence of 25-and-a-half months’ imprisonment.
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
apply;11 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentencing appeals.12 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.13
Discussion
[10] Plainly the Judge diverged from his sentencing indication at least in the initial starting point. Using his 30-month starting point, instead of the 31 months used on sentencing, would have derived a lesser sentence after the uplifts and discounts he applied at sentencing.
[11] The Judge also may have diverged from his sentencing indication in applying the four-month uplift for “breach of bail conditions”.14 That was imposed immediately after the Judge observed he would not “impose an uplift for [Mr MacDonald’s] offending while on bail” in respect of the earliest burglary charge,15 which pre-dated Mr MacDonald’s last sentence of imprisonment and would not likely then have given rise to “a substantially increased sentence”,16 and was ‘cancelled out’ by his time in custody and on remand.17
[12]The Judge’s sentencing indication notes state:18
There is no uplift for the breach charges brought by the Probation service. I would not impose any uplift for the offending that occurred while on bail, noting that Mr MacDonald may have spent some time on bail which will not be deducted from his sentence.
I was unclear if the Judge’s indication meant only to exclude the earliest charge, or also to exclude Mr MacDonald’s subsequent breach of release conditions. The “Probation service” charge may not have referred to the latter charge. Notably, in
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
12 At [33] and [35].
13 Ripia v R [2011] NZCA 101 at [15].
14 Police v MacDonald, above n 1, at [16].
15 At [15].
16 At [1].
17 At [15].
18 Police v MacDonald, above n 3, at [4].
sentencing, the Judge noted Mr MacDonald was “for sentence today in relation to now 14 charges” (emphasis added), suggesting there was new and material information arising subsequently.19 But Ms Pitch emphasises the probation charges were before the Judge for indication.
[13] As I previously have said,20 there is inconsistency on the part of first appeal courts as to whether a within-range end sentence, but not conforming to a sentencing indication, should be modified to conform to that indication.21 I (and other judges of this Court) doubt it.22 Subject to new and material information arising subsequently, while a sentencing indication is binding on the judicial officer who gave it,23 it is not binding on other judicial officers,24 or on me on appeal. Rather the usual standard for intervention applies: there must be error in the sentence, and a different sentence should be imposed.
[14] But the Judge’s divergence from his sentencing indication nonetheless errs in varying from the indicated sentence, without establishing his satisfaction it was affected by new material information. I therefore must consider if a different sentence should be imposed.
[15] But for its divergence from his sentencing indication, the Judge’s burglary sentence and other offending uplifts were orthodox. Burglaries of residential premises attract starting points in a range from 18 to 30 months’ imprisonment.25 Mr MacDonald’s breach of release conditions is open to supporting a four-month uplift here.26 Any complaint the Judge failed expressly to give credit for
19 Police v MacDonald, above n 1, at [1].
20 Kapea v Police [2019] NZHC 1453 at [8].
21 See GG Hall Hall’s Sentencing (online ed, LexisNexis) at [APPI.2.11(e)].
22 Wilson v R [2015] NZHC 298; Appuhamilage v Police [2015] NZHC 2355; Scoles-Young v Police
[2016] NZHC 1120; and Nuku v R [2016] NZHC 2255.
23 Criminal Procedure Act 2011, s 116(2).
24 Section 116(3).
25 Arahanga v R [2012] NZCA 480 at [78], citing Senior v Police (2000) 18 CRNZ 340 (HC) at [19]; Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012; Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009; Police v Vincent DC Palmerston North CRI-2008-054-4634, 21 April 2009; Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010; and Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.
26 Johnson v Department of Corrections HC Hamilton CRI-2009-419, 13 April 2010 at [18], citing
Tennant v Police HC Palmerston North CRI-20090454-20, 10 June 2009:
The starting point is that the Court regards a failure to comply with parole conditions as significant, and not minor offending … release conditions are imposed in order to maintain
Mr MacDonald’s remorse is redressed by the generosity of the Judge’s 15 per cent discount for the pre-sentence and s 27 reports, which include express references to Mr MacDonald’s remorse. I do not consider the other factors referred to in those reports to be so causative of Mr MacDonald’s offending alone to justify a substantial discount on grounds of his diminished culpability.
[16] Counsel for the police acknowledges the ambiguity in the subject matter for the Judge’s sentencing may justify omission of the additional four-month uplift for breach of release conditions, as being “against the general trend for a sentence encapsulating a probation offence” and its omission “in the interests of justice”. I disagree: to the extent the ambiguity constitutes error, it only entitles me to consider if a different sentence should have been imposed.
[17] But a different sentence should have been imposed if the Judge maintained his indication’s starting point for the offending it addresses. Discounting the resultant 34 months by 30 per cent gives rise to 23.8 months’ sentence, which I would round down to 23-and-a-half months’ imprisonment. Although the result is only of a minimal difference in duration from the 24-and-a-half months’ imprisonment to which Mr MacDonald was sentenced by the Judge, his sentence nonetheless is rendered manifestly excessive by failing to attain the statutory “short-term” sentence of imprisonment and the consequences that may follow.27 ‘Manifestly excessive’ is “simply a means of examining the significance of the error”,28 and the unavailability of those consequences by reason solely of the sentence’s duration is very significant.
Result
[18]The appeal is upheld.
a degree of control over behaviour, and in order to protect the community. Failure to comply with parole conditions is accordingly a matter of significance.
In Johnson, two breaches of release conditions produced two concurrent sentences of six months’ imprisonment for breaches. In Tennant, a two-month sentence of imprisonment was imposed for one release condition breach. A sentence of eight months’ imprisonment was upheld as “very stern” but within range in McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007 at [7].
27 Sentencing Act 2002, s 4(1) (definition of “short-term sentence”), referring to Parole Act 2002, s 4(1).
28 Tutakangahau v R, above n 11, at [32].
[19] The Judge’s sentence is set aside, and substituted with a sentence of 23-and-a- half months’ imprisonment, with leave to apply for home detention if a suitable address is located.
—Jagose J
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