Malone v Police

[2013] NZHC 88

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-041 [2013] NZHC 88

BETWEEN  JAMES CAREY PAUL MALONE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 February 2013

Counsel:         Appellant in person

SA Law for Respondent

Judgment:      5 February 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 5 February 2013 at 10:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

C&M Legal (New Plymouth) for Respondent

(Copy to Appellant in person)

MALONE V POLICE HC NWP CRI-2012-443-041 [5 February 2013]

[1]      Mr Malone appeals against a sentence of 80 hours’ community work handed down  against  him  in  the  District  Court  at  Hawera  on  25  September  2012  by Judge MA Courtney.

[2]      Mr Malone pleaded guilty to four charges involving dishonesty:

(a)       On 17 May 2012, Mr Malone dishonesty obtained petrol valued at

$30 by charging the petrol to the account of a local business;

(b)      On 30 May 2012, Mr Malone dishonestly obtained goods valued at

$126.70 by the use of a cheque drawn on a closed account;

(c)       On 2 June 2012, Mr Malone dishonestly used a cheque to obtain petrol to the value of $112.08;

(d)      On 18 June 2012, Mr Malone dishonestly obtained petrol valued at

$90.50.

[3]      Mr  Malone  has  previous  convictions  for  dishonesty.    In  2002  he  was convicted of theft, in 2007 of two charges of using a document for pecuniary advantage, and in 2011 of two charges of theft.  On one of these latter charges his sentence included 40 hours’ community work.

Appellant’s submissions

[4]      Mr  Malone  represented  himself  in  advancing  the  appeal.     His  main submissions to me were:

(a)       He has made full reparation;

(b)      None of the victims seek that he be punished further; (c)        His job could be in jeopardy if the sentence stands.

[5]      Ms Law for the respondent submits simply that 80 hours’ community work is

not manifestly excessive in the circumstances.

District Court sentence

[6]      The District Court Judge gave no reasons for his sentence.  I am aware that District  Court  Judges  frequently  have  to  deal  with  lengthy  sentencing  lists. However, it is a requirement that reasons be given for sentences.

[7]      In this case I have to decide whether, in all of the circumstances, 80 hours’ community work was manifestly excessive without the benefit of the District Court Judge’s reasoning.

Discussion

[8]      Firstly, I will approach this task by accepting as true the various matters put before me by Mr Malone.  He submitted to me that he had made these points to the District Court Judge at the sentencing hearing, and I have nothing before me which contradicts that.

[9]      Section 55 of the Sentencing Act 2002 (the Act) confers the jurisdiction to impose a sentence of community work.  The relevant prerequisite in this case is that Mr Malone  has  been  convicted  of  an  offence  punishable  by  imprisonment.    A sentence of community work must not be less than 40 hours or more than 400 hours. In this case, therefore, the four offences committed by Mr Malone have together attracted a sentence of one-fifth of the maximum available for one charge.

[10]     Section 56(1) of the Act gives the following guidance on the use of the sentence:

In considering whether to impose a sentence of community work, the court must give particular consideration to—

(a)      whether the nature and circumstances of the offending make it appropriate for the offender to be held accountable to the community by making compensation to it in the form of work, in addition to, or instead of, making reparation to any person in respect of the offending; and

(b)       whether the sentence is appropriate having regard to the offender’s character and personal history, and to any other relevant circumstances.

[11]     Of  course,  regard  must  also  be  had  to  the  purposes  and  principles  of sentencing set out in ss 7 and 8 of the Act.   Among the principles is the need to impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and orders set out in the Act.

Decision

[12]     Here, Mr Malone committed four acts of minor dishonesty.   All of them involved a degree of trickery or deception rather than invasion or violence.  He could not claim the benefit of a good character and had previously been sentenced to

40 hours’ community work for minor dishonesty.

[13]     Mr Malone made full reparation and his victims were forgiving.  However, these were not his first offences and accountability to the community is required.  A sentence of community work does not mean that Mr Malone must lose his job.

[14]     I have no doubt that the sentence of 80 hours’ community work was well within the range available to the District Court Judge.  I do not know how he arrived at the sentence but I cannot say that it was manifestly excessive.

[15]     The appeal is dismissed.

Brewer J