McNeil v Police

[2016] NZHC 383

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000003 [2016] NZHC 383

BETWEEN

LIAM MCNEIL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 March 2016
Appearances:	A Kelland for Appellant S E Burdes for Respondent
Judgment:	8 March 2016

ORAL JUDGMENT OF GENDALL J

Introduction

[1]      The appellant was convicted in the District Court on one charge of injuring with intent to injure (a maximum penalty five years’ imprisonment), and two charges of robbery (a maximum penalty 10 years’ imprisonment).  These latter offences, as I understand it, were committed whilst on bail for the former.  He was sentenced to three years’ imprisonment by Judge Neave on 8 December 2015.

[2]      The appellant appeals his sentence on the grounds that:

(a)       The starting point adopted for the two robbery charges was too high. (b)       The Judge incorrectly failed to factor into the end sentence a discount

he was prepared to give for the appellant’s efforts at rehabilitation.

(c)       “Relevant considerations”, namely letters written by the appellant to the victims, were not before the Judge.

MCNEIL v NEW ZEALAND POLICE [2016] NZHC 383 [8 March 2016]

[3]      For the reasons which follow, the appeal should be allowed, but only in part.

Principles on Appeal

[4]      Turning now to the principles on appeal.   The appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.

[5]      This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.1

[6]      If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion.  As Toogood J said (citing Ripia v R2) in the decision of Larkin v

Ministry of Development:3

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

Grounds of Appeal

The starting point reached for the robberies was too high

[7]      Both parties are in agreement that the correct approach to cases involving robbery charges is to use the bands identified in R v Mako for aggravated robbery, but at a discounted rate of 70%.4   In a discussion of (aggravated) street robberies, the Court in R v Mako considered that, depending on the circumstances, a starting point (for  the  relevant  band  of  offending)  of  18  months  to  three  years  would  be

appropriate.5

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

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

3      Larkin v Ministry of Development [2015] NZHC 680.

4      Smeed v Police HC Whangarei AP50/00, 24 October 2004. See also Stewart v Police HC Auckland CRI-2008-404-284, 13 November 2008 at [19].

5      R v Mako [2000] 2 NZLR 170 (CA) at [59].

[8]      The appellant asserts that applying the discount principles, the starting point for the kind of offending at issue here should be in the range of 12 to 18 months, however, as the respondent points out, the correct application of those principles, it seems, sets a starting point of 12 months to approximately two years.

[9]      In the District Court Judge Neave considered that a starting point for the two robbery charges of two years was “extremely generous”.6    The modified R v Mako band of 12 months to two years applies in respect of a single case of offending.  The Judge here was surely mindful of the totality principle and the need for the starting point in this case to reflect the fact that there were two separate robberies.  The Judge was also surely mindful of the fact that one of the robberies involved an additional

element of violence in the form of actual physical enforcement, which, as the court in R v Mako observed “might well require a higher starting point”.7

[10]     In my view the cases cited by the appellant are not especially analogous to the facts of the instant case, involving slightly different charges and different considerations as to multiplicity and the use of violence.  On the whole, as I see the position,  they  tend  to  reinforce  the  conclusion  that  the  two  year  starting  point selected in this case was justifiable.

[11]     In any case, the starting point of two years was within the range specified by the application of the Smeed principles to the R v Mako bands.   In these circumstances, the starting point reached, in my view, was not excessive such as to make the end sentence “manifestly excessive”.   Therefore, this Court should not interfere.

[12]     On this ground, the appeal should fail.

The Judge failed to factor into the end sentence the discount he said he would give

[13]     On this, both parties accept that Judge Neave made a mathematical error here when imposing the sentence he did.  This was because of a failure on the Judge’s part to actually apply the six month discount which he indicated was appropriate

here for what has been referred to as “rehabilitative efforts” made by the appellant while on remand.

[14]     The   respondent   submits,   however,   that,   even   after  adjusting  for  the calculation error, the end sentence is still within the permissible range, given the seriousness of the offending.  It is suggested, therefore, that the end sentence is not “manifestly excessive”, and so should be left as it is.

[15]     It appears that in her submissions, counsel for the appellant cited no authority for her contention that the sentence should be corrected to accurately reflect the discount which both parties agree the Judge expressly gave.   However, there is authority on this point, and the correct principle seems clear.

[16]     In  Tutakangahau  v  R,  the  oft-cited  case  discussing  principles  relating  to sentence appeals, the Court considered that:

there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time.  In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge's intentions.

[17]     And in Affleck v R, the relevant ground of appeal was that the Judge had “made an error in calculating the quantum of the appellant’s sentence at an important point in the sentencing exercise”.8    In a case where there is an unintentional mathematical oversight which has had a negative effect on the appellant’s sentence, it is appropriate for the Court on appeal to intervene.   Therefore, in Affleck I considered that:9

…although  the  sentence  imposed  by  [the  Judge]  was  not  manifestly excessive and generally should not be revisited by this Court, a small adjustment to take into account the mathematical error…should be made.

[18]     In my view, these cases decide the matter.  The appeal should be allowed to the  extent  necessary  to  correct  the  sentence  in  accordance  with  the  sentencing Judge’s  clear intentions.   The Judge in  this  case intended  to  give a further six months’ discount which he then disregarded.

The Judge did not have relevant considerations before him

[19]     Turning lastly to the third ground for appeal, this is that the Judge did not have relevant considerations before him, counsel for the appellant submits that the Judge was not provided with copies of letters written by the appellant to the victims, which are said to demonstrate “thoughtful remorse and motivation to change”.  The implication is that this is a relevant consideration which warranted further credit and which was not taken into account by the Judge.

[20]     As noted above, the Judge had already intended to give the appellant a six month discount “for the fact that you have taken the opportunity that your remand in custody has presented”.10  At one level, this can be seen as credit given for showing a “motivation to change”, and in the context of the offending as a whole, in my view, it was quite generous.   Counsel emphasised that in the letters, the appellant had expressed  a  willingness  to  engage  in  restorative  justice  conferences.    As  to reparation, however, it was the Judge’s opinion that in relation to the offending, there was “no prospect of any reparation…in these circumstances”.11

[21]     The Supreme Court has decided that remorse may attract a discount separate from a guilty plea, but it involves a high threshold, and will only be warranted after a “proper and robust evaluation of all the circumstances”.12    In this case, whilst the appellant had shown some insight into his offending, Judge Neave considered that he did “not fully get the picture”, as he had continued to justify his actions in part.13   In these circumstances, I am satisfied it was legitimate for the Judge to consider that the

appellant’s expressions of remorse did not warrant a further discount.

10     Police v McNeil above n 6 at [11]

11     Police v McNeil above n 6 at [4].

12     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

[22]     In all of these circumstances, I conclude that Judge Neave was justified in not allowing a separate discount for the factors advanced by the appellant.  On a reading of his considered judgment, it seems unlikely that he would have reached a different conclusion if he had had the appellant’s letters before him. In any event, the appellant’s sentence, in my view, is not “manifestly excessive” by reason of this point, and therefore this Court should not interfere.

[23]     On this ground, the appeal should also fail.

Conclusion

[24]     Turning to my conclusion, for the reasons discussed above, on the first and third grounds this appeal should be dismissed.  On the second ground, however, the appeal should be allowed and I now do so.

[25]     The  appellant’s  sentence  here  needs  to  be  corrected.  The  appellant  was entitled to the benefit of a six month credit for rehabilitative efforts, factored in before the percentage reduction for the guilty plea.  Taking account of the error and adjusting for it, the end sentence of four years could be seen as excessive, given that there is an acknowledged error in the sentence imposed and a different sentence should be imposed in terms of s 250(2) Criminal Procedure Act 2011.  Therefore, the end sentence before the guilty plea reduction should have been three  years, six months.  The Judge was prepared to give the full 25% discount for an early guilty plea and no adjustment here is required.

[26]     Applying that discount results in a corrected sentence of two years, seven months.

[27]     This appeal therefore succeeds in part.  The sentence in the District Court of three years’ imprisonment is quashed and a sentence of two years, seven months imposed in its place, calculated in the following way:

(a)       On  the  charge  of  injuring  with  intent  to  injure,  a  sentence  of

18 months’ imprisonment is imposed.

(b)On each of the two charges of robbery, sentences of 13 months’ imprisonment concurrent with each other but cumulative on the injuring with intent to injure, are imposed.

(c)      On  the  breach  of  community  work  the  conviction  and  discharge stands and if there are any outstanding hours these are cancelled.

LEGAL DISCUSSION Ms Kelland

Sir,  I’m  sorry,  in  regard  to  calculation  again, Your  Honour  said  that  takes  the sentence out to 36 months and I agree with that. And then there is a full discount for the guilty plea.  Now that would be nine months Sir.

The Court

[28]     No, no, what I said was, it takes the sentence, the end sentence before the guilty plea reduction should have been three years, six months.

Ms Kelland

[29]     Yes Sir.  Oh three years, six months.

The Court

[30]     That is 42 months is it not?

Ms Kelland

Thank you Sir.  Sorry. Yes right. You are correct, sorry.

The Court

[31]     Three years, six months.    That is 42 months is it not.    Three years, six months. I did not say 36 months.

Mr Burdes

No Sir.

Ms Kelland

[32]     No Sir.  Sorry.

The Court

[33]     I am pretty sure I said three years, six months.  So 42 months, 25% comes to slightly more than two years, seven months and we have just rounded it down to two years, seven months.

Ms Kelland

[34]     My apologies Sir. That’s correct.

...................................................

Gendall J

Solicitors:

April Kelland, Christchurch

Raymond Donnelly & Co, Christchurch