McWhirter v Police
[2016] NZHC 2865
•29 November 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000094 [2016] NZHC 2865
BETWEEN DYLAN CONNOR MCWHIRTER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 29 November 2016 Appearances:
K Paima for Appellant
C E Martyn and P A Norman for CrownJudgment:
29 November 2016
JUDGMENT OF DUNNINGHAM J
Introduction
[1] At 11:40pm on 23 May 2016, the appellant, Mr McWhirter, entered the Metro Mart store on Colombo Street and proceeded to make demands for money and cigarettes, threatening the store employee with a knife. Cigarettes and money from the till were obtained, and the appellant fled the scene. He was later apprehended by police.
[2] Earlier, on 12 May 2016, the appellant had been found in possession of a stolen mountain bike worth $325 and allegedly bought by the appellant that day for
$60. The appellant had recognised that the bike was probably stolen, but acknowledged that he had turned a blind eye to that.
[3] The appellant was subsequently charged with aggravated robbery, and receiving stolen property, to which he pleaded guilty. He was sentenced by
Judge Garland on 24 August 2016 to two years nine months’ imprisonment on the
MCWHIRTER v NEW ZEALAND POLICE [2016] NZHC 2865 [29 November 2016]
charge of aggravated robbery, together with one month on the receiving charge, both sentences to be served concurrently.1
[4] The appellant appeals against his sentence on the basis that it was manifestly excessive because the Judge erred in his evaluation and assessment of the relevant personal mitigating factors.
[5] In particular, he advances the following grounds:
(a) the Judge failed to have adequate regard to the appellant’s youth, as he was only 17 at the time, and did not apply an appropriate reduction in sentence for that factor.
(b)the Judge failed to have proper regard to s 7(1)(h) of the Sentencing Act 2002 which requires a Judge to recognise the purpose of assisting in the offender’s rehabilitation and reintegration.
[6] For completeness, although the appellant argued for a lower starting point in the District Court, he quite properly concedes that the starting point was within range having regard to the appropriate tariff bands and the particular features of the offending. His appeal focuses on the adjustments the Judge made to the starting point to reflect the above matters.
Principles on appeal
[7] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, 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.2
[8] 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
1 Police v McWhirter [2016] NZDC 16473 at [31].
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
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 R3) in Larkin v Ministry of Development:4
[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.
The District Court decision
[9] In sentencing the appellant, the Judge began by outlining the facts of the offending and the defendant’s background and circumstances. He then referred to the relevant sentencing purposes and principles, emphasising the need for denunciation and deterrence and to hold the appellant accountable. Referring to case-law, he articulated why he considered the appropriate starting point to be
four years four months’ imprisonment.5
[10] Whilst acknowledging that, to date, the appellant’s efforts to address his offending had been less than impressive, the Judge was mindful of the appellant’s circumstances,6 and the appellant’s youth. To that end, he gave a discount of seven months for the appellant’s youth and rehabilitative prospects. He then gave full credit for early guilty pleas entered.
Did the Judge give proper weight to the factor of youth and the principle of rehabilitation and reintegration?
[11] Youth has been judicially recognised as a factor justifying a potentially substantial discount by way of mitigation. The leading case setting out the rationale for this is Churchward v R.7 Such discount has utility for both the offender and the
community. It recognises the impulsivity of youth, the often disproportionately
3 Ripia v R [2011] NZCA 101 at [15].
4 Larkin v Ministry of Development [2015] NZHC 680.
5 R v Mako [2000] 2 NZLR 170 (CA); R v Pukeroa CA507/94, 1 June 1994; R v Rump CA195/94,
13 September 1994; Christofides v R [2011] NZCA 126; R v Inoke HC Auckland CRI-2005-004-
26072, 3 May 2007.
6 Which had involved highly dysfunctional familial environments, and rough living by the appellant on the streets.
7 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
severe effects of imprisonment on young people, and the fact that, generally, young people have greater rehabilitative prospects.
[12] However, its relevance to a particular case, and the extent of any appropriate discount, are matters of judgment, and the law does not demand a reduction for youth per se. As the Court of Appeal said in Pouwhare v R:8
Sometimes the young person's age will be a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage. Equally, there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.
[13] Thus, there is no fixed discount which must be applied to reflect the offender’s youth, and it can range from quite modest to very substantial, depending on the circumstances.
[14] The respondent submits that youth discounts are generally appropriate for first-time cases of youthful offending where there is impulsivity or “youthful discretion”, and differentiates those types of cases from the present. The respondent refers to some minor violence/dishonesty offending by the appellant which was dealt with at the Youth Court level. Whilst this may technically preclude the appellant from the category of “first time offender”, I accept that he has only recently entered into the adult criminal justice system, and he does not have relevant appearances there.
[15] The respondent is also correct to say that there was premeditation here which militates against a finding of true impulsivity. However, the appellant’s age meant that he was still subject generally to the possibility of youthful indiscretion. There is also the appellant’s drug problem, which, whilst it does not operate as a mitigating factor by itself, provides something of an explanation for the offending.
[16] The respondent refers to comments made in R v Mako which suggest that the approach to discounts for youth may, by the nature of the offending, differ in cases of aggravated robbery. However, as counsel for the appellant notes, these comments
have been disapproved following R v Churchward. As the Court of Appeal in Tukaki v R said:9
…Mako is to be read in light of this Court’s subsequent decision in Churchward. It should not be treated as justifying a different approach for aggravated robbery from other types of offending in relation to the treatment of youthful offenders.
[17] The appellant also places weight on the Judge’s failure to expressly refer to s 7(1)(h) of the Sentencing Act 2002 relating to the purpose of rehabilitation and reintegration, when identifying the relevant sentencing purposes in this case. However, this purpose was clearly considered at some length by the Judge. He said:
[26] Turning to mitigating factors, I first address the issue of your youth and prospects of rehabilitation. I am very conscious of the fact that you are only 17 years of age. The alcohol and drug and psychological reports indicate that you have used alcohol and drugs from a very young age, having grown up in seemingly dysfunctional family circumstances.
[27] In recent years synthetic cannabis has become a major issue for you and you have resorted to crime to fund that habit. I see that you were diagnosed as having a drug induced psychosis last year. I note that extensive efforts have been made in the past to engage you in rehabilitative interventions, including those associated with Odyssey House, but those initiatives have generally failed due to non-compliance issues relating to you.
[28] In the Youth Court I note that your offending has been managed in the Youth Drug Court. While you now say that you are motivated to engage in treatment and that your preference is to be released to the residential alcohol and drug programme at Odyssey, I have to say I am unconvinced. I do not get a sense from the information that I have read or heard, that you are genuinely motivated to reform yet.
[29] I am not therefore persuaded that a substantial reduction in sentence would be likely to enhance the prospects of your rehabilitation, notwithstanding your young age. The most that I can allow for reduction in sentence on account of those factors is therefore seven months’ imprisonment.
[18] In all the circumstances, he held the appellant’s prospects were not such as to
warrant an exceptionally or unusually large discount for youth and rehabilitation.
[19] The appellant contends that the rehabilitative purposes of s 7(1)(h) should have been the guiding focus here. In support of this submission, counsel for the
appellant noted that the presiding Judge was “heavily influenced by the appellant’s prior conduct at treatment facilities” where he had been discharged for non-compliance issues. In support of this he sought to adduce, as further evidence, three further documents, being a report detailing the appellant’s early discharge from Odyssey House in February 2016, and two Youth Drug Court progress reports, dating from February and March 2016 respectively. I note at the outset that there seems no reason why these reports could not have been made available to the Judge at the time of sentencing, so, are not, in terms of the standard three-part test for admission of further evidence on appeal, “fresh” evidence. I accept, however, they are cogent and are relevant to the outcome, in the sense that they provide material which would be considered in the sentencing exercise.
[20] However, even taking a liberal approach to admission of this evidence and allowing it to be introduced on appeal, it is not clear to me that it materially changes the factual basis on which the sentencing Judge was working. Rather, the reports demonstrate what the Judge was already aware of, which was that there was still some prospect of successful rehabilitation and that the appellant had made some attempts to address his offending, but had not maintained those efforts. While they reveal that some of the assistance that had been sought for the appellant was not forthcoming, it is also clear that he had not availed himself of the assistance that was provided. For example, the last progress report records that “this treatment plan has not worked for Dylan due to his inability to commit to engaging with professionals”, and “despite all the help and supports offered to Dylan he has clearly voted with his feet and it is not known if he is taking medication or not”.
[21] I consider therefore, that the Judge was correct to say that extensive efforts had been made to engage the appellant in rehabilitative interventions but that they had generally failed due to non-compliance issues relating to the appellant.
[22] Thus, while the rehabilitative purposes of s 7(1)(h) were relevant, the Judge was also entitled, and indeed obligated, to consider the other relevant sentencing principles. There is no presumption that one should trump the other, even where the defendant is young.
[23] I also observe that the Court should be mindful not to engage in artificial manipulation of the sentencing exercise to reach a desired outcome. Any discount by way of mitigation should be principled. It is therefore not appropriate to refer to the value which a sentence less than imprisonment (e.g. a residential program at Odyssey House), might have, and use that value to reason back to a discount sufficient to bring the sentence within the threshold two years’ short term of imprisonment. Counsel for the appellant concludes submissions with the comment:
43. Given the issue of commutation can only assume relevance if the sentence otherwise to be imposed is of two year duration or less the ambit of any youth discount needs to be addressed.
[24] To the extent that this remark is an invitation for the Court to assess the discount for youth and other factors by reference to what is required to bring the end point below two years’ imprisonment, it is wrong in principle.
Conclusion
[25] In summary, I consider that the Judge’s reasoning does not disclose a failure to have regard to the factors of youth and rehabilitative prospects such as would make the sentence manifestly excessive, or otherwise amount to an error justifying correction on appeal.
[26] The starting point was justifiable having regard to applicable legal principles and case law. The Judge took account of both the appellant’s youth and his rehabilitative prospects and gave an appreciable discount for those factors. Nothing in the further evidence provided suggests that the Judge’s understanding of those factors was incorrect.
[27] Accordingly, the appeal against sentence is dismissed.
Solicitors:
Better Lawyers Limited, Christchurch
Raymond Donnelly & Co., Christchurch
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