Meikle v Police
[2018] NZHC 2754
•24 October 2018
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2018-425-000023
[2018] NZHC 2754
BETWEEN MYLES WILLIAM BRIAN MEIKLE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 October 2018 Appearances:
R G R Eagles for Appellant
S N McKenzie for Respondent
Judgment:
24 October 2018
JUDGMENT OF DUNNINGHAM
Introduction
[1] The appellant, Mr Meikle, was sentenced to 10 months’ imprisonment on 14 August 2018, having pleaded guilty to three charges of theft of a motor vehicle1 and one charge of causing loss by deception.2 He now appeals his sentence saying the Judge made a reparation order that was too high, and made no allowance for totality.
Background
[2] The events giving rise to these charges took place between June and September 2017. On 28 August 2017, the police received a report that a Toyota Hilux and a Suzuki motorcycle had gone missing from a farm in Lorneville. The farm was
1 Crimes Act 1961, ss 219 and 223.
2 Crimes Act 1961, ss 240(1)(d) and 241(a).
MEIKLE v NEW ZEALAND POLICE [2018] NZHC 2754 [24 October 2018]
owned by the parents of Mr Meikle’s former partner, and who are the grandparents to Mr Meikle’s young son. After the vehicles went missing, the owners located a purchase receipt from Pacific Auto Repairs which showed that Mr Meikle had sold the Hilux to that firm for $1,450.
[3] Between 29 June and 5 September 2017, Mr Meikle also removed a second Suzuki motorcycle and a Polaris four-wheel motorbike from the same farm without authority. The Suzuki was later sold to an associate through Facebook.
[4] On 22 August 2017, Mr Meikle advertised the Polaris four-wheel motorbike on Facebook. He entered into a conversation with a prospective buyer. The person went to view the bike at Mr Meikle’s address at Ryal Bush and was told that the Polaris was owned by Mr Meikle and that it was not stolen. Mr Meikle sold the motorbike to that person for $800. Later, the purchaser realised that the motorcycle had a number of issues and was not in running condition. He tried to return the bike through Facebook but was told it was now his problem. The matter was referred to the police.
[5] Mr Meikle was located by police at an address in Lorneville, at which time access to his Facebook was granted voluntarily. The Police found a conversation on Mr Meikle’s Facebook account where he had attempted to sell three calves for $1,500. Mr Meikle arranged for the sale and was paid $1,500. The purchaser made several unsuccessful attempts to collect the calves at the location Mr Meikle gave. The calves were subsequently sold to a second purchaser who had also paid $1,500 through the internet. The original purchaser did not have the $1,500 reimbursed and did not receive any cattle as a result of the purchase.
District Court decision
[6] Judge Brandts-Giesen set a starting point of nine months’ imprisonment for the thefts of vehicles and added three months for the deception in relation to the calves.
[7] The Judge considered that he would be justified in uplifting that period by two months for similar offending in the past, but did not do so in the interests of returning Mr Meikle to the workforce (thereby enabling reparation to be paid). He allowed a 10 per cent discount for the guilty plea, to reach a sentence of 10.8 months’
imprisonment. Judge Brandts-Giesen treated Mr Meikle’s stated remorse with a degree of scepticism but nevertheless also gave a credit for that of 0.8 months (thus reducing the sentence to 10 months).
[8] That sentence of 10 months' imprisonment was imposed cumulatively on the existing sentence of 18 months for drug related offending which Mr Meikle had received and which the Judge described as being for offences which were quite separate in kind and against different victims.
[9] The Judge ordered payment of reparations of $1,500 to the owner of the calves, and $4,300 to the owners of the vehicles.
Principles on appeal
[10] 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.3 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.4
Submissions
Appellant’s submissions
[11] Mr Eagles submitted that there was an error in the quantum of reparation. The alleged loss as stated on the charging sheet was as follows:
(a)Obtaining by deception - $1,500.
(b)Four-wheel motorbike - $800.
(c)Toyota Hilux - $1,450.
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Ripia v R [2011] NZCA 101 at [15].
(d)Two-wheel motorbike $500.
[12] On the basis of these figures, the appellant submits that the total amount payable in reparations should have been $4,300, instead of the $5,800 ordered.
[13] In terms of the sentence, the appellant does not argue that an end sentence of 10 months' imprisonment for this offending was excessive. However, Mr Eagles submits that the totality principle was not considered even though the appellant had been sentenced on 15 May 2018 to 18 months’ imprisonment for drug related charges which occurred during the same period. Mr Eagles explained the offending was related as the appellant needed money to support his drug habit.
[14] In Mr Eagles’ submission, the sentencing Judge made no allowance for totality and the sentence imposed on 14 August should have been reduced by four months to reflect an appropriate sentence for the overall offending.
Respondent’s submissions
[15] The respondent submits that while the totality principle was not expressly articulated, the application of the principle was impliedly taken into account, although the part of the judgment relied on for that submission was not identified.
[16] However, the respondent’s primary submission was that the end sentence was not out of range. Despite the appellant having a lengthy criminal record, including 21 various dishonesty convictions, he did not receive an uplift on sentence. While the sentencing Judge indicated an uplift of two months would be warranted, he expressed the view that it was preferable not to have the appellant in prison for too long. The respondent also said the 10 per cent discount applied for the appellant’s remorse was generous given it was in addition to the discount for a guilty plea which had only been entered part way through the defended hearing.
[17] When looked at in totality, the 10 month sentence to be served in addition to the 18 month sentence for the drug offending was not manifestly excessive in light of the gravity of the offending, the generous discount for remorse and the lack of uplift for prior similar offending.
[18] The total reparation the appellant was ordered to pay was based on the reparation schedule provided to the District Court, and attached to the summary of facts. It stated the value of the Hilux was $3,000. While the value of the Hilux on the charging document was stated to be $1,450, this was simply the amount the appellant had on-sold the vehicle for. It is unsurprising that the appellant did not on-sell the vehicle for its true value and the appellant does not adduce any evidence that the Hilux was not worth the $3,000 stated on the reparation schedule. The respondent submits that the Judge was entitled to order the appellant to pay the amount recorded on the reparation schedule and if this figure was disputed, it should have been raised in the District Court at sentencing.
Discussion
[19] I accept that the charging document is in error when it referred to $1,450 as the value of the Hilux rather than the amount it was on-sold for. However, that statement in the charging document was not an integral element of the offence and I consider no injustice is done if the reparation schedule attached to the summary of facts, prevails for the purpose of awarding reparations. No evidence was adduced to suggest the schedule was in error in its attribution of value. Accordingly, I would not allow the appeal on this ground.
[20] In terms of the totality principle, I accept it applies whether sentences are imposed cumulatively or concurrently and where that has the effect of lengthening the term of a sentence or sentences of imprisonment to which the offender is already subject. In R v Nuku the accused was sentenced by different Judges on the same day for offences committed several years apart.5 The Court of Appeal held that the appropriate sentence was one that would have been imposed by one Judge if all the offences on which the appellant had been convicted were before the Judge at the same time.
[21] In the present case, the thefts occurred between 29 June and 5 September 2017, on 25 July 2017 and on 22 August 2017. The obtaining by deception happened on 5 September 2017. The offending to which Mr Meikle had already been sentenced to
5 R v Nuku [1969] NZLR 343.
18 months’ imprisonment included offering to sell cannabis on 1 and 4 September 2017 and having possession of LSD on 2 September 2017. In terms of dates, the events seem to be closely connected.
[22] While the sentencing Judge described the offending as being for offences quite separate in kind and against different victims, I consider the pre-sentence report supports the conclusion that the two tranches of offending were related, with the drug addiction prompting the dishonesty offending.
[23] While the Judge clearly turned his mind to the considerations in s 84 Sentencing Act 2002, as to whether a cumulative or concurrent sentence should be imposed, it is not clear that he turned his mind to issues of totality. As s 85(2) provides, “if cumulative sentences of imprisonment are imposed … they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.
[24] Being left uncertain as to whether the totality principle was taken into account, I need to review the sentence imposed to decide whether the end sentence was manifestly unjust.
[25] In this case, the sentencing Judge did not impose any uplift to reflect Mr Meikle’s prior offending and as he said, an uplift of two months to the 12 month starting point would have been justified. I consider the deliberate decision to limit the overall sentence in an attempt to get Mr Meikle back into the workforce was an indirect application of the totality principle and I do not consider it would be appropriate to give him the benefit of this discount and a further discount for totality. In addition, I accept that the allowance of 10 per cent for a guilty plea part way through the hearing along with the further reduction for remorse also compensated for not directly averting to totality.
[26] I consider any reduction for totality would be in the order of two to three months, and has to be seen in the light of Mr Meikle receiving discounts which would not necessarily be afforded him in a fresh sentencing exercise. In my view, were the sentencing exercise to be conducted afresh, taking totality into account, the
end sentence would still be at or near 10 months, to give an overall sentence of at, or near, two years four months, which is the total length of sentence imposed.
[27]As a consequence, I do not consider the sentence imposed is manifestly unjust.
Conclusion
[28]The appeal is dismissed.
Solicitors:
Eagles, Eagles and Redpath, Invercargill Preston Russell Law, Invercargill