Mihinui v Police

[2017] NZHC 820

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-36 [2017] NZHC 820

BETWEEN

DEAN ANDREW MIHINUI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 April 2017
Appearances:	S Teki-Clark and P Johnson for Appellant E J Henderson for Respondent
Judgment:	28 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Background

[1]      The appellant pleaded guilty to two charges of theft, one charge of receiving stolen property, and one charge of possession of a knife in a public place.

[2]      He was sentenced to 11 months imprisonment by the District Court Judge on

2 February 2017.1

[3]      The  appellant  appeals  against  that  sentence  on  the  grounds  that  it  was manifestly excessive, in terms of a calculation error.

Principles on appeal

[4]      Appeals against sentence are brought under s 244 of the Criminal Procedure

Act 2011, and must be determined in accordance with s250 of that Act. Specifically,

1 Police v Mihinui [2017] NZDC 1975.

MIHINUI v NEW ZEALAND POLICE [2017] NZHC 820 [28 April 2017]

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

[5]      If  the  sentence  under  appeal  may be  properly  justified  having  regard  to 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 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.

[6]      The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5

the Court of Appeal held that:6

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

[7]      This appeal identified a gloss on that principle, where there is an error which has meant the intended sentence was not imposed.

Appeal out of time

[8]      Section  248(2)  of  the  Criminal  Procedure Act  2011  requires  a  notice  of appeal  against  sentence  to  be  filed  within  20  working  days  of  the  decision.

However, the Court may grant leave to appeal out of time.7

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

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

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

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

6 At [36].

7      Criminal Procedure Act 2011, s 248(4).

[9]      The touchstone for granting leave to appeal out of time is the interests of justice in the particular case.8    Normally this will hinge on two factors: the extent and reasons for the delay, and the merits of the appeal.9

[10]     The appellant was sentenced on 2 February 2017.  The notice of appeal was filed on 15 March 2017.   The notice of appeal records that there was a delay in receiving the Judge’s sentencing notes, which came whilst counsel was on leave. The   matter   was   progressed   promptly  once   instructions   were   received.  The respondent accepts that there is no prejudice to the matter now being heard, and the delay is slight.

[11]     As the merits of the proposed appeal are compelling, leave to appeal out of time is granted.

The District Court decision

[12]     Bar the alleged error (set out under Analysis below), the Judge’s approach to sentencing was orthodox.  After recounting the facts relating to the offending (which identified the theft of property worth $2000 as the most serious, and the lead charge), the Judge referred to the appellant’s bad record (some 30 dishonesty convictions). Having regard to relevant sentencing principles and the principle of totality, the Judge adopted a provisional starting point of nine months imprisonment.

[13]     The Judge imposed an uplift of three months to reach an end starting point of

12 months.  He then gave the appellant credit of 25 per cent for early guilty pleas, which resulted, according to the sentencing notes, in a sentence of 11 months imprisonment.

Analysis

[14]     The appellant contends that by the correct calculations, the end sentence should have been eight months, not 11 months imprisonment.

8      R v Knight [1998] 1 NZLR 583 (CA); R v Lee [2006] 3 NZLR 42 (CA).

9      R v Slavich [2008] NZCA 116 at [14].

[8]       Bearing in mind the totality of all of your offending, in my view the

appropriate starting point is nine months’ imprisonment.

[9]       Turning to the aggravating and mitigating factors personal to you. First of all the aggravating feature personal to you is your past history. You have 35 previous convictions for dishonesty and many of those relate to dishonesty with respect to motor vehicles. You have three previous convictions for possessing offensive weapons, including knives, in a public place. You also re-offended whilst on bail. In my view that justifies an uplift of three months’ imprisonment.

[10]      In mitigation you have entered early guilty pleas. That entitles you to a reduction of four months. That gives the following result. Today you are sentenced to 11 months’ imprisonment…

(emphasis added)

[16]     The respondent through Ms Henderson accepts that on the face of it the Judge has made a calculation error.   However, counsel refers to the possibility that the Judge  may  have  intended  an  uplift  by  three  months  for  each  of  “previous convictions” and “offending whilst on bail”, for a total of six months uplift.  This is supported by the fact that the Judge discounted by four months for guilty pleas, which is closer to 25 per cent of 15 months (nine months plus six months uplift). However,  a  plain  reading of the sentencing notes  is  that  three months  was  the intended uplift, and the appellant should get the benefit of any ambiguity in this regard.

[17]     Despite that apparent error, Ms Henderson submits that the end sentence was “properly within range”.  Since that is the primary concern of the court on appeal, counsel submits that the appeal should be dismissed.   I accept the respondent’s submission that the starting point was appropriate and if anything, lenient.  I further accept that the appellant’s record is such that a substantial uplift for previous convictions and/or offending whilst on bail, possibly more than three months, could have been justified. But that is not what the plain reading indicates was intended.

… 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.

[19]     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”.11    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. Gendall J considered that:12

…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.

[20]     This approach was confirmed in McNeil v Police.13

[21]     I think these cases decide this appeal.   They demonstrate that a Court on appeal should look to revisit a sentence, which would otherwise have been in range, where there has been an error of this kind, and that such intervention does not amount to tinkering.  A judgment should not stand where what was plainly intended by the Judge did not result.

[22]     The appeal should be allowed on the simple ground of miscalculation, in order to reach the intended end sentence.

Disposition

[23]     The appeal is allowed. The sentence of 11 months imprisonment is quashed and replaced by a sentence of nine months imprisonment.

10     Tutakangahau v R, above n 5, at [36].

11     Affleck v R [2015] NZHC 1741 at [5].

12     Affleck v R, above n 11 at [29].

13     McNeil v Police [2016] NZHC 383 at [16]-[18].

[24]     The   standard   conditions,   together   with   the   two   special   conditions recommended by the pre-sentence report, which the Judge imposed for six months from the end sentence date, are to remain unchanged.

………………………………………….

Nicholas Davidson J

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch