Mitchell v Police

[2015] NZHC 2588

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-38 [2015] NZHC 2588

IN THE MATTER	of an appeal against sentence
BETWEEN	KYLIE ANN MITCHELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 October 2015
Appearances:	P Jensen for the Appellant MJM Mitchell for the Respondent
Judgment:	20 October 2015

ORAL JUDGMENT OF MUIR J

Counsel:

P Jensen, Barrister, Napier

Solicitors:

MJM Mitchell, Crown Solicitor, Napier

MITCHELL v NEW ZEALAND POLICE [2015] NZHC 2588 [20 October 2015]

Introduction

[1]      Ms Mitchell pleaded guilty to and was sentenced on one charge of breach of community work to two months’ community detention.  She also had $7,820.63 in outstanding fines remitted, with a sentence of three months’ community detention imposed in lieu (to be served cumulatively with the other sentence).

[2]      She appeals on the ground that the sentence of five months’ community

detention was manifestly excessive.

Factual background

[3]      In September 2014 Ms Mitchell was convicted for the fifth time of driving while disqualified.   She was sentenced to 40 hours of community work.   By June

2015, she had completed only 20 of those hours.  She was charged with a breach of community work and she pleaded guilty.

[4]      The pre-sentence report provided to the District Court described Ms Mitchell as working six days a week and someone who found herself too tired after work to complete her sentence obligations.   The report noted that a number of allowances had been made in order to support Ms Mitchell in completing her sentence, but she failed to follow through and failed to maintain contact with her probation officer.  A decision was made at one point to place Ms Mitchell at a community work centre to complete her sentence, however, she did not show up out of concern, she said, of running into a negative associate from her past, from whom she had managed to distance herself.  The report noted that Ms Mitchell suffers from serious anxiety and that this made it hard for her to attend community work, as she apparently goes through periods when she is unable to leave her home.

[5]      The report also noted that Ms Mitchell has suffered from alcoholism in the past, but she overcame those problems 15 years ago.  Clearly, as Mr Jensen says in his submissions, she has made considerable efforts in many parts of her life.

[6]      The fines owing at the time of her sentence were primarily for illegal parking, failure to display vehicle registrations, failure to register household pets and like matters.  In total, there had been 42 of them since 2012.

Previous criminal history

[7]      Ms Mitchell has four previous convictions for breaches of community work and  two  convictions  for  non-compliance  with  court  orders.    She  has  numerous driving convictions.   She has previously successfully completed sentences of community detention.

District Court Decision

[8]      In the District Court Ms Mitchell accepted that community detention should be imposed in respect of the breach and for her outstanding fines.  The Judge noted Ms Mitchell’s guilty pleas and that her anxiety was one of the stated reasons she failed to complete the community work.  The Judge considered that because this was Ms Mitchell’s fifth breach of community work, any future conviction for such offending would be likely to attract a prison term.   The Judge them imposed two cumulative sentences of community detention, in the terms I have previous indicated and he remitted the fines.

Approach on appeal

[9]      Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[10]     In any other case, the Court must dismiss the appeal.1

1      Criminal Procedure Act 2011, s 250(3).

[11]     The  Court  of Appeal  in  Tutakangahau  v  R  has  recently  confirmed  that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.2   Further, despite s 250 making no reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to

sentence appeals.3

[12] encap	The sulate (a)	approach   taken   under  the   former  Summary  Proceedings  Act   is d in R v Shipton:4 There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal must proceed on an “error principle.”
(b)	To establish an error in sentencing it must be shown that the Judge in
the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c)	It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[13]     Significantly 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.5

Appellant’s submissions

[14]     Mr Jensen submits that this is not a case where further punishment should be regarded as a factor.  He submits that due to the barrier which Ms Mitchell’s severe anxiety represented to completion of any community work sentence,  a practical course for the District Court would have been to re-sentence her to community detention instead.   He submits that the District Court placed too much weight on

previous convictions and insufficient weight on the reasons why Ms Mitchell did not

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

3      At [33], [35].

4      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

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

complete the sentence.  He submits that two months’ community detention for failing to complete 20 hours of community work represents a manifestly disproportionate response from the Court.

[15]     In respect of the second sentence, he submits that three months community detention for $7,820.63 of unpaid fines is again manifestly excessive.  He submits that the majority of the fines are for the purposes of what are termed “revenue collection”.  He submits that in the Napier District Court, there is something akin to a local tariff whereby 40 hours of community work is imposed for outstanding fines of up to $10,000.  He accepts that at least some of the outstanding fines should have been converted into a community based sentence while emphasising that only in respect of the driving infringements was there any aspect of public safety involved in this other offending.

Respondent’s submissions

[16]     The Crown submits that the sentence imposed in the District Court should not be disturbed.   It submits that Ms Mitchell’s anxiety does not excuse her from an obligation to comply with the Court’s orders and that Ms Mitchell’s submission that she had a reasonable defence for failing to complete the sentence is irrelevant, as the proper approach would have been to have contested the charge.  The Crown submits that Ms Mitchell did not herself submit that her anxiety was the primary reason for her breach, rather that it was one factor of three, including fatigue and concern about contact with a former associate.

[17]     In respect of the sentence for unpaid fines, the Crown submits that there are clear policy reasons for enforcement of fines and that three months’ community detention  was  an  available  sentence.    It  cites  Redhead  v  Ministry  of  Justice Collections Unit where six weeks of community detention coupled with 150 hours community work was imposed as a substitute penalty for just under $7,000 of unpaid

fines.6

6 Redhead v Ministry of Justice Collections Unit [2015] NZHC 2004.

Discussion

[18]     There   is   no   accepted   or   even   convenient   conversion   rate   between uncompleted hours of community work or unpaid fines and the duration of sentences for community detention.  This is an area left largely to the Court’s discretion, with regard to all facts of the case and the relevant circumstances of the offender.  It is to those matters that I therefore address myself.   I will divide my analysis into two parts.

Breach of community work orders

[19]     I reject the appellant’s suggestion that all the Judge should have done was to effectively resentence by converting the outstanding community work hours into community detention.  That makes no allowance for the fact that this was her fourth conviction for breaching community work and her 12th for disregarding Court orders. I regard as also significant the fact that at no stage did the appellant contact relevant authorities to inform them of her alleged difficulties.

[20]     Although, as her counsel suggests, she may not be in the category of  a “defiant  malcontent” she is  certainly,  in  my view,  casual  and  indifferent  to  the discharge of her obligations.  The explanation that she was suffering from anxiety does not excuse the noncompliance.  I accept the Crown’s submission that it appears to  have  been  one  reason  only,  among  three  raised  at  the  time.     But,  more significantly, as is accepted by Mr Jensen, having pleaded guilty to the offence she has admitted as an element of that offending that there was no reasonable excuse for it.    I cannot  approach  this  sentencing  appeal  on  any other basis.    If  it  is  now submitted that anxiety was a proper basis for non-compliance then the appropriate course would have been to contest the charge.  It cannot in my assessment be used as a basis to attack the sentence in circumstances of an extant guilty plea.

[21]     I accept that in Newton v Police the High Court considered a sentence of

three months’ community detention imposed for failure to complete 48 hours of

community work was regarded as manifestly excessive and as a result quashed that

sentence and replaced it with one of six weeks’ community detention.7

[22]     Were it not for the appellant’s extensive history of noncompliance with Court orders  I  would,  on  the  basis  of  that  decision,  have  been  sympathetic  to  the appellant’s arguments.

[23]     However, as Ms Mitchell rightly submits in my view, the two months of community detention imposed captured both a conversion factor for community work not undertaken and a penalty for what can only be described as serial noncompliance with the Court’s orders.  And as I have indicated, the facts speak as much to her indifference as they do to anxiety being the explanation for the noncompliance.

[24]     Indeed the Department appears to have been particularly indulgent in  its endeavours to assist the appellant in discharging her obligations.  And I am obliged to take into account the fact that at no stage did she communicate with them in terms of the alleged difficulties which she now raises.

[25]     I do not for those reasons consider the sentence of two months’ community detention to have been manifestly excessive.  Accordingly, there is no error and the appeal in that respect is dismissed.

Unpaid fines

[26]     The flavour of Mr Jensen’s written submissions is that all but $452 of the fines  incurred  for  driving infringements  should  not  really have been  taken  into account for the purposes of sentencing on the basis that the balance was for what he terms “regulatory revenue collecting type offences”.

[27]     I cannot agree with that submission.  There is a societal cost to each of these infringements,  even  if  only  in  terms  of  revenue  not  being  available  for  the underlying purpose of the legislation, for example in the case of vehicle registration

appropriate contribution to ACC levies.

7 Newton v Police HC Rotorua CRI-2011-470-26.

[28]     Although it might be considered towards the upper end of an available range, I do not intend to interfere with the sentence.  It is broadly consistent with the result in Redhead, particularly taking into account the apparent futility in this case of imposing a sentence of community work in combination with a reduced period of community detention.   Ms Mitchell clearly has a somewhat cavalier approach to accumulation and non-payment of fines, perhaps more especially so to the accumulation of them, accepting as I do Mr Jensen’s submission that her financial circumstances are a relevant consideration.

[29]     However, deterrence of future similar conduct  is a legitimate purpose of sentencing and ultimately society must bear the cost of remitted fines.  Its interests are in ensuring that fines are met and that the tariff for remission remains sufficiently high to encourage compliance.  For these reasons I likewise find that the sentence of three months’ community detention imposed in respect of the outstanding fines was not manifestly excessive and that there is accordingly no error in the District Court’s judgment.

Result

[30]     I decline the appeal.

Muir J