N v New Zealand Police HC Napier CRI-2005-441-43

[2006] NZHC 23

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2005-441-43

BETWEEN  N Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 February 2006

Appearances: A Courtney for Appellant

R J Collins for Respondent

Judgment:      2 February 2006

JUDGMENT OF GODDARD J

[1]      What must be immediately understood is that Mr N    is appealing against a discretionary exercise by the  Judge  who  sentenced  him  and  that  it  is therefore necessary for me to be persuaded that the sentence imposed was either wrong in principle or manifestly excessive.  That is a difficult task.  Before coming into Court I had the advantage of reading through all of the documentation on file, including the written submissions of both counsel and the probation officer’s report, the restorative justice report, the details of the appellant’s criminal history and, of course, Judge  Adeane’s sentencing judgment.   Today, in Court,  I have had  the further     advantage     of     the     oral     addresses     by     counsel     and     by Mr  Reta  Pohe,  to  whom  I  am  grateful.    He  has  amplified  and  explained  the restorative justice programme that it is said to have been agreed for the appellant. Having considered all of the written and oral material and having paid due regard to the applicable sentencing principles and what guidance is available from comparable cases, I am quite satisfied that the appeal cannot succeed on the grounds that it is

either wrong in principle or manifestly excessive, for the reasons that I now give.

N   V POLICE HC NAP CRI-2005-441-43  2 February 2006

[2]      First, although the crime committed was a crime against property, rather than a crime involving violence, it is a serious crime of its type.  The property in question has been a public icon since she was unveiled on the Napier foreshore in 1954:  an icon not only for the Hawke’s Bay community but for all the people of New Zealand. She represents and reflects the history and bicultural nature of settled New Zealand. Her sweetness and charm have endeared her to thousands of visitors over the years and the affection felt by the public towards her is evident from the reaction to her theft.   Her theft cannot be regarded as any ordinary gesture of dishonesty by the appellant and his associates.  It was, as the sentencing Judge described it, an insult to the community.

[3]      Secondly, whilst a lack of premeditation and planning was pleaded, the theft necessarily involved  the  appellant  and  other  associates  (whose  identities  he  has refused  to  reveal)  in  a  degree  of  premeditation  and  planning.    It  involved  the obtaining of tools for prising the statue from her rock and the transportation of those tools to the carpark of Ocean  Spa  on  Marine  Parade  in  the  early hours  of  the morning.  It took a concerted effort to prise the statue from her rock base, to which she was cemented and bolted down with three bolts.  The statue is of considerable weight and required more than one accomplice to lift and carry.  During the theft the statue received scratches and gouges which have cost the community $4,753.12 to repair.  The appellant’s ability to make reparation of that sum is minimal, given that he already has outstanding fines totalling $13,368.75, of which $1,848.75 is reparation for previous offending.  So far as I am aware there has been no payment of those amounts to date.

[4]      Third, the appellant’s criminal history (whilst not a matter for which he is to be re-punished) is a relevant aggravating feature, which Judge Adeane correctly took into account in computing the overall sentence.  I note the appellant has 43 previous convictions spanning a decade: 13 for dishonesty and nine for breach of court orders. His immediately prior offending to this was the robbery of a woman in July 2004 for which he was sentenced to 18 months imprisonment.  He was denied leave to apply for home detention. At the time he committed this offence he was subject to release conditions for that sentence and was also carrying out a sentence of community work for an offence of driving with excess breath alcohol committed within days of this

current offence.  His criminal history points to a disregard for the law and for other people’s property, and is to be taken into account in assessing the genuineness of his expressions of remorse and the weight to be accorded to his likely approach to the offer of a restorative justice programme in lieu of a prison sentence.   Against the clear genuineness of the efforts of those who organised and facilitated the restorative justice conference and the willingness of Te Whanau Whakapono Services to now engage the appellant in a holistic healing programme, the Court is required to weigh his demonstrated propensity to offend and the need to denounce his latest episode of criminal conduct.   Whilst Mr Pohe and his organisation is to be accorded every credit for their good work, the Court must also consider the necessity to deter others from similar offending against their communities in the future.

[5]      A further matter to be weighed in assessing the genuineness of any currently professed desire by the  appellant  to  reform,  is  his  apparent  commitment  to  the Mongrel Mob as a prospect.  That commitment, together with his criminal history, led the probation officer to express the opinion that his risk of re-offending is high and that his motivation to address his criminal offending is to be regarded with caution.  He is not a callow youth.  He is 25 years of age and has demonstrated little respect for the property of others or for the community in which he lives.   The probation officer found him unwilling or unable to disclose any real information about either his current offending or his plans for the future, other than his indication that he is prospecting for the Mongrel Mob.

[6]      The   sentencing   requirement   to   impose   the   least   restrictive   sentence appropriate in this case is to be balanced against the need to publicly denounce the particular crime and (as I have said) the need to deter both the appellant personally and others of similar-bent from future such offending.   Judge Adeane bore all of those competing factors in mind, including the question of restorative justice, when he weighed up the difficult balance between the appellant’s reformation on the one hand and the principles of deterrence, denunciation and protection of the public on the other.

[7]      Lastly  a  perusal  of  comparable  cases  (although  there  are  no  exactly comparable cases) provides a clear indication that Judge Adeane has not erred in

principle nor failed to exercise his sentencing discretion correctly in any way.  In the case of R v Te Kaha [1999] DCR 48, a suspended sentence of 15 months imprisonment together with 200 hours community service, reparation and costs was imposed.  This was a particularly lenient sentence because of the singular feature of the motivation for the crime, which was found to have some mitigating quality.  The sentencing Judge in that case made it clear, however, that had the offence been motivated by purely selfish considerations (as in the the present case) then a sentence of possibly many years imprisonment would have been called for.  Two other cases of some comparability are those of R v Simpson CA43/05 27 May 2005 and Sanders v Police HC CHCH AP235/91 14 October 19991, in which sentences of three years imprisonment and 18 months imprisonment were imposed.

[8]      In conclusion, I am unable to find that it was not open to Judge Adeane to exercise his proper discretion by imposing a sentence of 12 months imprisonment, after giving a fair deduction of six months imprisonment, from a start point of 18 months  imprisonment,  for  the  appellant’s  guilty plea.    It  is  a  relatively  lenient sentence and one that will enable the appellant to properly pay his dues to the community.  I hope that once he is released he will still be accorded the opportunity of the benefit of a rehabilitation programme with Te Whanau Whakapono Services.

Solicitors:

Amanda Courtney, Napier, for Appellant

Elvidge & Partners, Napier, for Respondent