Paramore v Police
[2014] NZHC 646
•2 April 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2013-441-38 [2014] NZHC 646
BETWEEN JEREMY PETER PARAMORE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 April 2014 Counsel:
P J Jensen and C E Church for the Appellant
R Guthrie for the RespondentJudgment:
2 April 2014
ORAL JUDGMENT OF BROWN J
Solicitors: Crown Solicitor, Napier
Counsel: P Jensen, Ahuriri, Napier 4144
PARAMORE v POLICE [2014] NZHC 646 [2 April 2014]
Introduction
[1] The appellant appeals against a decision of District Court Judge J C Down in the District Court at Hastings on 7 November 2013 imposing a term of imprisonment of two years cumulative on an earlier sentence of 14 months imprisonment.
Background
[2] In June 2013 the Hawkes Bay Police began an operation codenamed “Operation X Wing” that focused on the property dealings of the appellant and his associates. During the operation it became apparent that the appellant was a prolific receiver of stolen property. Rather than take possession of the property and then attempt to sell it, the appellant would generally broker a deal between the burglar and the end receiver thus reducing his chances of being caught with stolen property.
[3] The appellant pleaded guilty at a relatively early stage to three counts of burglary and was sentenced by District Court Judge A J Adeane on 4 September
2013. From a starting point of 18 months imprisonment, adopted by reference to R v Columbus,1 Judge Adeane imposed a sentence of 14 months after allowing a reduction of four months for the moderately early guilty plea. He also imposed six month release conditions.
[4] The appellant was also charged with seven counts of conspiracy to receive stolen goods. On each count the property was worth in excess of $1,000 and on one occasion in excess of $10,000. Each of those charges carried a maximum penalty of seven years imprisonment. It is the sentence on those charges to which the current appeal relates.
The District Court decision
[5] The scale of the appellant’s offending is reflected in three paragraphs of
Judge Down’s decision:
[4] Between 2 May and 21 May police were able to retrieve in excess of
6400 text messages received and sent from your phone. There was also
1 R v Columbus [2008] NZCA 192.
another number identified as belonging to you and a further 8600 text messages between 22 May and 14 June were recovered. An analysis of those text messages showed that your offending was, indeed, prolific.
…
[10] It is clear that some of the text messages revealed that you would text associates to provide orders of what specifically you were looking for and arranged for them to go on missions to burgle homes.
[11] As I said to your counsel, I consider this receiving offending to be amongst the most serious receiving that I have seen. I have seen worse, of course, and I do not put you at or near the maximum penalty but I do, even with your relative lack of previous convictions still consider that this is a very serious example of receiving, very professional, high value. You were effectively facilitating burglars and putting members of this community at risk as a result of it.
[6] The Judge took as an appropriate starting point three years imprisonment in respect of one of the more serious conspiracy to receive counts and uplifted that to four years by adding one year to reflect all the other offences. He gave credit of
25 per cent for the guilty pleas and a further discount of some eight per cent resulting in a final end sentence of two years and eight months.
[7] As the appellant had been sentenced to imprisonment two months previously, the Judge recognised that the totality principle had to be applied. In applying that principle the Judge reduced the sentence to two years imprisonment cumulative to the previous sentence of 14 months.
Grounds of appeal
[8] The appellant’s notice of appeal filed on 9 December 2013 specified two
grounds of appeal:
(a) The starting point of four years was too high; and
(b) Two years cumulative is manifestly excessive.
Approach to appeal
[9] This appeal is under the Criminal Procedure Act 2011, s 250 of which 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.
In any other case the Court must dismiss the appeal: s 250(3).
[10] That approach accords with the approach taken previously under the former
Summary Proceedings Act 1957 which was explained in Yorston v Police:2
(a) 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; and
(c) It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.
The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
First ground: starting point of four years is too high
[11] For the appellant it was submitted that the starting point of four years imprisonment is too high and disproportionate to the totality of the offending when viewed as a whole rather than as aggregated charges. It was said that, looked at globally, this spree of offending, substantial and serious as it was, would not have attracted a total starting point of five and a half years but a more likely starting point would have been three to three and a half years using the construction suggested by
the Court of Appeal in R v Columbus.3 Attention was also drawn to Aurupa v New
Zealand Police (starting point of 12 months imprisonment)4 and Blissett v New
Zealand Police (starting point 17 months imprisonment).5
[12] The respondent noted that there is no tariff for either receiving or conspiracy to receive but pointed to a number of Court of Appeal authorities said to provide some helpful assistance in considering the sentencing approach to cases of receiving. The submissions discussed the cases Andrews v R (a six year end sentence of imprisonment upheld),6 R v Clayton (a five year end sentence of imprisonment
upheld)7 and R v Bom (a six year imprisonment sentence upheld).8 The respondent
submitted that the starting point of three years for the most serious charge was warranted and the uplift of 12 months was an appropriate acknowledgment of the remaining six charges.
[13] While there is no tariff case for receiving or conspiracy to receive in New Zealand I find the judgment of Asher J in R v Lasike helpful.9 After discussing R v Bom10 and Police v Som,11 Asher J said:12
It can be seen from these two cases that sentences of six years or more will result if the receiving is sophisticated and on a large scale, with property stolen to order. Starting points of three to four years may be appropriate where the receiving is at a lower level, where the receivers nevertheless have a close relationship with the burglars, and specific property is targeted, and the amounts received are in the $15,000 - $50,000 area.
[14] In R v Caldwell Gendall J imposed a starting point of three years six months for 11 charges of receiving. This was upheld by the Court of Appeal.13 These cases were among those discussed by French J in Allen v Police14 in upholding a starting point of three years six months for one charge of receiving where the property was
valued at $120,000.
4 Aurupa v New Zealand Police [2012] NZHC 2750.
5 Blissett v New Zealand Police [2013] NZHC 156
6 Andrews v R [2012] NZCA 61.
7 R v Clayton [2008] NZCA 348.
8 R v Bom HC Christchurch T87/95, 16 May 1996.
9 R v Lasike HC Auckland CRI-2004-044-7103, 7 September 2006 at [62]-[66].
10 Above n 8.
11 Police v Som HC Wellington CRI-2005-485-141, 4 November 2005.
12 At [66].
13 R v Caldwell CA 24/06, 29 June 2006.
14 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009
[15] In my view these cases illustrate that a global starting point of four years imprisonment for the seven charges of conspiracy to receive was within the appropriate range. In the present case the goods were very valuable, the offending was sustained, albeit primarily during May 2013, and there were seven charges. There was a commercial element as the appellant was receiving in order to barter for and to pay for alcohol and drugs and there was a close relationship between the burglar and receiver as evidenced by the fact that the appellant would often receive the goods on the same day that they had been stolen.
[16] In these circumstances where the starting point was within an appropriate range this Court is not justified in intervening.
Second ground: two years cumulative manifestly excessive
[17] Section 85 of the Sentencing Act 2002 requires the Court to consider the totality of offending. Specifically s 85(2) provides that where 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 offending.
[18] The appellant recognises and accepts that a cumulative sentence was appropriate in the present case. However he submits that the cumulative sentence ought to have been 16 months, not two years.
[19] The respondent submits that the issue for consideration is whether the sentence of three years two months imprisonment for three residential burglaries and seven conspiracy to receive charges is wholly out of proportion to the gravity of the overall offending. As noted in Andrews v R15 the Court’s concern on a sentence appeal is with the effective or end sentence rather than the means the sentencing judge took to arrive at the end sentence.
[20] The respondent drew attention to the decisions in Paku v R (starting point of four and a half years imprisonment for four charges of burglary and four of receiving upheld on appeal)16 and Ellis v R (starting point of 18 months for a single charge of
receiving stolen property within hours of a burglary upheld as stern but within the available range).17 It was submitted that the starting point adopted by District Court Judge Adeane of 18 months imprisonment for three separate residential burglaries was a generous one and could justifiably have been higher. Consequently, looking at the overall sentence for both sets of offending, it was submitted that three years two months imprisonment was not manifestly excessive.
[21] The burglary and receiving in this case were on separate occasions and were different types of offending. I agree that it is likely the burglary and receiving sentences would have been cumulative. I note that in Zachan v Police18 Wylie J upheld cumulative sentences for burglary and receiving.
[22] If a Judge had sentenced all of the offences together, had reached distinct end points for the receiving and burglary charges, added those together and adjusted them downwards for the totality of the offending, I consider that a cumulative sentence as high as three years and six months would have been reached. Consequently I consider that Judge Down appropriately applied the totality principle by reducing the cumulative sentence to two years with the consequence that the sentence for the totality of the offending was three years and two months.
[23] Indeed, by way of comparison, if a sentencing judge had imposed concurrent sentences, proceeding from a starting point of four years for the receiving and adding an uplift of six months for the burglary charges (which would be a relatively low uplift) and then applied a guilty plea discount of 25 per cent, the result would be an end sentence of approximately three years and four months. Consequently, even if the appellant had been sentenced concurrently, the total of the sentences of Judge Down and Judge Adeane of three years two months would have been within the acceptable range.
Disposition
[24] For these reasons the appeal is dismissed.
Brown J
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