Pecotic v Police

[2017] NZHC 2660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-301 [2017] NZHC 2660

BETWEEN

STEPHEN PETER PECOTIC

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 October 2017
Counsel:	J J Corby for Appellant S J McDaid for Respondent
Judgment:	31 October 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 31 October 2017 at 11:15 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

John Corby (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

PECOTIC v POLICE [2017] NZHC 2660 [31 October 2017]

Introduction

[1]      Mr Pecotic appeals the sentence of 25 months’ imprisonment imposed on him by Judge KJ Glubb on 23 August 2017.1   His case is that the sentence is manifestly excessive.

Background

[2]      Mr Pecotic pleaded guilty to nine charges, as follows:

·    13 April 2016: driving whilst disqualified

·    8 August 2016: theft (over $1,000) – breaking into a car and stealing a laptop

(valued at $4,000 and unrecovered) and two credit cards.

·8 August 2016: representative charge of using a document for pecuniary advantage and representative charge of attempted use of a document  for pecuniary advantage – using one of the credit cards on four occasions to obtain $542.95.

·22 August  2016:  theft  ($500  -  $1,000)  –  breaking  into  another  car  and stealing a handbag (valued at $700 and unrecovered) containing a credit card.

·22 August 2016: representative charge of using a document for pecuniary advantage – using the credit card on six occasions and obtaining $4,271.47.

·4 September 2016: burglary and possession of instruments for burglary – burglary of commercial premises, computer stolen (valued at $2,224.10 and unrecovered).

[3]      In addition, there was a charge of breach of release conditions.

[4]      When Mr Pecotic was arrested for driving while disqualified on 13 April

2016, he was released on bail. All of the subsequent offences were committed while

1      Police v Pecotic [2017] NZDC 18802.

sentence.

[5]      Mr Pecotic, who is 29 years old, had a long list of previous convictions. They included, at Judge Glubb’s count, 16 convictions for fraud, 18 convictions for theft (with a pattern of breaking into cars and stealing contents) and six convictions for burglary.   Relevantly, there were nine previous convictions for driving while disqualified and 12 previous convictions for breach of release conditions.   His criminal and traffic history occupied 16 pages with frequent sentences of imprisonment.

[6]      Judge Glubb sentenced Mr Pecotic to 25 months’ imprisonment, calculated as follows:

·    On the burglary charge, 16 months’ imprisonment.

·    Uplift for all other charges, 12 months’ imprisonment.

·    Uplift for previous convictions, offending while on bail and while subject to

a sentence, five months’ imprisonment.

·    Sub-total, 33 months’ imprisonment.

·Less 5% discount for Mr Pecotic’s willingness to participate in a restorative justice process, for the efforts he made in prison to rehabilitate and for his personal circumstances, including his abuse at the hands of the State while a teenager. The Judge calculated the 5% as being one-and-a-half months.

·    A final discount for pleas of guilty was granted at 20%.

Appeal

[7]      There is only one point taken on appeal.  It is that the 5% discount for the matters I have described was manifestly too little to account for the abuse suffered by Mr Pecotic at the hands of the State.

2.6Mr Pecotic had been subjected to abuse whilst in state care, a “boot camp” on Great Barrier Island. The potential for such trauma to result in criminal behaviour is generally, perhaps not politically, accepted.

Analysis

[9]      I have no doubt that the end sentence of 25 months’ imprisonment was well within the range available to Judge Glubb.   Indeed, I consider the 20% discount given for the entry of guilty pleas to be generous given the point at which they were entered.

[10]     Judge Glubb accepted that Mr Pecotic, as a youth, had suffered abuse while in the care of the State.  He had, as part of the sentencing materials, a letter dated

4 April 2017  to Mr Pecotic from the Chief Executive of the Ministry of Social Development apologising to him for the treatment he received and noting that a payment had been made to acknowledge Mr Pecotic’s experiences while in care.

[11]     The Judge also had a letter from Mr Pecotic’s mother (a barrister of this Court) dated 8 August 2017.   It tells the sad story of Mr Pecotic’s descent to his present state and the efforts made by a strong and caring parent to help him.

[12]     Mr McDaid for the Crown acknowledged, responsibly, that a background of personal abuse can be taken into account by the Courts when considering an appropriate sentence.   For example, when rehabilitation is regarded as the most significant purpose of sentencing, then acknowledging an abusive personal  history and tying it to rehabilitation is an obvious path open to a Judge.  However, the mere fact of a history of abuse is not a mitigating factor.  As the Court of Appeal said in R

v Whiu,3  there has to be some causal relationship between the effects of the abuse

and  the  decisions  to  commit  offences  before  the  one  can  properly be  taken  to mitigate the other.   Here, there is no evidence  of a causal relationship.   A 5%

discount was not generous, but it was within the range available to the Judge.

2      Submissions in support of an appeal against sentence, dated 3 October 2017.

3      R v Whiu [2007] NZCA 591.

Brewer J