Police v W HC Christchurch Cri-2009-409-178

[2009] NZHC 2466

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000178

CRI-2009-409-000179

POLICE

Appellant

v

W

Respondent

Hearing:         10 December 2009

Appearances: B M Stanaway & H F McKenzie for Crown

P Dyhrberg for Respondent

Judgment:      10 December 2009

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This  is  a  police  appeal  against  a  sentence  of  conviction  and  discharge imposed in respect of an offence of receiving.

Background facts

[2]      The respondent, Mr W  , is a 45 year old licensed secondhand dealer. In April of this year a 16 year old girl came into his shop and offered to sell him an

POLICE V W HC CHCH CRI-2009-409-000178  10 December 2009

18 carat gold pocket watch.   The watch was engraved with a personal inscription bearing the words, “I am yours for all time, Love Kellie”.

[3]      After some haggling, Mr W   agreed to pay the girl $275 in cash. Despite her youth, he did not ask her for any identification, nor did he ask her for any explanation as to how she had come to be in possession of such a watch.  The watch had been stolen as the result of a burglary.  Further, as was obvious from the inscription, it was a watch with significant sentimental value for the owner.  It was in fact a present that a bride had given her husband on the day of their wedding.

[4]      The 16 year old girl returned the next day to Mr W  ’s shop, and Mr W   gave her cash for the watch.   Again he made no inquiries as to her identity or the origins of the watch.  Nor did he enter the transaction in his dealers’ record book, as he was required to do under the Secondhand Dealers and Pawnbrokers Act 2004.

[5]      The following month, when asked by police, he falsely denied ever having seen any such watch, saying that given the description he would have remembered if he had seen it.

[6]      Subsequently, a week or so later, Mr W   admitted buying the watch and on-selling it for scrap for $1422.  He gave police the working parts of the watch that he had been able to retrieve and also produced a letter of apology.  He offered police a cheque for the money that he had made from the sale.

[7]      Mr W   was charged with three offences: one of receiving and two offences under the Secondhand Dealers and Pawnbrokers Act of failing to report and hold stolen goods and failing to record the information in the dealers’ record.

[8]       Mr W   defended the charges.

[9]      Following the defended hearing, the District Court Judge however found all three charges proved.  At sentencing, which took place immediately after the Judge had  made  his  findings  of  fact,  Mr  W    applied  for  a  discharge  without

conviction.  That application was declined, the Judge granting instead a conviction and discharge.

[10]     Unfortunately the sentencing notes are very brief.  They read as follows:

[1]       …  I find  the  charges  proved  against  you  and  I  have  given  my reasons for those convictions, and I say conviction advisedly but rather for having  found  the  charges  proved.    The  question  is  whether  I  should discharge you without conviction under s 106 as far as the receiving charge is concerned.  I am not prepared to do that I am afraid to say but what I am going  to  do  as  far  as  each  charge  is  concerned  is  simply  convict  and discharge you which may unfortunately bring to an end your career as a second-hand dealer but I think in all the circumstances you acted foolishly. You may have been under pressure of one sort or another but that still does not justify what you did.

[2]       On each charge you are convicted and discharged.

Grounds of appeal

[11]     It is well established on a Solicitor-General’s appeal that a sentence should not be increased unless on a review of the facts and circumstances of the case it is clear that the sentence imposed was manifestly inadequate, or unless the Crown is able to point to some error in principle upon which the sentencing Judge has acted. It has also been said the Court should be cautious in deciding that a sentence should be increased.

[12]     The leading authority on appeals of this sort is R v Donaldson (1997) 14

CRNZ 537.  In submissions, Mr Stanaway for the police contended that Donaldson should be read in light of the Supreme Court decision in Austin Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141. It is not necessary for me to reach a concluded view on that issue as the outcome of this appeal does not turn on it. However suffice it to say I prefer the view expressed in the two High Court decisions of Palmer v Police HC Wellington CRI-2008-485-000112, 6 October 2008, Simon France J and D v Police HC Tauranga CRI-2008-470-000022, 9 September 2008, Heath J, that Lodestar does not in fact apply to criminal appeals.

[13]     The police advance two grounds for this appeal.

[14]     The first is that the sentencing Judge erred in principle in failing to take into account relevant purposes and principles of sentencing.  Secondly, that the sentence imposed was manifestly inadequate and should have attracted consideration of a term of imprisonment and at least a substantial fine or community work.   Mr Stanaway submitted that the Judge was wrong, both in terms of his approach and the outcome.

The competing submissions

[15]     In support of the first ground of appeal, Mr Stanaway submitted as follows:

i)The Judge failed to give an adequate statement of reasons for his decision, there being no analysis or discussion of the maximum penalty, the starting point, nor of aggravating and mitigating factors as required by the Taueki model.  The Judge failed to note, for example, that the offending was for commercial gain, and failed to mention the effect of the offending on the victim.

ii)       The Judge failed to take into account the provisions of ss 7 and

8 of the Sentencing Act 2002. Further contrary to s 12, he failed to consider the issue of reparation.  This despite the fact that the respondent, Mr W  , had made an offer of amends.

iii)The Judge failed to take into account Mr W  ’s previous criminal history which included convictions for dishonesty in the 1980s, as well as convictions for other matters ( including driving offences and wilful damage in the 1990s).

iv)The Judge gave undue or excessive weight to the fact that Mr W   was likely to lose his dealer’s licence as a consequence of the conviction, the approach taken being contrary, it was contended, to the Court of Appeal decision in

R v Organ CA351/95, 29 July 1996.  Mr Stanaway submitted that Organ was authority for the proposition that the fact of a loss of licence on conviction should not be influential.

[16]     As  regards  the  second  ground  of  the  appeal,  ie  that  the  sentence  was manifestly inadequate, Mr Stanaway referred me to a number of decisions on receiving: R v Ahomiro CA124/01, 22 May 2001; R v Collier CA170/03, 21 August

2003; Orr v Police HC Wellington AP49/00, 14 March 2000, Hammond J; Miny v Police HC Wellington CRI-2003-485-000097, 10 December 2003, Ellen France J; R v Aldersley CA158/05, 17 October 2005; R v Ranchhod [2009] NZCA 340; R v Fox CA83/05, 28 June 2005.

[17]   He submitted that although there is no tariff for receiving, these cases demonstrate that a custodial sentence can be justified and that at least a substantial fine or community work would be imposed on a single charge of receiving, as occurred in this case.

[18]     For his part, Mr Dyhrberg, counsel for Mr W  , emphasised the right of a sentencing Judge to show mercy in special circumstances of a particular case.  In his submission, this principle, which is well established, has survived the Sentencing Act.

[19]     The special circumstances said to exist in this case were as follows:

i)The loss of a career on conviction.  Mr W   has held a secondhand dealers licence for some 20 years.  Mr Dyhrberg pointed   out   that   Organ   was   decided   under   a   different legislative regime for second hand dealers. Whereas licence cancellation was not automatic on conviction under the 1963

Act, it is automatic under the new 2004 legislation.

ii)       The fact that Mr W   is supporting a dependent child

(albeit he is aged 20) and associated financial stress.

iii)The fact that Mr W   has made reparation.  Although no reparation was ordered by the District Court Judge, Mr W   voluntarily made the payment immediately after the sentencing, a payment which as I have mentioned he had offered very early on in the piece.

iv)      The fact that Mr W   had, despite his convictions in the

1980s, effectively turned his life around.   Mr Dyhrberg told me he did raise the previous convictions in submissions at sentencing, pointing out to the Judge that the dishonesty offences were committed at a time when Mr W   was only 22 years of age.

[20]     Mr Dyhrberg submitted that the authorities on receiving cited by the Crown are distinguishable in that the offenders in those cases had more convictions than Mr W  , none of them stood to lose their career as he did, and none of them it seems had made reparation.

[21]     For  all  these  reasons,  Mr  Dyhrberg  concluded  that  notwithstanding  the absence of a structured reasoning process the decision of the District Court Judge was ultimately a sound one.

Discussion

[22]     I have carefully considered all the submissions that have been made.

[23]      As  Mr  Stanaway properly acknowledged,  an  experienced  District  Court Judge in a busy Court cannot reasonably be expected to go through every principle and purpose of sentencing.  However s 31 of the Sentencing Act did, in my view, require the District Court Judge to do more than he did in this case, as did s 109:

109     Guidance on conviction and discharge

The court must not convict and discharge an offender unless it is satisfied that a conviction is sufficient penalty in itself.

[24]     The Judge had to be satisfied that conviction was a sufficient penalty, and it was  incumbent  on  him  to  articulate  the  reasons  why he considered  that  it  was sufficient.  Like McKenzie J in Police v Liu HC Masterton CRI-2004-435-000006,

11 May 2004, I recognise the right of the sentencing Judge to extend mercy, even where a deterrent sentence would be called for, but if a Judge does so then the factors should be clearly spelt out.  This has been recently reinforced by the Court of Appeal’s comments in R v Fanguna [2009] NZCA 316 at [21] (“vital that sentencing be approached in the systematic way mandated by the Court in R v Taueki” [2005] 3

NZLR 372).

[25]     I am satisfied the Judge did err in failing to provide an adequate statement of the reasons for his decision, and in failing to have regard to a number of significant relevant factors.

[26]   I am also satisfied, having reviewed the authorities on receiving, that notwithstanding the mitigating factors identified by Mr Dyhrberg, the sentence was manifestly inadequate.   In my view, conviction was demonstrably not a sufficient penalty.   Mr W   took possession of goods, taking the risk that they were stolen and doing so for commercial gain, notwithstanding that he had two opportunities to make inquiries.  It must have been obvious that the watch with that inscription would be of considerable sentimental value. Yet he sold it for scrap.

[27]     There is also no doubt that the effect of the offending on the victim was significant.  The victim impact report speaks of her distress and also, significantly, states that at the time the watch was stolen her initial hope was that it would end up at a licensed secondhand dealer’s shop because she considered that would be her best opportunity of recovering it.  Her confidence in licensed dealers is consistent with the express purpose of the Secondhand Dealers and Pawnbrokers Act:

(a)to make it harder for criminals to dispose of stolen goods through secondhand dealers and pawnbrokers; and

(b)to make it easier for the police to recover stolen goods and solve property crimes; ...

[28]     I accept Mr Stanaway’s submission that in the circumstances an appropriate starting point would have been a short term of imprisonment.  I also accept that there were some important mitigating factors in this case, and that the appropriate sentence would in all likelihood have been a substantial fine and/or a sentence of community work.

[29]     What then should be done in this appeal?

[30]     It  is  well  established  that  on  a  Solicitor-General’s  appeal  the  Court  is required to increase the sentence only to the minimum appropriate level.   Mr Dyhrberg  submitted  that  if  I was  minded  to  allow  the  appeal  then  his  client’s preference would be for a fine rather than community work.  However, he asked that if I was minded to impose the fine to bear in mind Mr W   has limited means, that he has made a payment of reparation, and also has exposure to legal costs arising out of this appeal.   Apparently he may be  required to make some contribution towards legal aid.

[31]     Mr  Stanaway  submitted  that  having  regard  to  the  fact  that  this  was  a Solicitor-General’s appeal and having regard to the fact that reparation had been made, the appropriate penalty was a fine below the thousand dollar mark.

[32]     I consider that the concession is well made, and that a fine of $800 would be appropriate.

[33]     The outcome of this appeal hearing is therefore that the appeal is allowed. the sentence of the District Court is quashed and it is substituted with a fine of $800.

Solicitors:

Crown Solicitor’s Office, Christchurch

P Dyhrberg, Christchurch