R v G HC Christchurch Cri-2007-009-6663

[2009] NZHC 438

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-009-006663

REGINA

v

G

Appearances: T Mackenzie for Crown

D Ruth for Prisoner

Judgment:      9 April 2009

SENTENCE OF HON. JUSTICE FRENCH

[1]      G  , on 26 March 2009 you appeared along with Messrs Barron and James for sentencing, having all pleaded guilty to an offence of demanding with intent to steal under s239(2) of the Crimes Act.  Your sentencing was adjourned until today because of delays in obtaining a pre-sentence report.  That report is now to hand.

[2]      The facts of the offending, and my assessment of the respective culpability, are set out in some detail in my sentencing notes of 26 March, and for ease of referencing, my sentencing notes will be attached to these notes today.

[3]      In your case, I found you more culpable than Peter Boyd but less culpable than Mr Barron and Mr James.   I identified the starting point in your case as 12

months’ imprisonment.

R V G HC CHCH CRI-2007-009-006663  9 April 2009

[4]      Now that I have had the benefit of the pre-sentence report, it is appropriate to turn to consider the factors that relate to you personally, as distinct from the factors that relate to the offending, and then to see whether those personal factors warrant any adjustment to the starting point upwards or downwards.

[5]      The  pre-sentence  report  tells  me  you  are  31  years  of  age,  currently unemployed.   You have, by my count, some 30 previous convictions.   These are described in the pre-sentence report as being something of a mixed bag, including one firearms matter, disorderly behaviour, violence, seven breaches of community- based sentences.  In relation to the previous dishonesty offending, that includes one conviction for unlawfully getting into/upon a motor vehicle/motorcycle, one conviction for extortion, and two convictions for burglary.

[6]      You are recorded as having told the report writer that you regret becoming involved with the stolen car, and that the reason you became involved was to fund your P habit.

[7]      As noted by counsel for the Crown, Mr Mackenzie, the remorse you have expressed is in stark contrast to two of your other co-accused, and is to your credit.

[8]      Despite all that has happened, including, of course, the fact that your sister was dragged into this matter, your parents are still prepared to support you.  You are very lucky to have that support.  You now are living with them, and they are willing to provide their address for the purposes of home detention.  Their address has been assessed as suitable.  I note, too, from the report that you are prepared to enter into treatment and rehabilitation programmes.

[9]      Your previous record is unfortunately an aggravating factor relating to you personally, and would warrant an uplift.   On the mitigating side there are your expressions of remorse and your guilty plea.   The latter, however, only came at a very late stage out of a sense of misguided loyalty to your co-accused.  The discount for that must, of necessity, therefore be limited, and only in the vicinity of approximately 10 per cent.

[10]     However, any term of imprisonment would still be under two years, and that means you are eligible to be considered for home detention, the sentence recommended by the report writer and advocated for by your counsel, Mr Ruth.

[11]     I must say I have concerns about the previous breaches of community-based sentences,  something  which  would  normally  go  against  a  sentence  of  home detention.

[12]     However,  after  careful  consideration,  and  having  regard  to  the  Court  of Appeal decisions of R v Hill [2008] NZCA 41 and R v Iosefa [2008] NZCA 453, I have decided that the principles of deterrence can be met in your case by a sentence of home detention.

[13]     I am mindful that this is a more lenient sentence than that imposed on your co-offenders,  Messrs  James  and  Barron,  but  for  the  reasons  I  have  already articulated, I consider your role in the offending was less culpable.   Conversely, home detention is a harsher penalty than the penalty imposed by Fogarty J on Mr Boyd.  However, as I have also already indicated, I consider his culpability was less than yours.  Also, unlike you, although aged in his 50s, he was a first offender, and his plea of guilty came earlier.   Therefore, in my view, the disparities are well justified.  There are important distinguishing features.

[14]     Accordingly I sentence you to eight months’ home detention.  There will be special conditions imposed, as recommended by the probation officer in the report, namely:

i)        To reside at 25 Canterbury Street, Lyttelton.

ii)To  go  directly  from  the  Court  to  25  Canterbury  Street, Lyttelton after the sentence is imposed and remain there until the electronic monitoring is completed.

iii)To undertake an assessment for the departmental rehabilitative programme, and if found suitable, to complete the programme

to the satisfaction of the probation officer and the programme facilitator.

iv)To undertake a comprehensive alcohol and drug assessment and treatment as indicated, including residential, to the satisfaction of the probation officer.

[15]     No post-detention special conditions are recommended.  Therefore I am only going to impose the standard post-detention conditions which, under the statute, continue for a period of 12 months after the end of the home detention.

[16]     There will be no order as to reparation.

Solicitors:

Crown Solicitor, Christchurch

D Ruth, Christchurch