Robinson v Police

[2012] NZHC 2967

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-40
CRI-2012-425-41

CRI-2012-425-42 [2012] NZHC 2967

BETWEEN  DAMIAN TAMARANGI ROBINSON

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:         5 November 2012

Counsel:         S N Claver for Appellant

M-J Thomas for Respondent

Judgment:      8 November 2012

JUDGMENT OF MILLER J

[1]    The appellant was sentenced to two years, nine months imprisonment on an array of charges, mostly involving offences of dishonesty.  On appeal he complains that the sentencing Judge approached the exercise in the wrong way, and that the effective sentence should have been closer to two years.

[2]    The charges, offence dates and plea dates were as follows:

ROBINSON v NEW ZEALAND POLICE HC INV CRI-2012-425-40 [8 November 2012]

Charge  Offence Date  Guilty Plea Date

Attempted Burglary             5 September 2011  10/8/12

Receiving (x2)  18 and 25 January 2012  10/8/12

Breach     of     Community

Work

3   October   2011   and   7

November 2011

10/8/12

Unlawfully in an enclosed yard

5 September 2011  10/8/12

[3]    In  addition  the  appellant  was  re-sentenced  for  driving  with  excess  breath alcohol, receiving (on 28 May 2011), and a breach of community work.

[4]    I will take the relevant offences in chronological order.  The receiving charge of 28 May 2011 arose when the appellant was found in possession of a laptop computer which had only just been stolen in a burglary.   His claim that he had lawfully was provisionally accepted at the time, and he succeeded in selling the computer to a person whom he later refused to name.

[5]    On 5 September 2011 the appellant attempted to jemmy the window of a Leith Street house.   He was unsuccessful.   He then went to another property, at Clifton Street, where he was found by the police.  He had a large screwdriver and gloves with him.

[6]    The final two charges of receiving arose on separate dates in January 2012. The appellant received a playstation with associated games and a digital camera, in separate transactions, and sold these items.  He has refused to co-operate with the police with respect to their recovery.

[7]    On 15 April 2011 the appellant had been sentenced to 200 hours community work for driving with excess breath alcohol, a third or subsequent offence.  A further

100 hours was added on 12 August for the 28 May charge of receiving and another of breach of community work.  He completed all but 28 hours.  But on 3 October and

7 November 2011 he failed without reasonable excuse to report to the probation officer, and did nothing to explain his absence.

[8]    A sentencing indication was given on 2 May 2012, the Judge arriving at an indicative sentence of 29 months imprisonment.  That indication was not accepted but the appellant eventually conceded defeat and pleaded guilty.  He was sentenced by the same Judge on 28 August.

[9]    The  Judge  outlined  the  facts  and  noted  the  appellant’s  abysmal  previous record,  which  involves  a  large  number  of  convictions  for  dishonesty  offending dating back to 1994.  The Judge took a starting point of one year on the attempted burglary with  an  uplift  of  another  year  for  previous  convictions.    He  made  an allowance of 10 per cent for the guilty plea on that charge and further reduced the proposed sentence to 18 months for totality.  He imposed a concurrent sentence of one month’s imprisonment for being in an enclosed yard.

[10]  For receiving the playstation the Judge took a starting point of one year’s imprisonment with an uplift of six months for previous history, less a 10 per cent deduction for the guilty plea.  The end sentence of 15 months he reduced further to nine months for totality, to be served cumulatively.   For receiving the camera a cumulative sentence of one month’s imprisonment was appropriate.  It will be seen that at this stage of the sentencing analysis the Judge had reached a sentence of 27 months imprisonment.

[11]  On the matters for which the appellant was to be re-sentenced the Judge added a cumulative two months for the excess breath alcohol and one month (concurrently) for each for the breach of community work and receiving.   The end result was a sentence of 29 months imprisonment.

[12]  Counsel complains that the Judge was wrong to apply the discount for the guilty plea and totality throughout the sentencing process;  rather, he ought to have done so at the end.  The 10 per cent credit for the guilty plea was not applied evenly across the board.  Further, the starting point of one year for the receiving charge was excessive and the uplift of six months was unwarranted.

[13]  The Judge’s approach was unorthodox, but of course the appellate question is whether the sentence was manifestly excessive.  If it was available to the Judge, it does not matter in the end how it was arrived at.

[14]  I did not understand Mr Claver to pursue the complaint about the guilty plea discount in the end.  The appellant was not entitled to a discount on the matters for which he was being re-sentenced;  a discount was already factored in to the original sentence.  And counsel wisely did not complain about the 10 per cent deduction for the new matters.  There is no substance, then, in the complaint about methodology, since it made no difference.

[15]  Counsel submitted that the starting point and uplift for the charge of receiving a playstation were excessive.  I observe that there were in fact two separate charges sentenced concurrently.   The property in this case has not been recovered, a consequence of the appellant’s non-cooperation with the authorities.   There is no tariff case and the maximum sentence is seven years.  It is true, as counsel submits, that these were only the appellant’s third and fourth receiving convictions.  But those are not his only relevant convictions.   At 35 he has more than 50 dishonesty convictions, many for burglary, theft or fraud.   In the circumstances a deterrent sentence  was  necessary.     I  accept  that,  taken  alone,  the  uplift  for  previous convictions  may  have  been  inappropriate.    It  risked  duplicating  the  uplift  for previous burglaries.  However, Mr Claver acknowledged that a starting point of two years was available for burglary, independently of any uplift.  I agree.  The Judge was right to impose a cumulative sentence for receiving, and the effective uplift was only nine months.   In my opinion there can be no criticism of an effective nine months for the two receiving charges.

[16]  With respect to totality, the allowance that the Judge made was an aggregate eight months.  I am unable to see that any criticism can be made of him for this.  He was of course correct to impose cumulative sentences since the offences occurred on different occasions.  Mr Claver was unable to point to anything unreasonable about the adjustment for totality.

[17]  The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Invercargill for Respondent