Ross v Police

[2014] NZHC 75

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-371 [2014] NZHC 75

BETWEEN  LEGEND TEKOERU ROSS Appellant

ANDPOLICE Respondent

Hearing:                   5 February 2014

Appearances:           M S Gibson for Appellant

A Boberg for Respondent

Judgment:                5 February 2014

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

5 February 2014 at 5.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

M S Gibson, Auckland

Meredith Connell, Crown Solicitors, Auckland

ROSS v POLICE [2014] NZHC 75 [5 February 2014]

[1]      The appellant, Mr Ross, appeals against a sentence imposed by Judge Paul in the  District  Court  at Auckland  upon  his  conviction  on  a  charge  of  unlawfully interfering with a motor vehicle.   The charge was one of 14 that were before the Judge for sentencing on 19 November 2013, after the appellant pleaded guilty following a sentencing indication given by the Judge on 13 November.

[2]      The matter arises in an unusual context which needs to be explained.  At the sentence indication hearing on 13 November, the Judge had to deal with 13 charges that had been laid indictably and in respect of which Mr Ross had previously been convicted, but had successfully appealed.

[3]      There were four charges alleging burglary, two charges of unlawful taking from a motor vehicle, three charges alleging theft from a motor vehicle and four charges of unlawfully interfering with motor vehicles.  The offence dates were 23 and 24 August 2011.  The present appeal does not relate to the sentences imposed on any of those charges.  Rather, it is in relation to a separate charge, laid summarily, and alleging interference with a motor vehicle on 8 April 2013.

[4]      The Judge referred to this separate charge in his sentencing indication where he said:1

[15]      I should add that this sentencing indication is also sought to cover off a further summarily laid offence of interfering with a motor vehicle from

8 April this year.   I have reviewed the facts of that offending and in the circumstances, this sentencing indication will cover that summary offending

and there will be no increase to the starting point to take account of that in my view.

[5]      It  is  relevant  to  note  that  the  Judge  referred  briefly  in  his  sentencing indication to the salient features of the offending subject to the other charges of interfering with motor vehicles:

[6]       Finally, the unlawfully interfering with motor vehicle charges are four in total, a Toyota Vitz, a window was broken, a Honda Civic’s quarter light window was smashed, a Toyota Caldena’s passenger window was smashed and a Nissan Pulsar’s quarter light window was smashed.

He did not say anything about the facts behind the further charge which is the subject of the present appeal, other than the brief comments already set out above.

[6]      It is relevant also to record that the Judge was dealing with an offender who had spent almost one year in custody during his remand for the original offending and following his conviction, which had been quashed as a result of the successful appeal.  While the Judge noted that Mr Ross could not receive a maximum discount for his guilty plea bearing in mind that the substantial bulk of the offending arose from 2011, and guilty pleas, if they were entered, would plainly not have been at the earliest opportunity, the Judge was clearly mindful of the time that Mr Ross had spent in custody.  It is apparent from the sentencing indication that the Judge allowed a deduction of seven months to take account of that consideration.

[7]      He also noted, in respect of the charge which is the subject of the present appeal that Mr Ross had been on electronically monitored bail for a period of about six months.   On this account, he specifically allowed a discount of a further two months.  Having reviewed other matters relevant to the overall sentencing he arrived at a sentence indication of an effective term of imprisonment of two years and one month to apply to all of the offending.

[8]      Importantly, for present purposes the Judge then said:

[26]      The reality of that for you Mr Ross is if you were to accept that, two year one month sentence of imprisonment, you would essentially be immediately eligible for a consideration of parole and release I would have thought, given the year you have spent in custody.  I am not prepared to go beyond that point so home detention does not arise from my consideration.

[9]      The   appellant   decided   to   accept   the   sentencing   indication   and   on

19 November he was formally sentenced by the Judge.  The Judge’s sentencing notes record the sentences imposed as follows:2

[4]       I do that on the following charges:

(a)      On the four burglaries, you will be sentenced to two years one month imprisonment.

(b)       On each of the unlawful taking of a motor vehicle, you are sentenced to one year eight months’ imprisonment.

(c)       On each of the theft ex motorcars, you are sentenced to two months’ imprisonment.

(d)       On the unlawfully interfering with motor vehicles, one year six months’ imprisonment.

The Judge specified that the sentences were to be concurrent.

[10]     The Judge also noted that he had previously delivered an extensive sentence indication canvassing the relevant facts of Mr Ross’ offending, and he recorded that the sentencing indication notes were to form part of the sentencing decision.

The appeal

[11]     The appeal has two main strands, the first of which has its origin in the fact that what the Judge said in his sentencing indication about the likely consequences of the  indicated  sentence  in  terms  of  Mr  Ross  being  “immediately eligible”  for  a consideration of parole and release, was incorrect.  While the Judge’s observations would have been accurate if all the offences were subject to the same treatment in terms of time spent in pre-sentence detention under the relevant provisions of the Parole Act 2002, that was not the case.

[12]     Section 90 of the Act relevantly provides:

90       Period spent in pre-sentence detention deemed to be time served

(1)       For the purpose of calculating the key dates and non-parole period of a sentence of imprisonment (including a notional single sentence) and an offender's statutory release date and parole eligibility date, an offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.

(2)      When an offender is subject to 2 or more concurrent sentences,—

(a)       the  amount  of  pre-sentence  detention  applicable  to  each sentence must be determined; and

(b)       the amount of pre-sentence detention that is deducted from each sentence must be the amount determined in relation to that sentence.

(3)       When an offender is subject to 2 or more cumulative sentences that make  a  notional single sentence,  any pre-sentence detention  that relates to the cumulative sentences may be deducted only once from the single notional sentence.

[13]     The effect of s 90(2) is that the amount of pre-sentence detention applicable to each individual sentence must be determined and deducted.   In Taylor v Superintendent of Auckland Prison3  the Court, in applying s 85(1) of the Criminal Justice Act 1985, held that where an offender is already subject to a custodial remand and is subsequently charged with a second unrelated offence, pre-sentence detention runs from the time when the person is charged with the second offence.

[14]     Insofar as s 90 of the Parole Act is concerned, its effect was discussed by the Court of Appeal in Te Aho v R.4 The Court noted that s 90(1) provides that the period spent  in  pre-sentence  detention  is  deemed  to  be  time  served,  but  that  under s 90(2)(b), when an offender is subject to a concurrent sentence, the amount of pre- sentence detention applicable to each sentence must be determined and the amount of pre-sentence detention to be deducted from each sentence must be determined in relation to that sentence.5

[15]     The Court observed:

[21]      There is therefore a regime in the Act which covers the calculation of sentence and the deduction of the time spent in pre-sentence detention. It provides explicitly that deductions for the period of pre-sentence detention are limited to the sentence for an offence to which that detention related. The calculation is the responsibility of the person in charge of the prison and not the court. There is no suggestion that the calculation made in Mr Te Aho’s case misapplies the provisions of subpart 3 of the Act.

[16]     The  Court  of  Appeal  noted  that  the  effect  of  the  decision  in  Taylor  v

Superintendent of Auckland Prison had been explicitly provided for in s 90(2)(b).

[17]     In the present case, Mr Ross was not charged in respect of the last of the unlawful interfering charges until April 2013.  The consequence of that is that under s 90 of the Parole Act he would be obliged to serve nine months of the sentence

imposed on 19 November 2013 before being eligible for parole.  He would not be

3      Taylor v Superintendent of Auckland Prison [2003] 3 NZLR 752 (CA).

4      Te Aho v R [2013] NZCA 47

entitled to any credit in respect of time served in custody prior to that sentence being imposed.

[18]     Consequently,  the  observations  made  by  the  Judge  in  his  sentencing indication that he would be immediately eligible for a consideration of parole were not correct.

[19]     Mr Gibson urged on me that I should recognise the position by remitting the matter to the District Court so that the Judge could modify the sentence so as to ensure that what were his evident intentions were implemented.   That course was opposed by the Crown on the basis that, insofar as the sentencing exercise was concerned, the Judge had made no relevant error.   The inaccurate observations in respect of the implications of the sentence under the Parole Act did not affect or relate to the sentence imposed.

[20]     I  agree  with  the  Crown’s  submission  on  that  point.    Section  82  of  the Sentencing Act provides that in determining the length of any sentence of imprisonment, the Court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in s 91 of the Parole Act.

[21]     In Te Aho v R6 the Court of Appeal noted that s 81(2) of the Criminal Justice Act 1985 had also required the sentencing court not to take into account any time spent on remand in sentencing, but instead, to specify that period on the warrant of commitment.  Under that regime it was for the Judge to state the time on remand that could be considered as time served for the purpose of determining an offender’s parole or release date.  However, following amendment of the Criminal Justice Act in 1993, the responsibility for calculating time spent on remand was removed from the sentencing court  to  the superintendent  of the penal  institution  in which  the prisoner was remanded.   The Court of Appeal observed that the responsibility for considering the time spent on remand in calculating parole and release dates has

been removed entirely from sentencing Judges and placed with the prisons.7

6      Above n 4.

[22]     The Court did accept that on limited occasions the Court could consider the effect of pre-sentence detention in assessing the appropriate sentencing outcomes.  It gave as examples cases where time spent on remand had a disproportionately severe effect on the offender for health reasons.  As another example, the Court referred to cases where there has been offending on parole and the offender has been recalled, and it will be necessary to avoid “double counting” of time spent on remand.

[23]     The present is not either kind of case and  I do not consider that it can properly be treated as an exception to the general rule that applies under s 90 of the Parole Act and s 82 of the Sentencing Act.

[24]     The facts of the present case, however, do give rise to some misgivings having regard to the fact that the Judge’s suggestion that there would be immediate eligibility for the consideration of parole was made in a sentencing indication and conceivably could have been influential in the decision made to plead guilty.  While it is perhaps understandable that in a case such as the present the judge giving a sentencing indication might want to explain the parole implications of the indicated sentence, it is clear that those implications are not relevant to the sentencing exercise itself and it may well be better to avoid such references altogether.  But if they are to be made, they clearly need to be accurate.

[25]     In  these  circumstances  I consider  that  it  is  necessary to  carefully assess whether or not the sentence imposed in respect of the April 2013 unlawful interference  charge  was  appropriate.     The  second  argument  advanced  by  the appellant is that the sentence was clearly excessive.

[26]     As has been seen, this charge was treated as effectively on all fours with the four other charges alleging unlawful interference, and as with those charges, a sentence of 18 months was imposed.  However, in each of the other cases the offence had resulted in damage to the motor vehicles which had been interfered with.  I have already set out what the Judge said about those other offences at [6] of his sentencing indication.

[27]     It seems clear that the Judge did not regard the offence which is the subject of this  appeal  as  contributing  in  any significant  way to  the  overall  gravity of  the offending, having regard to what he said at [15] of the sentencing indication, that it should not have the result of increasing the starting point.  However, the sentencing task was to ensure that, given current concurrent sentences were to be imposed, the lesser offences should receive the penalty appropriate to those offences:  s 85(4)(b) of the Sentencing Act so provides.

[28]     The summary of facts which was  before the Judge in relation to this offence was such as would place the offending at the lower end of the scale albeit that it was, of course, an offence committed against the background of the previous offending. In  that  respect,  the  summary  recorded  simply  that  Mr  Ross  was  observed approaching a vehicle parked on a road and attempting to gain access to it “by trying the driver’s door handle”.   It is noted that the vehicle was locked, so Mr Ross’ attempt to gain entry could not be achieved.  The events were witnessed by an off- duty  police  officer  who  began  to  follow  the  appellant  and  called  the  police. Evidently the appellant attempted to avoid arrest, but the police did not pursue a charge of resisting the police that had originally been laid.

[29]     Ms Boberg notes that the offending was committed while the appellant was on bail, in breach of a curfew and while the other charges (on which he had been acquitted) were awaiting re-trial.   Nevertheless, having regard to the overall offending,  this  was  not  a  significant  offence.     There  was  no  damage  that characterised the other charges alleging interference and on the face of it, notwithstanding the circumstances referred to by Ms Boberg, the sentence of 18 months’ imprisonment was excessive and inconsistent with the sentence on the other charges.

[30]     In my view, a more appropriate approach would have been to adopt a starting point of nine months,  with an uplift of three  months to reflect  the aggravating circumstances relied on by Ms Boberg.

Result

[31]     In all the circumstances, I consider that the appropriate course to follow is to allow the appeal and quash the sentence of 18 months imposed on the charge subject to  appeal.     In  lieu  of  that  sentence  I  substitute  a  sentence  of  12  months’ imprisonment.