S v Police HC Christchurch Cri-2009-409-211

[2010] NZHC 124

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI-2009-409-000211

S

Appellant

v

POLICE

Respondent

Hearing:         18 February 2010

Appearances:  A Bailey for Appellant

K Basire for Respondent

Judgment:      18 February 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      Following a plea of guilty, the appellant was convicted in the District Court

on one charge of wilful damage.   She was sentenced to 85 hours’ community work and ordered to pay reparation in the amount of $1435.

[2]      This appeal against sentence relates only to the community work component.

[3]      The facts of the offending are as follows. On 22 May 2009 the appellant was found inside the back section of another person’s residential property. Upon being discovered the appellant threw herself at the front door, causing the glass to break. She then threw a chair at the door, causing more glass to smash, and gained access to

the lounge.   Once inside the house she kicked holes in the wall and threw various

S V POLICE HC CHCH CRI-2009-409-000211  18 February 2010

display items around the room, shattering the screen of the television.  Meantime, the occupier and her son had fled from the house, no doubt very fearful.

[4]      They were, in fact, so distressed by the incident that they subsequently had to shift house.  They had never met the appellant before, but knew she lived nearby.

[5]      In explanation for her conduct the appellant said she had been drinking and had no recollection of what had happened.

[6]      Originally  she  was  charged  with  burglary,  and  pleaded  not  guilty  to  that charge.           However,  the  charge  was  later  amended  to  the  lesser  offence  of  wilful damage, to which she pleaded guilty and was then sentenced.

[7]      The  appellant  has  previous  convictions,  three  for  shoplifting  and  one  for breach of police bail.

[8]      In sentencing the appellant, the District Court Judge said he took into account that  this  was  her  first  conviction  for  an  intentional  damage  offence.   However,  he said  he  regarded  the  offending  as  serious,  involving  as  it  did  forced  entry  into another person’s home and significant damage.

[9]      On  appeal,  counsel  Mr  Bailey  submitted  that  a  sentence  of  85  hours’ community work was manifestly excessive having regard to two factors: first, that the Judge did not give the appropriate sentencing discount of a third on account of the guilty plea.

[10]     Secondly, Mr Bailey submitted that the Judge failed to take into account or have sufficient regard to the fact that the appellant had been subject to restrictive bail conditions for some five months.  It appears the appellant was on bail subject to a

12-hour nightly curfew from 7 p.m. to 7 a.m. with reasonably regular police checks.

In  Mr  Bailey’s  submission,  that  was  akin  to  a  sentence  of  community  detention, although  not,  of  course,  with  electronic  monitoring.   Mr  Bailey submitted  that  the sentencing Judge should have taken this into account in the same way as a remand in

custody  is  commonly  taken  into  account  when  terms  of  imprisonment  are  being imposed.

[11]     I accept that the appellant was entitled to a full third discount for the guilty plea in accordance with the principles of R v Hessell CA170/09, 2 October 2009, and that  ideally  the  Judge  should  have  articulated  the  giving  of  the  discount. I  also accept that the Judge would have been entitled to take the restrictive bail conditions into account.

[12]     Mr  Bailey  represented  the  appellant  at  sentencing  and  made  the  same submission  to  the  Judge  then  that  he  has  made  today. Unfortunately,  it  is  not mentioned  by  the  Judge  in  his  notes  and  therefore  there  is  no  way  of  knowing whether or not he did take the curfew condition into account.

[13]     I have considered this matter very carefully.   The points made by Mr Bailey have been well made.  However, ultimately, the issue of whether or not a sentence is manifestly  excessive  is  to  be  examined  in  terms  of  the  sentence  actually  passed, rather than the process by which it is reached.

[14]     I accept the Crown submission that the offending in this case was serious and must be considered at the upper end of wilful damage, an offence which of course carries a maximum penalty of three months’ imprisonment.

[15]     Therefore, in my view, even taking into account the time spent on restrictive bail conditions the end sentence of 85 hours’ community work cannot be said to be inappropriate or out of range.

[16]     The appeal is therefore dismissed and the sentence confirmed.

Solicitors:
A Bailey, Christchurch
Crown Solicitor’s Office, Christchurch