Short v Police
[2022] NZHC 2158
•29 August 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-103
CRI-2022-409-104 [2022] NZHC 2158
BETWEEN BENJAMIN JAMES SHORT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 August 2022 Appearances:
R A Peters for Appellant
G E R Alloway for Respondent
Judgment:
29 August 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 29 August 2022 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
SHORT v NEW ZEALAND POLICE [2022] NZHC 2158 [29 August 2022]
Introduction
[1] Benjamin Short was sentenced to eight months’ imprisonment on a charge of receiving property valued over $1,0001 by Judge Garland.2 That sentence was cumulative on an earlier sentence3 of 12 months imprisonment imposed by Judge Maze on charges of wounding with reckless disregard,4 six charges of dishonestly taking bicycles,5 two charges of receiving6 and charges of breaching bail, community work7 and supervision.8 At that earlier sentencing Mr Short was granted leave to apply for home detention9 and his outstanding community work was cancelled. Judge Garland did not grant Mr Short leave to apply for home detention and refused to cancel the same community work sentence.
[2] Mr Short filed notices of appeal against Judge Garland’s decision. He says the second sentencing was wrong in part and manifestly excessive. This is because the Judge had insufficient regard to the first sentencing decision when sentencing on the additional charge.
Facts
[3] On 18 September 2020 Mr Short was sentenced to nine months’ supervision and 150 hours community work on charges of burglary and altering a document. Over the subsequent months he failed to attend community work and report to his probation officer.
[4] On 8 November 2021, a mountain bike worth $6,000 was stolen from an address in Merivale. On 16 November, Mr Short was stopped by police on the bike. He said he had purchased the bike on Facebook Marketplace for the equivalent of
$1,850 and it never crossed his mind it may have been stolen.
1 Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
2 Police v Short [2022] NZDC 5203.
3 Police v Short [2022] NZDC 305.
4 Crimes Act, s 188(2); maximum penalty seven years’ imprisonment.
5 Crimes Act, s 226(1); maximum penalty seven years’ imprisonment.
6 Crimes Act, ss 246, 247(a) and 247(b); maximum penalty one-seven years’ imprisonment.
7 Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment.
8 Sentencing Act, s 70(a); maximum penalty three months’ imprisonment.
9 Sentencing Act, s 80I.
[5] Between 1 March 2021 and 8 March 2021, Mr Short and two co-offenders unlawfully took six bicycles from around Christchurch. Four of the bikes were taken from the grounds of Christchurch Hospital. They used bolt cutters to remove the bicycle locks. The value of the bikes ranged from $530 to $3,500. Mr Short was later observed by a police detective who had been investigating one of the earlier unlawful takings and subsequent sale. Mr Short had offered to sell a bike to a pawnshop. The detective identified themselves and told Mr Short he was under arrest. Mr Short violently attempted to flee the store in order to escape arrest, fighting with the detective. The detective requested the assistance of pawnshop staff and passers-by. Mr Short continued to violently struggle and bite at the owner of the store who was holding one of his arms. The detective suffered a complete break of the bone in his left ring finger causing a deep laceration, requiring surgery to remedy. He also suffered grazing and associated bruising.
[6]Between 5 January 2021 and 16 January 2021, two mountain bikes valued at
$800 and $7,300 were stolen from addresses in Christchurch. On 11 and 16 January Mr Short pawned the bikes for $80 and $200.
District Court decision
[7] Judge Maze sentenced Mr Short on all of the charges except for the November 2021 offending. She took the wounding with intent as the lead charge, adopting a starting point of 16 months. She added a four-month uplift for the dishonesty offending, accounting for totality. That resulted in an overall starting point of 20 months’ imprisonment. The Judge noted Mr Short offended while subject to sentence but did not impose an uplift due to Mr Short’s limited criminal history. She gave 25 per cent credit for his guilty plea and, noting a doctor’s letter which indicated a mental health diagnosis and major problem with addiction, further credit of 15 per cent. That resulted in an end sentence of 12 months’ imprisonment. She considered an additional term for the unserved portion of Mr Short’s community work but ultimately decided to cancel that sentence. She granted leave for Mr Short to apply for home detention though noted he would need a significant change of attitude for that to become realistic.
[8] Judge Garland, two months after Judge Maze’s sentencing, sentenced Mr Short on the November receiving charge. He indicated Mr Short was extremely fortunate to receive community work on his burglary conviction and declined to cancel that sentence. The Judge does not appear to have been made aware that sentence had already been cancelled. The Judge noted Mr Short had outstanding fines and reparation and had been unemployed for some time. He considered the fact he was a serving prisoner. The Judge rejected a submission this charge would have made little difference to the earlier sentencing had it been included. The Judge referred to Ellis v R where the Court of Appeal commented a 12-18 month starting point was appropriate where an offender had pleaded guilty to receiving goods worth approximately $5,000 with a connection between burglar and receiver.10 The Judge noted Mr Short’s mens rea on the receiving charge was recklessness not actual knowledge.
[9] The Judge noted Mr Short had 10 prior convictions for dishonesty (taking the offending Judge Maze sentenced for as previous convictions). He adopted a starting point of 14 months’ imprisonment reduced to 10 months for totality. He then allowed a further reduction of two months for Mr Short’s guilty plea entered at case review. That resulted in a cumulative end sentence of eight months’ imprisonment.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.11 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
10 Ellis v R [2012] NZCA 513.
11 Criminal Procedure Act 2011, ss 250(2) and 250(3).
12 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[11] Mr Peters, for Mr Short, acknowledged the appeal was filed out of time but submitted counsel in the District Court did not mention rights of appeal. He submitted no prejudice arises and the appeal should be heard out of time.
[12] Mr Peters submitted the task of the Court at the second sentencing date was to consider the sentence that would have been imposed on the first sentencing date had the later charge been before the court and dealt with at that time. He maintained, had the receiving charge been before Judge Maze, the outcome would have been substantially the same. He submitted the starting point was excessive, the allowance for totality inadequate and a cumulative sentence of three months’ imprisonment should have been adopted.
[13] Mr Peters also submitted the Judge erred by suspending the sentence of community work which had already been cancelled, though acknowledged it was possible the Judge was not aware of this. Likewise, he submitted the failure to grant leave for Mr Short to apply for home detention affected the sentence imposed at the first sentencing, which did allow for home detention. That said, Mr Short no longer sought leave to apply for home detention, noting he was almost due for release on the sentence imposed by Judge Maze and any additional sentence imposed on appeal was not likely to be worth applying for home detention on.
Respondent’s submissions
[14] Mr Alloway, for the Crown, did not oppose leave for the appeal to be heard out of time and responsibly conceded there were errors in the second sentencing which warranted the appeal being allowed.
[15] Mr Alloway acknowledged Judge Garland did not have the full circumstances before him at his sentencing. He observed:
(a)when referring to Judge Maze’s sentencing, the Judge only referred to a single charge of wounding;
(b)the Judge refused to cancel the sentence of community work when it had already been cancelled;
(c)the Judge referred to the receiving/dishonest taking charges as previous convictions without discussing Judge Maze’s sentencing; and
(d)the Judge said he had to apply the totality principle “given that [Mr Short has] been sentenced recently on this other charge” (emphasis added), which suggested he was not aware of what charges were addressed in the earlier sentencing.
[16] Mr Alloway conceded, had the further charge of receiving been considered in context, it would have simply resulted in a greater uplift rather than a cumulative sentence. However, he did note it was the most serious of the charges in the dishonesty category. He submitted Judge Garland’s sentencing was correct as to its start and end points. However, it is clear he was not appraised of the full background to the earlier sentence and made decisions which were inconsistent with it.
[17] Mr Alloway acknowledged Judge Maze was approaching the matter on the basis Mr Short would be able to substitute his sentence and it was unlikely the further receiving charge would have altered that assessment. In the circumstances, he suggested the appeal be allowed and orders made imposing an additional (reduced) cumulative sentence, granting leave to apply for home detention and confirming Judge Maze’s order cancelling the community work.
Analysis
[18] I confirm that leave to appeal out of time is granted. There is no prejudice, the delay is explained and the appeal has merit.
[19] As to the background, I agree with Mr Alloway’ observations. It is apparent Judge Garland did not have full information when he sentenced Mr Short and consequentially the sentence was wrong and manifestly excessive. In my view this court should conduct a fresh sentencing exercise on the receiving charge having regard to Judge Maze’s decision.
[20] Where there has been a series of offending resulting in sentencing by two separate Judges, the proper approach is for the second Judge, if sentencing for offences that occurred before those another Judge had already sentenced for, to determine what overall sentence would have been appropriate had the offender been sentenced for all charges at the same time. The Judge must then adjust the sentence for the second set of charges accordingly.13 As the Judge here does not appear to have had Judge Maze’s sentencing notes, nor accurate information as to the charges resolved before her, this assessment was impossible. I am satisfied a cumulative sentence of 10 months’ imprisonment on the additional charge was excessive.
[21] As Mr Peters has submitted, in all likelihood the receiving charge would have been subsidiary to the wounding charge had it been considered alongside the rest of the dishonesty offending by Judge Maze. There would have been discounts for Mr Short’s guilty plea and his circumstances. However, I also agree with Mr Alloway that this charge was the most serious of Mr Short’s dishonesty offences. It would have attracted a discrete uplift.
[22] Other authority will be of limited assistance to such a totality assessment given its application to a particular case but in R v Rolleston an uplift of four months’ imprisonment was considered appropriate for a representative charge of receiving covering the receipt of four stolen laptops.14
[23] Judge Maze added an uplift of four months for all of the other dishonesty offending. I consider that approach was generous to Mr Short and a higher uplift would have been available. However, the Judge was entitled to take a more lenient approach given she noted Mr Short’s relatively insignificant history and mental health/addiction issues. She then discounted the total sentence to account for the guilty plea and addiction and mental health issues.
[24] On its own, this receiving charge might have justified an uplift of around six months’ imprisonment. All of the dishonesty offending together might have
13 Piao v R [2020] NZCA 607 at [22], citing R v Bradley [1979] 2 NZLR 262 (CA) at 263-264; and R v Jeffries [1992] 1 NZLR 134 (CA) at 137. See Simon France (ed) Adams on Criminal Law: Sentencing (online ed, Thomson Reuters) at [SA85.02].
14 R v Rolleston [2018] NZHC 2656.
justified an uplift in the vicinity of eight months’ imprisonment before discounts were applied. In my view a total end sentence of 15 months’ imprisonment would reflect the totality of Mr Short’s offending, so the cumulative sentence for this charge should have been three months.
[25] The Judge plainly could not decline to cancel the sentence of community work which had already been cancelled, as the Crown has conceded. Judge Maze cancelled it because she thought it would be counterproductive given Mr Short’s limited history. For clarity, this court confirms the earlier order cancelling the sentence of community work.
Conclusion
[26] The appeal is allowed. The sentence of eight months’ imprisonment is quashed, and a cumulative sentence of three months’ imprisonment is imposed on the November charge of receiving stolen property valued at over $1,000 on the same standard and special conditions as were imposed in the District Court.
[27] The order suspending the sentence of community work under s 78(2)(b) Sentencing Act is revoked reflecting the fact the sentence of community work has already been cancelled.
Solicitors:
Alpers & Co., Christchurch
Raymond Donnelly & Co., Christchurch