Smith v Police

[2014] NZHC 2196

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-28 [2014] NZHC 2196

BETWEEN

KIM BRUCE SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 September 2014
Counsel:	WD McKean for Appellant MA Jarman-Taylor for Respondent
Judgment:	10 September 2014

JUDGMENT OF BREWER J

Solicitors:               WRMK Lawyers (Whangarei) for Appellant

Marsden Woods Inskip & Smith (Whangarei) for Respondent

SMITH v POLICE [2014] NZHC 2196 [10 September 2014]

Introduction

[1]      Mr Smith appeals against the sentence imposed on him by Judge G Davis in the District Court at Whangarei on 8 July 2014.

[2]      On 10 February 2014, Police went to Mr Smith’s property near Whangarei. They found two firearms which Mr Smith was not entitled to possess.  Both were loaded and each had a round in the firing chamber.   One of the firearms was a Beretta pistol and the other was a .22 Ruger rifle.

[3]      Mr Smith denied any knowledge of the firearms but was convicted at trial by Judge  Davis  on  charges  of  possession  of  a  firearm  except  for  some  lawful  or sufficient purpose.   He was convicted also on companion charges relating to the ammunition.

[4]      Each of the charges carries a maximum term of imprisonment of four years. The problem for Mr Smith was that at the time the Police found the Beretta pistol and the Ruger rifle, he was out of prison on parole for similar offending. As a result, he was recalled to prison to continue serving his sentence.  It was approximately five months later that he was sentenced by Judge Davis.

[5]      At sentencing, Judge Davis was aware that Mr Smith had been recalled to continue serving his previous sentence.   Initially, he intended to impose a term of imprisonment of one year to be concurrent with that sentence.  But, the Judge did not want  to  fetter  the  Parole  Board’s  ability  to  grant  Mr Smith  further  parole  by imposing a sentence which would trigger automatically standard release conditions.

[6]      The Judge did not mention specifically credit for the time spent serving the sentence on recall.   I infer from the Judge’s reference to a Parole Board hearing scheduled for 1 August 2014 that he assumed that credit would be given.  Therefore, he imposed a concurrent sentence of 11 months’ imprisonment and remitted outstanding community work requirements of approximately 164 hours.

[7]      Mr  Smith’s  complaint  is  that  the  Judge  should  have  deducted  from  the

sentence of 11 months’ imprisonment the five months he had spent in prison as a

result of being recalled to continue his sentence.  Normally, time spent in prison on remand prior to sentence is automatically credited against the sentence imposed.  But that  is  not  the  case  when  a  person  is  recalled  to  continue  serving  an  existing sentence.

Issue

[8]      I must allow the appeal if I am satisfied that, for any reason, there is an error in the sentence and a different sentence should be imposed.  Therefore, to disturb the Judge’s sentence, I must not only find that there has been an error but that the error has resulted in the final sentence being outside the range that could properly be justified by accepted sentencing principles.  In other words, that the final sentence is manifestly excessive.

[9]      The issue in this appeal is therefore:

Is  the  sentence  of  11  months’ imprisonment,  concurrent  with  the sentence Mr Smith was already serving, manifestly excessive in all the circumstances of Mr Smith’s case?

Discussion

[10]     Mr McKean is correct that Judge Davis does not seem to have considered specifically the five months Mr Smith spent in custody because of being recalled to prison. That is a factor which needed to be taken into account.

[11]     The Court of Appeal in R v Paul allowed an appeal based on the omission by the sentencing Judge to take into account five months spent in custody following a recall on an earlier sentence.1     It reduced the sentence by five months.   But, in Vernon v R, where the sentencing Judge had realised the problem and given a six months reduction, the Court of Appeal rejected an argument that a one-for-one credit should have been given.2    The Court acknowledged that there is a risk of double punishment in these circumstances, but that has to be tempered by recognition of the fact  that  the  further  offending  was  committed  while  on  parole.     The  Court

specifically said that a one-for-one reduction is not required.  In Vernon, the period

1      R v Paul CA409/05 26 April 2006.

2      Vernon v R [2010] NZCA 308.

served  was  14  months,  and  the Court  of Appeal upheld  the sentencing Judge’s

allowance of six months by reducing what would otherwise have been an uplift of

18 months to 12 months.

[12]     In my view, what matters is whether the final sentence is within the range available, taking into account time spent in custody because of a recall and the fact that this was triggered by offending while on parole.

[13]     Mr McKean submits that I should confine my analysis to the discount that should be allowed for the recall period.  I disagree.  A Judge, on an appeal against sentence, is concerned with the final result reached by the sentencing Judge, not the route by which he got there.

[14]     Judge Davis did not specify a starting point.  Having considered a number of cases, including those put forward by the respondent,3 I consider that a starting point of around 18 months’ imprisonment was appropriate. As the Court of Appeal said in Torea v R, the Beretta was a pistol ready to be used.  Similarly, the Ruger was a rifle ready to be used.

[15]     The starting point should be uplifted because of Mr Smith’s previous record. Relevantly:

2006One conviction for unlawful possession of a firearm (two years’ imprisonment) and three convictions recorded as “ARMS” (two years’ imprisonment).

2007One conviction for unlawful possession of a firearm (one year six months’  imprisonment);  two  convictions  for  unlawfully possessing a firearm (one year imprisonment); one charge of unlawfully possessing a pistol (one year imprisonment); and one

charge of possession of a pistol (one year imprisonment).

3      R v Richardson CA450/02, 25 March 2003; R v Corner CA291/87, 17 March 1988; Torea v R

[2011] NZCA 96.

[16]     Although convictions were entered in 2007, the offences themselves occurred in 2004 and 2005.

[17]     An uplift of six months is within range.

[18]     The offending occurred while Mr Smith was on parole in respect of sentences imposed for offending which included firearms offending.  A further uplift of three months is within range.

[19]     The starting point is now two years three months’ imprisonment.  A discount for the five months spent on recall to continue serving a sentence is required.   It should not be on a “one-for-one” basis.   The release on parole was a concession made by the Parole Board in the belief that it could trust Mr Smith not to reoffend. The underlying sentence of imprisonment continued to exist.   His recall to prison was not the imposition of an additional penalty, but a reaction to his failure to meet his parole obligations.   Likewise, the uplift for offending while on parole is an aggravating factor that cannot be eliminated because there is an existing sentence. But, on a totality basis, I would reduce the starting point by three months.   This makes it two years’ imprisonment.

[20]     There are no personal circumstances which would justify a reduction.  I have read Judge Davis’s sentencing notes carefully and I take into account that, as the trial Judge, he was fully aware of all of the circumstances of the offending and the background to it.  The Judge knew that, because of the existing sentence, Mr Smith is subject to a statutory release on 20 August 2015.  The Judge acknowledged that he had been asked to impose a cumulative sentence but it is clear that, having regard to all of Mr Smith’s circumstances, his Honour thought that a concurrent sentence was appropriate and that the Parole Board should be permitted to consider Mr Smith’s situation as soon as reasonably possible and to determine what conditions, if any, should be imposed if parole were granted further.

[21]     I can only infer the Judge took the view that given that Mr Smith’s effective

sentence of 10 years for his 2006 and 2007 convictions, it was in the interests of

justice to reduce the length of the sentence and to make it concurrent with the existing sentence.

[22]     With respect to the District Court Judge, my view is that the final outcome was  outside  the  range  available  to  him.    In  R  v  Corner,  the  Court  of Appeal observed:4

The possession and use of such weapons is utterly unacceptable and must be discouraged  by  the  Courts.    In  the  absence  of  special  circumstances,  it should be appreciated that possession of such weapons will normally lead to the imposition of a prison sentence and the more so if there is evidence to suggest  that  their  use  might  have  been  contemplated  in  a  criminal connection.

[23]     In R v Richardson, the Court of Appeal said:5

Loaded firearms are anathema within our community.   Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s  condemnation  of  their  availability  because  of  the  potential  for danger from their possession.

[24]     On a totality basis, and having regard to the lengthy sentence already served by Mr Smith, thus emphasising rehabilitation and reintegration, a final sentence of

18  months’ imprisonment  could,  at  a  stretch,  have  been  reached.    There  was, however, no basis for it being concurrent.  The charges are separate and distinct acts of offending against a history of offending of a similar kind.  The sentence should have been imposed cumulatively.

Decision

[25]     I would find the sentence to be manifestly inadequate.  I find that the Judge likely made an error in setting his starting point and he made an error in making the sentence concurrent.

[26]     In  preparing  for the hearing today,  I contemplated, unless  counsel  could persuade me otherwise,  quashing the sentence  of 11  months’ imprisonment  and replacing it with a sentence of 18 months’ imprisonment to be served cumulatively

on the existing sentence or sentences.  I have decided not to do so.

4      At 7.

5 At [33].

[27]     Mr McKean made submissions at length on the role of the District Court Judge in deciding his sentence based on his understanding of the culpability of the offending obtained by being the judge of the facts in the trial.   In Mr McKean’s submission, before making a final decision on  Mr Smith’s overall culpability,  I would have to put myself in the shoes of the District Court Judge to the extent possible by at least examining the transcript of evidence and hearing further submissions.  I accept that submission.

[28]     I take into account also that the respondent has not appealed the sentence and in submissions to me today has not characterised it as being manifestly inadequate. Instead, the respondent’s view is that it is very, very lenient.

[29]     Because  of  this,  and  with  some  reluctance,  I  will  leave  the  sentence undisturbed.  I dismiss the appeal.

Brewer J