Smitheram v Police
[2024] NZHC 1323
•24 May 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-62/63/64
[2024] NZHC 1323
BETWEEN LEVI JOHN SMITHERAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing (via VMR): 23 May 2024 Appearances:
K Paima for Appellant
W J S Mohammed and M W Fulton for Respondent
Judgment:
24 May 2024
JUDGMENT OF GRAU J
[Sentence appeal]
[1] On 5 March 2024 Mr Smitheram was sentenced by Judge Couch in the Christchurch District Court to two years and seven months’ imprisonment on a raft of charges:1
(a)theft (over $1,000);2
(b)unlawful interference with a motor vehicle;3
(c)theft (over $500);4
1 Police v Smitheram [2024] NZDC 4767.
2 Crimes Act 1961, ss 219 and 223(b) (maximum penalty of seven years’ imprisonment).
3 Crimes Act, s 226(2) (maximum penalty of two years’ imprisonment).
4 Crimes Act, ss 219 and 223(c) (maximum penalty of one year’s imprisonment).
SMITHERAM v NEW ZEALAND POLICE [2024] NZHC 1323 [24 May 2024]
(d)failure to stop for flashing lights (second conviction);5
(e)dangerous driving;6
(f)driving whilst disqualified;7
(g)two charges of conversion of a vehicle;8
(h)burglary;9
(i)nine charges of theft (under $500);10
(j)breaching supervision;11 and
(k)breach of community work;12
[2] Mr Smitheram had previously been sentenced to community work and supervision on 24 May 2023 on the charges of theft (over $1,000) and unlawful interference with a motor vehicle. Following his poor compliance with those sentences, Mr Smitheram came up for re-sentence on those charges, and the charges of breaching supervision and community work were added.13
[3] Mr Smitheram appeals his sentence on one discrete point. He contends that the starting point of 16 months the Judge adopted for the lead charge of burglary was higher than for an equally culpable co-offender, contrary to the principle of parity, and resulting in a manifestly excessive sentence. He takes no issue with any of the other aspects of his sentencing.
5 Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(4), 52A(6) and 114(2) (maximum penalty of
$10,000 fine, court must order disqualification for period of one to two years).
6 Land Transport Act, s 35(1)(b) (maximum penalty of three months’ imprisonment or $4,500 fine, court must order disqualification for six months or more).
7 Land Transport Act, s 52(1)(c) (maximum penalty of $10,000 fine).
8 Crimes Act, s 226(1) (maximum penalty of seven years’ imprisonment).
9 Crimes Act, s 231(1)(a) (maximum penalty of 10 years’ imprisonment).
10 Crimes Act, ss 219 and 223(d) (maximum penalty of three months’ imprisonment).
11 Sentencing Act 2002, s 70(a) (maximum penalty of three months’ imprisonment or $1,000 fine).
12 Sentencing Act, s 71(1)(a) (maximum penalty of three months’ imprisonment or $1,000 fine).
13 Police v Smitheram, above n 1, at [2].
Approach on appeal
[4] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. The Court also retains no discretion in the event that these criteria are not satisfied and must dismiss the appeal.
[5] When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.14 It must be shown that there has been an error made by the sentencing Judge.15 The Court cannot “tinker” with a sentence imposed where that end sentence is nevertheless in range.16
[6] The Court of Appeal has outlined the correct approach when sentencing co- defendants:17
Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
[7] A Judge is not required to impose the same sentence to ensure parity in circumstances where a co-defendant has already received a more lenient sentence. An inadequate sentence cannot justify additional inadequate sentences, and disparity in of itself does not produce an unjustifiable sentence.18
14 Tutakangahau v R [2014] NZCA 279 at [32]–[35].
15 Tutakangahau v R, above n 14, at [27].
16 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
17 R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [20].
18 R v Feterika [2008] NZCA 127 at [47].
The burglary offending
[8] The burglary involved Mr Smitheram and two associates travelling in a stolen car to a property in a northern suburb of Christchurch on 4 November 2023. Mr Smitheram went into a garage on the property and took a bicycle, a lawn mower and a petrol can. He loaded these stolen goods into the car and left.19
The sentencing
[9] The Judge took the burglary as the lead charge. He regarded the gravity of Mr Smitheram’s offending as substantial, having several significant factors. It was committed with two other people and there was a “degree of premeditation”, given that when the vehicle stopped, Mr Smitheram ran to the back of the car and opened it while the associate went off and stole goods. This led to the strong inference that Mr Smitheram knew what was going to occur. Mr Smitheram also went onto the property to steal other goods. The value of the goods stolen was between $6,000 and
$7,000.20 It was also significant that it was a residential property and the burglary
happened in the middle of the day on a Saturday, which carried with it a high risk of confrontation.21 The Judge adopted a starting point of 16 months’ imprisonment.22
[10] He then uplifted this starting point by 10 months for dishonestly using the motor vehicle on 3 and 4 November 2023, including use to commit the burglary.23
[11] Nine months’ imprisonment was taken as a starting point on the other conversion charge from September 2023.24
[12] Turning to the driving matters, the Judge said that the dangerous driving was prolonged and serious in nature. He adopted a two-month starting point.25
19 Police v Smitheram, above n 1, at [5].
20 Police v Smitheram, above n 1, at [9].
21 At [10].
22 At [11].
23 At [11].
24 At [12].
25 At [13].
[13] For all of the theft charges, the Judge applied a starting point of eight months’ imprisonment.26
[14] For the sentence breaches the Judge took a starting point of four months’ imprisonment.27
[15] The Judge said the combined starting point was “just over four years’ imprisonment” (in fact, it was 49 months, a matter to which I will return). The Judge reduced the starting point to 40 months for totality, accepting there was overlap in the nature of the offending.28
[16] An aggravating factor was that all of the offending occurred while Mr Smitheram was serving a sentence. However, because he was charged with those breaches, the Judge did not apply an uplift. The Judge also commented that Mr Smitheram has an “extensive history of offences of dishonesty”. He has six convictions for breaches of community-based sentences and prior convictions for dangerous driving. The Judge uplifted the sentence by 10 per cent for that history.29
[17] There were several mitigating factors. Mr Smitheram had promptly pleaded guilty on all charges. Accordingly, the Judge reduced the sentence by 25 per cent.30 In terms of personal factors, the Judge noted that Mr Smitheram suffered from the effects of several congenital conditions, which the Judge accepted contributed significantly to his poor decision making. A cultural report provided under s 27 of the Sentencing Act 2002 demonstrated Mr Smitheram “had a far from adequate upbringing” and was introduced to drugs and alcohol at a very early age.31 Although Mr Smitheram had not expressed his remorse until the PAC report was written, the Judge was prepared to take it into account.32 For these personal factors, the Judge applied a 15 per cent reduction.33
26 At [14].
27 At [15].
28 At [16].
29 At [17].
30 At [18].
31 At [19].
32 At [20].
33 At [21].
[18] The end sentence was two years and four months’ imprisonment imposed on the lead charge of burglary,34 with lesser concurrent sentences on the other charges.35 The re-sentence after the sentence breaches was three months, imposed cumulatively, making the total sentence two years and seven months’ imprisonment36
Sentencing of the burglary co-offender
[19] Mr Smitheram’s co-offender was sentenced on 29 January 2024 on the burglary charge alone. The Judge described the burglary as a “lower end” domestic burglary and adopted a 12-month starting point. He reduced the sentence by 25 per cent for an early guilty plea and applied a further 10 per cent reduction for expressions of remorse and rehabilitative prospects. An uplift of 20 per cent applied to reflect offending subject to a sentence and previous convictions. The end sentence was 10 months’ imprisonment with leave to apply for home detention.37
Positions of the parties
[20] For Mr Smitheram, Mr Paima advised that Mr Smitheram had learned of his co-offender’s sentence which was significantly different to his. The third person involved in the burglary, who stayed in the car, had his charge dismissed. Mr Smitheram therefore feels he has been unfairly treated.
[21] Mr Paima’s written submissions had proceeded on the basis that this Court should reduce the starting point for the burglary to 12 months, which would take four months off Mr Smitheram’s end sentence, and would not amount to “tinkering”. At the hearing, however, Mr Paima responsibly accepted that a reduction to the starting point on a single charge would not have such an effect on the end sentence and that the end result would not be a four-month reduction but something likely significantly less.
34 At [22].
35 At [23]–[24].
36 At [29]. There were also orders for disqualification from driving and reparation.
37 Police v Murray [2024] NZDC 1760.
[22] The respondent says the 16-month starting point for the burglary was an available one. The co-offender’s starting point was lenient. Parity does not require any adjustment to Mr Smitheram’s sentence.
Discussion
[23] I consider the 16-month starting point for the burglary charge was available to the Judge. I consider he correctly characterised the gravity of the offending which involved multiple offenders, a degree of premeditation, and valuable property stolen. The burglary of a residential property in a weekend afternoon also carried with it a significant risk of confrontation with an occupier. I note the following cases:
(a)Parkinson v Police, where the Judge commented that a starting point of
16 months’ imprisonment was “arguably very light” where Mr Parkinson and a co-offender had smashed a window into a private residence and took several electronic items including an Xbox and two laptops.38
(b)Hau v Police, where Mr Hau and another person entered a house through a window. They searched through the house, took items of jewellery, and moved other items to the front door in anticipation of leaving. The occupants of the house then returned home, and the pair fled, taking the jewellery. On appeal, Muir J upheld the 16-month starting point adopted by the Judge, noting that there was forced entry to a domestic dwelling and the items taken were of high sentimental value.39
(c)The oft-cited case of R v Columbus, where a single offender burgled a residential property by day, forcing open a garage door and stealing a bike, gardening tools and a tool box. The starting point was 12 months imprisonment.40
38 Parkinson v Police [2019] NZHC 1710 at [2] and [13].
39 Hau v Police [2018] NZHC 2369 at [34].
40 R v Columbus [2008] NZCA 192 at [16].
[24] I agree with the respondent that the burglary in Columbus was significantly less serious. The 16-month starting point in this case could be considered stern, but it was available. Mr Smitheram’s co-offender was treated leniently. That is no basis to interfere with Mr Smitheram’s sentence.
[25] That is sufficient to dispose of the appeal. However, I note that, even had I been persuaded to reduce the starting point to align with the starting point for the co- offender it would have made little to no difference to the end sentence. As above, I have noted that the Judge described the combined starting point for all of the offending as “just over four years’ imprisonment”, when it was in fact 49 months. He then reduced that combined starting point by nine months down to 40 months for totality. I consider the Judge may have miscalculated the overall starting point, given he thought it was closer to 40 months than to 50, and he may have reduced that overall starting point more then he intended to. If so, any error is very much in Mr Smitheram’s favour.
[26] Had the Judge taken a 12-month starting point on the lead burglary charge, the combined starting point would have been 45 months, and it is eminently possible, indeed likely, that the Judge would also have rounded that down to 40 months. Thus, a lower starting point on the burglary charge would likely have made no difference to the end sentence at all.
[27] I consider a combined starting point of 40 months for all of Mr Smitheram’s offending was within an appropriate range, whether the starting point for the burglary charge was 16 months or 12 months.
[28] But even if the Judge had adopted a 12-month starting point for the burglary, and all of the other reductions and uplifts were applied (a nine month reduction to the resulting 45 months overall starting point for totality, 25 per cent guilty plea discount, 15 per cent discount for personal factors, 10 per cent uplift for previous history, and a three month cumulative sentence for the breaches of sentence), by my calculation, the end point sentence would have been two years and five months, a difference of only two months. In my view it would amount to “tinkering” to make any reduction.
[29]Accordingly, there is no basis for interfering with the sentence.
Result
[30]The appeal is dismissed.
Grau J
Solicitors:
Crown Solicitor, Christchurch for Respondent
cc: K Paima, Barrister, Christchurch for Appellant
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