Snowball v Police
[2019] NZHC 143
•13 February 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-001
[2019] NZHC 143
BETWEEN ALLAN SNOWBALL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 February 2019 Counsel:
J D Dallas for appellant
D T E Moore for respondent
Judgment:
13 February 2019
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] On 4 December 2018, the appellant (Mr Snowball) was sentenced by Judge Hastings in the Wellington District Court to two years and six months’ imprisonment in respect of the following charges:1
(a)two charges of burglary;2
(b)two charges of shoplifting items valued over $1,000;3
(c)one charge of shoplifting items valued between $500 and $1,000;4 and
1 Police v Snowball [2018] NZDC 25467.
2 Crimes Act 1961, s 231(1)(a); maximum penalty ten years’ imprisonment.
3 Sections 219 and 223(b); maximum penalty seven years’ imprisonment.
4 Sections 219 and 223(c); maximum penalty one year imprisonment.
SNOWBALL v POLICE [2019] NZHC 143 [13 February 2019]
(d)one charge of common assault.5
[2] Mr Snowball has appealed on the basis that the sentence imposed was manifestly excessive. On his behalf, Mr Dallas argued that while the Judge took into account, as mitigating factors, Mr Snowball’s cognitive impairment and the fact that he was experiencing psychosis over the period of offending, the discount allowed was insufficient.
Factual background
[3] On the afternoon of Sunday, 25 March 2018, Mr Snowball, along with two associates, gained entry into a central city café that was closed during weekends. They located a safe and took it to a nearby carpark. They succeeded in opening the safe and divided its contents, being cash in the amount of $731.10, amongst themselves.
[4] Later that same afternoon, the group entered another café that is also closed during weekends. Having been unsuccessful in breaking into the cash register, they stole a speaker and a cell phone, valued together at approximately $450.
[5] Some weeks later, on 17 April 2018, Mr Snowball entered a jewellery store and asked to view a gold chain necklace. When the shop assistant took the necklace out of the cabinet, Mr Snowball grabbed it and turned to run from the store. The shop assistant ran after him and grabbed his jacket, but Mr Snowball struck the assistant’s hand which caused him to release the jacket. Mr Snowball left the store. The necklace, worth $15,899, has not been recovered. The following day, Mr Snowball was at another jewellery store. He grabbed four rings of a combined value of $752 from a tray on top of the counter and ran from the store.
[6] On 26 April 2018, Mr Snowball was in a furniture store. He seized a lamp valued at $4,975 from a display table, damaging another lamp worth $700 in the process. Having pushed past a staff member who was attempting to stop him, he was caught by members of the public shortly after leaving the store, but the lamp was damaged and no longer saleable.
5 Section 196; maximum penalty one year imprisonment.
District Court decision
[7] The sentencing Judge adopted a starting point of 16 months’ imprisonment for both burglaries, to be served concurrently.6 A cumulative approach was taken to the other charges, the Judge noting that these were discrete offences and that, if necessary, the totality principle could be applied to reflect Mr Snowball’s culpability.7 A starting point of one year and two months’ imprisonment was adopted for the 17 April offending, three months for the 18 April offending, and nine months for the 26 April offending, resulting in a cumulative starting point of three years and six months’ imprisonment. The Judge determined this reflected Mr Snowball’s culpability so there was no need to adjust it by applying the totality principle.8
[8] Previous convictions and the fact that this offending took place while Mr Snowball was on release conditions were identified as aggravating factors resulting in uplifts of four months and two months respectively, resulting in a sentence of four years’ imprisonment.9
[9] In terms of mitigating factors, the Judge cited from a report prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, which indicated that Mr Snowball’s presentation was consistent with schizophrenia and polysubstance use disorder. Mr Snowball was said to have been experiencing psychosis over the period of the offending and he had a cognitive impairment, both factors which were likely to have impaired his decision making and therefore contributed to his offending behaviour. The Judge decided that a discount of five months was warranted for his mental condition.10 Mr Snowball’s remorse entitled him to a further discount of three months. Once the full discount for his guilty pleas was taken into account, the Judge arrived at an end sentence of two years and six months’ imprisonment.11
6 Police v Snowball, above n 1, at [8].
7 At [9].
8 At [11].
9 At [12].
10 At [13].
11 At [14].
Approach to appeal
[10] The appeal is brought under s 250 of the Criminal Procedure Act 2011. It is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.12 The focus is on the final sentence, and whether that was in the available range and appropriately reflects the overall criminality of the case, rather than the exact process by which it was reached.13
[11] Mr Dallas accepted that all steps in the sentencing analysis were reasonably open to the Judge, except for a claimed inadequacy in the extent of discount for Mr Snowball’s mental condition. He submitted that the five month discount should apply to both cumulative sentences, with 10 months allowed: five months for the burglaries and five months for the remaining offences. Mr Dallas argued that Mr Snowball’s psychosis deprived him of normal perception of his wrong-doing, and also made him vulnerable to being led by his co-offenders.
[12] Mr Dallas sought a sentence of two years’ imprisonment or less, which would allow the Court to impose a sentence of home detention for the remaining portion of Mr Snowball’s sentence.
[13] For the Crown, Mr Moore submitted that no aspect of the sentencing analysis was in error. As to the discount granted for Mr Snowball’s mental health, the Crown acknowledged that it was a relevant consideration at sentencing, but noted that the s 38 report fell short of suggesting a direct causal link between his mental health and the offending. Having regard to this contributory link to the offending, the Crown submits that the five month discount was appropriate.
Discussion
[14] The Court of Appeal has previously noted that discounts in the region of 12-30 per cent are typically available for mental illness.14 The severity of the mental
12 Tutakangahau v R [2014] NZCA 279.
13 Ripia v R [2011] NZCA 101 at [15]; R v Dodd [2013] NZCA 270 at [31]-[32].
14 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [71].
illness and the causal link between the illness and the offending are treated as relevant considerations in identifying an appropriate discount.15 Where there is no causal link and it cannot be seen as reducing the moral wrong, the mental disorder may warrant no discount at all.16
[15] The writers of the s 38 report considered that Mr Snowball’s account of events suggested that he understood the nature and quality of his actions and what was morally right and wrong. The report stated:
… it is likely Mr Snowball was experiencing psychosis over the period of the alleged offending. He also has a degree of cognitive impairment. Both these factors likely impaired his decision making and thus contributed to any offending behaviour.
[16] This is therefore a case in which Mr Snowball’s mental condition was a contributing factor to the offending, but not a cause of it. The extent of discount afforded by Judge Hastings (five months from the starting point of 48 months) was marginally more than 10 per cent. Given the recognised contribution of his mental condition, including the factor emphasised by Mr Dallas that his mental condition rendered Mr Snowball vulnerable to being led by his co-offenders, I accept that a somewhat larger discount was warranted.
[17] I consider an initial discount of 15 per cent from the starting point was warranted, on account of the various relevant aspects of Mr Snowball’s mental condition. This would mean that from the starting point of 48 months, an initial discount of 15 per cent for this factor would amount to a sentence of a little less than 41 months. A further three month deduction for remorse would result in a sentence of a little less than 38 months, before application of a 25 per cent discount for the guilty pleas, which would result in an end sentence of a little more than 28 months, or two years and four months’ imprisonment.
[18] During oral submissions, I raised with Mr Dallas whether, if I was persuaded a reduction in the end sentence of two months or thereabouts was appropriate, he could sustain his submission that the sentence imposed by Judge Hastings was manifestly
15 Edri v R [2013] NZCA 264 at [17].
16 Nixon v R [2016] NZCA 589 at [43].
excessive. The High Court is concerned not to interfere in thoroughly analysed sentencings where ordering a relatively modest difference can be criticised as tinkering.
[19] Whilst Mr Dallas’s instructions were to press for a reduction in the length of the sentence sufficient to have Mr Snowball qualify for home detention, he argued that a lesser reduction, such as of two months, will still be meaningful and that Mr Snowball should not be deprived of a reduction which would be highly material to him.
[20] I am persuaded, because of the relative importance of correctly factoring in mental impairment on sentencing, that the appropriate recognition of that factor does warrant allowing the appeal, notwithstanding the relatively modest extent of reduction that becomes appropriate.
[21] I accordingly allow the appeal, quash the sentences imposed by Judge Hastings and substitute them with end sentences of two years and four months’ imprisonment.
Dobson J
Solicitors:
J D Dallas, Wellington for appellant
Crown Solicitor, Wellington for respondent
3
0