Stepanicic v Police

[2017] NZHC 1882

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2017-404-217 [2017] NZHC 1882

BETWEEN

CHARLES STEPANICIC

Appellant

AND

NEW ZEALAND POLICE Defendant

Hearing:	8 August 2017
Counsel:	C Dunne for Appellant M K Ropati for Respondent
Judgment:	8 August 2017

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Public Defence Service, Waitakere

Crown Solicitor, Auckland

STEPANICIC v NEW ZEALAND POLICE [2017] NZHC 1882 [8 August 2017]

[1]     Mr Stepanicic appeals against an effective end sentence of 12 months’ imprisonment imposed in the District Court at Waitakere, on 25 May 2017.1    The sentencing came about in unusual circumstances.   In order to assess whether the sentence was manifestly excessive, it is necessary to consider the circumstances in which it was passed.

[2]      Mr Stepanicic had been released from a sentence of imprisonment subject to release conditions.  Those conditions were breached on 17 November 2016.  On 22

December 2016, Mr Stepanicic was involved in a driving incident which led to a variety  of  charges  including  driving  whilst  disqualified,  reckless  or  dangerous driving, failing to stop to ascertain whether there was an injury and failing to stop for red and blue flashing lights.  On 23 January 2017, he appeared before the District Court and entered guilty pleas to each of those charges.

[3]      Mr Stepanicic was remanded on bail pending sentence.   He came before Judge E M Thomas on 29 March 2017.  At that stage, the Judge had before him a pre-sentence report which had suggested that sentencing be adjourned for a period of three months, to ascertain whether Mr Stephanicic was complying with other conditions relating to attendance at programmes.

[4]      On 20 May 2017, Mr Stepanicic was arrested on a charge of receiving stolen property.  He was not granted bail.  An application for bail was made to the District Court.   That was called on 25 May 2017.   However, at that time Judge Roberts declined to hear that application.  Instead he proceeded immediately to sentence on the other charges while acknowledging counsel’s submission that Mr Stepanicic had “a good and valid defence” to the receiving charge on which a not guilty plea had

been entered.2    The necessary charge has been set down for hearing in November

2017.  Mr Stepanicic is entitled to the presumption of innocence in respect of it.

[5]      In essence, the charges against Mr Stepanicic fall into two broad categories. The first involves road safety; without going into the details, the driving alleged was

1      New Zealand Police v Stepanicic [2017] NZDC 10919.

2 Ibid, at para [2].

bad.  The other are administration of justice offences.  They involve driving contrary to Court orders and breaching release conditions. All are serious offences.

[6]      Mr Dunne, for Mr Stepanicic, raised two questions on appeal.  The first is whether the Judge erred as a matter of process in proceeding to sentence without an updated pre-sentence report.   The second is whether, in any event, the sentence imposed was manifestly excessive.

[7]      I deal briefly with the pre-sentence report issue.  When Mr Stepanicic came before Judge Thomas on 29 March 2017, the pre-sentence report indicated that if Mr Stepanicic  was  compliant  with  conditions,  community  work  would  be recommended; but if he were not, a term of imprisonment would be recommended. The sentencing on 25 May 2017 was some two months after that report was requested.  Mr Stepanicic had not complied with those conditions.

[8]      Section 26(3) of the Sentencing Act 2002 requires a Court to sentence, even if no updated pre-sentence report were available, if a prior report covering relevant aspects were “readily available to the Court and there is no reason to believe that there has been any change of significance” since the report was prepared.3

[9]      In light of the probation officer’s recommendation, I am satisfied that the Judge was entitled to proceed to sentence.  Whether it was appropriate to adopt the unorthodox conversion of the bail hearing to a sentencing is more problematic. However, I prefer to leave that point open and to deal with the issue by reference to Mr Dunne’s manifest excess submission.

[10]     The two sentences that assume significance for the purpose of the appeal are those  imposed  on  the  charges  of  breaching  release  conditions  and  the  driving offence, of which the disqualification charge was taken as the lead.

[11]     The Judge took a starting point of six months imprisonment for breach of release conditions.   That was uplifted by two months “to accommodate previous

convictions for breach of release conditions”. That left a provisional starting point of

3      See also, more generally, R v Harriman [2009] NZCA 156 at paras [16]–[21].

eight months imprisonment.  On the driving charges, the Judge took a starting point of 10 months imprisonment.  He regarded that offending as distinct, and imposed a cumulative sentence.  That left an end starting point, on a cumulative basis, of 18 months imprisonment.4

[12]     The Judge then stated that he intended to allow “concessions”.  He then listed a number of factors,  but  they are  mostly directed to  sentences  imposed on  the charges.  However, there is a reference generally to “four [months] to accommodate plea”.5

[13]     Unfortunately, the sentencing remarks do not address, with respect, the issue of totality adequately.   Given the nature of the respective offences, I would not regard more than 10 months’ imprisonment as being justified by the offending as a starting point.  If one were to deduct from that the standard Hessell v R6 credit of 25 percent for early guilty pleas, the end sentence would be reduced to between seven and eight months’ imprisonment.  I consider that an end sentence of eight months’

imprisonment is sufficient to respond to the overall offending.

[14]     In order to address the particular attribution of sentences to the charges, I propose to impose the sentence of eight months’ imprisonment on the breach of release conditions, but to make all other sentences concurrent on it.   That will achieve the result of an end sentence of eight months imprisonment.

[15]     For those reasons, the appeal against sentence is allowed.   The cumulative nature of the sentences are set aside with the effect that the total end sentence is one of eight months’ imprisonment.   The only amendment that need be made to the

record of sentencing is that all sentences are to be concurrent.

4      New Zealand Police v Stepanicic [2017] NZDC 10919.

5 Ibid, at para [19].

6      Hessell v R [2011] 1 NZLR 607 (SC).

[16]     There is no challenge to the order for disqualification from driving.   That

sentence remains intact.

P R Heath J