Sunnex v Police
[2019] NZHC 2589
•11 October 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000097
[2019] NZHC 2589
BETWEEN ETHAN PETER SUNNEX
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 October 2019 Appearances:
D J H Stringer for Appellant S Dayal for Respondent
Judgment:
11 October 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 11 October 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date 11 October 2019
Introduction
[1] Mr Sunnex was convicted of five charges of dishonestly using a document, and charges of receiving a vehicle, theft from a vehicle, and burglary. He was sentenced by Judge Garland to two years and five months in the District Court on 28 June 2019. He appeals against that sentence.
SUNNEX v NEW ZEALAND POLICE [2019] NZHC 2589 [11 October 2019]
Facts
[2] Between 27 July and 3 October 2018, the appellant was employed by Concrete Brothers Ltd. During his employment, the appellant had access to a work vehicle and an NPD fuel card. Following an acrimonious employment dispute the appellant was dismissed by Concrete Brothers. The appellant did not return his fuel card.
[3] On 2 November 2018, the appellant drove a Toyota van and trailer into a fuel station in Ohoka. There, he met another associate who was driving a stolen Suzuki vehicle. The appellant, his passenger and the other associate filled up three 1000 litre plastic containers on the back of the trailer with fuel. The appellant paid for the drums with the fuel card and then left. He returned two hours later with three more 1000 litre drums. The appellant returned at 4.00 am on 3 November, again towing a trailer with four 1000 litre containers. The appellant filled those containers and left.
[4] The transactions, valued at over $22,000 for the 5,344 litres of 95 octane and 4,780 litres of 91 octane fuel, were paid for using the stolen fuel card.
[5] Between 4 October 2018 and 3 November 2018, the stolen NPD card was used to purchase another 29,625.26 litres of fuel on 92 separate occasions. The appellant was physically present at about half of those occasions and assisted by providing the card at the remaining half. The cost of the additional 29,000 odd litres of fuel was
$67,774.16.
[6] On 4 November the stolen Suzuki vehicle used to pick up petrol was parked in the appellant’s driveway equipped with stolen plates. The appellant said he bought the vehicle from an unknown person in the pub for $800. This constituted the receiving a vehicle conviction.
[7] On Thursday 27 December 2018, the appellant removed both the front and rear license plates from a parking vehicle. These plates were said to have been attached to the Suzuki vehicle that the appellant had earlier received. This offending led to the theft conviction.
[8] On 11 January 2019 the appellant took a parcel that had been left by a courier at the door of a property. The parcel contained contact lenses and was valued at
$206.10. This action led to the burglary charge.
District Court decision
[9] Judge Garland took the charges of dishonestly using a document as the lead offending. He adopted a starting point of two years and nine months’ imprisonment. Although there is no guideline judgment for this type of offending, the Judge took into account the factors to assess culpability as set out in R v Varjan.1 The factors present were a breach of trust, persistent offending, a high degree of premeditation, and the significant loss to the victim, especially in light of the appellant not having any ability to pay reparation.
[10] In relation to the remaining dishonesty charges, taking into account the totality principle, his Honour adopted a starting point of six months' imprisonment. This took the overall starting point to three years and three months' imprisonment.
[11]No uplift was applied for previous convictions.
[12] The sentence was reduced by eight months (or approximately 21 per cent) for guilty pleas being entered at case review stage.
[13] This led to an end sentence of two years and five months' imprisonment. As the sentence was not a short term of imprisonment, the Judge did not have jurisdiction to consider home detention.
Principles on appeal
[14] 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 only be allowed by this Court if it is satisfied that there
1 R v Varjan CA 97/03, 26 June 2003.
has been an error in the imposition of the sentence and that a different sentence should be imposed.2
[15] As the Court of Appeal confirmed in Tutakangahau v R, citing the lower Court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.”5
Submissions
Appellant’s submissions
[16] Mr Stringer for the appellant makes several submissions as to why the end sentence is manifestly excessive. These are:
(a)While the Judge did not uplift the starting point in light of the limited list of previous convictions, given that there were no dishonesty convictions, Mr Stringer suggests he could have been treated “much like a first offender”.
(b)The Judge erred in assuming the appellant did not have employment and so could not make reparation, where defence submissions at sentencing referred to the fact the defendant had just gained employment and was willing to pay $150 per week.
(c)The Judge overstated the level of premeditation involved in the offending. Mr Stringer describes the appellant as naïve and gullible and that co-offenders took a more active role in planning the offending.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 Skipper v R [2011] NZCA 250 at [28].
(d)The appellant is remorseful as evidenced by his letter dated 14 August 2019 which notes that he has now had time to reflect on his actions and is truly remorseful for the hurt he has caused his victims.
(e)Guilty pleas were entered at the earliest reasonable opportunity after advice from counsel and discussions with the prosecution team at the case review hearing and after some charges were withdrawn. By implication, Mr Stringer suggests a greater discount for a guilty plea was available.
Respondent’s submissions
[17] Although Mr Stringer did not take particular exception to the starting point, Ms Dayal points out that the starting point for sentencing on the lead charges was consistent with comparable cases. In particular, a starting point of 18 to 22 months was upheld in the High Court for theft of $23,691.30 from Trust accounts of a Maori land trust,6 and, in Luoni v Police, Heath J considered a starting point of three years’ imprisonment, for theft of $41,000 by an office administrator was stern but not outside the available range.7 The Judge’s starting point of two years and nine months’ imprisonment is therefore appropriate. Similarly, there was a “lenient uplift” on the remaining charges.
[18] In terms of aggravating and mitigating factors personal to the appellant, Ms Dayal noted that the Judge did not impose an uplift for offending while subject to a sentence of supervision and that such an uplift could have been applied.
[19] She also submits that the appellant is not entitled to a credit for remorse. The pre-sentence report noted that while he stated he was remorseful, he was unable to expand on his understanding of the impacts his actions had on the victim. To obtain such a discount he needed to show that, because of an understanding of the wrongfulness of the conduct, a tangible acceptance of responsibility for that conduct, and its effect on any victims, has occurred.8 The letter now provided to the Court does
6 Matiu v Police [2018] NZHC 96.
7 Luoni v Police [2016] NZHC 695.
8 Whitcombe v Police [2018] NZHC 1409 at [27]
not reach the threshold for admission as new evidence. It is not fresh, credible or cogent.
[20] She also considers that the appellant is not entitled to credit for offering to pay reparation. At the time he was interviewed for his pre-sentence report, he was on the sickness benefit. Although he did gain employment close to the sentencing hearing, the prospect of him paying full reparation was unrealistic due to the significant sum that would have been ordered, and the fact he had only recently started employment.
[21] The credit for guilty pleas of approximately 21% fairly reflected the fact that guilty pleas were not entered at the earliest reasonable opportunity but rather, at case review stage.
[22] In short, she submitted that the sentence is not manifestly excessive and there is nothing to warrant revisiting it.
Discussion
[23] I accept the respondent’s submissions that the starting point was entirely appropriate particularly given the number of occasions on which the ex-employer’s fuel card was used and the value of fuel acquired by its wrongful use. I accept, too, that a modest uplift could have been imposed to reflect that the offending occurred while he was serving a sentence of supervision. As his criminal history included giving false details as to his identity and obstruction of the course of justice, I reject the suggestion that he should have been treated as a first time offender.
[24] I am also satisfied the Judge did not need to make an additional discount for remorse at the time of sentencing. It is clear at that stage, Mr Sunnex still sought to justify his actions because of a grievance he had with his former employer. Although his current letter reveals more insight into his offending and in particular, the impact his methamphetamine addiction was having on his behaviour, that is, really too little, too late, to have any material effect on the sentencing exercise.
[25] Mr Stringer’s strongest point is whether the Judge was too dismissive of the offer to pay reparation, which would, if an order was made, have reduced the sentence
length. However, I consider that whether or not the Judge was aware that Mr Sunnex had started employment, he was correct to conclude that a significant reparation order could not be made. He points out that, even with employment, if he tried to pay the reparation off on a weekly basis it would take “a very long time”. Furthermore, his lawyer cautioned the Judge about “making an unrealistic order for reparation”. The Judge also was aware that no reparation could be paid on the day and reparation was even less likely given a sentence of imprisonment in excess of two years was the clear outcome of the sentencing process. As Ms Dayal pointed out, a very significant reduction for any reparation order made would have been required to get the sentence below two years. I do not consider a reduction of that magnitude was open to the Judge given the seriousness of the offending, the relevant aggravating factors of both the offending and the offender and the limited ability to pay a significant amount in reparation. Thus, even if the Judge misunderstood the position as to Mr Sunnex’s current employment, his conclusion as to feasibility of making a large reparation order was correct.
[26] Similarly, I do not think the Judge’s discount for a guilty plea can reasonably be challenged. The discount given was close to the maximum available discount and where, it appears to me that there was a strong case against the appellant.
[27] Looking at matters in the round, there is no basis for concluding the sentence was manifestly excessive and the appeal is dismissed.
Solicitors:
D J H Stringer, Barrister, Christchurch Raymond Donnelly & Co., Christchurch
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