Sweeney v Police

[2017] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000021 [2017] NZHC 1330

BETWEEN

CLAYTON JAMES SWEENEY

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing:	15 June 2017
Appearances:	M Starling forAppellant C J Bernhardt for Respondent
Judgment:	16 June 2017

JUDGMENT OF GENDALL J

Introduction

[1]      On 9 December 2016, the appellant was sentenced by Judge Saunders in the District Court at Christchurch on eight charges in respect of three separate incidents of offending.   These included: wilful damage (of an EM bracelet) and associated breach of release conditions; possession of cannabis; making a false declaration to

police; theft over $1,000; common assault;1  aggravated assault; and providing false

particulars to police.

[2]      Taken together, these charges resulted in an end sentence of 25 months’

imprisonment  and  an  order  for  $1,748  reparation  (for  the  destruction  of  the

EM bracelet), to take effect upon the appellant’s release.

1      Judge Saunders refers to this as a “Summary Offences” assault, although all the charge sheet

documents indicate that it was laid as common assault under s 196 of the Crimes Act 1961.

SWEENEY v NEW ZEALAND POLICE [2017] NZHC 1330 [16 June 2017]

[3]      The appellant has abandoned the aspect of his original appeal relating to conviction. He now appeals only against sentence.

Principles on appeal

[4]      Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.  Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2

[5]      If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the

Judge’s discretion.  As Toogood J said (citing Ripia v R3) in Larkin v Ministry of

Development:4

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[6]      The focus on most appeals is thus on the end sentence.  In Tutakangahau v

R,5 the Court of Appeal held that:6

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

District Court decision

[7]      In his decision, Judge Saunders began by outlining the various brackets of offending for which the appellant would be sentenced.  The first was the “parole”

offending occurring in May 2016, which included non-compliant departure from the

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Ripia v R [2011] NZCA 101 at [15].

4      Larkin v Ministry of Development [2015] NZHC 680.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

6 At [36].

parole address, and intentional damage to and destruction of the EM bracelet.  The second occurred later that month, when the appellant was apprehended in his vehicle with a small amount of cannabis.  In the course of that, he gave false details to the police.  The third, and most serious, bracket of offending occurred in July 2016.  The appellant was apprehended in the Eastgate “Warehouse” store with a small bag of confectionary secreted on his person, and was also implicated in a concerted theft of a larger electronic item, although that item never left the store.   In the course of being detained and questioned by store security, he assaulted two of the guards.  The first was the common assault, involving a push to the chest of one of the guards; the second was the aggravated assault, a shoulder charge to the other guard resulting in a twisted knee but otherwise no significant injury.   When taken back to the Police Station, the appellant failed to provide identifying particulars.

[8]      Judge Saunders then referred to the appellant’s previous history, including his substantial number of convictions for dishonesty offending, and the fact that the present offending was committed while the appellant was on parole.

[9]      In  terms  of  the  proper  approach  to  be  taken  to  sentencing,  the  Judge considered:

The appropriate way in which to sentence matters that have accumulated like this is to look at accumulating the sentences on the basis that they are all quite separate transactions unrelated to each other.

[10]     The Judge then directed himself to the need to bear in mind the totality principle in respect of any sentence he ultimately imposed.

[11]     On  the  “parole”  charges,  Judge  Saunders  treated  them  concurrently  as between themselves, and resolved on a starting point of four months’ imprisonment. The cannabis and false declaration charges were also dealt with concurrently as between themselves, with the Judge reaching a starting point of three months’ imprisonment. The “Warehouse” theft charge attracted a starting point of 12 months, because of the appellant’s previous dishonesty convictions (an aggravating factor), and the fact that the charge went to a defended hearing following not-guilty pleas (the lack of a mitigating factor).   This brought the starting point to 19 months imprisonment.  Although, on the appellant’s view, the two assaults of the security

guards arose as part of the same incident, the Judge decided to treat them as charges warranting an additional six months, cumulative on the 12 months for the theft charge.

[12]     This resulted in the end sentence of 25 months, which was imposed without further adjustment, any mitigating discounts having been dealt with at each cumulative segment.

Analysis

[13]     The appellant’s grounds of appeal are comparatively narrow.   No issue is taken  with  the cumulative approach  in  principle  as  to  the separate instances  of offending.   However, counsel contends that the Judge erred by treating the theft charge and the assault charges, which both arose out of the “Warehouse” incident, as separate sets of offending warranting their own cumulative sentences.  Referring to the  appellant’s  level  of  offending  and  previous  history,  counsel  submits  that

12 months was “near the top of the range” for the  entirety of the “Warehouse" offending, including the assault charges. No authority is cited in support of this. However, counsel refers to the absence of any violence convictions in the appellant’s history, and the fact that, as no property was actually removed from the store, the offending should be treated more in the nature of an attempt, which attracts a lower maximum penalty.

[14]     In  the  circumstances,  the  appellant  therefore  says  that  the  end  sentence

should have been 19 months instead of 25 months’ imprisonment.

[15]     The respondent’s position is to reaffirm that the Court’s primary focus on appeal is on the end sentence of 25 months’ imprisonment and whether that is manifestly excessive.   The respondent acknowledges the difficulty of finding comparable cases where, as here, there is a range of what might be seen as relatively minor charges arising out of multiple instances of offending.  In Kumar v Police,7 the appellant  had  been  sentenced  on  charges  of:  driving  whilst  disqualified  (x2);

providing false details (x2); intentional damage; common assault; failure to answer

7      Kumar v Police [2012] NZHC 1166.

bail (x2); male assaults female, and possession of cannabis.  The appellant there had pleaded guilty to all charges.  On appeal, Clifford J considered that an end sentence of 21 months’ imprisonment was within range. Although it was not articulated in the sentencing notes, it appears the appellant there had a fairly significant criminal history.    The  respondent  also  cites  Te  Puia  v Police,8   a  case  involving  a  false statement in the context of minor shoplifting and driving whilst disqualified charges, but I do not consider it to be sufficiently analogous to be of much assistance here.

[16]     In my judgment, Judge Saunders in this case was correct to treat the three separate instances of offending in a cumulative way for sentencing purposes.  Each involved an unconnected series of offences, which occurred at different times and which were different in kind.   Where this is the case, a cumulative approach will

usually be appropriate.9   It is less clear that the Judge should have chosen to treat the

assault and theft components of the “Warehouse” offending in a cumulative manner. Whilst different in kind, the assaults were a part of the offending as a whole, in the sense that they represented an attempt at flight by the appellant.   However, the decision to treat these offences cumulatively is not, in itself, a reviewable error in the sentencing exercise, provided the sentence imposed overall was within range.

[17]     To the extent that the Judge imposed a collective sentence of 18 months’ imprisonment for the theft charge in conjunction with the two assault charges, that was a certainly a stern response. As the appellant points out, there was no loss of the item stolen, although I do not accept that culpability should be treated as if it were an attempt only.   This is perhaps affected too by the appellant’s significant previous history of dishonesty offending,10 which was clearly an aggravating factor and which I consider warranted a condign response.   The assault charges carry maximum penalties of one and three years’ imprisonment respectively.  However, they were of

low seriousness, and did not result in lasting injury.  As counsel notes, the appellant does not have a relevant history of violence offending, although he does have a

history of about 37 previous dishonesty convictions for theft, burglary, shoplifting

8      Te Puia v Police HC Palmerston North CRI-2011-454-4, 22 March 2011.

9      Sentencing Act 2002, s 84(1).

10     Some 40 previous convictions on the appellant’s record as an adult, including convictions for: receiving property, burglary by day and by night, unlawful taking of a motor vehicle, unlawful interference with a motor vehicle, and theft. Many of these convictions were met with sentences of imprisonment.

and  unlawfully  taking  motor  vehicles,  justifying  an  appropriate  uplift  for  prior offending.

[18]     Were all of this the end of the matter, I might have been persuaded that 18 months on these charges, cumulative with the other offending, was manifestly excessive.    However,  that  is  not  the  test  on  appeal.  It  is  not  the  individual components of sentencing but the sentence overall which must be within range.  On balance, and having regard to the offending in this case, the appellant’s history, and analogous authority, I consider that the end sentence of 25 months, whilst towards the top end of the available range, was nevertheless within range.

Conclusion

[19]     In the circumstances, I consider that the appellant has failed to show that the Judge  has  erred  in  his  approach  to  sentencing  such  that  the  end  sentence  is manifestly excessive.

[20]     The appeal is dismissed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to:

Michael Starling, Christchurch