T v Police HC Wanganui CRI 2007-083-15

[2007] NZHC 911

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2007-083-000015

BETWEEN  T

Appellant

AND  POLICE Respondent

Hearing:         13 September 2007

Appearances: S J Burlace for Appellant

H C Mallalieu for Respondent

Judgment:      13 September 2007

JUDGMENT OF COOPER J

Solicitors:

Treadwell Gordon, PO Box 4084, Wanganui
Cameron Ross, Crown Solicitor, PO Box 680, Wanganui

T V POLICE HC WANG CRI 2007-083-000015  13 September 2007

[1]      T   appeals against a sentence imposed on him by Radford DCJ on 6 September 2007.  He was convicted, having pleaded guilty on 5 June 2007 to a charge of theft involving less than $500, under ss 219 and 223(d) of the Crimes Act

1961.  That offence carried a maximum penalty of three months’ imprisonment.  The sentence imposed by the learned District Court Judge was one of imprisonment for six weeks.

[2]      The offending occurred at about 6.00 p.m. on Sunday 13 May 2007 when the appellant was walking on Ingestre Street, Wanganui.  The victim in this matter was a lady of some 53 years.  He approached her at the corner of Ingestre and Bell Streets, inquiring as to the time.  The victim informed him that she did not have a watch.  A few minutes later the appellant approached the victim a second time, from behind while she was at the intersection of Ingestre and Wicksteed Streets.  He walked past her, grabbing her handbag with his left hand as he did so, before running off in the direction of Plymouth Street.   Having reached Wicksteed Terrace he dropped the handbag and its contents on the ground and continued into Victoria Avenue.  There he was apprehended by the police.  He admitted taking the handbag from the victim.

[3]      At the time of the offending the appellant had not previously appeared before the Courts.  He has, however, subsequently been convicted of two offences of wilful damage.  The dates on which those offences were committed were 7 June and 7 July

2007.  In each case he has been convicted, and he has been ordered to pay reparation at the rate of $25 per week.

[4]      In  sentencing  the  appellant  in  respect  of  the  present  matter,  the  learned District Court Judge referred to a number of occasions on which the appellant had been required to appear at the Court in respect of the matter, but had not appeared.  It does seem that the emphasis that he gave those matters may have contributed to the length of the sentence imposed.

[5]      In respect to the offending itself, he observed at paragraph [3]:

People are entitled to walk down the street without having their property snatched from them.  Serious injury can arise when these sorts of incidents go wrong and it seems to me you are very fortunate only to be charged with the theft.   Having said that I must only deal with you on the basis of the charge to which you’ve pleaded guilty.   In my view this is a very serious case of its kind.  There was no call for you to behave in this fashion and it was disgraceful.   You have not been in trouble before but, in my view, Parliament has provided sufficient penalty to be able to deal with the matter in a significant way, or has indicated by providing a penalty of three months’ imprisonment,  that  I ought  to  deal  with  a  matter  as  serious  as  this  by imposing a sentence of imprisonment.  You are sent to jail for six weeks, no leave to apply for home detention.

[6]      The Judge did not go into any detail as to why he viewed the case as a very serious one of its kind.   Certainly, on the summary of facts, although the conduct was not trivial and appears to have involved a degree of premeditation, (the appellant having approached the victim twice), there is nothing else evident in the summary of facts which would justify the description that the case was a very serious one of its kind.

[7]      In the circumstances Ms Burlace has submitted that the penalty of six weeks’ imprisonment was clearly excessive.   She points out that if the Judge had given a normal credit for the early guilty plea, it appears that he must have adopted a starting point for sentencing purposes, of about nine weeks’ imprisonment.  She contrasts a sentence of that length with the sentence imposed by Keane J in Whakatau v New Zealand Police (HC ROT CRI 2004-463078, 22 July 2004) where the offender has seen the victim win a sizeable amount of money, followed her and snatched her bag from under her arm.  The offender in that case was described as a “career criminal”. Yet the present  matter had resulted in a sentence only two weeks short of that imposed in Whakatau.

[8]      In the present case, it is to be noted that the appellant was 19 years of age at the time of the offending.  He immediately admitted that he was responsible for the offending and at the time he had no record of offending whatsoever.

[9]      It should be noted, also, that apparently in respect of the other charges which he was facing, but which were dealt with completely separately, a report had been prepared by the Capital and Coast District Health Board’s consultant psychiatrist, Dr Bird, under s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act

2003.   That report concluded that the appellant was fit to plead to the charges in respect of which the report had been requested, that he was not mentally disordered in terms of s 2 of the Mental Health Act and that he could not rely on any defence of insanity.  However, there were certain matters referred to in the report;  in particular, the abuse of alcohol and psychological difficulties that the appellant was having to confront in terms of his relationship with his partner and issues concerning whether or not he was the father of a child that he had thought was his.

[10]     It appears that that report, which in terms of the appellant’s psychological state at the time, may have been seen as having some mitigating aspects, was not before Judge Radford.  Nor, however, was there any pre-sentence report called for in relation to the present offending.   In the result the sentence of six weeks’ imprisonment was imposed, without the guidance that might have been desirable and which is generally envisaged as appropriate under the Sentencing Act 2002.

[11]     Mr Mallalieu, for the Crown, has described the sentence imposed as a stern one, imposed as it  was on a first time offender.    Mr  Mallalieu  has responsibly admitted that Dr Bird’s report identifies an underlying alcohol problem and suggests that the appellant would benefit from attention to this and also psychological support and guidance.  In the circumstances he says that a pre-sentence report would have been of assistance.

[12]     Overall,   he   concedes,   in   the   circumstances,   that      the   sentence   of imprisonment may not have met the goal of s 8(g) of the Sentencing Act, that a sentence should be imposed which is the least restrictive outcome that is appropriate in the circumstances.   He submitted that, had all of the relevant information been available to the Judge before the sentencing, a term of community work, coupled with supervision may have been more appropriate in terms of the relevant sentencing principles and purposes.

[13]     I   consider   that   Mr   Mallalieu’s   stance   is   quite   appropriate   in   the circumstances.   In addition to  s 8(g) reference, can also  be made to s 16 of the Sentencing Act.   Section 16(2) directs that a Court must not impose a sentence of imprisonment  unless  it  is  satisfied  that  the  sentence  is  being  imposed  for  the

purposes referred to in ss 7(1)(a) to (c), (e), (f) or (g) and those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 to the particular case.

[14]     In my view, a sentence of community work coupled with supervision and reparation would meet the objectives of the Sentencing Act and I do not consider that a sentence of imprisonment was warranted in the circumstances of the present case.

[15]     Looking  at  the  matter  afresh,  I  would  have  thought  that  a  sentence  of community work of 80 hours would have been appropriate, coupled with supervision and payment of reparation.   There is a draft victim impact statement on the file, together with a letter that the victim has written.   Going on the basis of the latter which she has signed, it appears that her main concern is the money that it might be necessary for her to pay to obtain a new passport, the passport having been in her bag and evidently lost at the time of the crime.   She observes that the appellant’s conduct was “not a very nice thing to do”.   But she says, that as a mother of two grown sons and a daughter, she knows that “we all don’t think first sometimes”. Taking into account the emotional harm that she has suffered as well as the costs that she will incur, it seems to me reparation in the sum of $250 would be appropriate.

[16]     I then mention the fact that the appellant has actually been in prison for four days, between the imposition of the sentence and his subsequent  release on bail pending the hearing of this appeal.   In those circumstances, the sentence of community work that would otherwise be imposed, must I think be significantly reduced.

[17]     Taking  these  various  factors into  account  the  appeal  is  allowed  and  the sentence of six weeks’ imprisonment is quashed.  In substitution of that sentence the appellant will be sentenced to 40 hours community work.  It is ordered that he pay reparation to the victim, Lois Irene Mathews, in the sum of $250.  That sum is to be paid at the rate of $10 per week.

[18]     The appellant is also sentenced to 12 months’ supervision.  Supervision will be subject to the standard conditions, together with the special conditions that the

appellant attend programmes to reduce the likelihood of further offending through his  rehabilitation.    The  programmes  that  he  is  to  attend  will  be  programmes involving his attendance at psychological and therapeutic programmes and programmes involving alcohol and drug counselling.  With respect to the sentence of supervision the appeal is allowed on those terms.