Thomas v Police

[2013] NZHC 732

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000036 [2013] NZHC 732

BETWEEN  DYLEN EDMONDS THOMAS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 April 2013

Appearances: J H A Wiles for Appellant

E C Rutherford for Respondent

Judgment:      12 April 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 12 April 2013 at 2.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – Email: [email protected]

Counsel:             J H A Wiles, P O Box 941 Shortland Street, Auckland 1140

Fax: [phone] – Email: [email protected]

THOMAS V NZ POLICE HC AK CRI-2013-404-000036 [12 April 2013]

[1]      Dylen Thomas is a 23-year-old man with a longstanding drug problem and numerous convictions.  In February 2013 he pleaded guilty to 20 charges involving dishonesty and drug offending and was sentenced to a total of 18 months imprisonment.1   He appeals that sentence on the grounds that:

(a)      The sentence is manifestly excessive as a result of errors made by the Judge, namely failing to identify starting points, imposing sentences for the drug offending cumulative on the other offending and failing to consider the totality of the sentence imposed; and

(b)      The Judge failed to properly consider home detention.

[2]      The charges to which Mr Thomas pleaded relate to a period of about 2 weeks in August 2012. On 21 August items were taken from two motor vehicles parked in Takapuna.  The Police executed a search warrant on Mr Thomas’ address and found stolen property from those and other thefts, a small quantity of drugs and an instrument used for conversion.  Mr Thomas had also used credit cards stolen from one of the vehicles to purchase goods to the value of about $8,000.  The charges are conveniently summarised as follows:

(a)       Counts 1 and 2: receiving (under $500) and receiving (over $1,000);

(b)Counts 3-17: using credit cards received as part of count 2 over the course of five days to obtain goods totalling in excess of $8,000;

(c)     Counts 18 and 19: possession of an unknown quantity of methamphetamine and possession of four grams of cannabis;

(d)      Counts 20: possession of an instrument for conversion.

[3]      In sentencing, Judge Dawson imposed:

1 Police v Thomas DC North Shore CRI-2012-044-006691, 1 February 2013.

(a)       Ten months imprisonment on each of the pecuniary advantage charges to be served concurrently on each other;

(b)On the first receiving charge, three months imprisonment imposed cumulatively;

(c)       On the second receiving charge, three months imprisonment served concurrently with the other receiving charge;

(d)For  possession  of  methamphetamine,  three  months  to  be  served cumulatively;

(e)       For possession of cannabis, one month to be served concurrently with the possession of methamphetamine charge;

(f)       Possession  of  an  instrument  for  conversion,  two  months  served cumulatively.

Was the sentence manifestly inadequate?

[4]      Ms Rutherford, for the Crown, acknowledged that the Judge did not identify a starting point for any of the charges and did not separately identify the discount for Mr Thomas’ guilty pleas.  However, she argued that the end sentence was within the range available to the Judge and not manifestly excessive.

[5]      Before setting the sentence the Judge identified the aggravating features (the offending occurred while Mr Thomas was subject to a sentence of intensive supervision and he had two convictions for breaching that sentence).   He also identified the entry of Mr Thomas’ guilty plea at a relatively early stage as the only mitigating factor.  It is also evident from the sentencing notes that the Judge regarded the charges of using a document as the most serious, though treated them all on the same basis with 10 months imprisonment on each charge rather than selecting one of those charges as a lead charge and uplifting it to reflect the totality of the offending. Given  that  the  Judge  did  not  approach  the  sentencing  exercise  in  an  orthodox

manner, I turn to consider what an orthodox approach would have produced in order to consider whether the end sentence was manifestly excessive.

[6]      The circumstances of the offending are such that the Judge was correct to view the charges of using a document as the most serious.  The most serious of these charges, however, related to the use of the credit card at Mitre 10 to obtain goods to the value of $4,057.84.   Mr Wiles accepted that 10 months would have been a reasonable starting point for that charge with an uplift to reflect the totality of the offending.  It is at this point that the Judge would have had two alternatives and this is the real issue in the case.  The Judge could, as he did, have imposed cumulative sentences for various types of offences.  Alternatively, as Mr Wiles contended was the proper approach, the Judge could have imposed concurrent sentences for all offences.  In the normal course cumulative sentences would have been appropriate given the very different  nature of the dishonesty and  drug offences.    However, Mr Wiles submitted that the Judge’s approach did not fairly reflect the true nature of the offending which was all interrelated and reflected Mr Thomas’ need to obtain cash to manage his drug addiction.  He emphasised that for a person in Mr Thomas’ position there was a strong relationship between the receipt of stolen property and the use of it to produce cash and the possession of a quantity of drugs for personal use.  In addition, the strong interrelationship between these various offences can be seen from the relatively short time frame in which they all occurred.  I am prepared to  accept  that,  in  this  particular case,  offences  of a very different  nature could properly have been dealt with by way of concurrent sentences.

[7]      Any uplift to the lead offence would therefore need to reflect not only the other dishonesty offences but also the receiving offences and the drug offences.  No matter how one views this collective course of offending it is impossible to treat it other than quite serious offending justifying an uplift of at least nine months.   In addition, a further uplift would have been justified to reflect Mr Thomas’ previous 22 convictions.  A three month uplift would have brought the sentence to 22 months before a reduction for the guilty plea.  This would have resulted in an end sentence of  16  months,  not  significantly  different  from  the  end  sentence  of  18  months imposed.  I am not satisfied that the sentence imposed was manifestly excessive.

Should the Judge have given further consideration to home detention?

[8]      The Judge was clearly alert to the possibility of home detention but seemed not to consider it in any detail:

[20]      A sentence of imprisonment must be the starting point in sentencing you today.   That sentence will come to a period of under two years and therefore home detention or community detention needs to be considered by me.

[21]      I am of the view from looking at your record and the probation report  that  you  do  not  comply  with  community-based  sentences  and therefore is entirely inappropriate to sentence you to such a sentence given the nature and ongoing nature of your offending.  It is also appropriate for you to be sentenced to imprisonment, to recommend the punitive element required in sentencing and the deterrence factor.

[9]      Mr Wiles submitted that the Judge had wrongly treated home detention as a community-based sentence and that the Judge had failed to adequately consider the factors in favour of home detention in this case.

[10]     There is some uncertainty as to what information the Judge had in terms of home detention.   The court file in this Court held a pre-sentence report dated 21

January 2013 which advised that there was no suitable address for home detention for Mr Thomas, his grandfather having withdrawn the address nominated earlier. However, Mr Wiles provided me with an addendum dated 29 January 2013 which advised of a change in that position with a new home detention address offered by Mr Thomas’ father as having been assessed as suitable.  It seems likely, given that this addendum was produced the day before the sentencing, that the Judge did not have it available to him at the time.

[11]   The address described in the amended pre-sentence report is one in Meadowbank currently occupied by Mr Thomas’ grandmother, father and his father’s partner, all of whom  consent to Mr Thomas residing at the address.   They are regarded as suitable by Probation.

[12]     I  have  concluded  that,  although  Mr  Thomas  is  guilty  of  quite  serious offending and has a long history of offences, the reason for the offending is his longstanding drug addiction.  It is essential that this problem is tackled.  A term of

imprisonment is unlikely to alter Mr Thomas’ behaviour in the long term.  Because of his personal circumstances and the fact that he will be living at an appropriate address with three supportive adult family members leads me to conclude that home detention was a viable option which the Judge was unable to properly consider because he did not have all the information before him.

[13]     The appeal is therefore allowed.  The term of imprisonment is quashed and

substituted with a term of nine months’ home detention.  Mr Thomas is to:

(a)       Reside at 83A Fancourt Street, Meadowbank;

(b)Remain at that address at all time except as specifically approved by the Probation Officer;

(c)       Comply with the requirements of electronic monitoring;

(d)Undertake an alcohol and drug rehabilitative programme (including residential) to the satisfaction of the Probation Officer and programme facilitator;

(e)      Not to consume or be in possession of alcohol or illicit drugs while subject to the sentence of home detention;

(f)      Notify the Probation Officer of any change in employment and not undertake new employment without prior approval from the Probation

Officer.

P Courtney J