Thompson v Police

[2012] NZHC 2521

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000078 [2012] NZHC 2521

DANIEL JAMES THOMPSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 September 2012

Appearances: A J Bailey for Appellant

K B Bell for Respondent

Judgment:      27 September 2012

ORAL JUDGMENT OF FOGARTY J

[1]      This  is  an  appeal  against  sentence  imposed  in  the  District  Court  by Judge B P Callaghan.    The  appellant  had  pleaded  guilty  to  two  indictably  laid informations of actual supply of methylphenidate, a Class B controlled drug, commonly known as Ritalin or rubifen.  He had also pleaded guilty to a charge of selling cannabis and a further charge of offering to sell cannabis, offering to supply Ecstasy, a Class B controlled drug, and possessing a pill press.

[2]      Looking at the offending as whole, the Judge took a starting point of two years, nine months imprisonment, that is, 33 months. The Judge went on:

You  have  previous  convictions,  albeit  not  for  drugs  but  for  criminal offending and in particular aggravated robbery – there must be an uplift of three months to 36 months.

THOMPSON V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000078 [27 September 2012]

[3]      The Judge then went on to give a full Hessell discount for his guilty pleas of nine months.  The Judge went on to make an allowance of two months for the steps he  has  taken  for  rehabilitation,  bringing  the  period  from  36  months  down  to

34 months.   He then gave an allowance of nine months for the full benefit of a guilty plea, bringing the end sentence to 25 months, which is the sentence he imposed for the sale of the Class B controlled drug and the sentence for offering to supply the Class B controlled drug.  On the other charges he imposed a concurrent sentence of

10 months.

[4]      The appeal is founded on a decision of the Court of Appeal in R v Filo[1] and in particular paragraphs [21], [22] and [23]:

[1] R v Filo [2007] NSCA 20

[21] The appellant has two previous convictions for male assaults female and also two previous convictions for common assault. Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1

NZLR 618 (CA). See also Veen v The Queen (No. 2) (1988) 164 CLR 465,

478 (HCA). As was noted by this Court in R v Casey [1931] NZLR 594 at

597:

… the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[22] The approach discussed in the authorities of R v Casey and R v Howe is consistent with s 9(1)(j) of the Sentencing Act 2002.

[23] In this case the Judge was entitled to uplift the starting point of two years  nine  months  by  three  months  to  take  account  of  the  previous convictions under s 9(1)(j) of the Sentencing Act 2002. The previous convictions  for  violence  were  sufficiently  recent  and  relevant  to  the offending for which he was for sentence on.

[5]      The Court there was emphasising that previous convictions might be properly considered with a background of offending in related ways and that was the case here.  I do not think that Filo should be read as reading down the terms of s 9(1)(j) of the Sentencing Act:

9 Aggravating and mitigating factors

(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:

...

(j) the number, seriousness, date, relevance, and nature of any previous  convictions  of  the  offender  and  of  any  convictions  for which the offender is being sentenced or otherwise dealt with at the same time.

[6]      There the criteria are the number, seriousness, date, relevance, and nature of any previous convictions.  Relevance is a criterion but it is not the only criterion.  I am guided more by the Court of Appeal in Rautahi v R[2] at paragraph [28] where the Court said:

[28]     The sentencing Court must reconcile two potentially competing principles:  the principle that the character of the offender is relevant to the preventive and deterrent purposes of sentencing, on the one hand, and the principle that an offender should not be punished again for earlier offending, on the other.

[2] Rautahi v R [2011] NZCA 351 at [28].

[7] Ms Bell, for the Crown, points out that this drug offending occurred shortly after the parole period of the appellant for the aggravated robbery had expired, that there was a justification for an uplift for preventive and deterrent purposes of further offending by this man. That was not the reason given by Judge Callaghan for the uplift. He did refer to the issues of deterrence, denunciation and holding people accountable for dealings in drugs but that was in paragraph [7]. He was not consciously addressing the need for an uplift in order to deter this offender from further offending, given his previous history. Indeed in paragraph [8] he took into account the offender taking his rehabilitation seriously.

[8]      So there is a distinct possibility that the Judge gave an uplift of three months to 36 months without considering reconciling the two potentially competing principles as expounded by Rautahi. It is important that an offender should not be punished again for earlier offending.

[9]      I am going to deal with the appeal in this way.   I am left uncertain as to whether or not the Judge correctly applied s 9(1) in paragraph [8] and for that reason there might be an error of principle which justifies this Court intervening.   I then examine what this Court thinks is the merit of an uplift.  I think there is merit of an uplift of three months in this case based on the fact that this drug offending comes on the back of the recent expiry of the parole period and thus the sentence in the previous criminal offending.

[10]     It is important that this young man, only aged 24, understands that he cannot embark on criminal activity, even of a different kind, and not expect his criminal history to be taken into account and the need identified to deter him personally from further criminal conduct.  For that reason I think there is a justification of an uplift of three months.

[11]     Accordingly, I do not disturb the judgment as I have come to the same uplift as the Judge did but possibly for different reasons. The appeal is dismissed.

Solicitors:

Andrew Bailey, Christchurch,  [email protected]

Raymond Donnelly, P O Box 533, Christchurch 8140,  [email protected]