Thorne v Police

[2013] NZHC 1642

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-64 [2013] NZHC 1642

BETWEEN  SHANE WILLIAM THORNE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   2 July 2013

Counsel:                  Appellant in Person

M Hammer for Respondent

Judgment:                2 July 2013

ORALJUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Mr Thorne has been sentenced by three different Judges for a variety of offences committed between March 2008 and February 2009.  In the first sentencing in June 2009, he was sentenced to four years’ imprisonment on charges of conspiracy to supply methamphetamine and supplying methamphetamine.

[2]      On  16 October,  in  the  District  Court,  he  was  sentenced  on  charges  of unlawful possession of a pistol and burglary to 12 months’ imprisonment, concurrent with the drug sentencing.  And the third and final sentence was on 23 October 2009 in the District Court, where Mr Thorne was sentenced on three burglary and one unlawfully taking a motor vehicle charge to 16 months’ imprisonment cumulative on this four year sentence.  Mr Thorne’s total sentence is, therefore, currently five and a

half years’ imprisonment.

THORNE v POLICE [2013] NZHC 1642 [2 July 2013]

[3]      He appeals against his sentence of 18 months’ imprisonment, cumulative on the four years’ imprisonment imposed on the drug charges.   In his appeal against sentence he says:

(a)      firstly,  that  his  sentence  of  23 October 2009  should  have  been concurrent rather than cumulative;

(b)secondly, that there were uplifts for previous offending in the first and third sentencings which may have resulted in double counting and that;

(c)       thirdly, in any event, the uplift for the burglary offences in the District

Court was excessive;

[4]      Today before me he mentioned  the rehabilitative efforts  he has  made  in prison since his sentence and the difficulty that he has with the Parole Board’s attitude to an early release.  I have told Mr Thorne that I cannot in this appeal, take into account anything that has happened since his sentencing and in particular I cannot take into account his current circumstances in prison, nor the attitude of the Parole Board.

[5]      Some further background.   On 16 June 2009, I sentenced Mr Thorne in the High Court to a total of four years’ imprisonment.  I began with a start sentence of five and a half years’ imprisonment which took into account both the actual supply and the conspiracy to supply charges.  I added a further six months which I said was to “reflect your previous drug involvement in dealing.  You have six convictions for possession of drugs.  In 2009 possession of cannabis for supply.  In 2002 burglary for drugs and possession of morphine for supply”.  From that sentence of six years’ imprisonment I deducted two years for the appellant’s early guilty plea.

[6]      The  second  sentencing  in  the  District  Court  was  on  16 October.    The appellant  was  sentenced  on  charges  of  burglary  and  possession  of  a  pistol. Possession of a pistol arose through the supply of methamphetamine.   The Police

found a loaded revolver.   Shortly afterwards the appellant entered a commercial building and stole $14,000 worth of money, foreign exchange and travellers cheques.

[7]      The   Judge   concluded   that   a   proper   starting   point   was   18 months’ imprisonment reduced to 12 months.   She considered that that sentence should be served concurrently with the existing drug sentence of four years’ imprisonment.

[8]      The third and final sentencing was on 23 October 2009 which involved three indictably laid charges of burglary and unlawfully taking a Holden motor vehicle.

[9]      As  to  the  burglary  charges  they  involved  burglaries  of  two  commercial premises in Dunedin.   Small amounts of property were taken.   The third burglary was also a commercial burglary but in Auckland. Again, a relatively modest value of property was stolen.

[10]     The Judge in sentencing noted, however, that the appellant had approximately

90  convictions  for  burglary;  29  convictions  for  unlawfully  taking  vehicles  and getting into motor vehicles and 30 dishonesty offences.

[11]     The Judge considered that a proper starting point was one of three years’ imprisonment but that it warranted an uplift of two years for previous offending so that the sentence was five years’ imprisonment before any mitigating circumstances.

[12]     The Judge then said there should be a one third discount for the appellant’s early guilty plea leaving a sentence of over three years’ imprisonment.  The Judge considered a cumulative sentence was appropriate but that considering the totality principle a significantly reduced cumulative sentence was proper.   The appellant’s counsel at that time suggested an appropriate sentence would be a cumulative sentence of 12 to 18 months’ imprisonment.

[13]     The Judge  concluded  that  imposing  a  cumulative sentence  of  over three years’ imprisonment would be out of proportion to the offending and the totality principle.     She  added  a  cumulative  term  of  18 months’  imprisonment  to  the

concurrent sentence of four years’ which she considered reflected the overall offending.

The appellant’s case

[14]     Turning now to the appellant’s case.  I reject the appellant’s submission that the 23 October sentencing should have been concurrent rather than cumulative.   It was, however, most unfortunate that the three sets of sentencing occurred independently rather than together. This has caused a confusion of sentences.

[15]     Section 84  of  the  Sentencing Act 2002  sets  out  the  circumstances  under which cumulative and concurrent sentences of imprisonment can be imposed and gives the Court guidance as to the principles.  It provides as follows:

84       Guidance  on  use  of  cumulative  and  concurrent  sentences  of imprisonment

(1)       Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2)       Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3)       In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a)      the time at which they occurred; or

(b)      the overall nature of the offending; or

(c)      any other relationship between the offences that the court considers relevant.

[16]     Applying those tests to the sentencing decisions here, there is an appropriate rationale for the second and third sentencings which primarily consist of dishonesty offences (including burglary and unlawfully taking a motor vehicle) to be sentenced as one concurrent sentence (excepting perhaps the possession of pistol charges) but for them to be in turn cumulative on the drug sentencing.  The drug offending and the dishonesty offending are of quite different kinds.   They occurred at different times and there is no connection between them.  Mr Thorne, therefore, can consider

himself fortunate that the whole of the 16 October sentencing was concurrent when part, at least, could easily have been cumulative.

[17]     Before I consider the overall sentence I turn to the second point raised by the appellant, namely, whether there was a double counting uplift.   I am satisfied that there was not but if there was it did not affect the overall ultimate sentence.  As I referred  to  above,  the  uplift  in  my  sentencing  was  expressly  for  Mr Thorne’s previous  drug  offending.    The  rationale  for  the  two  year  uplift  given  in  the

23 October  sentencing  was  not  specifically identified.    However,  the  Judge  had previously  stressed  in  his  sentencing  remarks  the  appellant’s  90 convictions  for burglary; 29 for unlawfully taking motor vehicles and 30 for dishonesty.  No mention was made of any drug offending by this Judge.  This suggests the uplift was solely for the appellant’s dishonesty offending.

[18]     It would have been preferable for the Judge to have specifically identified what previous convictions justified such a substantial uplift.  However, it does not seem to me in this case that even if there was some small overlay of double counting, that that ultimately affected the sentence imposed.

[19]     The uplift itself of two years, on a three year start sentence, was very high;

66 per cent of the start sentence.   Ordinarily this would be beyond what could be justified.   While there is a legitimate rationale for uplifts for previous similar offending, care must be taken that such uplifts do not become overly punitive second punishments.  Here, there were exceptionally 90 previous burglary convictions and further dishonesty convictions. And even if the uplift were reduced, it cannot be said that  the  addition  of  18 months  for  all  of  the  other  offending  which  included burglaries of commercial premises made the overall sentence of five and a half years manifestly excessive.

[20]     For the reasons given, therefore, the appeal will be dismissed.

Ronald Young J

Solicitors:

Meredith Connell, Barristers & Solicitors, Auckland