Waho v Police HC Wanganui CRI 2010-483-25

[2010] NZHC 1155

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-000025

DEBBIE HINEMOA WAHO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 July 2010

Counsel:         S Burlace for appellant

J Woodcock for respondent

Judgment:      7 July 2010

RESERVED JUDGMENT OF DOBSON J

Introduction

[1]      Ms Waho seeks leave to appeal out of time against the sentences imposed for seven convictions entered against her on 11 March 2010 by Judge Garland in the District Court at Taihape.  Ms Waho entered guilty pleas to all of the charges, which

were as follows:

Date	Offence	Section	Maximum Penalty
1 April 2007	Theft of a motor vehicle	s 223(b) Crimes Act 1961	7 years’ imprisonment
10 February 2009	Using a document with intent to defraud	s 228(b) Crimes Act 1961	7 years’ imprisonment
25 February 2009	Using a document with intent to defraud	s 228(b) Crimes Act 1961	7 years’ imprisonment
22 July 2008	Breach of bail	s 37(b) Bail Act 2000	1 year imprisonment or fine up to $2,000
3 June 2009	Breach of bail	s 37(b) Bail Act 2000	1 year imprisonment or fine up to $2,000
11 January 2010	Breach of bail	s 37(b) Bail Act 2000	1 year imprisonment or fine up to $2,000
25 September 2008	Breach of community work	s 71(1)(a) Sentencing Act 2002	3 months’ imprisonment or fine up to $1,000

Background facts

[2]      With regard to the theft of the motor vehicle, Ms Waho stole the vehicle between 29 March and 1 April 2007, from a person known to her.   That theft occurred after asking the owner on a number of previous occasions whether the owner wished to sell the vehicle .  The owner did not wish to do so, and Ms Waho stole it.  There were then two instances in which she purported to sell the vehicle. Once confronted by the Police about the car, Ms Waho stated that she had bought it from a friend of the owner.

[3]      The charges of using a document arose out of Ms Waho obtaining a wallet, and its contents, from some friends.  She subsequently used the credit card contained in the wallet to make purchases of various electrical items and opened a Telstra Clear account under the victim’s name, which included the purchase of two Nokia mobile phones.

[4]      On 24 June 2008, following conviction on a charge of taking or using a document  for  pecuniary  advantage,  Ms Waho  was  sentenced  to  100  hours  of community work.  On 25 September 2008, Ms Waho failed to report to the probation officer.  At that time, she had only completed half an hour of the 100 hours to which she was sentenced.   Ms Waho has a previous conviction for breach of community

work, five convictions for breaching periodic detention and one for breaching community service.

[5]      With regard to the charges of failing to answer bail, Ms Waho explained that she was moving around the country at that time and had forgotten about her Court appearances.

[6]      Ms Waho has an extensive criminal record.  In light of her previous breaches of community based sentences, her probation officer had “serious reservations” as to whether Ms Waho would be compliant with home detention.   Further, Ms Waho resides in Ohakune.  The nearest Community Probation Service office is therefore Taumaranui, which is about one hour away by road.

District Court decision

[7]      His Honour Judge Garland considered the following to be the aggravating factors relevant to Ms Waho’s offending:[1]

[1] At [23].

(1)      Firstly, I take into account the loss and harm caused to your victims.

There is a total of just over $6500 which your victims are out of pocket and that excludes any damage to the motorcar. I am not told

whether or not there was any reparation payable on that account.

(2)Secondly, in relation to the theft and the frauds, it is clear that your offending was premeditated. That is an aggravating factor.

(3)Finally,  I  take  into  account  the  number  of  offences  you  have committed  and  which  you  appear  for  sentence  upon  and  your previous   convictions   which   are   relevant.   You   have   some

31 convictions  for  dishonesty.  You  have  five  convictions  for breaching  community  work,   periodic   detention  or   community

service and you have a previous conviction for failing to answer to

District Court bail.

[8]      With regard to the mitigating factors, his Honour considered that:

a)        Credit for guilty pleas, which were not entered early as Ms Waho repeatedly absconded when she was before the Court.

[9]      Judge Garland decided to impose cumulative sentences to reflect the three different types of offending, and concurrent ones within each type to reflect the overall level of culpability.[2]

[2] At [25]

[10]     With regard to the dishonesty offending, from a starting point of 12 months, the Judge proposed an uplift to 21 months on account of Ms Waho’s previous history for dishonesty.  Four months’ reduction was granted on account of Ms Waho’s guilty pleas, purportedly leading to an overall sentence of 19 months’ imprisonment which was  imposed  on  each  charge.    (Correcting  the  arithmetic  on  this  calculation,

21 minus four would have led to a sentence of 17 months rather than 19 months.)  In addition, a reparation order was made for $6,500 to Telstra Clear and $231.75 to Mr Rentals, to be paid at $50 per week starting upon release.

[11]     With regard to failing to answer bail (being Ms Waho’s second, third and fourth convictions for that offence), the net result was three months’ imprisonment cumulative on that imposed for the dishonesty offending.  With regard to the breach of community work, being Ms Waho’s sixth conviction of that nature, two months’ imprisonment  was  imposed  and  the  sentence  of  community  work  imposed  on

24 June  2008  was  cancelled.    The  Judge  therefore  imposed  a  total  period  at

24 months’ imprisonment.

[12]     In considering home detention, Judge Garland stated:[3]

[3] At [30]

I do have the jurisdiction to impose a sentence of home detention instead of community detention but having regard to your past history of failing to comply with community based sentences, I am not prepared to impose a sentence of home detention.   The sentence that you will serve is therefore one of two years imprisonment overall.

Leave to appeal out of time

[13]     Section 123(1) of the Summary Proceedings Act states:

123      Powers of Judge of High Court as to extension of time

(1)Any  Judge  of  the  High  Court  may,  on  the  application  of  the appellant or intending appellant, extend any time prescribed or allowed under this Part of this Act for the filing of any notice or the stating of any case or the doing of any other thing in respect of any appeal or proposed appeal to the High Court.

[14]     In Vincent v Police,[4] (relying on the decisions of Cleggs Ltd v Department of Internal Affairs,[5] Police v Hill,[6] and Oancea v Police[7]), Priestley J characterised the general  approach  as  considering  the  application  in  tandem  with  the  substantive appeal.   The overarching consideration must be avoiding a miscarriage of justice.

Therefore, the Courts will generally grant leave to appeal out of time in cases where the substantive appeal will succeed.  Not to do so would clearly be a miscarriage of justice relying on a procedural technicality to avoid substantive justice.

[4] Vincent v Police [2007] DCR 277 (HC) at [8].

[5] Cleggs Ltd v Department of Internal Affairs HC Auckland N1032/84 5 September 1984. 

[6] Police v Hill (1990) 6 CRNZ 280 at 281 (HC).

[7] Oancea v Police HC Auckland CRI 2004-404-100, 26 October 2004.

[15]     Accordingly, I proceed to consider the substantive appeal on that contingent basis.

Analysis of arguments on appeal

[16]     Ms Waho contends that her sentence was manifestly excessive and that home detention ought to have been imposed.  I deal with each of these heads in turn.

Sentence manifestly excessive

[17]     An appeal against sentence is a general appeal under s 115 of the Summary Proceedings Act 1951.  Under s 121, the High Court is to hear and determine every general appeal and make such order in relation to it as the Court thinks fit.   The Court may confirm the sentence, or (under s 121(3)(b)):

If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

i.Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefore as the High  Court  thinks  ought  to  have  been  passed  or  deal  with  the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or

ii.Quash any invalid part of the sentence that is severable from the residue; or

iii.       Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

[18]     Ms Waho invites the Court to vary the sentence imposed on two grounds. First,  the  Judge’s  arithmetic  was  mistaken  in  imposing  the  sentence  for  the dishonesty offences.  Second, that the uplift imposed, in relation to the dishonesty offences, was excessive to such an extent that it offends against the rule against double-jeopardy.  The issue of whether a sentence is manifestly excessive must be determined  with  regard  to  the  sentence  actually  passed,  rather  than  the  precise

process by which it is reached.[8]    Nevertheless, I consider it helpful to analyse the

Judge’s process with regard to the dishonesty charges as there has been no issue taken regarding the other sentences imposed.

[8] R v Peters CA12/03, 14 May 2003 at [13].

[19]     As I have noted, Judge Garland began with a 12 month starting point.  The appropriateness of that starting point is not disputed by Ms Waho.   Rather, it is argued  that  the  uplift  to  21  months,  representing  an  uplift  of  75  per  cent,  is manifestly excessive.   In support, counsel refer to the decision of the Court of Appeal in R v Piper[9] where the Court considered the extent to which an uplift could be made on account of the offender’s previous convictions.  The Court relied on the decision of the Court of Appeal in R v Ward.[10]   At 591, the Court in Ward said:

It cannot be denied that it has long been considered proper for a court when dealing with the class of offender we are discussing to enlarge the period of confinement beyond that which it would give the offender had he not had a history of persistent offending and were it not thought necessary to protect the public from his depredations.   But at the same time the courts have struggled to ensure, in the words of Sir Michael Myers CJ, that the sentence imposed bears “some relation to the intrinsic nature of the offence and the gravity of the crime”.

[9] R v Piper CA345/05, 12 September 2006.

[10] R v Ward [1976] 1 NZLR 588 (CA).

[20]     At [9], the Court in Piper said, in considering that an uplift of two years, from a starting point of one year was not justified (the Court considered that an uplift of one year was justified):

Hence  a  balance  must  always  be  struck.    An  increase  to  the  penalty otherwise appropriate is permissible, but not to the point where the end sentence is out of balance with the gravity of the offending.

[21]     In the present case, it is clear that the Judge undertook that uplift in light of an extensive previous history for dishonesty.  In Piper, the Court accepted that the appellant had a “very bad record”.  That was in light of a history of five previous convictions  for  drug  dealing.  Ms Waho  has  31  convictions  for  dishonesty.    In relative  terms,  they appear  less  serious  than  Mr  Piper’s  “very serious  cannabis dealing”.   However, as found by the Judge, they were premeditated.   Further, as

noted by the Court of Appeal in R v Columbus:[11]

…while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act  2002)  and  to  the  purposes  of  deterrence  and  community  protection (s 7(f) and (g)).

[11] R v Columbus [2008] NZCA 192 at [14].

[22]     However, the “principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself”.[12]   In Columbus, the Court  held  that  an  uplift  of  12  months  from  a  starting  point  of  18  months (67 per cent) was justified to reflect the fact that:

The nature and extent of Mr Columbus’ dishonesty history relates directly to his burglary.  Previous sentences of imprisonment have not served to deter Mr Columbus.   The community requires continued protection from him. However, it is relevant that Mr Columbus’ offending was of a spontaneous nature and his habitual or recidivist tendencies do not suggest a professional disposition to burglary, although they still reflect a significant degree of culpability.  His history shows a risk of re-offending at the same reasonably minor end of the scale that characterised this crime.   That is the risk of prevention to which past offending is relevant.

[12] At [15].

[23]     In the present case, Ms Waho’s history of dishonesty relates directly to the offences that she was charged with here.  Previous sentences have not served to deter

Ms Waho.  By her own account, she was not in any financial difficulty at the time of the offending, rather she said “I was all too easily led”.

[24]     There are three aspects of the Judge’s reasoning on sentencing that cause concern.  The first is the arithmetical error.  It is possible that it did not affect the sentencing Judge’s rationalisation for the end sentence imposed, but it does raise a doubt   about   the   integrity   of   the   reasoning   process.      For   the   respondent, Ms Woodcock   was   inclined   to   accept   that   the   prospect   of   error   in   these circumstances warrants the Court on appeal undertaking a “re-sentencing” exercise.

[25]     The second concern I have, which arises in part out of the first, is that the sentencing notes do not explicitly acknowledge that the Judge undertook the final step appropriate in the imposition of cumulative sentences, namely the “standing back” to assess the relativity of the total sentence, as against the gravity of the offending overall.  I accept that the Judge may well have implicitly undertaken that step, and satisfied himself that the final sentence imposed was not out of step, but the absence of an explicit acknowledgement of that step, particularly when assessing the impact on the overall outcome of the arithmetical error, raises a material concern that further justifies the reappraisal of the sentence proposed on behalf of the Police.

[26]     Thirdly, I consider that the uplift of 75 per cent was excessive.  In line with the Court of Appeal in Columbus, an uplift of no more than 67 per cent would be appropriate.

[27]     Ms Woodcock’s submissions for the Police acknowledged that it is difficult to identify close analogies when sentencing for this range of offending, but nonetheless offered the decisions in Singh v Police[13]  and Savage v Police [14] as affording useful guidance.   In Singh, the appellant challenged a sentence of two years’ imprisonment for 13 convictions of credit card fraud involving some $3,000 worth of fraudulent purchases.  Mr Singh had 39 previous convictions for dishonesty over a period of some 10 years and had outstanding fines of $12,700.  The Court of Appeal acknowledged there was no readily discernible sentencing pattern in similar

cases of dishonesty.  It treated the extent of the fraudulent purchases as a measure of the seriousness of the offending, and decided that two years was too long a sentence, notwithstanding the appellant’s history of offending.   A replacement sentence of

18 months’  imprisonment  was  imposed.    In  the  present  appeal,  Ms Woodcock suggested that that end sentence implied a starting point of about 12 months’ imprisonment.

[13] R v Singh CA336/02, 11 March 2003.

[14] Savage v Police HC Whangarei CRI-2008-488-000001, 14 February 2008.

[28]     In Savage, the appellant had been sentenced to 10 months’ imprisonment on one conviction of using a document.  That involved cashing a cheque found by her for $25,000.  In addition, there were convictions for breach of community work and the appellant had three previous convictions for dishonesty.  The District Court had adopted  a  starting  point  of  18  months’  imprisonment,  which  was  reduced  to

10 months’ imprisonment on account of guilty plea and offer of reparation.   On appeal, the starting point of 18 months’ imprisonment was upheld, but was replaced with a sentence of home detention.

[29]     Ms Woodcock submitted that Singh was the more similar of these analogies and she urged that it justifies a starting point of between 12 and 15 months for the dishonesty  convictions  involved  here,  to  which  could  reasonably  be  added  six months for the aggravating circumstances including previous convictions.

[30]     Ms Woodcock pointed out that some at least of the dishonesty offending in the present case had occurred whilst Ms Waho was subject to other sentences which could also justify an additional component as an aggravating factor that was not taken into account by the sentencing Judge.

[31]     In terms of discount for eventual guilty pleas, Ms Woodcock submitted on the authority of R v Hessell[15]  that a 20 per cent discount was the largest that could have been available to the appellant.  The theft offending had occurred almost two years before the sentencing and the using a document offending almost a year before the charges were resolved, given the appellant’s failures to appear.  On that basis, a discount of 15 per cent could not have been criticised.

[15] R v Hessell [2009] NZCA 450.

[32]     Having regard to these factors, it was submitted for the Police that a final sentence of between 20 and 24 months’ imprisonment could not be criticised as manifestly excessive.

[33]     On  the  more  serious  of  the  dishonesty  offending,  I  am  satisfied  that

12 months’ imprisonment would have been a sufficient starting point.  Having regard to the aggravating features of the other dishonesty convictions on which Ms Waho was being sentenced concurrently, the extent of her prior convictions, and the fact that some of the offending occurred whilst she was subject to other sentences, should not warrant an uplift of more than 67 per cent.  However, I consider the seriousness of these aggravating features does warrant that extent of uplift.

[34]     Within that approach, the relatively belated guilty pleas would warrant a discount of 15 per cent, resulting in an end sentence for the dishonesty charges of

17 months’  imprisonment.    This  is  after  allowing  for  some  rounding  to  whole months in the calculations: 12 x 1.67 = 20.04 x .85% = 17.03.

[35]     Adding the cumulative sentences for the breach of bail convictions (three months) and breach of community work conviction (two months), the final sentence is 22 months’ imprisonment.  I consider that an appropriate and justified sentence in the present case.

[36]     A reduction of two months on an original sentence of 24 months runs the risk of criticism as appellate tinkering.   However, I am satisfied that the reasons for approaching this appeal as if it were a “re-sentencing”, and the concerns I have identified  in  [24]  to  [26]  above,  warrant  allowing  the  appeal  by  substituting  a sentence reduced to that extent.

[37]     I have not overlooked the argument for Ms Waho that some discount should be allowed for her offer of reparation at a specific rate.  On that point, I accept the submission of the respondent that reparation is not a matter which falls for consideration under either s 9(2)(f) or s 10.  A sentence of reparation is imposed on the offender.   Therefore, an offer to pay it cannot mitigate the offending of an individual.

[38]     There may be more in the point that Ms Waho has expressed remorse and that was not expressly taken into consideration by the Judge.   However, the three month reduction for belated guilty pleas can be seen as giving modest credit for such remorse.

Home detention

[39]     The second aspect of the appeal was that the Judge ought to have imposed a sentence of home detention.

[40]     As stated in R v Stoves:[16]

An appeal against refusal to grant leave to apply for home detention is an appeal against the exercise of a discretion, and the appellant must show that the discretion was exercised on a wrong principle or was plainly wrong. Leave to apply may only be granted if the Court is satisfied that that would be appropriate, taking into account the nature and seriousness of the offence and the circumstances and background of the offender.

[16] R v Stoves CA264/07, 7 November 2007 at [18].

[41]     Appeals against a refusal to order home detention are to be approached on the same basis.

[42]     Section 15A of the Sentencing Act 2002 (the Act) permits a Court to impose a sentence of home detention, not exceeding twelve months, where two criteria are met:

(a)       the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)the  court  would  otherwise  sentence  the  offender  to  a  short-term sentence of imprisonment.

[43]     Section 16 of the Act also provides guidance:

(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)       a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.

(3)      This  section  is  subject  to  any  provision  in  this  or  any  other enactment that—

(a)provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or

(b)       requires a court to impose a sentence of imprisonment in relation to a particular offence.

[44]     The observations of Heath J for the Court of Appeal in R v D are instructive, albeit the case concerned an appeal by the Solicitor-General against a sentence of intensive supervision:[17]

In a case like this, the sentencing Judge is required to form a judgment on whether   imprisonment   is   necessary   or   home   detention   can   respond adequately to the seriousness of the offending.  The closer one gets to the dividing  line,  the  more  difficult  it  becomes  to  articulate  reasons  for preferring one approach to the other.  In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[17] R v D [2008] NZCA 254 at [66].

[45]     Where a case is within reasonable proximity to the dividing line between imprisonment and home detention, and where a sentencing Judge familiar with sentencing on such crimes, turning his or her mind to the issue of home detention, does  not  overlook  relevant  considerations  and  explains  why  a  less  restrictive sentence is inappropriate, there is limited scope to revisit the exercise of discretion.

[46]     As submitted by counsel for Ms Waho, the Court of Appeal in Iosefa v R states that home detention is not a soft option and that the interests of denunciation and deterrence can be served by a sentence of home detention.[18]

[18] Iosefa v R [2008] NZCA 453 at [41].

[47]     However, the Judge clearly thought that a sentence of home detention would be inappropriate in the circumstances.  Whilst home detention is not a community based sentence under the Act,[19]  there are still conditions which must be complied with by the individual.  I do not accept the criticism advanced for Ms Waho that the Judge erred by treating home detention as a form of community sentence.[20]    In circumstances where an offender has repeatedly shown disregard for court orders and failed to adhere to terms of release in the community, there is scope for relevant concern that Ms Waho would fail to adhere to conditions of home detention.

[19] Sentencing Act 2002, s 44.

[20] At [30] there was a reference to her failure to comply with community based sentences, but not in terms that treated home detention within that category.

[48]     Further, as recent Court of Appeal decisions such as R v Edmonds[21]  and R v Taiepa[22]   make  clear,  there  is  no  prevailing  presumption  in  favour  of  home detention.  Moreover, in cases where denunciation, individual and general deterrence are  of  particular  significance,  an  appellate  Court  will  seldom  interfere  in  the

sentencing Judge’s assessment of home detention as a realistic alternative or not. Judge Garland, at [21] identified denunciation and deterrence of Ms Waho, as well as general deterrence as relevant sentencing purposes.  Thus, whilst home detention is a sentence which should not be strayed from lightly where there is jurisdiction to impose such a sentence, the option to not impose a sentence of home detention was one that was clearly open to the Judge.   Indeed, serial non-compliance with community based sentences and breaches of bail terms, as well as the progression in the pattern of offending, readily justify treating home detention as inappropriate.  I am satisfied that there is no proper basis to interfere with the Judge’s decision in that regard.

Conclusion

[21] R v Edmonds [2009] NZCA 152.

[22] R v Taiepa [2009] NZCA 120.

[49]     In light of the substantive merits of this appeal, leave to appeal out of time is granted and the appeal is allowed in part.   The sentence of the District Court is varied to a total of 22 months’ imprisonment.  That reflects 17 months (instead of

19 months)  on  the  dishonesty  convictions,  and  maintenance  of  the  original cumulative sentences of three months and two months for the remaining groups of convictions.

Dobson J

Solicitors:

Mark Lillico, Wellington for appellant

Crown Solicitor, Wanganui for respondent