Walsh v Police HC Tauranga CRI-2010-470-36

[2011] NZHC 230

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-470-36

BOBBY ALAN WALSH

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 March 2011 (Heard at Rotorua)

Counsel:         M McGhie for the Appellant

C Harold for the Respondent

Judgment:      18 March 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr M McGhie, Solicitor, Whakatane

Ms C Harold, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

WALSH V NEW ZEALAND POLICE HC TAU CRI-2010-470-36 18 March 2011

[1]      Mr Walsh has appealed against cumulative sentences totalling 24 months imprisonment for theft and dishonest use of EFTPOS cards involving a total of

$2,700.  There was a sentence of a further month for breach of a community work sentence on two occasions.

The offences

[2]      There were four offences of dishonestly using an EFTPOS card over a seven day period in June 2010.  The card was owned by Mr Walsh’s aunt with whom he was living at the time.  The sums withdrawn were $200, $800 on two occasions, and

$250.

[3]      On those charges Mr Walsh was remanded at large on 26 July 2010 to appear again on 11 August 2010.

[4]      The community work sentence had been imposed on 2 June 2010 for driving with excess breath alcohol.  It appears that Mr Walsh took no steps to comply with this sentence.  The charges were for breaches in June and July 2010.  The second breach therefore occurred when Mr Walsh was on remand for the charges involving his aunt’s EFTPOS card.

[5]      The theft occurred on 5 August 2010.  A wallet containing $550 was stolen from a person who won the money on a gaming machine.  Mr Walsh grabbed the owner’s wallet and, after a brief tussle, ran from the building, and drove off with an associate.  They used the money to buy alcohol, cigarettes and petrol.  I note that the original information alleged theft of $800 but this was amended to $550.

[6]      This theft also occurred while Mr Walsh was on remand on the June EFTPOS card charges and when he was subject to the community work sentence.  Mr Walsh failed to appear on the June charges on 11 August and a warrant to arrest was issued.

[7]      On 14 August 2010 Mr Walsh again dishonestly used an EFTPOS card.  He obtained $100.  This was a card belonging to an acquaintance.  Mr Walsh went to a

supermarket with the card owner and watched her entering her PIN number.  When Mr Walsh got out of the card owner’s car a little later he surreptitiously took her card out of her bag and later withdrew the $100.

[8]      Mr Walsh appeared on all matters on 16 August 2010.  He was sentenced on

15 November 2010.

Personal

[9]      Mr Walsh had just turned 23 years of age when the June offending occurred. He has previous convictions for dishonesty, commencing with a conviction for receiving in 2006, when he was aged 19.  There is a further conviction for receiving, six convictions for shoplifting over a period of two weeks in 2006 which is when the second receiving occurred, a conviction for theft in October 2006, and a conviction for dishonest use of a document in 2008.

[10]     There are three convictions for breach of a community work order and one earlier conviction for breach of conditions of supervision, in 2008 and 2009.

[11]     Mr Walsh acknowledged to the probation officer that he has problems with alcohol.   This was assessed as a key factor in the offending.   He showed little remorse and displayed a great deal of “offending supportive attitudes”.  A sentence of  supervision  imposed  in  2009  was  designed,  in  part,  to  address  the  alcohol problem, but Mr Walsh did not respond positively.

[12]   The probation officer, after noting the possibility of home detention, recommended imprisonment.

District Court sentencing

[13]     The  Judge  outlined  the  facts  of  the  offending  and  Mr  Walsh’s  criminal history.   He referred to “a large number of convictions” although it is not a particularly large number when compared with many other cases that come before the courts.

[14]     The Judge then considered a submission for Mr Walsh that a sentence of home detention be imposed. The Judge reviewed this with care.  He said:

[10]      In my view, this is a case where a sentence short of imprisonment is simply unrealistic.   You have got a long track record of pleasing yourself over such a period of time that I consider it would just be irresponsible for me to put you back in the community, given that we have tried rehabilitative sentences and you are just incapable of continuing with them.

[15]     The  Judge  reviewed  further  considerations,  including  the  relatively  few positive considerations in favour of home detention, including Mr Walsh’s age.  He referred to relevant principles of sentencing and then said:

[15]      As I say, this is property offending, and I take account of the fact that it  is  undesirable  to  sentence  offenders  to  imprisonment  for  property offending, pure and simple, but given the circumstances of this offending, its repetitive nature, the fact that you were in breach of Court sentences at the time that you were offending in this way, and quite frankly, the mean and low nature of you taking that card from that woman in Gisborne and using it after she had taken you into her home, in my view nothing short of imprisonment could possibly be appropriate.

[16]     The Judge treated the June offences as a spree.  He took a starting point of 18 months imprisonment for that offending, gave a discount of one-third for the appellant’s guilty plea (and I note that the sentencing occurred one day before the Supreme court’s decision in Hessell[1]was released), and imposed concurrent end sentences of 12 months imprisonment on each charge.

[1] (2010) 24 CRNZ 966 (SCNZ).

[17]     The Judge took a starting point of 9 months imprisonment for the August EFTPOS offence, gave a one-third discount for a guilty plea, and imposed a cumulative end sentence of 6 months imprisonment cumulative on the 12 months for the June offences.

[18]     For the theft there was a starting point of 9 months imprisonment, a one-third discount for a guilty plea, and an end sentence of 6 months imprisonment cumulative

on both of the other sentences.

[19]     The appellant received imprisonment of 1 month on each of the breach of community work charges, cumulative on the sentences for dishonesty but concurrent between themselves.

[20]     The total sentence for the theft and dishonest use of the cards was, therefore,

24 months imprisonment with a further month for the community work breaches resulting in a total sentence of 25 months imprisonment.

Appeal grounds

[21]     There are two principal grounds advanced on the appeal.   It is submitted, firstly, that pursuant to s 84(2) of the Sentencing Act 2001, concurrent sentences should have been imposed for the theft and card offences on the basis that the offences are of a similar nature and were part of an on-going pattern of offending over a relatively short period of time.  The second ground for appeal is that the total sentence is out of proportion to the gravity of the overall offending, contrary to s 85(2) of the Sentencing Act; in other words, the sentence overall is manifestly excessive.

Discussion

[22]     The important question on this appeal is whether the total sentence of 24 months imprisonment for the dishonesty offences is manifestly excessive.

[23]     Ms Harold, for the respondent, referred to four broadly comparable cases: R v

Singh[2]; Nathan v R[3]; Keenan v Police[4]; Lynton v Police[5].

[2] CA336/02, 13 March 2003.

[3] HC Hamilton, CRI-2005-419-97, 13 September 2005, Nicholson J.

[4] HC Christchurch, CRI-2007-409-97, 5 June 2007, Fogarty J.

[5] HC Auckland, CRI-2005-404-271, 3 October 2005, Heath J.

[24]     I  am  grateful  for  Ms  Harold’s  assistance  in  this  regard.    The  written submissions for the respondent, filed some time before this hearing, responsibly and

properly submitted that these cases indicate that, and I quote, “a stern starting point

for the totality of the dishonesty offending by Mr Walsh would be around 12 to 15 months imprisonment”.  It was submitted that that should appropriately be increased by 6 months imprisonment because of Mr Walsh’s previous history of dishonesty offending and because these offences occurred when he was already subject to a sentence, being the community work sentence.  It was submitted that there is a real risk of re-offending with Mr Walsh and deterrence and protection of the community are matters of paramount importance.   With a discount of one-third for personal mitigating factors, as allowed by the Judge, Ms Harold submitted that this indicated an end sentence of 12 to 14 months imprisonment.   As a result the respondent acknowledged that the end sentence of 2 years imprisonment for the dishonesty offending was out of range.

[25]     I am in broad agreement with the submissions for the respondent.  And I will come in a moment to the submissions of Mr McGhie for the appellant.   The total sentence is, with respect to the Judge, well out of range – it is manifestly excessive. However, I also agree with Ms Harold’s observation that the learned Judge, who no doubt was sitting in a busy list court, appears not to have had the benefit of any of the authorities being referred to him either by the prosecutor or defence counsel.  Mr McGhie, who appeared for Mr Walsh in the District Court, confirmed that this was the case.

[26]     Except on the question of an uplift there was no material difference between the submissions for the appellant and those for the respondent.  Mr McGhie referred to Singh[6] and also to Barakat[7] and Te Au.[8]   Mr McGhie submitted that an appropriate starting point for the dishonesty offences was around 12 months imprisonment.  He submitted that the uplift for previous offending and offending while subject to a sentence and while on remand at large should not be more than 1 to 2 months.  In his oral submissions Mr McGhie acknowledged that the uplift might be up to 3 months.

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

[7] Barakat v Police HC Palmerston North, CRI-2008-454-35, 14 August 2008, McKenzie J.

[8] Te Au v Police HC Nelson, CRI-2007-442-19, 10 December 2007, Wild J.

[27]     I do not consider there was any material error by the Judge in treating the sets of offending as distinct.  But, as I have already noted, the end sentence for all of the

dishonesty  offending  is  manifestly  excessive.    It  is  necessary  to  determine  an

appropriate sentence.   I consider the appropriate way to do this is to approach the matter having regard to the totality of the dishonesty offending and essentially fixing a starting point for all of it (notwithstanding the fact that this may not be strictly in accordance with Taueki[9]).

[9] R v Taueki [2005] 3 NZLR 372 (CA).

[28]     In fixing a starting point there is, of course, need to leave to one side, in the first  instance,  the  appellant’s  history  of  offending  and  the  fact  that  the  present offences occurred when subject to an existing sentence of community work and with the August offences occurring when he was on remand for the June offences.  Other matters personal to the offender also need to be left to one side.

[29]     I  consider  that  a  reasonably  stern  starting  point  for  the  totality  of  the dishonesty offences is 12 months imprisonment.  I consider it is appropriate to adopt what I consider to be a reasonably stern starting point to reflect, as far as possible, the matters which influenced the learned Judge’s conclusion in respect of the offending itself.

[30]     Some uplift is undoubtedly required for the previous offences, the offending while subject to a sentence and some offending while on remand.   But I do not consider it should be as much as Ms Harold submitted. An uplift of 6 months would represent 50% of the end sentence for the offending being dealt with.   Ms Harold referred me to Keenan[10]  in this regard.  In that case Fogarty J held that the starting point for the offending in that case should be 12 months imprisonment.  I note that the offending was broadly comparable to the present offending.  He then applied an uplift of 6 months because of the appellant’s criminal history and offending while on

parole.   However, the previous convictions of the appellant in that case were for offences  substantially  more  serious  than  in  this  case  and  previous  sentences  in Keenan had included 3 years imprisonment (see Keenan at [3]).

[10] Keenan v Police HC Christchurch, CRI-2007-409-97, 5 June 2007, Fogarty J

[31]     The previous offending in this case cannot be ignored, but it is, on a relative scale, low level dishonesty and there is not a large number of dishonesty offences.

The total is 11 previous offences.  Seven of those all occurred over a period of 13

.

days in 2006 – six of shoplifting under $500 and one receiving under $500.   A further uplift is required because the present offending occurred when Mr Walsh was subject to the community work sentence and some of it while on remand.   In my judgment the appropriate uplift is 3 months.

[32]     Allowing a discount of one-third for mitigating factors (and I would include youth, as far as it goes, as well as the guilty pleas), results in an end sentence of 10 months imprisonment.

[33]     There is no appeal against the cumulative sentence of 1 month for breach of the community work sentence.

Result

[34]     The sentences imposed in the District Court for dishonest use of a document and for theft are quashed.

[35]     The sentences imposed in their place are as follows:

(a)       There is a sentence of 10 months imprisonment for theft in August

2010.

(b)There is a sentence of 10 months imprisonment for the four offences of dishonestly using the EFTPOS card in June 2010.

(c)       For the offence of dishonestly using the EFTPOS card on 14 August

2010 there is a sentence of 3 months imprisonment. [36]       Those sentences are to be served concurrently.

[37]     Those sentences are subject to the following special conditions pursuant to s 93 of the Sentencing Act 2001 with these conditions to expire 6 months after the sentence expiry date:

(a)      Mr Walsh is to attend and complete an appropriate drug and alcohol programme to the satisfaction of the probation officer and programme provider.  Details of the appropriate programme are to be determined by the probation officer.

(b)If  Mr  Walsh  meets  criteria,  he  is  to  undertake  a  pre-programme interview and complete any departmental programme, subject to availability, as may be directed by, and subject to, the satisfaction of the probation officer and the programme facilitator.

(c)      Mr Walsh is to attend and complete such counselling, programme and treatment to address identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and the programme provider.

[38]     The standard release conditions will also, of course, apply.

[39]     The sentence imposed in the District Court for breach of the community work sentence stands, as do the orders for reparation.

[40]     The community work sentence imposed on 2 June 2010 for the breath alcohol offence is quashed.

Peter Woodhouse J