Ward v Police HC Christchurch CRI 2010-409-119

[2010] NZHC 1340

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000119

MATTHEW JAMES WARD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 July 2010

Counsel:         P J Norcross for Appellant

K B Bell for Respondent

Judgment:      29 July 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This  is  an  appeal  against  an  end  sentence  of  three  years’  imprisonment imposed in relation to two offences of driving while disqualified and two offences of receiving, one of burglary and one of theft.

[2]      The basis of the appeal is effectively three-fold.  First, that the Judge allowed an inadequate discount for pleas of guilty.  Second, that his methodology was flawed and  third,  that  the  Judge  failed  to  take  account  of  personal  mitigating  features

disclosed in the pre-sentence report.

MATTHEW JAMES WARD V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000119  29 July 2010

[3]      It is first necessary to refer to the offending.   The driving while disqualified charges occurred in 2008.   In April of that year the appellant was apprehended driving in Christchurch.  He said that he had obtained his licence back a few days earlier, whereas in fact his period of disqualification had a few days to run.  The case was taken to a defended hearing, but the appellant was convicted.

[4]      The second offence of driving while disqualified occurred in August 2008 and was unremarkable - being a situation where the appellant said he drove in order to “take a mate to court”.  There was a plea of guilty to that offence in November of the same year.

[5]      The first of the receiving offences occurred in the period April to July 2009. A car had been taken from a yard and was found upon the execution of a search warrant in July of 2009 at the accused’s address.   By then the vehicle was in a dismantled state.  When taken the car, a Monaro, was worth of the order of $15,000.

[6]      The second receiving related to the period June/July 2009.  The same search warrant unearthed a chainsaw which had previously been taken from a company, together with other miscellaneous items to a value of about $1,000.

[7]      The fifth offence in point of time was a burglary committed on 8 July 2009 at Darfield.  The appellant broke into premises and stole alcohol to a value of $1,500. The  final  offence  was  committed  that  same  day  and  was  a  theft  committed  at Kirwee.   The appellant went into a property and towed away a loaded trailer on which were four motorbikes.  The value of the trailer and the bikes was of the order of $20,000.  Again, this offending was discovered consequent upon the execution of the search warrant, when the trailer and one of the motorbikes were located and seized.

[8]      The appellant is aged 29 years.   He has a substantial list of convictions including numerous for offences of dishonesty, but extending to other offending as well, for example for breaching community-based sentences.

[9]      Judge Radford sentenced the appellant on 14 June this year.  There had been extensive delay in relation to the sentencing itself.   It was first scheduled for November 2009 and then December 2009, but both sentencing were adjourned on account of industrial action affecting the court.   In March of 2010, again the sentencing was deferred, this time to enable an update to be obtained in relation to a home detention annexure and, hence, it was not until June that Judge Radford imposed the sentence.  This delay is of some significance to one of the grounds of appeal and I shall refer to that aspect shortly.

[10]     In imposing sentence the Judge identified as the lead offence the theft of the trailer  and  motorbikes  and  in  relation  to  this  he  identified  a  starting-point  of

12 months’ imprisonment.   Since he regarded the other offending as discrete the Judge then said that the two offences of driving while disqualified warranted an uplift to the starting-point of a further 12 months.   Finally, in relation to the two offences of receiving and one of burglary, the Judge said that these, in the round, warranted a further uplift of two years; hence the combined starting-point became four years’ imprisonment.  From this he identified a discount of 20% on account of the guilty pleas entered at various points in time (save for the charge of driving while disqualified which was defended).   He then rounded that discount to 25%, by reducing the starting-point of four years back to three years’ imprisonment.

[11]     However, at this point the Judge rather deserted the exercise which he had just gone through, because in imposing the end sentence, two years was imposed in relation to the lead offence of theft and 12 months cumulative in relation to the receiving of a car (the Monaro).  That produced an effective sentence of three years’ imprisonment  and  in  relation  to  the  remaining  receiving,  the  burglary  and  the offences of driving while disqualified, concurrent terms of 12 months or six months were imposed, but these, of course, did not impact upon the end sentence.

[12]     I return to the issue of the discount allowed for guilty pleas.   As Judge Radford commented this was a somewhat complicated exercise.  Pleas were entered at different points in time, save with reference to the dishonesty offending.   As already noted, one of the driving while disqualified charges went to a hearing and hence there was no discount available for that.  There was a delay of three months,

about, before entry of plea in relation to the remaining driving while disqualified.  As to the dishonesty offending, the appellant entered a plea to all of the charges on 25

September.   The two receivings and the theft informations were laid only shortly before then and hence the plea was entered on the first appearance in relation to those particular informations.  The burglary charge had been preferred in July and hence there was a delay of about two months before the plea was entered in that instance.

[13]     The  three  charges  to  which  the  appellant  pleaded  guilty  on  his  first appearance had been relaid in light of discussions between the police and counsel. Apparently they had originally been laid as burglaries but then charges of theft and receiving were substituted and there was an immediate response by way of guilty pleas.  What, then, was the Judge to do in arriving at an overall discount against this somewhat complicated background?  I have noted that he allowed 20% but rounded it up to 25%.   Mr Norcross submitted that something a little higher by way of a percentage discount was still justified.  Ms Bell doubted that this was so and I think indicated that if the allowance had been any higher it would have only been by a few percentage points.

[14]   The second argument advanced by Mr Norcross was as to the Judge’s methodology.  The end sentence was structured in an odd fashion to the extent that the Judge imposed a lead sentence of two  years for the theft of the trailer and motorbikes when he had fixed a starting-point of only 12 months for that offending. While I agree that this was an unusual approach, it does not seem to me to matter in the long run.  What is important is that the Judge had arrived by reference to starting- points and a reduction for guilty pleas at an indicated end sentence of three years. He adhered to this when imposing the final sentence, albeit one component of the end sentence happens to be at-odds with the starting-point originally adopted for it.  I do not regard this as invalidating the sentencing process, although it is an unusual feature.

[15]   The third aspect concerns what Mr Norcross termed mitigating features identified in the pre-sentence reports.  There were no less than three reports prepared on account of the deferral of the sentencing on a number of occasions.  Significantly

the first of the pre-sentence reports recommended a sentence of imprisonment which was hardly surprising, given the appellant’s background and the seriousness of the dishonesty offending in particular.  But by the time of the final pre-sentence report the recommendation was for home detention.  This, in turn, reflected a number of developments that had occurred over the relevant period.  The appellant had formed a relationship with a new partner.   He was in contact with children of a previous relationship and apparently this had given him increased motivation to mend his ways.  He had been on a 24 hour curfew for an extended period and had managed to comply with that obligation.  He had part-time work and an offer of full-time work at the date of sentencing.   He was assessed as motivated to address an underlying alcohol problem and, as I have already noted, the pre-sentence report writer was moved to recommend home detention in light of these developments.

[16]     Ms Bell, in response to these arguments, noted that the appellant was on bail at the time that the major offending was committed.  She doubted that there was any deficiency in the discount allowed for the guilty pleas when one worked through the complexity of the necessary exercise.   Counsel acknowledged that there was no express recognition given by the Judge to the partial, at least, turnaround achieved over the relevant period, but this must have been known to him when he imposed sentence in June.

[17]     In my view there is little or nothing in the point concerning the discount for the pleas.   This was a convoluted exercise against the background I have already discussed.  Perhaps a percentage in the high 20s could have been arrived at but this would not have made any great difference to the sentencing outcome, given that the Judge had allowed effectively 25% in any event.

[18]     The other matter which requires attention is the “turnaround” achieved by the appellant over the relevant period.  Some Judges may well have expressly recognised it and allowed some further discount on this score.   I agree that there are some promising signs that the appellant has begun to mend his ways.  But as against that, this was serious and committed repeat offending by a mature man who has a poor record, particularly in relation to offences of dishonesty.   I am not brought to the point where I am satisfied that the Judge erred in arriving at an end sentence of three

years’ imprisonment.   Were I to intervene, it seems to me that any change to the sentence would be of the order of a few months and that would be “fiddling” which is inappropriate sitting on appeal.

[19]     It seems to me that the positive signs recognised in the last of the pre- sentence reports may well avail the appellant when his case is considered by the Parole Board provided, of course, he has demonstrated a continued determination to address the causes of his offending during the course of his sentence.  I make that observation deliberately as it may be of significance in the future.

[20]     Otherwise, in my view, this is not a case for this Court’s intervention and the appeal is dismissed.

Solicitors:

P J Norcross Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent