Watson v Police
[2013] NZHC 2588
•4 October 2013
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI 2013-034-208 [2013] NZHC 2588
JONATHAN ARTHUR WATSON Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 4 October 2013 (AVL Conference) Counsel: S R Oliver for Appellant
L C Rowe for Respondent
Judgment: 4 October 2013
JUDGMENT OF RONALD YOUNG J (Appeal against sentence)
[1] Mr Watson appeals against a sentence of nine months’ imprisonment as manifestly excessive for two charges of receiving stolen property, as well as drug offending, being in an enclosed yard, assault, resisting arrest and unlawfully interfering with a car.
[2] There was a burglary of a South Makikikiri School and a building container in the school grounds owned by a construction company. $20,000 worth of tools were taken and four laptops from the school. During a search of the appellant’s premises shortly after the burglary the two computer laptops were found together with $5,000 worth of the stolen building equipment. The total amount of the
property received was $8,000.
WATSON v POLICE [2013] NZHC 2588 [4 October 2013]
[3] At the defendant’s address were 11 cannabis plants, each approximately
12 inches in height which the appellant was growing. A methamphetamine pipe was also found. These resulted in a charge of cultivating cannabis and of possession of drug utensils.
[4] At about the same time in late 2012 a Sergeant Wood heard noises from the rear of his property and went to investigate. He then heard a loud knock on the front door and opened the door to the defendant. Video camera footage showed that the appellant had been in an enclosed yard at the rear of the police house on several occasions that evening. Shortly afterwards the video footage showed the appellant trying to open the rear door of a police car.
[5] A few days later the appellant came to the Marton police station demanding to know why the police had been to his home. He was angry and aggressive. While there he threw a drink bottle directly at one of the police officers with considerable force but missed the officer and no damage occurred. An attempt was made to restrain him; he resisted.
[6] The Judge at sentencing noted that the appellant’s wife had pleaded guilty to receiving the property from her husband and had been sentenced to community work. The Judge took the view that the appellant’s culpability was quite different than that of his wife’s.
[7] The Judge considered the appellant’s criminal history and noted that it was extensive. The Judge mentioned the pre-sentence report which said the appellant was at medium risk of reoffending, he had minimal remorse for his offending and even though he had been on a methadone programme for 20 years, he had an ongoing drug problem.
[8] The Judge took the view that the possibility of a sentence of intensive supervision and community work recommended in the probation report was insufficient to properly denounce the conduct of the appellant. Substantial property was involved which had a significant victim impact. Nor did the Judge consider he was a suitable candidate for home detention. The appellant had an ongoing drug
problem and the Judge had no confidence that he would stop his drug use if given home detention. He considered the appropriate starting point for all the offending was 12 months’ imprisonment, reduced it to nine months for his guilty plea on the receiving charges and imposed sentences of one month imprisonment concurrent with a nine month sentence for all other offending.
[9] The appellant submits that the sentence was manifestly excessive and wrong because of its disparity with the co-offender’s community work sentence and that the Judge was wrong to conclude that the appellant was not suitable for home detention.
[10] The appellant submits that the charges the appellant and his wife faced of receiving were essentially the same. They were both charged with receiving the stolen property; they both occupied the house where the property was found; they both pleaded guilty when the charges were amended, from burglary to receiving and both involved the same set of facts. The appellant says, therefore, that the appellant and co-offender were of equal culpability.
[11] I reject this ground of appeal. I think the Judge in the District Court was correct. The wife’s culpability arose from receiving the goods from her husband. The burglary occurred sometime between 30 November and 3 December. The burglary was discovered on 3 December. Later that day, the police were searching the appellant’s residence when they found the stolen property. They also found a broken lock from the builder’s container. Given the connection in time between the burglaries and the possession of the property by the appellant, it was reasonable to assume that the appellant was in receipt of stolen property from the burglars. I note that the appellant refused to name those who had provided the property to him. While it could not be inferred the property was stolen to order, the close connection in time between the burglary and receiving is significant.
[12] I agree with the sentencing Judge that the respective culpability of the wife and husband was quite different. The appellant was on these facts the primary receiver. The appellant’s wife was guilty primarily because of her occupancy of the house and her relationship with the appellant.
[13] The other relevant factor is that the appellant’s wife might think herself fortunate to have only been sentenced to community work. This was a serious case of commercial receiving of stolen goods. The goods stolen, builders’ equipment and computers were of significant value. A starting sentence of imprisonment would ordinarily be expected for such offending.
[14] Further, in setting the sentence of imprisonment for the receiving charge, the Judge was also entitled to take into account the other offending including cultivation of cannabis. Although there were only a relatively small number of plants a cumulative sentence of three to four months’ imprisonment could easily have been justified for the cultivation and the other charges. Overall, the 12 months’ imprisonment start sentence was modest. I am satisfied the sentence was not unfairly disparate or manifestly excessive.
[15] The appellant says he was a suitable candidate for home detention.
[16] The appellant points to the fact that while he has convictions for breaching community work they are now more than ten years ago. The appellant has undergone treatment on the methadone programme complying with that for many years and that he has abstained from drugs with the assistance of the methadone programme.
[17] None of these factors convince me that an electronically monitored sentence is appropriate. Mr Watson has a long history of offending much of it drugs or dishonesty. He has had many community based sentences and he has had rehabilitative sentences designed to assist him. He is now over 40 years of age. He has had plenty of opportunity to himself deal with his drug addiction given his mature age. I accept the Judge was entitled to conclude home detention was not suitable.
[18] Finally, it does not seem to me that the function of the probation service is to recommend sentences. They can identify why a sentence might or might not be useful for an offender and they can appropriately identify why a sentence might not work. Here, for example, an electronically monitored sentence was not
recommended because of the difficulties in electronically monitoring home detention at the addresses provided. But recommending sentences without knowledge of sentencing law can create unfair expectations.
[19] For the reasons given, therefore, the appeal against sentence will be dismissed.
Ronald Young J
Solicitors:
Evans Henderson Woodbridge, Solicitors, Marton
Armstrong Barton, Crown Solicitors, Wanganui
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