Watson v Police HC CHCH CRI 2009 409 212

[2010] NZHC 10

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2009 409 212

CRI 2009 409 213

SHARON MARGARET WATSON AKA PERE

Appellant

v

POLICE

Respondent

Hearing:         4 February 2010

Appearances:  C B Persson for Appellant

R M Thomas for Respondent

Judgment:      4 February 2010

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against a  sentence  of  seven  months  imprisonment  for  a

number of offences:   breach of Court bail (2);  driving while disqualified;   resisting arrest;   unlawful possession of a knife;   breach of community work;   and breach of community detention.   The appellant had pleaded guilty to all those offences at the first available opportunity.

[2]      At  the  age  of  33  years  the  appellant  has  22  previous  convictions. These include driving whilst disqualified, resisting, possession of an offensive weapon and breach of community work.   She had received a final warning concerning breaches of detention.

WATSON AKA PERE V POLICE HC CHCH CRI 2009 409 212  4 February 2010

[3]      In essence the Judge took a global approach.  Having started at 12 months he allowed a one third discount and arrived at a final sentence of seven  months imprisonment.        That  was  made  up  by  way of four months for  the  breach  of community  detention  and  a  cumulative  sentence  of  two  months  for  the  breach  of community work.  These sentences were cumulative on concurrent sentences of one month’s imprisonment for the other offending except for the breaches of Court bail, in relation to which the appellant was discharged.

[4]      Mr  Persson  presented  detailed  submissions  in  support  of  the  appeal.       He focused   on   the   sentences   relating   to   the   breach   of   detention   and   breach   of community work.   His submission is that after allowing for the discount the Judge must  have  started  at  the  maximum  available  penalty  in  relation  to  those  offences despite the fact that by no stretch of the imagination could they be construed as the worst of their kind.  A detailed picture as to the pressures facing the appellant at the time of sentencing and for many months before was also provided.  That component of the submission supplemented affidavits that have been filed in this Court by the appellant’s mother and by an Anglican priest in relation to the death of her father and his funeral.   Mr Persson also highlighted the reason why the appellant was fearful about attending the work centre and the circumstances that led to the driving while disqualified and related offending.

[5]      Mr Persson submitted that the sentencing went awry when the Judge approached the matter on the basis of a stand down report which provided incorrect information and, in Mr Persson’s submission, led the Judge into error when arriving

at the sentence.  While it is not disputed that a sentence of imprisonment was within the discretion of the Judge, Mr Persson contended that the sentence was manifestly excessive and that the appellant, who has now served two months and two days in prison, should be released.

[6]      As explained during the course of the hearing, the powers of a an appellate Court are relatively confined. In this case it is necessary to look at the global sentence  imposed  by the  Judge  and  determine  whether  that  sentence  is  manifestly excessive. In resolving that issue a Judge sitting on appeal is not entitled to simply

substitute his or her view of the matter for the view of the sentencing Judge.  Nor is the appellate Judge entitled to tinker with the sentence in the Court below.

[7]      Regardless of the pressures facing the appellant, she has previous convictions

for offending similar to the current offending. There is also a history of problems with  complying  with  Court orders. The Probation Service did not  recommend  a community based sentence. And, as Mr  Persson  properly  accepted,  prison  was inevitable.

[8]      I am afraid that, despite Mr Persson’s best efforts, I have not been persuaded that this sentence was manifestly excessive.  To the extent that I might be tempted to fiddle  with  the  sentence  by  reducing  it  from  seven  months  to,  say  four  months, which would result in an immediate   release, I would be simply tinkering with the sentence.   The appeal is dismissed.

Solicitors:            Crown Solicitor, Christchurch

C B Persson, Christchurch