Wheeler v The Queen
[2018] NZHC 356
•8 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000412
[2018] NZHC 356
BETWEEN MICHELLE ESDALE WHEELER
Appellant
AND
THE QUEEN
Respondent
Hearing: 5 February 2018 and 8 March 2018 Appearances:
A Ives for the Appellant (on 8 March 2018)
O Klaassen for the Respondent (on 8 March 2018)
Judgment:
8 March 2018
JUDGMENT OF HINTON J
Counsel/Solicitors:
Annabel Ives, Barrister, Auckland Meredith Connell, Auckland
WHEELER v R [2018] NZHC 356 [8 March 2018]
[1] This is an appeal against sentence and in particular, an appeal against a refusal to commute a sentence of imprisonment to home detention.
Facts
[2] At 5.00 pm on 6 February 2017, Ms Wheeler uplifted a purple Michael Kors handbag from The Brand Warehouse on High Street in Auckland. As she was exiting the store the bag was spotted by an employee, a struggle ensued and an associate, Mr Morrison, punched the employee in the side of the head, after which both made their escape with the bag.
[3] Ms Wheeler was later located in a Greenlane carpark by Police. She was arrested. The vehicle she had escaped in was searched and the bag was recovered, albeit in a damaged state.
[4] At 1.20 am on 23 April 2017, a burglary took place in Birkdale. At 9.55 am that day, Ms Wheeler entered a Mobil petrol station in Glenfield. Using a Mobil credit card, that was stolen from the address which had been burgled, she purchased car oil to the value of $36.48.
[5] On 23 April 2017, at approximately 10.10 am, Ms Wheeler entered a second petrol station and again purchased car oil worth $51.98, using the same stolen card. On both occasions, she did not have permission to use the Mobil credit card.
[6] At approximately 11.00 pm on 4 May 2017, Ms Wheeler drove a motor vehicle on Hibiscus Coast Highway in Silverdale. A warrant for the search of the vehicle was invoked. An amount of cannabis was located in the car.
[7] On 11 May 2017, the Police, with a warrant, conducted a search of Ms Wheeler’s home in Beach Haven. There they located 0.2 grams of methamphetamine in her purse and 0.8 grams of methamphetamine inside her vehicle, a total of one gram.
[8] On 23 April 2017, a builder, who had been working at Beach Haven Primary School noted that his work tools, including a Hitachi dual driver kit and various
attachments, had been stolen during a burglary of that school. The value of the kit was approximately $900. Also, sometime between 3.00 pm on 22 April 2017 and 10.20 am on 24 April 2017, a burglary occurred at Birkenhead College. The stolen items included a Makita circular saw, a Fuller tool bag, measuring tape, chisel set, a 50-inch Sony television and two portable hard drives. The value of these items was $1,667. Ms Wheeler’s property was searched by Police on 11 May 2017. During that search, they located the above items, the total value being approximately $2,500.
[9] On 4 May 2017, Ms Wheeler was suspended from driving a motor vehicle for three months. On 19 July 2017, she was stopped by Police while driving on Triangle Road in Massey.
District Court Decision
[10] Ms Wheeler pleaded guilty to the charges that followed the above offending and on 10 November 2017, she was sentenced to 14 months’ imprisonment for the following:
(a)one charge of theft pursuant to ss 219(a) and 223(c) (between $500 and
$1,000) of the Crimes Act 1961, for which the maximum penalty is one year’s imprisonment;
(b)one charge of possession of cannabis pursuant to ss 7(1)(a) and 7(2)(b) of the Misuse of Drugs Act 1975, for which the maximum penalty is three months’ imprisonment;
(c)one charge of obtaining a document for pecuniary advantage pursuant to s 228(b) of the Crimes Act 1961, for which the maximum penalty is seven years’ imprisonment;
(d)one charge of possession of methamphetamine pursuant to ss 7(1)(a) and 7(2)(a) of the Misuse of Drugs Act 1975, for which the maximum penalty is six months’ imprisonment;
(e)one representative charge of receiving property pursuant to ss 246 and 247(a) of the Crimes Act 1961, for which the maximum penalty is seven years’ imprisonment;
(f)one charge of driving while suspended pursuant to ss 32(1)(c) and 32(3) of the Land Transport Act 1998, for which the maximum penalty is three months’ imprisonment.
[11] With regard to the drug offending, the Judge adopted a four-month starting point for the charge of possession of methamphetamine and deducted one month for a guilty plea, bringing the sentence to three months’ imprisonment. For the charge of possession of cannabis, the Judge sentenced Ms Wheeler to one month’s imprisonment to be served concurrently.
[12] The Judge then considered the dishonesty offending and other matters together. For the lead charge of receiving, the Judge imposed a sentence of 12 months’ imprisonment and deducted one month for the guilty plea, bringing the sentence to 11 months. This sentence was to be served cumulatively with the drug offending.
[13]The Judge then imposed the following sentences to be served concurrently:
(a)six months’ imprisonment for obtaining a pecuniary advantage;
(b)one month’s imprisonment for the shoplifting charge;
(c)one month’s imprisonment for the driving while suspended charge.
[14] The cumulative total sentence for the drug and dishonesty offending was 14 months’ imprisonment.
Ground(s) of Appeal
[15]The appellant appeals her sentence on the basis that the sentencing Judge:
(a)adopted too high a starting point for the lead offences;
(b)declined to make an adjustment for totality;
(c)failed to give sufficient, or consistent, credit for guilty pleas;
(d)failed to consider the obligation to impose the least restrictive outcome when determining that home detention (or any lesser combination of sentences) was not appropriate.
Appellant’s submissions
[16] Ms Ives, for Ms Wheeler submits that a four-month starting point for the drug offending is manifestly excessive and that an appropriate starting point would be one month’s imprisonment.
[17] In respect of the dishonesty offending, Ms Ives submits that the starting point of 12 months adopted by the Judge for the lead charge of receiving is too high. Ms Ives argues that Ms Wheeler’s offending was of a low mens rea and was merely reckless. She says that there is no evidence available of a connection to the burglar or burglary. She also argues that the total value of the items, being about $2,500, is not an exceptionally high amount, considering the authorities she puts forward. Ms Ives says Ms Wheeler was compliant with Police when they searched her property, and the received goods were recovered.
[18] In respect of the Judge not considering the totality principle explicitly, Ms Ives submits that the cumulative sentence arrived at is manifestly excessive.
[19] In respect of the guilty pleas, Ms Ives submits that the Judge should have granted a discount of between 20 to 25 per cent on the lead offence of receiving, which would have been two to three months, instead of the one month the Judge granted. Ms Ives also submits that the discount should be applied to the two sets of offending together, instead of separately.
[20] Finally, Ms Ives submits that the sentence of imprisonment should have been commuted to home detention. She contends that a prior sentence of home detention
in 2010 had a deterrent effect on Ms Wheeler’s reoffending for seven years; that her compliance with that sentence of home detention shows that it is an effective sentence in limiting her offending and as a deterrent against future offending. Furthermore, Ms Ives submitted in terms of the original submissions on appeal that the Judge’s concerns with Ms Wheeler’s flatmate, Mr Morrison, as being unsuitable for her to live with, can be adequately managed. There is now a new home detention address proposed which materially alters that position. I come to that. Finally, Ms Ives contends that the Judge did not give consideration to Ms Wheeler’s personal circumstances, namely her health concerns, resulting from extensive burning she has suffered.
Appeal against sentence
[21] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[22]In any other case, the Court must dismiss the appeal.1
[23] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.2 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Courts’ approach to sentence appeals.3
[24]The approach taken under the former Summary Proceedings Act was set out in
R v Shipton:4
1 Criminal Procedure Act 2011, s 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
3 At [33] and [35].
4 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
(a)There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing, it must be shown that the Judge in the lower Court made an error, whether intrinsically or as a result of additional material submitted to the appeal Court.
(c)It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[25] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.5
Analysis
[26]I will first deal with the drug offending.
[27] Ms Ives cited no case to me in arguing that a starting point of four months was too high and constituted an error in the District Court Judge’s reasoning.
[28] The respondent cited the case of Henry v Police when arguing that four months was within an available range.6 That case involved an appeal against sentence from the District Court for a range of offending, including possession of a small amount of methamphetamine. The starting point adopted for possession was three months, which was then uplifted by one month for a previous offence, before being reduced by one month for a guilty plea.
[29] One gram of methamphetamine (being the total of 0.2 and 0.8 grams) is a small amount. I consider that a three-month starting point would have been appropriate for possession of such an amount. I also note, however, that Ms Wheeler has two previous
5 Ripia v R [2011] NZCA 101 at [15].
6 Henry v Police [2016] NZHC 800.
convictions for possessing and procuring methamphetamine, for which an uplift of one month would have been appropriate.
[30] I note that the District Court Judge did not formally adopt a starting point and then consider the aggravating and mitigating factors of the offender in arriving at a final sentence, but such a calculation is implicit in the final sentence.
[31] Although the starting point adopted was high, the previous offending of Ms Wheeler justified the final sentence of three months. I therefore find the sentence for the drug offending was not manifestly excessive.
[32]I now turn to the dishonesty offending.
[33] Ms Ives contends that a starting point of 12 months is too high in the context of Ms Wheeler’s offending. In support, she cited three cases to me. I do not derive any assistance from R v Bonnar.7 The offending in that case involved receiving two stolen vehicles valued together at approximately $50,000. In Chapman v Police, the appellant had been sentenced to three-and-a-half months for receiving a stolen car worth $3,000.8 The Judge had adopted a starting point of three months, uplifted by two months for previous offending, gave a third-of-a-month discount for remorse and applied a final discount of 25 per cent for a guilty plea. The sentence adopted on appeal in Chapman was reduced from three-and-a-half months to three months.
[34] I note that Ms Wheeler, similar to the appellant in Chapman, has three previous convictions for receiving. I also note that the appellant in Chapman admitted to knowing that the car had been stolen. Against that, I put the contention of Ms Wheeler that she was merely reckless as to whether the goods were stolen or not. I accept that recklessness is supported on the facts, particularly considering the period between the theft of the property and that property being discovered in Ms Wheeler’s possession. The facts do not seem to support the proposition that Ms Wheeler knew the burglar and therefore knew that the goods were stolen. French v Police, a case cited to me by the respondent, is authority for the proposition that whether there was knowledge or
7 R v Bonnar [2015] NZHC 127.
8 Chapman v Police [2015] NZHC 498.
recklessness can be taken into account at sentencing and that knowledge increases the culpability.9 I do not otherwise find French v Police helpful. The offending in that case was significantly different, given that it could be shown that the offender was present when the goods were stolen.
[35] The next case cited to me is Whittaker v Police.10 The defendant had been convicted of receiving of a stolen car worth between $10,000 and $13,000. A 12-month starting point was adopted by the sentencing Judge on the basis that the attempts made to ascertain that the vehicle was not stolen were far from sufficient. Upon appeal, the starting point was reduced to eight months to reflect that there was no evidence to show that the appellant knew the property was stolen and that he had taken some steps to ascertain that it was not.11 The knowledge component here is higher, but the value of the goods materially lower.
[36] I consider that the judge has adopted a starting point which is materially too high considering similar cases, the value of the goods, and the lack of an available inference that the defendant knew that the goods were stolen.
[37] I would adopt a starting point of four months. However, as with the drug offending, the Judge has not applied uplifts for the other offending or for previous convictions. I would uplift by six months for the other offending and I would apply an uplift of two months for the previous receiving convictions of Ms Wheeler.
[38] The end result is the same as the Judge’s starting point of 12 months, but reached by a different route. In effect, the Judge’s starting point for the receiving charges reflects the remainder of the dishonesty charges.
[39] In terms of the guilty plea, I am of the opinion that the judge was generous in allowing a one-month discount for the drug offending and was within the correct range overall in allowing only the same for the dishonesty offending. The discount was approximately 12-and-a-half per cent overall. I note that Ms Wheeler did originally enter not guilty pleas and only changed her plea prior to the matter going to hearing.
9 French v Police [2015] NZHC 2635 at [28].
10 Whittaker v Police [2017] NZHC 2747.
11 Whittaker v Police [2017] NZHC 2747 at [25].
The purpose of a guilty plea is to facilitate the smooth administration of criminal justice. A 12-and-a-half per cent discount seems reasonable in the circumstances.
[40] In terms of totality, I am of the opinion that 14 months does not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
Home detention
[41] I now turn to home detention. I note that the Judge referred to the pre-sentence report and placed emphasis on the fact that Ms Wheeler is assessed at being at a high risk of reoffending and having only a medium ability to comply with community-based sentences. He also placed emphasis on the fact that Ms Wheeler was assessed as posing medium harm to others based on her criminal history.
[42] I note that the Judge did not consider the personal circumstances of Ms Wheeler, relating to the serious burns she suffered during her twenties and the impact a custodial sentence would have on her ability to access treatment.
[43] I disagree with Ms Ives that the Judge did not consider lesser sentences. He expressly did when he denied home detention and stated that imprisonment was the only viable option to give the community relief and to allow Ms Wheeler to address her drug dependency issues.
[44] Considering that if the Judge had sentenced Ms Wheeler to home detention she would have served that sentence in a flat occupied by Mr Morrison, who is by all accounts a bad influence, I cannot say that I would have been prepared to disturb the sentence of imprisonment.
[45] Having said that, a new home detention address has been proposed, being the appellant’s parents’ address in Kaiwaka.
[46] I must first consider whether to grant leave to adduce evidence, regarding the suitability of the property for the purposes of home detention, under s 335 of the Criminal Procedure Act 2011.
[47] Under s 335(2) the Court may receive evidence or new reports, which were not tendered at trial, if the Court thinks it necessary or expedient in the interests of justice. Given the medical condition Ms Wheeler suffers from, the principle of imposing the least restrictive outcome appropriate and the desirability of keeping offenders in the community as far as it is practicable and consonant with the safety of the community, I grant leave to adduce the evidence.
[48] The evidence includes the report from the Probation Officer considering the suitability of Ms Wheeler’s parents’ residence at Kaiwaka, for an electronically monitored sentence of home detention. The parents’ home at Kaiwaka has been assessed as technically suitable to support an electronically monitored sentence of home detention. I note the report-writer refers to a concern regarding the elderly parents’ safety, but that appears to be generically based and the parents express no concern. Ms Wheeler Senior was in Court and did not look “elderly”.
[49] The new evidence also includes helpful affidavits from both of Ms Wheeler’s parents.
[50] This Court, after considering the new evidence, must be convinced that there was an error in the Judge’s approach to sentencing which resulted in a sentence that was manifestly excessive.
[51] I consider that the new evidence, coupled with the material which was before the Judge at sentencing, does point to an “error” in the Judge’s reasoning and that the refusal to grant home detention was manifestly excessive. Imprisonment was not the least restrictive outcome appropriate. I am prepared to commute the prison sentence to a sentence of home detention for the following reasons:
(a)Although the appellant is 50 years of age and has a lengthy conviction history, it comprises minor offences and significantly, she had a period of more than six years until 2017 which was effectively crime-free.
(b)Corrections, in their first report, identified Ms Wheeler’s offending-related factors as drug use, lifestyle, offending-related
friends and peer pressure. It does seem to me, as Ms Ives argues, that the appellant is more hopeless and easily led, than a bad person.
(c)The parents’ home at Kaiwaka makes a material difference, because it gets the appellant away from Mr Morrison, who seems to be a bad influence. The parents have undertaken to support the non-association clause and to support Ms Wheeler. The distance from Auckland is generally significant.
(d)With the way in which I intend to approach the matter, the period of non-association and removal from Auckland will be longer than it would be under the current sentence.
(e)The least restrictive sentence that is appropriate in the circumstances must be imposed. I consider that a sentence of home detention, with appropriate conditions proscribing the use of alcohol and narcotics, and prohibiting Ms Wheeler’s interaction with offending related friends, will provide proper protection for the community.
(f)The parents’ home is rural and the appellant may be able to find a meaningful activity, which will be important if she is to make rehabilitative progress in relation to her drug dependency. I understand that she is good with horses and occasionally teaches riding lessons. She needs to make the most of this opportunity.
(g)Ms Wheeler needs to seriously tackle her drug dependency. I am of course concerned at probation advice that the Kaiwaka/Wellsford area has no intensive drug programmes. However, there are Alcoholics Anonymous meetings on Wednesday nights. There is a support group available in Kaiwaka on Fridays and a counsellor travels to Kaiwaka one day a week for assessments, with the possibility of one-on-one counselling. The Registry has been in touch with Community Alcohol and Drug Services Auckland and have been informed that they provide a satellite service in Warkworth, approximately 45 minutes’ drive.
Ms Wheeler’s parents have provided affidavit evidence of the services available and the support they will provide. Mrs Wheeler Senior has arranged an appointment with CADS in Whangaparaoa next week. Ms Wheeler’s son has also undertaken to provide support. It must be possible to arrange suitable treatment for Ms Wheeler in the area. Such effort is preferable to keeping people in prison.
[52]The appellant’s current sentence is 14 months’ imprisonment.
[53] I am not prepared to follow the usual practice of halving the prison sentence, given in particular the need to keep Ms Wheeler out of the community and away from Mr Morrison. I allow a reduction instead of four months. This brings me to a sentence of 10 months.
[54] A reduction must be given for the prison sentence already served. Ms Wheeler has already served four months in prison. Deducting this time served on the basis of one-for-one, I am left with an end sentence of six months’ home detention.
Conclusion
[55] The appeal is allowed. The sentence of 14 months’ imprisonment is quashed and a new sentence imposed of six months’ home detention. Ms Wheeler is to reside at Kaiwaka. The standard conditions apply.
[56] Ms Wheeler will also be subject to the special conditions, as set out at paragraph 5 of the March 2018 probation report except that the condition of non-association with gang members is deleted and the condition regarding Dean Morrison is to read: “You are not to reside with or associate with Dean Morrison for the duration of Home Detention.”
[57] The post-detention conditions, as set out at paragraph 6 of the March 2018 probation report (also amended as above), are to apply for a period of six months.
[58] It is up to Ms Wheeler now to try to make something of this opportunity and not to let this Court, herself, and more particularly, her parents, down.
[59]I direct that Ms Wheeler be released today.
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Hinton J
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