Wickliffe v Police

[2014] NZHC 3000

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000101 [2014] NZHC 3000

MAYNARD MONTROE WICKLIFFE

v

POLICE & DEPARTMENT OF CORRECTIONS

Hearing:	27 November 2014
Counsel:	AND Garrett for Appellant K B Bell for Respondent
Judgment:	28 November 2014

JUDGMENT OF WHATA J

[1]      Mr Wickliffe was convicted on a number of charges including possession of methamphetamine utensils and possession of methamphetamine.  He was sentenced to 18 months imprisonment.   He appeals against sentence on the basis that it was manifestly excessive and that in particular on the charge of possession of utensils a cumulative  eight  months  sentence  in  addition  to  the  sentencing  for  the  other offending  infringed  the  totality  principle.    A substitute  sentence  of  six  months imprisonment is sought in relation to that charge.

Background

[2]      In a reasonably detailed sentence Judge S J O’Driscoll canvasses the essential

background to the offending, the principles adopted by him and the other factors relevant to his sentence.  He describes the relevant charges in this way:1

1      Police v Wickliffe DC Christchurch CRI 2014-009-004945, 19 September 2014.

WICKLIFFE  v POLICE & DEPARTMENT OF CORRECTIONS [2014] NZHC 3000 [28 November 2014]

[5]      Charges that you appear before me on today are driving while disqualified and providing false information to the police.  The driving while disqualified charge is made in its aggravated form.  The first set of offending relates to 29 May.  There is then a charge of breach in community work on

9 June, and in saying that I note that while there is only the one charge before me you managed to carry out one hour of the sentence of community work.   There are then other charges relating to 18 June, possession of a utensil for smoking methamphetamine, possession of methamphetamine and a further charge of driving while disqualified.   There is also a charge of breaching release conditions.

[3]      The Judge then notes aggravating factors including the fact that there are two sets of charges relating to driving while disqualified and the appellant’s previous convictions for driving while disqualified, the last conviction being as recent as April

2014.  He also noted that the appellant has a number of convictions involving drugs including  the  supply  and  possession  of  methamphetamine  in  2006  and  another charge  of  possession  of  methamphetamine  in  2013.   Appearance  for  breach  of release conditions were also noted.

[4]      The Judge then essays relevant mitigating factors:

[9]       In terms of the mitigating factors there is your guilty plea.   I give you credit for that.  While I have already mentioned the letter that you have written you have heard what I have said about that.  Actions speak louder than words.  I hope that whenever you are released from prison Mr Wickliffe you are able to put into action the sentiments that you have expressed in your letter.  That you are remorseful and will not get into trouble again. Drugs only ever get people into trouble, and clearly you have been sentenced to imprisonment in the past for drugs.  You have continued to be involved in that.  You are, I am told, patched gang member.  You have indicated that you want to get out of the gang.  Whether that is the true position or not, I am not sure, but getting out of a gang is not easy.  Experience has shown, and you will know that gang members get themselves into trouble and usually end up in prison.   So you need to make choices and only you can make those choices.   You are aged 36.   You know the difference between right and wrong, but at the moment you need to put those actions or those words that you have expressed in the letters into action.

[5]      The pre-sentencing reports are then discussed noting that the appellant was described as having a low level of motivation and that little progress has been made on special conditions which were imposed when the appellant was released from prison.  It is noted that the appellant is assessed as high risk of harm and reoffending.

[6]      The Judge also considered that he had no option but to impose a sentence of imprisonment, noting in particular that the appellant has not complied with Court

orders in the past.  As to the two charges of driving while disqualified, he sentenced the appellant to nine months imprisonment on the totality basis.  Those sentences are reduced by three months to take into account a guilty plea.   On the charge of providing false information the appellant was convicted and discharged.  But on the critical   charge  of  possession   of  utensils,   a  starting  point   of   eight   months imprisonment was adopted and that was reduced by two months so that the appellant was sentenced to six months imprisonment on that charge.  On the possession charge he was sentenced to four months imprisonment to be served concurrently with the six months imprisonment.  The six months imprisonment on possession though was cumulative and in addition to the six months while driving disqualified which the Judge said means 12 months imprisonment.   Two months was then imposed for breaching  community  work  and  another  four  months  for  breach  of  release conditions. That resulted in an effective end sentence of 18 months imprisonment.

Jurisdiction

[7]      Section 250(2) of the Criminal Procedure Act 2011 states:

250     First appeal court to determine appeal

…

(2)      The first appeal 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.

[8]      It is now reasonably settled that there must be a material error before the appellate Court will form its view on an appropriate sentence.2   A sentence which is manifestly excessive, wrong in principle or flawed on its face may be corrected on appeal.

Appellant’s case

[9]      As foreshadowed above, the appellant argues in short, that an eight month starting point for the possession of utensils charge was wrong and that by taking a

2      Tutakangahau v R [2014] NZCA 279 [2014] 3 NZLR 482 at [26].

cumulative approach to sentencing, the Judge did not have proper regard to the totality principle.  It is said that this is bottom end offending that, in a context of a cumulative sentence might warrant a lesser starting point.  Furthermore, taken as a whole the cumulative sentence of 18 months imprisonment is excessive, as it relates to relatively minor offending.

Respondent’s case

[10]     The respondent notes that the ultimate sentence of 18 months consisted of four cumulative sentences:

(a)      the two driving while disqualified charges were dealt with together and an overall sentence of six months imprisonment was imposed;

(b)the possession of utensils and possession of methamphetamine were dealt with together resulting in an overall sentence of six  months imprisonment being imposed;

(c)      two months imprisonment was imposed on a breach of community work; and

(d)four  months  imprisonment  was  imposed  on  breach  of  release conditions.

[11]     It is noted that the Judge expressly referred to the totality principle when dealing with two driving while disqualified charges and it is implicit that his Honour had regard to the totality principle through the sentencing process.

Assessment

[12]     There is no suggestion by the appellant that the sentence handed down in relation to the possession charge is manifestly excessive by itself.  Rather, he submits that treating it cumulative on the rest of the sentencing was inappropriate.  I do not agree. When the offending is examined in its totality, there are seven charges, and effectively  three  different  types  of  offending  which  would  ordinarily  warrant

cumulative sentences.   The first type of offending concerns two counts of driving while disqualified (third or subsequent).  There is related offending of giving false details.    There is the second type of offending, namely possession of methamphetamine utensils and possession of methamphetamine.  Finally, there is the third type of offending being breach of release conditions and breach of community work. In terms of s 84 it was entirely appropriate for the Judge to deal with this offending on a cumulative basis.  It is therefore difficult to understand the complaint made by the appellant in seeking a two month reduction on sentence.  Furthermore, for completeness, I accept the submissions of the respondent that the Judge having referred to the totality principle in a previous part of a sentence is hardly going to forget about it for the remainder of the same sentence.

Outcome

[13]     I see no proper basis for appeal. The appeal is dismissed.

Solicitors:

AND Garrett, Christchurch

Raymond Donnelly & Co, Christchurch