Wilkinson v Police

[2016] NZHC 1845

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2016-454-25 [2016] NZHC 1845

BETWEEN

CODI JARMEN WILKINSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 August 2016
Counsel:	P Murray for Appellant M J Blaschke for Respondent
Judgment:	9 August 2016

JUDGMENT OF BROWN J

Introduction

[1]      On 13 May 2016 the appellant was sentenced by Judge J D Large in the District Court Dannevirke to a total of three years, three months’ imprisonment after he had pleaded guilty to the following six offences:

(a)       assault with intent to injure;1

(b)      two charges of receiving over $1,000;2

(c)       receiving under $500;3

(d)      burglary;4

1      Crimes Act 1961, s 193: Maximum penalty three years’ imprisonment.

2      Sections 246 and 247(a): Maximum penalty seven years’ imprisonment.

3      Section 246 and 247(c): Maximum penalty three months’ imprisonment.

4      Section 231: Maximum penalty 10 years’ imprisonment.

WILKINSON v NZ POLICE [2016] NZHC 1845 [9 August 2016]

(e)       possession of a knife in a public place;5

[2]      The appellant appeals against the length of the sentence contending that it was manifestly excessive.

Circumstances of the offending

[3]      The six  charges fall into two groupings.   On 28 June 2015 the appellant became involved in an argument over parking on the main street of Dannevirke. After the driver of the other car got out of his vehicle, the appellant punched him in the head several times until he fell to the ground.  The victim received two fractures to his face and required extensive stitching, and surgery for the fractures.   The appellant pleaded guilty to assaulting the victim with intent to injure him, reduced from the original charge of injuring with intent to injure.

[4]      Over 17 and 18 November 2015 there were four burglaries of rural residential addresses on the outskirts of Taradale.   The appellant pleaded guilty to receiving property stolen from three of those burglaries ($8,115, $7,000 and $450 values) and to burglary in respect of a fourth.  The circumstances of that fourth charge were that the appellant jemmied open a side window of the garage which provided access to the house.  The appellant took numerous household items from almost every room in the house including jewellery of $10,000 in value, ₤1,800 and a new Mercedes Benz. The stolen items were packed into the car.

[5]      The  appellant  was  arrested  on  19 November  when  he  endeavoured  to exchange the sterling for New Zealand currency.  When arrested the appellant was in possession of two knives, along with the various items of stolen property.   The second set of offending was committed whilst the appellant was on bail for the

injuring charge.

5      Summary Offences Act 1981, s 13A: Maximum penalty three months’ imprisonment or a $1,000

fine.

[6]      The  appellant  pleaded  guilty  to  amended  charges  in  respect  of  the  first incident on the morning of his Judge alone trial in the Dannevirke District Court, and to the second set of charges on the morning of his Judge alone trial in the Napier District  Court.    The  three  receiving  charges  were  laid  for  that  appearance  and replaced three previously-laid burglary charges.

The sentencing notes

[7]      The Judge commenced his analyses by noting that the Crown and defence positions were “not very far apart”.  For Mr Wilkinson it was accepted that a starting point for the burglary of two years was appropriate as was a 15 per cent discount for guilty pleas.   Indeed the total sentence proposed by then counsel for the appellant (who was not Mr Murray) was four years’ imprisonment before any discount for a plea.  However the end sentence imposed by Judge Large was slightly less.

[8]      Taking the burglary charge as the lead offence, the starting point adopted was two years imprisonment.   Then, taking the receiving charges together the Judge uplifted the sentence by four months.  The assault charge, which was noted as being “a very brutal assault”, warranted an uplift of one year.  The possession of a knife charge and the appellant’s previous offending were taken into account by a further uplift of six months.   The total starting point was therefore three years and ten months.  Finally, the Judge allowed a 15 per cent discount, or seven months, for the appellant’s relatively late guilty pleas.  The total end sentence was three years and three months’ imprisonment.

[9]      The Judge then imposed cumulative sentences to reach that identified total sentence:   two years for the burglary charge, one year for assault with intent to injure, three months concurrently on each receiving charge, and a conviction and discharge on the possession of a knife charge.  $300 in reparation for the burglary was also ordered but the Judge remitted outstanding fines.

Grounds of appeal

[10]     The notice of appeal filed by the appellant dated 7 June 2016 specified the following grounds of appeal:

Lawyer after sentencing said I wasn’t given a proper discount for the timing of my pleas.  Also that as many charges were cumulative as they were.  In total the end sentence was excessive. Also no credit for willingness to attend restorative justice or for my remorse which probation commented on.

[11]     In his submissions on behalf of the appellant Mr Murray indicated that the ground of appeal directed to the cumulative sentences was not pursued.   However the end sentence was said to be manifestly excessive for the following reasons:

(a)      the starting point of two years’ imprisonment taken for the burglary was too high and should have been no more than 18 months’ imprisonment;

(b)the learned Judge did not give the appellant any credit for his genuine remorse and offer to participate in a restorative justice conference;

(c)      the 15 per cent discount given for the appellant’s guilty pleas was insufficient and should have been 20 per cent; and

(d)the total period of imprisonment was disproportionate to the gravity of the overall offending.

Approach on appeal

[12]     An appeal against sentence is governed by s 250 of the Criminal Procedure

Act 2011 which states:

250  First appeal court to determine appeal

(1)        A first appeal court must determine a first appeal under this subpart in accordance with this section.

(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.

(3)       The first appeal court must dismiss the appeal in any other case.

[13]     The Court of Appeal in Tutakangahau v R recently confirmed that s 250 continues and codifies the error principle approach to sentence appeals incorporating the manifestly excessive test.6   The Court of Appeal further observed in Tamihana v R:7

[14]      An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of additional materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.  Unless there is a material error in the end sentence, this Court will not intervene. There will be a material error if, for example, the end sentence is manifestly excessive or wrong in principle.  In general, the focus is on whether the end sentence is within the available range, rather than the process by which it was reached.

[14]     In  the  event  that  a  Court  finds  there  is  a  material  error  affecting  the sentencing process, the appropriate way to measure whether or not the end sentence imposed is manifestly excessive is to undertake the sentencing exercise itself in order to compare it with the sentence actually imposed.8    An error that may seem significant but which only results in an end sentence of a month or two difference in the context of a sentence of imprisonment is not one that can be said to have

rendered the sentence manifestly excessive.

[15]     The fundamental tenet  of the totality principle in s 85 of the Sentencing Act 2002 is that the final sentence must reflect the totality of the offending.  Where the end sentence is not  “wholly out of proportion to the gravity of the overall offending” no reduction is required.9

Discussion

Starting point for the burglary charge

[16]     There is no tariff decision for burglary.  In Arahanga v R the Court of Appeal explained:10

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

7      Tamihana v R [2015] NZCA 169.

8      Tutakangahau v R, above n 6, at [30].

9      Ashcroft v R [2014] NZCA 551 at [32].

10     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

[78]     This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.  Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.  Dwelling house burglaries at the relatively minor end of  the  scale  tend  to  attract  a  starting  point  of  approximately

18 months’ to two years and six months’ imprisonment.

[17]     Mr  Murray  acknowledged  that  the  following  features  aggravated  the burglary:

(a)       it was of a dwelling house;

(b)      the presence of two offenders; and

(c)       the loss and harm caused as a result of the burglary: a significant amount of property including a motor vehicle was taken.

[18]     That said, he made the point that the occupants of the dwelling house were unknown to the appellant and so there was no breach of trust.   The risk of confrontation with the occupants was said to be less in this case because the burglary occurred during the day and the appellant had established that the occupants were not at home.

[19]     Mr Murray submitted that this burglary was at the lower end of the scale referred  to  in  Arahanga and  he  referred  to  a number of cases  involving single burglaries of dwelling houses by two offenders during the day, namely Zimmerman v Police (starting point of 18 months’ imprisonment),11  Reihana v Police (starting

point  of  12 months’  imprisonment)12   and  Mathias  v  Police  (starting  point  of

18 months’ imprisonment).13

[20]     Mr Blaschke responded that the fact that the burglary was committed during the day did not reduce the seriousness of the offending but simply amounted to the absence of an aggravating factor.  He emphasised that there were a number of factors

in the appellant’s offending that were specifically identified as aggravating factors by

11     Zimmerman v Police [2014] NZHC 3233.

12     Reihana v Police [2015] NZHC 360.

13     Mathias v Police [2016] NZHC 959.

the Court of Appeal in Arahanga:  two offenders were involved; the unlawful taking of a motor vehicle to transport the stolen property; and the high value of the items taken including jewellery of $10,000 value.

[21]     He  submitted  that  the  appellant  and  his  co-offender  clearly  spent  a considerable period of time at the address in order to have taken property from almost every room in the house.  While accepting that there was no breach of trust present in the appellant’s offending, he submitted that that did not detract from the range identified as appropriate in Arahanga or demonstrate that the appellant’s burglary should have been assessed outside of or at the bottom of that range.

[22]     He noted that in Reihana Woolford J compared the lenient starting point taken  in  the  District  Court  to  that  in  Toala  v Police  where  a  starting  point  of two years’ imprisonment was adopted for a single burglar of an unoccupied house where the value of property taken was less than in the present case.14

[23]     In my view the starting point adopted by Judge Large was within the range identified in Arahanga.  It involved a combination of aggravating factors that clearly lifted it above the lowest end of the scale.

Personal mitigating features

[24]     Mr Blaschke accepts that the Judge did not explicitly deal with issues of remorse or the appellant’s offer to attend a restorative justice conference, although he suggested that allowance for this feature may have been encapsulated in the discount for guilty plea suggested by then counsel for the appellant.

[25]     Noting ss 9(2)(f) and 10 of the Sentencing Act Mr Murray submitted that remorse was evidenced in this case by:

(a)       the appellant’s letter to the Judge;

(b)letters of apology by the appellant to the victims (which Mr Murray had not seen and which were not before the Court);

14     Toala v Police [2013] NZHC 3270.

(c)      the comments in the pre-sentence report that the appellant showed some remorse concerning the violence offending; and

(d)the pre-sentence report also recorded the appellant as having advised that he requested to apologise to the victim but understood the victim declined.

[26]     Mr Murray submitted that these features warranted a discrete discount from the starting point and contended that, if the Judge had intended not to take them into account or to distinguish them in some way, then that should have been made clear.

[27]     Mr Blaschke’s position was that, without knowing the contents of the letters to the victims, it was difficult to discern whether the appellant’s remorse was of a sufficient level to warrant a separate discount from the guilty plea.  In any event he submitted that any discount for remorse and the offer of restorative justice would not have been substantial even if appropriate.

[28]     I accept Mr Murray’s submission that the issue of remorse ought to have been addressed although I agree with Mr Blaschke that the explanation is likely to be found in the manner in which the case proceeded in the District Court.  Given the discount for guilty pleas of 15 per cent I consider that a modest discount of up to

5 per cent would have been appropriate for such remorse as can be demonstrated.

Guilty pleas

[29]     Mr Murray  acknowledges  that  the  appellant  did  not  plead  guilty  to  the burglary until the morning of his trial but contends that he pleaded guilty to the remaining charges either at his first appearance or at the first reasonable opportunity after the original charge had been amended.  He drew attention to correspondence recording that the appellant’s then lawyer asked the Police to consider alternative charges to the burglary charges and that the Police ultimately did substitute three receiving charges.  Similarly he notes that the charge in respect of the assault was amended to the lesser charge of assault with intent to injure and that the guilty plea was entered at the first reasonable opportunity after the amendment to the charge.

[30]     Taking into account all the circumstances Mr Murray submits that a global discount of 20 per cent for the guilty pleas would have been more appropriate.

[31]     Mr Blaschke acknowledged that the offer to plead to the receiving charges was not noted in the submissions filed on behalf of the appellant in the District Court and he accepted that such an offer was relevant to assessing the appropriate credit for guilty plea  when  that  offer  is  accepted  at  a  later  date.    On  the  other  hand  he submitted that the plea to the burglary charge was late and he contended that it was not clear whether or not there was an early offer to resolve the assault matter at a lesser level of charge.

[32]     In light of the information which was not provided to the Judge in the District Court I accept that some additional discount should have been provided for the guilty pleas although in view of the late plea on the burglary charge the maximum global discount could not have exceeded 20 per cent.

Totality

[33]     Mr Murray submits that the Judge did not assess whether the total period of imprisonment was in proportion to the gravity of the overall offending and that such an assessment was a necessary and proper step given that cumulative sentences were imposed.

[34]     While the assault with intent to injure offence was distinct and removed factually from the other offences, the burglary, receiving and possession of the knife offences  were  connected  in  time,  place  and  circumstance.     Consequently  he submitted that, stepping back, a sentence of three years, three months imprisonment for the six offences was excessive and out of proportion to the gravity of the overall offending.

[35]     Mr Blaschke suggested that the failure to expressly consider totality was a likely consequence of the fact that the Judge imposed an end sentence which was more lenient than that which then counsel for the appellant had accepted was appropriate.  However I concur with his submission that the end sentence imposed was not wholly out of all proportion to the gravity of the overall offending.   He

submits, and I agree, that the appellant committed a serious burglary, in the context of pleas to three receiving charges at the same time, and the assault which was wholly separate caused serious injuries.

Conclusion

[36]     As I have found that on the information available to me it would have been appropriate to allow an increased discount for guilty pleas and a small additional discount for remorse, I turn to consider the sentencing exercise afresh in order to compare that with the sentence imposed by the Judge.

[37]     In my view that part of the sentence relating to the assault was inadequate having regard to its severity. The Judge described it in this way:

[9]       … That was a very brutal assault.  Mr Lafferty might be right in his description of the glancing blow causing an horrific looking injury.  There was lots of blood around.  The victim impact statement there shows that that person suffered in excess of 30 stitches to his face. Also, he had to take time off work, had to have a surgical procedure for a broken cheek, so there was all of that inconvenience and he said in his victim impact statement it was not a pleasant injury to look at.  He had to see it every day when he looked in the mirror…

[38]     In my view having regard to the serious injuries caused and the multiple punches directed to the head, a starting point of 18 months would have been appropriate.   That added to the starting point of two years’ imprisonment for the burglary charge and the uplifts of four and six months would result in a total starting point of four years, four months.   In addition I note that the second episode of offending occurred while the appellant was on bail.

[39]     Applying  to  that  starting  point  a  cumulative  discount  of  25  per  cent, reflecting both guilty pleas and remorse, produces a total end sentence of three years three months.

[40]     Consequently in my view the sentence imposed by Judge Large cannot be said to be manifestly excessive, despite the different view I reached on remorse and

guilty pleas. Accordingly the appeal is dismissed.

Brown J