Wood-Olsen v Police
[2020] NZHC 510
•13 March 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-190
[2020] NZHC 510
JOSHUA DOUGLAS WOOD-OLSEN v
NEW ZEALAND POLICE
Hearing: 12 March 2020 Counsel:
C Nolan for Appellant
J Whitcombe for Respondent
Judgment:
13 March 2020
JUDGMENT OF CHURCHMAN J
Introduction
[1] Between September 2018 and July 2019, Mr Wood-Olsen (appellant) committed a number of offences, including theft, burglary, driving offences, theft of mail, using an altered document with intent to defraud and possession of methamphetamine.1 The offences are covered in detail below. He was sentenced on 15 separate charges some of which were representative.
[2] On 6 December 2019, Mr Wood-Olsen was sentenced for these offences at the District Court. District Court Judge Garland imposed a total sentence of imprisonment of three years and two months for the lead charges of burglary and using a document with intent to defraud, as well as issuing smaller, concurrent sentences for the other
1 Police v Wood-Olsen [2019] NZDC 24689 at [1].
WOOD-OLSEN v NEW ZEALAND POLICE [2020] NZHC 510 [13 March 2020]
charges.2 The Judge also ordered that Mr Wood-Olsen pay reparation for the items stolen and the money derived from forged cheques.
[3] Mr Wood-Olsen now appeals the sentencing decision of the District Court Judge under s 244 of the Criminal Procedure Act 2011, on the basis that the sentence imposed was manifestly excessive.
Background
Factual background
[4] Mr Wood-Olsen’s offending can be divided into a number of categories. Firstly, the shoplifting offences. These include theft of:
(a)body butter valued at $14.04 from New World Woolston, Christchurch, on 26 June 2018;
(b)a television valued at $849 from the Warehouse Eastgate, Christchurch, on 1 September 2018;
(c)a television valued at $999 from the Warehouse Eastgate, Christchurch, on 16 September 2018;
(d)meat valued at $174.62 from New World Stanmore Road, Christchurch, on 29 September 2018;
(e)meat valued at $160 from New World Rangiora, on 26 December 2018; and
(f)firewood and charcoal valued at $680 from Z Energy Brougham Street, Christchurch, on 15 March 2019.
[5] Secondly, the mail offences. Between 13 and 19 July and 26 and 29 July, a number of standalone New Zealand Post post-boxes were broken into in the
2 Police v Wood-Olsen, above n 1, at [24].
Christchurch, Kaiapoi, Dunsandel and Ashburton areas. Mr Wood-Olsen, with his co- offender, broke into these boxes, stole the contents and searched through them for cheques, cash and items of value. Between 15 and 27 July 2019, Mr Wood-Olsen altered the writing on several of these cheques to pay cash instead of the payee, forged the victim’s signature, and then cashed in these cheques at different banks. In total, Mr Wood-Olsen cashed in a total of $1,323.25 from four cheques. The banks have compensated all of the customers for the funds stolen, and now seek reparation for the money they have paid by way of compensation. Mr Wood-Olsen was charged with use of an altered document with intent to defraud, unlawfully opening postal articles and theft of mail.
[6] Thirdly, Mr Wood-Olsen was charged with possession of methamphetamine and a pipe for methamphetamine use on 30 July 2019.
[7] Fourthly, the driving offences. On 21 May 2019, Mr Wood-Olsen was driving with his partner in Christchurch and was stopped by the Police. The Police discovered that Mr Wood-Olsen’s vehicle was not fitted with an alcohol interlock device, despite this being a requirement of the alcohol interlock licence he had been subject to since 23 January 2019. The Police advised Mr Wood-Olsen that his car would need to be impounded. Mr Wood-Olsen then obstructed the Police from impounding the vehicle. Despite being warned repeatedly by the Police, Mr Wood-Olsen held his partner inside the car so that it was difficult for the Police to extract either of them, leading the Police to arrest Mr Wood-Olsen, who continued to resist even when told to put his hands behind his back. Mr Wood-Olsen was subsequently charged with driving contrary to an alcohol interlock licence, and obstruction of a Police officer.
[8] Fifthly, the burglary offence. On 25 May 2019, Mr Wood-Olsen and his partner were located at a construction site in Christchurch by the Police. The Police, having seen Mr Wood-Olsen’s partner looking through a chain-linked fence at the site, became suspicious and subsequently searched the site, locating Mr Wood-Olsen crouched behind a building trying to conceal himself. Mr Wood-Olsen’s face was covered with a black cloth face wrap and he was holding a pair of bolt-cutters. Although he had no lawful authority to be on the site, Mr Wood-Olsen refused to comment when asked for an explanation.
[9] Finally, the breach of a community detention sentence. On 14 December 2018 Mr Wood-Olsen was sentenced to community detention as a result of unpaid fines. This sentence was breached by Mr Wood-Olsen on 30 December 2018 after he removed his tracker and absconded from the detention address for eight days.
Provision of Advice to Courts report
[10] The report indicated that while Mr Wood-Olsen’s most-recently proposed address was technically suitable for an electronically-monitored sentence, there were concerns about his ability to cope with the restrictive measures of home detention given his impulsive tendencies. The report also noted that home detention may impact on Mr Wood-Olsen’s ability to pursue employment. The seriousness of Mr Wood- Olsen’s charges were acknowledged, but it was observed that he has served four months on remand in custody, which has allowed him to become drug-free, and that he has strong support from his aunt (at whose address he proposes to live) and his mother. Consequently, the report recommended intensive supervision (in order to allow Mr Wood-Olsen to engage with rehabilitative interventions), but with the additional sanction of community detention in order to limit his access to illicit substances. It was also recommended that Mr Wood-Olsen be ordered to pay any reparation sought.
[11] The report observed that Mr Wood-Olsen had accepted the charges against him and explained his offending by noting that he had relapsed into methamphetamine use and offended in an attempt to fund this use. He was willing to write New Zealand Post a letter of apology and pay any reparation sought. He was confident that he would be able to re-secure employment as a shearer, sentence permitting. The report finally noted that despite the technical suitability of the proposed address for an electronically monitored sentence, Mr Wood-Olsen’s mother was also registered at the address on electronically-monitored bail (facing a charge of burglary) and that the address had a number of previous call-outs for family harm matters and dishonesty offences.
District Court decision
[12] The Judge, after discussing Mr Wood-Olsen’s charges and Provision of Advice to Courts report, then set out his approach to sentencing:3
In sentencing you Mr Wood-Olsen, I need to bear in mind the purposes and principles of sentencing set out in ss 7 and 8 Sentencing Act 2002. I am particularly mindful of provisions of s 16. The approach to sentencing that I take is to identify the different types of offences committed on the various occasions and to assess your level of culpability and the starting point in relation to each. I will then accumulate those sentences before taking into account the totality principle.
[13]The Judge then adopted starting points for each of the categories of offences:
(a)The Judge adopted a starting point of 12 months’ imprisonment for the theft charges (excluding the theft of mail) on the basis that Mr Olsen- Wood stole items on six separate occasions, and the total value of the items stolen ($2876.66).4
(b)The starting point for the burglary was 18 months’ imprisonment.5 The Judge noted that the maximum penalty for this offence was 10 years’ imprisonment. It was observed by the Judge that burglary and looting were particularly common issues on building sites during the rebuild of Christchurch following the earthquakes, with large quantities of tools and construction material being lost. The Judge considered this to be a “serious aggravating factor” in relation to the burglary, alongside the fact that Mr Wood-Olsen entered the site at night with bolt cutters. It was noted however, that nothing had been taken at the time Mr Wood- Olsen was apprehended. The Judge referred to the case of Arahanga v R, where the Court of Appeal stated that a starting point of 18 months’ imprisonment was at the “low end” of residential burglaries, and that even though this was not a residential burglary, it had the “serious aggravating factor” mentioned above.6
3 Police v Wood-Olsen, above n 1, at [15].
4 At [16].
5 At [17].
6 At [17].
(c)The starting point for the mail offences was 18 months’ imprisonment.7 It was noted that the theft of mail offence carried a maximum of three months’ imprisonment, the offence of unlawfully opening mail carried a maximum penalty of six months’ imprisonment, and the offence of using an altered document with intent to defraud carried a maximum penalty of 10 years’ imprisonment. The Judge stated that the offending would have caused disruption, inconvenience and expense to the victims’ lives, and involved a serious breach of trust. It was asserted that there is no tariff case for offending of this kind.8 The Court of Appeal decision in R v Varjan was referred to, where the Court held that there is no established benchmark in dishonesty offending.9 The case of Tiopira v P was also cited, where Lang J held that as a general proposition, a starting point of between 12 to 18 months’ imprisonment appeared to be the norm where offending resulted in losses of around
$2,000-$3,000, where the offender was making use of multiple stolen cheques.10
(d)The Judge then noted the maximum sentence of imprisonment for the other offending and set a starting point for all of them combined at six months’ imprisonment.11
[14] The combination of these starting points led to a total overall starting point of four and a half years’ imprisonment. It was then observed that, considering the principle of totality, the overall starting point should be reduced to four years’ imprisonment, to ensure a starting point that was not in excess of what was necessary to adequately meet the purposes and principles of sentencing.12
[15] The Judge then considered the aggravating and mitigating factors.13 With regard to aggravating factors, the Judge held that the main aggravating factor was
7 At [20].
8 At [19].
9 At [19].
10 At [19].
11 At [21]-[22].
12 At [22].
13 At [23]-[24].
Mr Wood-Olsen’s prior convictions (including prior convictions for theft, drink- driving and breaching community work sentences). Mr Wood-Olsen’s sentence was uplifted by two months on this basis. With regard to mitigating factors, the Judge noted that Mr Wood-Olsen had entered guilty pleas for some of his charges, which warranted a reduction of one year. This led to a final sentence of three years and two months’ imprisonment.14 The sentence was imposed on the lead charges of burglary and using a document with intent to defraud, with concurrent sentences imposed on the remaining charges.
[16] The Judge also made orders for Mr Wood-Olsen to pay reparations for the stolen items and cashed cheques.
Position of the parties
Mr Wood-Olsen
[17] Mr Nolan, counsel for Mr Wood-Olsen, submitted that the final sentence imposed by the District Court Judge was manifestly excessive for two reasons. Firstly, the starting point adopted by the Judge was too high, having regard to the circumstances of the offending, the offender and the relevant authorities. Secondly, the Judge did not impose the least restrictive sentence in the circumstances.
[18] With regard to the first reason, counsel asserted that there is no ‘guideline’ case for burglary sentencing, referring to the Court of Appeal in Arahunga v R, who did not set a tariff for burglary because the range of circumstances in which the offence could be committed was so varied.15 However, counsel did acknowledge that following R v Nguyen, there are a number of factors relevant to the seriousness of burglary offending, including the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.16
14 At [24].
15 Arahunga v R [2012] NZCA 480 at [78].
16 R v Nguyen CA110/01, 13 June 2001 at [17].
[19] Counsel submitted that given these factors, the burglary in the present case warranted a starting point of 12 months because it occurred in commercial (rather than residential) premises and no items were taken.
[20] Counsel then referred to several cases of dishonestly using a document where a lower starting point was imposed than the current case. In particular, Baker v Police was cited, where Woodhouse J observed that “those cases, in broad terms, indicate that the starting point for this offending, having regard to all of its circumstances, might be between eight to 12 months rather than three years”.17 However, that case was related to dishonestly using or obtaining a credit card under s 228 of Crimes Act 1961, as opposed to using an altered document with intent to defraud under s 258 of the Crimes Act. It was ultimately submitted that having regard to the totality principle, an appropriate starting point for all offences was 30-36 months’ imprisonment.
[21] With regard to the second reason, counsel referred to the Provision of Advice to Courts report, which recommended a sentence combination of community detention and intensive supervision, and that this would allow Mr Wood-Olsen to engage in continued rehabilitation. It was submitted that the Judge did not consider a sentence of home detention due to the length of the sentence imposed, but with the suggested lower starting point further reduced by mitigating factors to 22-24 months, the Judge could have imposed home detention as the least restrictive sentence under s 8(g) of the Sentencing Act 2002.
[22] Mr Nolan, in his oral submissions also emphasised the point that, at the time of the offending, the appellant was a methamphetamine addict. He submitted that there was a causal nexus between the addiction and at least some of the offending and that this should have resulted in the Judge giving a discount for this factor.
The Police
[23] Mr Whitcombe, counsel for the Police, submitted that the Judge had not erred in imposing the end sentence that he did, as it was within the appropriate range. Counsel mainly focused on how the Judge applied the starting point to each offence
17 Baker v Police HC Auckland CRI-2009-404-122, 24 August 2009 at [10].
and acknowledged that while the overall starting point of four years six months’ imprisonment was “stern” it was within the appropriate range and was mitigated by a “generous” discount for guilty pleas.
[24] Turning to the specific offences, counsel conceded that the starting point of 12 months’ imprisonment for theft offences was potentially outside the available range, and that a starting point of six to nine months may have been more appropriate. Counsel referred to Samuels v Police, where Cooke J imposed a starting point of six months’ imprisonment for one charge of theft over $1000 and seven charges of theft under $500.18 Counsel also referred to Cooke J’s useful summary of the starting points in recent analogous cases:19
(a)In Henry v Police, the appellant pleaded guilty to 13 charges of theft, breaching release conditions and possession of methamphetamine. Eight of the shoplifting charges were for theft under $500 and the remaining five for theft between $500 and $1000. Six of the shoplifting charges involved theft from six different stores on one day, and the remaining seven charges arose over a period of eight months. The total value of the stolen property was $5,568.23. On appeal, Clark J held that a six month starting point for the spree offending would have been appropriate, and the end sentence of nine months’ imprisonment was not excessive. That sentence included discounts for time spent on EM bail and timing of the charges, along with for guilty pleas.
(b)In McKenzie v Police, the appellant pleaded guilty to four charges of theft under $500, two charges of failure to answer bail and two of breaching conditions. Brown J in the High Court held that an end sentence of 12 months’ imprisonment was excessive and replaced it with an end sentence of six months’ imprisonment. A starting point of six months was appropriate for the theft charges with uplifts of two months for the non-compliance charges and one and a half months for criminal history, with discounts allowed for mental health issues and guilty pleas.
(c)In McMurtrie v Police, the appellant pleaded guilty to six charges of theft (five under $500 and one between $500 and $1000) and one charge of possession of cannabis. In the High Court Clifford J considered that a starting point of six months for all the theft offending would be appropriate, with an uplift of one month for offending while on bail and a cumulative sentence of one month on the cannabis charge, plus a discount for guilty plea. Clifford J thus quashed the end sentence imposed in the District Court of 12 months’ imprisonment and substituted a sentence of six months’ imprisonment.
18 Samuels v Police [2019] NZHC 694 at [22].
19 Samuels v Police, above n 18, at [19].
[25]With regard to the burglary offences, it was submitted that the starting point of
18 months’ imprisonment, while being “stern”, was within the range in the circumstances of this case. Counsel referred to R v Stevens and Arahanga v R (discussed in [34] and [36] below), as well as Elers v R, where the appellant and two associates entered commercial premises and stole two batteries valued at $150, with Grice J upholding a starting point of 16 months’ imprisonment on appeal.20
[26] With regard to the mail offences, counsel submitted that 18 months’ imprisonment was within range. Counsel referred to Linford v Police, where the appellant had fraudulently received and used four credits, obtaining a total of
$4,508.59.21 On appeal, Brewer J observed that a starting point of 18 months’
imprisonment was in range.22 Counsel also referred to Te Au v Police, where the appellant faced seven charges of using cheques from a stolen chequebook, obtaining approximately $2,000.23 Wild J held that a starting point of eight months’ imprisonment was appropriate as there were only two victims (one being a large bank) and the offending was relatively minor.24 It was submitted that the current case was more serious than Te Au due to the level of premeditation and sophistication, as well as the greater number of victims, justifying a starting point of 18 months’ imprisonment.
[27] Counsel also submitted that an additional six months’ imprisonment for the remaining charges was appropriate in this case and was consistent with the principle of totality.
Approach to appeal
[28] This appeal is brought under ss 244 and 250 of the Criminal Procedure Act 2011. Under s 250, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.25 The
20 Elers v R [2018] NZHC 497 at [16].
21 Linford v Police [2017] NZHC 2166 at [4].
22 Linford v Police, above n 21, at [17].
23 Te Au v Police HC Nelson CRI-2007-442-19, 10 December 2007 at [3].
24 Te Au v Police, above n 23, at [14].
25 Tutakangahau v R [2014] NZCA 279.
focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.26
Applicable case law
Section 258 – Using an altered document with intent to defraud
[29] In R v Varjan, the Court of Appeal observed that there is no established benchmark for dishonesty offending, given that the circumstances of, and culpability in, offences of dishonesty vary widely.27 The Court did note a number of factors to assist in determining culpability:28
[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[23] It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.
[30] In Sahib v Police, the High Court recognised the above observation in Varjan as the leading statement for dishonesty offences, and made the following further observations in the context of s 258 offending:29
The maximum penalty for the altering a document charge was 10 years’ imprisonment. The maximum penalty for the charges of theft by a person in a special relationship was seven years’ imprisonment. However, given the scale of the offending and the number of charges these maximums are of limited assistance. Sentencing exercises of this type often involve a number of charges. The Court is always concerned to establish the gains enjoyed by a defendant at the time of the frauds, and then the net loss to victims at the time of the sentencing of the defendant. Future reparation will also be a factor. An accurate understanding of the amounts arguably taken and the net amounts lost are important in assessing culpability. The net amount of loss and the net gain to the offender is central to the assessment of culpability, as that is a measure of the harm to the victims and the community.
26 Ripia v R [2011] NZCA 101 at [15].
27 R v Varjan CA97/03, 26 July 2003 at [21].
28 R v Varjan, above n 27, at [22]-[23].
29 Sahib v Police [2012] NZHC 3324 at [10].
[31] Sahib concerned the theft of trust money by a trustee using altered documents (the thefts totalling over $1 million), and consequently the starting point imposed (four years) was much higher than this case.30
[32] Tiopira v Police concerned the use of different stolen credit cards by the defendant to obtain money and goods to the value of $11,606.21.31 Lang J observed that upon assessment of cases where an offender has made multiple use of stolen credit cards or cheques, “as a general proposition, a starting point of around 12 to 18 months imprisonment will be appropriate where the offending results in losses of around
$2,000 to $3,000”.32
[33] Finally, in Barakat v Police, the offender had dishonestly used an associate’s credit and Eftpos cards to withdraw $2600 (although $1,600 of the withdrawn cash was recovered, so the total loss was only around $1,000).33 McKenzie J provided a useful summary of cases where credit cards and chequebooks were used or altered dishonestly, and the starting points imposed in those cases:34
Te Au v Police involved seven charges of using cheques from a stolen chequebook, involving a little over $2,000. A 15 month starting point was adopted on sentencing. On appeal, that starting point was reduced to eight months. Singh involved 13 counts of using credit cards fraudulently to obtain about $3,000. A sentence of two years imprisonment imposed after trial, was found on appeal to be outside the available range and manifestly excessive and a sentence of 18 months imprisonment was substituted. The Court of Appeal noted that there is no readily discernible sentencing pattern in cases concerning similar dishonesty offending. I have also considered a number of other comparable cases. In Haua v Police HC WNCRI 2007-485-107, the appellant had stolen a wallet and used a credit card from it to obtain approximately $4,000. The starting point of 18 months was reduced on appeal to 12 months by Clifford J. In Keenan v Police CHCH CRI 2007-409-000097 the offender had stolen a credit card and a cash card and used them on a total of 31 occasions to obtain a total of approximately $5,000. On appeal Fogarty J identified and upheld a starting point of 12 months. In Pentecost v Police HCCHCH A127/01 there were two separate series of offences involving, in the first series, use of a stolen credit card to obtain $3,400 and, in the second, use of a stolen card to obtain a further $600. A total sentence of 15 months, after guilty pleas, was upheld on appeal but William Young J (as he then was) expressed himself as “truly troubled whether a starting point of 22-23 months
30 Sahib v Police, above n 29, at [2]-[3].
31 Tiopira v Police [2012] NZHC 1720 at [3].
32 Tiopira v Police, above n 31, at [12].
33 Barakat v Police HC Palmerston North CRI-2008-454-35, 14 August 2008 at [2].
34 Barakat v Police, above n 33, at [10].
could be regarded as justified on a totality basis for offending which involved only $4,000”.
Section 213 – Burglary
[34] Counsel for Mr Wood-Olsen cited the factors in R v Nguyen above, which included the nature of the premises entered, and the value of the property stolen. Consequently, the fact that Mr Wood-Olsen entered a commercial construction site, as opposed to residential premises, is relevant to the imposition of the sentence in this case. In Arahanga v R, the Court of Appeal held that burglary of a domestic residence is a significant aggravating feature at sentencing, due to the heightened risk of confrontation with the occupants.35 This indicates that the Courts may take a stricter approach to sentencing for burglary when it involves residential premises, as opposed to commercial premises.
[35] In Devlyn v R, the defendant was convicted of four charges of receiving stolen property and two charges of burglary (at commercial premises) of goods totalling
$4,900.36 The Judge at first instance imposed a starting point of 18 months’ imprisonment for the burglary charges, which the Court of Appeal held to be in the available range.37
[36] In R v Stevens, the defendant was charged with burglary, possession of a number of illicit drugs including methamphetamine, and possession of a taser stun gun.38 The burglary charge involved the defendant stealing $350 of copper piping from a commercial premises.39 While the Judge at first instance did not indicate a starting point for the burglary and imposed a total sentence of three years’ imprisonment, the Court of Appeal found this to be manifestly excessive, and usefully observed why a starting point of no more than 18 months’ imprisonment for the burglary would be justified:40
We accept that the burglary had the aggravating features the Judge identified. Theft of copper piping from the interior and exterior of buildings imposes
35 Arahanga v R, above n 15, at [78].
36 Devlyn v R [2013] NZCA 462 at [21].
37 Devlyn v R, above n 36, at [21].
38 R v Stevens [2009] NZCA 190 at [1].
39 R v Stevens, above n 38, at [3].
40 At [14].
considerable inconvenience on property owners. That said, the stolen metal here was of low value. Overall, we consider that an appropriate starting point would have been no higher than 18 months imprisonment.
Analysis
Burglary
[37] The imposition of an 18-month starting point for burglary of a commercial premises where nothing was actually stolen is at the upper end of the range, even with the ‘aggravating factor’ of post-earthquake Christchurch construction sites being particularly vulnerable. A relevant factor in this case is that the appellant was interrupted before he was actually able to take anything. However, this was not an opportunistic offence. The appellant came well prepared with bolt cutters and a face covering. This indicated a degree of planning and preparation. These are aggravating factors.
[38] The Court of Appeal in R v Stevens indicated that 18 months’ imprisonment for burglary of items from a commercial premises (that had a very low total value) could still be within the appropriate range.41 In Devlyn v R, the Court of Appeal also held a starting point of 18 months for two burglary charges to be within range.42
[39] I accept the submission of Mr Whitcombe that while there are similar cases within a range of 12-18 months, the critical thing is that, although this case is at the top of the range, it is still within the range. I therefore conclude that, while, severe, the 18-month starting point is not beyond the range. It is also necessary to consider this starting point in the context of the totality of the offending to ensure that it has not contributed to an overall sentence disproportionate to the criminality involved. I will return to that later.
Dishonesty re mail
[40] Although there appear to be few cases concerning this type of mail theft, analogous cases relating to credit cards or cheques discussed above indicate that 18 months’ imprisonment is an appropriate starting point for the offending in this case.
41 R v Stevens, above n 38.
42 R Develyn, above n 36.
Although the cases relating to dishonest use of a credit card are helpful, my view is that the fact that the cheques involved here were obtained by breaking into letter boxes and systematically going through the mail inside is an aggravating factor. It is activity that inconveniences all those whose mail was interfered with and is likely to have affected the confidence in the mail system of those whose cheques were taken. There is also some sophistication in the use of a small safe to hide the cheques. These are aggravating features.
[41] On the basis of cases such as Lang J’s decision in Tiopira v Police43 and the cases summarised by MacKenzie J in Barakat v Police,44 a starting point of 18 months is justified, although again at the upper end of the range.
Theft (non mail charges)
[42] There are six theft charges, five from supermarkets and one from a service station. They cover the period 26 June 2019 to 15 March 2019.
[43] The date of the last offence is relevant as the appellant took advantage of the chaos caused by the mosque shootings to help himself to product left outside a service station after staff had been sent home following the shootings. He took so much of the product that he had to make two trips to fit it all in. It is also an aggravating feature that the various thefts were not a one-off spree of offending but a repeated pattern of behaviour over nine months.
[44] The date of the 26 December 2018 offence is also relevant as less than two weeks previously the appellant had been sentenced to community detention. A number of the other offences had also been committed while the appellant was on bail. These are aggravating features. They do not seem to have been specifically acknowledged as such by the Judge.
[45] However, even if all the aggravating factors are taken into account based on the cases discussed in [23] above, a 12-month starting point is too high. Nine months would be more appropriate. Again, the finding does not automatically mean that the
43 Tiopira v Police, above n 31.
44 Barakat v Police, above n 33.
overall sentence is excessive, but it needs to be considered when assessing the overall criminality and the proportionately of the sentence.
Other offences
[46] The other matters before the Court were driving related, the offence of breaching his sentence of community detention by removing his tracker bracelet and absconding from the detention address for eight days, obstructing Police and possession of methamphetamine and drug utensils.
[47] The appellant has one prior driving while suspended conviction and three prior alcohol related driving convictions and two prior breach of community work convictions. These are aggravating factors.
[48] The Judge only gave an uplift of six months for all of these offences. That is entirely appropriate. They were all discrete matters of a different nature to the rest of the offending. Given the number of the defendant’s prior alcohol related driving offences and the fact that this was his third conviction for breaching community detention, denunciation was called for in respect of these offences.
Mitigating factors
[49] The Judge gave what was effectively a 24 per cent discount for guilty pleas. However, not all the guilty pleas were entered at the first opportunity and trial dates had been set for some of the charges. In these circumstances, the discount given was generous.
[50] Mr Nolan submitted that the Judge should have given credit or the fact that, during the four-month remand period, the appellant had become drug-free. However, as the appellant was in custody for this four-month period any specific credit that he might have been entitled to is significantly less than would have been the case if he had achieved this while still in the community. The Judge could have had regard to this rehabilitative effort under s 8(4) of the Sentencing Act 2002. However, any credit would have been minor, and he cannot be criticised for not doing so.
[51] This brings me to the question of whether a specific discount should be given for what is said to have been the defendant’s methamphetamine addiction. There is no doubt that in appropriate cases, the personal circumstances of a defendant, including a methamphetamine addiction may support a discount of an otherwise appropriate sentence.45 However, causation is required. As the Court of Appeal said in Zhang v R: “Non-causative addiction will be of little mitigatory relevance.”46
[52] The Judge here gave no discount for the appellant’s asserted methamphetamine addiction. That is hardly surprising. He appears to have had almost no evidence about it. It is mentioned in two lines in the PAC report which records the appellant having said to the Probation Officer, “He referred to having ‘relapsed quite heavily’ into methamphetamine use and the need to fund this as the explanation for the offending.” Significantly, the PAC report itself does not mention this as an “Offending-Related Factor” but, instead, lists “Friends and Associates; Attitudes and Alcohol Use.”
[53] In the absence of evidence of a causal connection between the appellant’s methamphetamine use and the offending (beyond his assertion that he committed the dishonesty offending to obtain funds which he spent on drugs), the Judge cannot be criticised for not having specifically addressed this issue.
Totality
[54] The final question to consider is whether, in light of the findings I have made about the appropriate starting points for the various groups of offending, in particular my finding that the starting point for the theft offending was three months too high, the Judge properly implemented the totality principle.
[55] The Judge recognised that it was necessary to make some adjustment to the starting point and reduced that by six months to four years. He then applied further discounts to reflect factors personal to the appellant to arrive at an end sentence of three years two months.
45 See Zhang v R [2019] NZCA 507; Matthews v R [2019] NZCA 208 at [7]; and Martel v R [2018] NZCA 305 at [30].
46 Zhang v R above n 45, at [147].
[56] I have arrived at a starting point three months lower than the Judge. The question is whether that makes a difference to the totality of offending that renders the sentence excessive.
[57] Two sections of the Sentencing Act are relevant. Section 84 provides guidance on the use of cumulative and concurrent sentences. Section 84(1) states that cumulative sentences are generally appropriate if the offences are different in kind or not a connected series of offences. Here, the different groups of offences dealt with by the Judge are clearly different in kind. They also occurred at different times and locations and involved many different victims. Cumulative sentences were therefore appropriate.
[58] Section 85 directs the Court to consider the totality of the offending. This means that even if cumulative sentences were otherwise appropriate, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. Unless the aggregated end sentence is “wholly out of proportion to the gravity of the offending” no adjustment is required.47
[59] Here, the Judge appropriately recognised that a cumulative starting point of four years and six months would have been disproportionate and reduced it by six months. That is a significant reduction.
[60] However, given the different starting point that I have arrived at in respect of the theft offences, it is necessary to adjust the overall starting point from four years six months down to four years three months. A six-month adjustment to reflect the totality principle produces a starting point of three years nine months.
[61] I apply the same discounts and uplifts as the Judge. This produces an end sentence of two years and 11 months’ imprisonment. As this is longer than two years, no consideration of home detention arises. In any event, the appellant’s history of breaches of community-based sentences would have rendered him an unsuitable candidate for a community-based sentence.
47 Ashcroft v R [2014] NZCA 551 at [32].
Result
[62] The appeal is allowed. The sentence of imprisonment is reduced from three years two months to two years 11 months.
Churchman J
Solicitors:
Raymond Donnelly & Co, Christchurch for Respondent cc: C Nolan, Barrister, Christchurch for Appellant
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