Wood v Police
[2013] NZHC 1098
•15 May 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000262 [2013] NZHC 1098
BETWEEN JOSHUA RODOP WOOD Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 25 March 2013
Appearances: S A Rees for Appellant
A J Pollett for Respondent
Judgment: 15 May 2013
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 15 May 2013 at 11:30 am
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
Solicitors: Meredith Connell, P O Box 2213, Auckland 114
Fax: (09) 336-7629 – Email: [email protected]
Counsel: S A Rees, P O Box 14383, Tauranga 3143
Email: [email protected]
WOOD V NZ POLICE HC AK CRI-2012-404-000262 [15 May 2013]
Introduction
[1] Joshua Wood was convicted following guilty pleas on 25 charges and sentenced to two years nine months’ imprisonment.1 Judge Treston sentenced him along with two co-offenders, Michael Erikson and Legend Ross. Another co- offender, Joshua Sprague, was sentenced separately by Judge Perkins to nine months’ home detention.2 Mr Wood appeals his sentence on the basis of disparity between his sentence and that of Mr Sprague.
[2] Of the 25 offences on which Mr Wood was convicted, 16 were committed along with Mr Sprague and others. These offences occurred over two distinct periods. Between 23 and 24 August 2011 all four co-offenders were party to 13 offences involving the forced entry into vehicles and burglary of premises.3 Between
31 August and 1 September 2011 the same offenders were party to two instances of
conversion and one of burglary.
[3] In addition, Mr Wood was convicted for offences committed between July and September 2011, namely unlawful interference with a vehicle,4 conversion,5 one of breaching bail conditions, one of theft,6 one of breaching bail conditions,7 one of breaching conditions of a previous sentence to supervision8 and one of driving while disqualified.9
[4] Mr Sprague also faced additional charges on his own. These were one charge of unlawfully being in building, one of theft, two of unlawfully taking a motor vehicle, three of aggravated robbery, one of unlawfully getting into a motor vehicle,
one of possession of instruments for conversion and one of driving while prohibited.
1 NZ Police v Erikson, Ross & Wood DC Auckland CRI-2011-090-004518, 16 July 2012.
2 R v Joshua Sprague DC Auckland CRI-2011-004-023174, 8 June 2012.
3 Three counts of burglary under s 231(1) Crimes Act 1961, five counts of unlawful interference under s 226(2), three counts of theft under s 219 and two counts of conversion under s 226(1).
4 Three counts under s 226(2).
5 Two counts under s 226(1).
6 Section 219.
7 Section 37(a) Bail Act.
8 Section 70(a) Sentencing Act.9 Section 32(1)(A) Land Transport Act 1998.
[5] Given the relative similarity in offending there is the appearance of disparity between the sentence of two years nine months imposed on Mr Wood and that of nine months’ home detention imposed on Mr Sprague. However, I could only interfere with the sentence imposed on Mr Wood if that disparity is both unjustified and the sentence imposed on Mr Wood was inappropriately high. It would not be sufficient if the cause of the disparity was simply that Mr Sprague’s sentence was lenient.
[6] In R v Rameka the Court of Appeal said of appeals against sentence based on disparity:10
It has long been the view of this Court that little help is gained by considering other sentences in respect of the same offence (R v Radich [1954] NZLR 86) or, indeed, other sentences imposed by other Judges or Courts on other offenders whose offences are in some way linked with those of the appellant. The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence (R v Richards (1955) 39 CR App
1 R 191). In each case the whole of the surrounding circumstances and the situation of the offenders have to be taken into account and, as this Court has said previously, these factors vary infinitely. But it is true that there has been, of recent years, both in this country and in England, an increased willingness to take disparity of sentence into account when disparity cannot be justified and is gross.
…
Having regard to these and other authorities dealing with disparity of sentence, this Court wishes to say that it will in special cases have regard to disparity as a ground of appeal against sentence, but only when the disparity appears unjustifiable and is gross.
(emphasis added)
[7] The Court of Appeal considered disparity as a ground of appeal again a decade later in R v Lawson though with a subtle difference, putting emphasis on the disparity and the risk that disparity may bring the administration of justice into disrepute:11
... a marked difference in the sentence imposed on co-offenders and for which no justification can be shown may be of importance in the administration of justice generally in that such a marked and unjustified
10 R v Rameka [1973] 2 NZLR 592 (CA) at 593-594.
11 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
difference will tend to bring the administration of justice into disrepute ... It is for this reason that a disparity in sentence imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate.
[8] I respectfully agree with Wylie J’s recent analysis of Lawson:12
In Rameka, the Court observed that where disparity is raised and one of the prisoners has received too short a sentence, it also has to be shown that the appellant has received too long a sentence before the Court should intervene. In Lawson, the emphasis was on disparity in the sentences imposed on co- offenders itself and whether an objective observer would consider that the administration of justice had miscarried. Lawson did not expressly deal with the disparity that arises if the sentence imposed on one of two or more offenders is inadequate. It must however extend to this situation.
[9] Wylie J concluded, and I agree, that the fact that a co-offender’s sentence may have been too lenient could not in itself justify interference on the basis of disparity:13
Reducing the appropriate sentence imposed on [a co-offender] in order to bring his sentence into line with the inappropriate sentence imposed on [the appellant] would itself cause public concern at the administration of justice. Two wrongs do not make a right.
[10] This approach has been confirmed by the Court of Appeal in MacFarlane v
R:14
Disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal only if the difference is so marked as to lead a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders” to “think that something had gone wrong with the administration of justice”. The difference must be “unjustifiable” or “gross”. A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
The respective sentences
[11] In sentencing Mr Sprague Judge Perkins said:
[You had] severe addiction to methamphetamine at a young age. It is tragic actually what happened to you when you were 17. For some reason you came to your senses and you have since undertaken rehabilitation
12 McKernan v Police [2012] NZHC 104 at [28].
13 At [43].
14 MacFarlane v R [2012] NZCA 317 at [24].
programmes and are now highly reported on by the administrators of the
Odyssey House programme and also the Police.
I am not going to go through all the normal factors which I would in a sentencing. Quite obviously, if you continued with your behaviour then you will go to prison for a long time. Apparently, as you were remanded at the time, I must have said something to you, I cannot remember it now, but it must have had an effect on you because you certainly turned things around and that is to your credit.
… It is clear that having regard to your age and what you have done, those can be taken into account as serious mitigating circumstances. That enables me to depart from what might have been a sentence of imprisonment well in excess of two years for all this offending, to a sentence of home detention.
[12] In sentencing Mr Wood, Judge Treston did not refer to Mr Sprague’s sentencing; it appears that Judge Perkins’ sentencing notes were not available at the time of the sentencing.
[13] Mr Wood was 19 years old at the time of the offending. Although the Judge made specific mention of the age of the two co-offenders being sentenced that day (Mr Ross and Mr Erikson were both aged 18 at the relevant time) and referred to that fact as one to be taken into account, he made no mention of Mr Wood’s age and gave no indication of a discount being given for that. In his general remarks about the offending the Judge had indicated that a starting point for the offending of four years
would have been appropriate:15
When I look at the burglary matters initially, it is my conclusion that the appropriate starting point for sentence on these matters is four years’ imprisonment. That starting point includes an uplift for the fact that it was a joint criminal enterprise and I allow from that a deduction, particularly for you Mr Erikson and you Mr Ross, of six months for your youth.
[14] He dealt with Mr Wood last, and rather briefly, compared to his treatment of
Mr Erikson and Mr Ross:
[45] Mr Wood, you are the offender who effectively faces the largest number of charges and I have referred to that already, there are 25 charges in total. You were also the one to whom I suppose most credit can be given because you have pleaded guilty to most of the matters, effectively, and I deal with you, of course, on that basis.
[46] The appropriate starting point for you, bearing in mind that you pleaded guilty and you were acquitted of the other burglaries to which I have
15 At [39].
referred, on the three burglaries to which you were convicted, I sentence you to two years and nine months’ imprisonment; six charges of unlawfully taking a motor car, you pleaded guilty to each of those charges, two years’ imprisonment; unlawfully interfering with four motor vehicles, 18 months’ imprisonment on each; theft of the items referred to in those three informations for theft, there is one matter to which you pleaded guilty, on that matter you are sentenced to one-and-a-half months’ imprisonment; on the other two you are sentenced to two months’ imprisonment.
[47] I deal, then, with the other matters that are also on your record and again, I approach the matter somewhat in a global fashion, bearing in mind the seriousness of those and the other matters to which I have already referred. On 18 July 2011, unlawfully getting into a motor vehicle, 12 months’ imprisonment, 18 July 2011, breach of bail, four months’ imprisonment; 29 July 2011, breach of supervision, one month imprisonment; 15 August 2011, theft of $110.12 worth of petrol, one month imprisonment; 16 August 2011, unlawfully getting into a motor car, 12 months’ imprisonment; between 20 and 21 August 2011, taking a valuable motor car which was worth $11,000 – two-and-a-half years’ imprisonment; breach of bail early September 2011, four months’ imprisonment; and then the last two matters, 17 September 2011 unlawfully taking a motor vehicle, two-and-a-half years’ imprisonment; driving while disqualified, one-and-a- half months’ imprisonment; and you are disqualified from holding or obtaining a motor driver licence for eight months starting now. That effectively means that your overall sentence is two years and nine months.
[15] Although the Judge appears to refer to the term of two years nine months as the starting point, it is clear that it was, in fact, the end sentence, following deduction for Mr Wood’s guilty plea. However, had the full one-third discount been allowed, the result would have been two years eight months. It is evident that no discount was allowed for Mr Wood’s youth. Nor were his personal circumstances, including a disrupted home life and a previous suicide attempt and efforts (albeit unsuccessful) to seek help for his drug habit referred to as warranting attention. These factors ought properly to have been taken into account and would have justified an end sentence of two years’ imprisonment.
[16] There are, of course, differences between Mr Sprague and Mr Wood. Mr Sprague was two years younger at the time of the offending and has been able to achieve a level of success in rehabilitation that has, to date, eluded Mr Wood. Nevertheless, the similarities between these two offenders are such that I conclude, not only was the sentence imposed on Mr Wood too long, but the disparity between he and Mr Sprague is rightly viewed as unjustified and gross.
[17] Ms Rees, for Mr Wood, contended for a term of 18 months’ imprisonment which might generally be regarded as the equivalent of Mr Sprague’s nine months’ home detention. Because of the differences that I have identified I do not think that a reduction to this level could be justified. Two years is an appropriate sentence that reflects all of the relevant factors and overcomes concerns about disparity.
Result
[18] The appeal is allowed. The sentences of two years nine months on the burglary charges are quashed and sentences of two years’ imprisonment substituted. The sentence of two-and-a-half years for conversion is also quashed and substituted with a sentence of two years’ imprisonment. The terms are concurrent and the other
sentences imposed by the Judges are affirmed.
P Courtney J
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