Wootton v The Queen

[2010] NZCA 548

IN THE COURT OF APPEAL OF NEW ZEALAND

CA463/2010
[2010] NZCA 548

BETWEENWARREN BRENT WOOTTON

Appellant

ANDTHE QUEEN

Respondent

Hearing:22 November 2010

Court:Harrison, Ronald Young and Keane JJ

Counsel:Appellant in Person

T Singh for Respondent

Judgment:22 November 2010 

ORAL JUDGMENT OF THE COURT

Appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]        On 23 April 2010 Judge Crosbie in the District Court at Christchurch sentenced Mr Wootton to two years and three months’ imprisonment after he had pleaded guilty to three counts of burglary, one of unlawfully taking a vehicle and one of theft.[1]

[1]      R v Wootton DC Christchurch CRI-2009-009-11212, 23 April 2010.

[2]        On 21 July 2010 Mr Wootton, representing himself, asked for leave to appeal his sentence out of time through his notice of appeal.  The application for leave to appeal out of time is not opposed by the respondent and we therefore grant it. 

[3]        The appellant did not wish to file written submissions in support of his appeal but relied upon his extensive notes attached to his notice of appeal.

[4]        As we understand the written grounds of appeal they are:

a)that the warrant of imprisonment incorrectly records the concurrent status of the sentence of two years and three months’ imprisonment with other prison sentences the appellant is subject to and is therefore being wrongly administered; and

b)at sentencing the Court ordered the appellant pay reparation of $400 but he understands that reparation of $2,944 is shown owing by him.

[5]        In oral submissions these were supplemented by the following submissions:

a)the Judge overlooked the fact that this burglary offending was really akin to theft;

b)leave to apply for home detention should have been given when home detention was refused (s 80I, Sentencing Act 2002).

Background

[6]        We turn firstly to the background facts.  They can be briefly stated.  In January 2009 the appellant climbed over a fence into the locked yard of The Warehouse in Greymouth and stole various items valued at $84 (the first burglary count).

[7]        A month or so later on the evening of 14 and 15 February 2009 he returned to The Warehouse, entered in the same way and stole other items valued at $88 (the second burglary count). 

[8]        The next day on 16 February 2009 he took a Nissan Primera valued at $2,000 without permission from the owner (the count of unlawfully taking a vehicle).  When recovered the vehicle had some minor damage.  The appellant stole a number of items from the car valued at $4085 (the theft count).

[9]        Finally on 16 October 2009 the appellant entered a residential property by prising open a window and stole power tools and other items valued at $2,944 (the third burglary count).

[10]       The appellant was also sentenced by Judge Saunders on 3 March 2010 and Judge Smith on 16 March 2010.  On 3 March he was sentenced to an effective term of six months’ imprisonment for one charge of burglary, two of assault and one of a male assaults a female.  On 16 March he was sentenced on a charge of wilful damage to a concurrent sentence of two weeks’ imprisonment.  And so by the date of sentencing for the five counts described above, 23 April 2010, Mr Wootton was serving a six month sentence of imprisonment.

[11]       At sentencing Judge Crosbie said:

[20]       So the total sentence on all three of burglaries will be two years and three months’, on the others six months’ each.  As I have said, that will be concurrent on the March sentences.

Discussion

Concurrent sentences

[12]       To return to the appellant’s complaints.  As we understand the appellant’s concern, he believed the sentence of imprisonment imposed by Judge Crosbie on 23 April should effectively be backdated to the March sentencing and run from that date.  He complains that the Department of Corrections who are administering his sentence do not propose to backdate his April sentence in this way.  While this may not strictly be an appeal point we think it preferable to identify the error in the appellant’s complaint.

[13]       Section 76(1) of the Parole Act 2002 provides as follows:

76          General rules about start date of sentence of imprisonment 

(1)The start date of a sentence of imprisonment imposed after the commencement date is the date on which the sentence is imposed, except as otherwise provided in sections 77 to 81.

[14]       Thus the start date of a sentence is the date on which it is imposed.  A Judge cannot backdate a sentence to commence at an earlier time.  In this case, therefore, while the March and April sentences are concurrent they run together only from the latter sentencing date of 23 April.

[15]       The Crown confirmed in their submissions that the appellant is entitled to and has received the benefit of the time spent in custody in respect of the offending he was sentenced for on 23 April.  This is a period of 89 days.

[16]       We are therefore satisfied there is no difficulty about the way in which Mr Wootton’s sentence is being administered.

Reparation

[17]       The reparation originally sought for the loss with respect to the third burglary was $2,944.  As to this the Judge said:

[8]         The summary of facts says reparation is sought.  However, the reparation schedule which is attached to the probation report does not claim that reparation and on enquiry from Ms Jamieson, for the Crown, she informs the Court that the reparation that is sought is that $400 sum and this may have something to do with insurance being claimed and the insurers not being contacted.  However, there is a formal reparation report.  The police have had adequate time to get all the information together so I am going to take the reparation figure sought as $400.  I am told you can pay that because you have a sum of money in the bank and your mother has invested some for you.

[18]       As this Court said in R v Love[2] the sentence imposed is the one which is imposed in open court.  The reparation payable by Mr Wootton therefore is $400 only.

Home Detention

[2]      R v Love CA353/02, 26 November 2002 at [6].

[19]       In his notice of appeal Mr Wootton says that “the Judge said that he would look at home detention provided it was accompanied by psychological counselling and quite strict conditions”.  Mr Wootton goes on to say that he has an address for home detention with his mother.

[20]       As to this the Judge said:

[19]       I should say for the record that if there were a viable home detention address now it may well have been something I would consider looking at provided it was accompanied by psychological counselling and quite strict conditions.  It follows therefore that you may well be a candidate for release on residential restrictions which is the same thing.  Those of course are entirely matters for the Parole Board but I suspect from what I now know about you that you are a man who along the way has, because of what happened to you in your past, fallen between the cracks, not received the help that you have received and in a real sense been offending for a lot longer than you should have.  All of that might not mean too much to you right now but when you reflect on it you will see that the sentence that I have come down has been crafted to give you hopefully an opportunity that a strict sentence of two years would mean that you would not receive.

[21]       The Judge was not prepared to impose a sentence of home detention because Mr Wootton did not then have a residential address and because there was no programme of psychological counselling and other rehabilitation which might reduce the appellant’s chances of reoffending.

[22]       Mr Wootton has not alleged that the sentence of imprisonment imposed was wrong.  Given that he has a previous criminal conviction list which now runs to 18 pages and he has continued to commit burglaries, some while on bail, the prospect of home detention was remote.  In any event no rehabilitation programme suitable for the appellant has been identified.

Was this theft?

[23]       Mr Wootton pleaded guilty to burglary.  The offending clearly was burglary, given it involved entry on to several premises and theft.  The amounts taken in some of the burglaries were modest, as the Judge identified in his sentencing notes.

Section 80I

[24]       Section 80I is only available where the overall sentence allows the imposition of home detention but where a suitable premise is not available at sentencing.  Here the sentence of imprisonment was outside the range available for the imposition of home detention.  We acknowledge the basis of Mr Wootton’s application was his mother’s ill health.

[25]       For the reasons given, the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent