Wratt v Police

[2012] NZHC 3137

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-36 [2012] NZHC 3137

DAVID WAYNE WRATT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 November 2012

Counsel:         E R Fairbrother for Appellant

J E Rielly for Respondent

Judgment:      23 November 2012

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      Mr Wratt  was  sentenced  on  charges  of  burglary  and  theft  to  15 months’

imprisonment. The Judge at sentencing in the District Court said that this was a:

blatant and deliberate commercial burglary by a profoundly dishonest man whose protestations of remorse today are as unconvincing as they could possibly be.

[2]      The Judge started with a sentence of 18 months’ imprisonment and reduced it

to 15 months to knowledge his guilty plea.  A concurrent one month sentence was imposed for the shoplifting.

DAVID WAYNE WRATT V NEW ZEALAND POLICE HC NAP CRI 2012-441-36 [23 November 2012]

[3]      The grounds of appeal against sentence are that the Judge failed to: (a)         adopt the least restrictive outcome;

(b)      to address the appellant’s rehabilitation needs;

(c)       to consider his expressions of remorse; and

(d)      to consider the outcome of restorative justice meeting;

(e)       denied the appellant “natural justice in considering matters” on which the appellant was not heard.

The facts

[4]      On 27 December 2011 in the early hours of the morning, Mr Wratt parked his car opposite Bunnings Trade Store and yard in Napier.  Mr Wratt had a radio scanner, a flashlight and wire cutters.  He cut the Bunnings yard parameter fence and entered the yard.  He then cut a tie from a bundle of decking timber, took four lengths of timber and threw them over the fence, collected them and placed them in his vehicle. He was about to drive off when a passing Police patrol saw this, stopped and arrested him (for burglary).

[5]      Mr Wratt lied when he told the Police he had found the wood on the side of the road.  About six weeks before Mr Wratt had shoplifted from the same store.  He put a hammer valued at $70 under his jacket and tried to leave the store without paying but was apprehended (the theft charge).

District Court sentencing

[6]      As  the  Judge  remarked,  Mr Wratt  has  a  long  and  distressing  history  of dishonesty.  He is now 40 years of age and began offending almost 20 years ago.  He has over 50 convictions for dishonest offending.   The most recent, prior to this offending, was shoplifting on 14 June 2011 when he was ordered to come up for

sentence if called upon one year, well within the offending covered by the current sentencing.   He had been sentenced to two years, four months’ imprisonment in March 2010 on fraud charges.

[7]      The Judge noted that there had been long adjournments before this matter had been dealt with.  The reasons were not entirely clear but they included the wish to obtain medical reports and for a restorative of justice conference.

[8]      The Judge noted:[1]

... That the conference had taken place and the apparently meaningful exchanges which occurred there are documented in a report running to four pages, closely typed, supervised by a facilitator.

[1] At [3].

[9]      The Judge said:[2]

... It appears that the conference ended up with profuse thanks, warm wishes and a shake of hands.  All of that is well and good but just how aware was the  victim of  this  offending  of  the  fact  that  Mr Wratt  had  no  few  than

50 previous convictions for all manner of dishonesty over the last 20 years?

[2] At [3].

[10]     The Judge then, emphasising the matters I have mentioned at para [1] of this Judgment, considered a proper sentence was one of 18 months’ imprisonment as a start sentence.

[11]     There  were  two  pre-sentence  reports.     One  in  March,  the  second  in November 2012.  The first pre-sentence report understandably identified Mr Wratt as someone who had a moderate to high risk of re-offending.  The Probation Service noted that Mr Wratt had received rehabilitative sentences previously but without affecting his ongoing offending.  It seems that shortly before the pre-sentence report was completed, Mr Wratt had obtained employment.

[12]     After the first pre-sentence report was completed in March 2012, there was subsequently a series of remands to enable Mr Wratt to obtain neurological and other

medical information I have mentioned.

[13]     By early November 2012 there was a new pre-sentence report.  This had been directed by a Judge (not the sentencing Judge) with an invitation to Community Probation to consider community detention but without prejudice to the ultimate sentence.    This  new  pre-sentence  report  did  not  revisit  Community Probation’s comments  regarding Mr Wratt  but  the report  did  identify a suitable  address  for community detention.   The other relevant factor was that Mr Wratt had full time employment.

[14]     Counsel says that at the sentencing hearing he was not aware that the Judge had a different view than the new pre-sentence report which recommended community detention and approved  a placement.   Counsel in the District Court supported the recommendation unaware the Judge had another sentence in mind. Although not an appeal ground, it would have been helpful and fair to the appellant if  the  sentencing  Judge  had  told  counsel  that  his  tentative  view  was  for imprisonment.  Counsel could then have adjusted his submissions accordingly.

[15]     Counsel submits that the Judge here placed insufficient weight on the efforts the appellant  has  made  to  change his  lifestyle  and  accept  responsibility for his offending through the restorative justice meeting.  Further, the appellant submitted that there were good reasons for a significant discount for the appellant’s guilty plea.

[16]     The respondent supports the sentence on the basis that: (a)     it was a burglary of commercial premises;

(b)      it was planned;

(c)       it occurred at night; and

(d)      the appellant’s poor past record of offending.

[17]     It is difficult to know whether Mr Wratt’s expression of remorse and his attendance at the restorative justice conference and his medical treatment are genuine or simply an attempt to hoodwink the Court into believing that he has changed his ways when he has not.

[18]     As the Judge noted, Mr Wratt has a long history of dishonesty.  He has had rehabilitative sentences which, to date, have had no effect on him.  It is, therefore, understandable that the Judge was sceptical about Mr Wratt’s claims.   Indeed, the first pre-sentence report doubted his commitment to change and recommended imprisonment.

[19]     Beyond expressions of remorse and intended rehabilitation, Mr Wratt offered nothing concrete to the District Court Judge to illustrate that he had turned over a new leaf other than the restorative justice meeting.   It is proper to acknowledge Mr Wratt’s  participation  and  the  generous  approach  of  the  representative  of  the complainant.  Also relevant as I have noted to his personal circumstances were the efforts he had made to identify the cause of his offending, his employment and the support of his family.

[20]     Counsel stressed that whatever view is taken of the result of the restorative justice meeting, Mr Wratt was prepared to expose himself to a potentially angry victim.

[21]     As to the medical report, it said that Mr Wratt has adult attention deficit syndrome.    He  has  an  impulsive  personality  which  was  controlled  by  drugs. However, the effect of the drugs wears off during the day and at the time of the offending  would  not  have  controlled  his  impulsivity.     Mr Wratt  consulted  a neuropsyciatrist.    He  increased  Mr Wratt’s  medication  which  it  is  hoped  will decrease Mr Wratt’s impulsive behaviour.

[22]     However, what must be kept in mind is that the offending itself must be the prime factor in sentencing.  Primarily an offender is to be sentenced for what he has done. As far as this offending is concerned, Mr Wratt had possession of wire cutters, gloves and  a light.    On the other hand  while it  was  a burglary of commercial premises, it could hardly be described as a commercial burglary.   Four planks of wood were stolen with what must have been a modest value (although none was identified in the summary of facts at most a few hundred dollars).  There was no loss arising from the burglary, the timber was immediately recovered.

[23]     Imprisonment, therefore, was not inevitable given these facts.  At the highest of a six to nine month sentence of imprisonment could have been justified.  Equally, a community based sentence could have been imposed.

[24]     If the start sentence was seven months’ imprisonment, then an uplift for past offending was justified, given the number of convictions and the appellant’s recent imprisonment. Any such uplift must, however, be proportionate to the start sentence. No more than a two month uplift could be justified resulting in a sentence of nine months’ imprisonment.

[25]     As to the mitigation, the only relevant factor was the appellant’s guilty plea. The Judge in  the District  Court  gave  a discount  of 15 per cent.   The  appellant pleaded guilty one month after charge.  There had been a delay while legal aid was granted and counsel appointed.  This justified a 25 per cent deduction for the early guilty plea reducing the sentence to six and a half months’ imprisonment.   The appellant has already spent two months in custody.  I acknowledge there appears to be some awakening in the appellant’s mind that his offending must stop.   He has taken some positive steps toward rehabilitation.

[26]     I am satisfied the sentence imposed was manifestly excessive.   Given the time  the  appellant   has   already  spent   in   custody  I  quash   the  sentence  of imprisonment.   I impose instead four months community detention.  The sentence will commence on Tuesday, 27 November 2012 at 645 Marine Parade, Napier.  His

curfew times are to be between 6.30 p.m. to 7.00 a.m. Monday to Sunday inclusive.

Ronald Young J

Solicitors:

E R Fairbrother, Barrister, Napier

J E Rielly, Elvidge & Partners, Napier, email:  [email protected]