Wright v Police

[2013] NZHC 308

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000039 [2013] NZHC 308

BETWEEN  DEON WAYNE WRIGHT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 February 2013

Appearances: J A G Moroney for Appellant

R See for Respondent

Judgment:      25 February 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Thode Utting & Co, Albany

WRIGHT V NZ POLICE HC AK CRI-2013-404-000039 [25 February 2013]

[1]      On 8 February 2013, having pleaded guilty to a charge of theft, the appellant was sentenced to imprisonment for nine months.  Judge Dawson had taken a starting point of 10 months, reduced it to eight months to reflect the early guilty plea, and then uplifted the sentence by one month to take account of the remission of fines of

$3,132.89.

[2]      The appellant appeals on the basis the sentence was manifestly excessive and that the Court should have adjourned the matter for consideration of community or home detention appendix.

[3]      The circumstances of the theft were as follows.   The appellant was at the address of the complainant at her invitation.  They apparently had a relationship of sorts.  The appellant was performing cleaning and maintenance around the property in lieu of paying rental.  The appellant found a nine carat gold necklace, a ring and a bangle while at the property.   He concealed them and later sold them to Dollar Dealers Ltd, a second-hand dealer, for $770.   The jewellery has apparently been recovered by the complainant but Dollar Dealers, who paid the appellant $770 for it, remains out of pocket.

[4]      At the age of today, 40, the appellant has a substantial list of convictions for dishonesty offending, including burglary, theft and other dishonesty offending.

[5]      In support of the appeal Mr Moroney has raised the following submissions. He submits that Judge Dawson erred:

in adopting a starting point that was excessive;

by not having regard to relevant mitigating factors that would have justified a further reduction on that starting point;

by failing to give sufficient credit for the early guilty plea;

indeclining an application for adjournment to enable a community and/or home detention report to be completed;  and

by remitting the fine which he had no jurisdiction to do, and in any event the one month cumulative sentence for that was manifestly excessive.

[6]      Save for the last point, namely jurisdiction to  remit the fine, the Crown opposes the appeal and supports the Judge’s sentence.

[7]      It is apparent from the authority of Blandford v Police1  and the Court of Appeal decisions referred to in that case that the Judge did not have jurisdiction to remit the fines without following the procedure in ss 83 or 88 of the Summary Proceedings Act 1957.  That is conceded by the Crown.  Accordingly, there was no jurisdiction to remit the fines and impose the additional one month sentence of imprisonment.  I will return to the effect of that later.

[8]      Addressing  the  other  points  on  appeal,  Mr  Moroney  submitted  that  the appellant instructed that he had declined to consent to an electronically monitored sentence because he thought that would result in his employment being terminated and counsel requested an adjournment for such a report to be made available to the Court, which application was declined by the Judge.

[9]      In his sentencing notes Judge Dawson referred to the appellant declining to consent to electronically monitored sentences but then, before concluding that imprisonment was the appropriate sentence, noted that the appellant had received every type of sentence in the past, including intensive supervision, but continued to offend because he chose to do so and continued to put his needs ahead of other people. The Judge then stated a sentence of imprisonment was inevitable.

[10]     The appellant has not shown that the Judge erred in principle in concluding that in the particular circumstances of this offence and this offender the Judge was wrong to consider imprisonment was required.  As the Court of Appeal has said, a short   term   sentence   of   imprisonment   remains   a   valid   sentencing   option:

R v Stainton2  and even where an offender may be on the cusp of or arguably be

1      Blandford v Police HC New Plymouth CRI-2008-443-16, 17 July 2008.

2      R v Stainton [2008] NZCA 370.

suitable for home detention an appellate Court will be reluctant to interfere and will ordinarily defer to the assessment of the sentencing Judge:  R v D.3

[11]     What is required is an evaluative exercise.  In this case, on the information before the District Court Judge he was entitled to conclude that there would be no point in adjourning the matter further because imprisonment was required as the ultimate sentence in this case.

[12]     Next,  Mr  Moroney  submitted  that  the  starting  point  of  10  months’ imprisonment was excessive, having regard to the maximum penalty of 12 months and the circumstances of this offending.

[13]     Importantly I note that the Judge, in fixing the starting point of 10 months did not distinguish between the start point for the offending and the uplift that was clearly required for the appellant’s previous convictions.   The starting point of 10 months, therefore, must be the combination of the start point for the offending itself and the uplift for the aggravating features of the appellant’s previous offending.

[14]     Given the value of the items taken, as Mr Moroney himself submitted, a starting point of six to seven months for the offending could be regarded as appropriate.   As the Judge noted, the appellant has 91 convictions for previous dishonesty matters, many of them serious, together with a number of breach convictions.  In the circumstances an uplift of three to four months would have been unexceptional.   The starting point of 10 months’ imprisonment to take account of both the start point for the offending and the appellant’s other personal aggravating features, was within range.

[15]     Next, the appellant submits insufficient credit was given for the early guilty plea.  The Judge took 20 per cent as the appropriate reduction.  The guilty plea was entered at the earliest opportunity.  A 25 per cent discount for that very early guilty plea would have reduced the end sentence to seven and a half months rather than the eight months fixed by the Judge.  I remind myself of the considerations discussed by

the Supreme Court in Hessell v R.4     While the early guilty plea is particularly relevant in that it is a tangible recognition of the acceptance of responsibility, and of course saves the justice system the cost of a trial, the Supreme Court also noted that other factors, such as the strength of the prosecution case, could also be relevant to the ultimate reduction.  In this case there was an overwhelming Crown case.  When first spoken to the appellant admitted the facts.  He was clearly able to be identified as the person who took the jewellery.  A guilty verdict was frankly inevitable, if the matter had been defended.  In the circumstances a reduction of 20 per cent for the early guilty plea was unexceptional.

[16]     Finally, the appellant submits the Judge failed to have regard to mitigating features which would have justified a further reduction.   The appellant relies on personal mitigating features, noting that he had not appeared in Court since 2008, that he had successfully completed intensive supervision, that he had a responsibility to his partner and children and other matters covered in the pre-sentence report.

[17]     The fact the appellant had not appeared in Court since 2008 might reflect a degree  of  maturity  on  his  part  but  unfortunately  can  count  for  little  given  his previous offending and record.

[18]     I  also  agree  with  the  Crown  submission  that  the  fact  the  appellant  has completed his sentence of intensive supervision is no more than was required and further, I do note that he was convicted of breaching his supervision conditions.

[19]     The Judge was aware of the other personal matters raised and referred to in the pre-sentence report and relied on by counsel.  I am unable to say the Judge was incorrect to consider them to be of such significance as to effect the otherwise appropriate sentence or otherwise to require a reduction in the sentence.

[20]     For  those  reasons  I  consider  the  Judge’s  assessment  of  eight  months’

imprisonment as the appropriate end sentence for the offending to be correct.

Result

[21]     However, given there was no jurisdiction to remit the fines and replace them with a sentence of imprisonment of one month the appeal is allowed to the extent that that order remitting the fines and imposing a sentence of one month’s imprisonment cumulative is quashed.  Otherwise the appeal is dismissed.  The result is that the appellant remains subject to a sentence of eight months’ imprisonment.

The fines of $3,132.89 are reinstated

Venning J