SNOWBALL v POLICE [2019] NZHC 143

SNOWBALL v POLICE [2019] NZHC 143 [13 February 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-001[2019] NZHC 143BETWEEN ALLAN SNOWBALLAppellantAND NEW ZEALAND POLICERespondentHearing: 12 February 2019Counsel: J D Dallas for appellantD T E Moore for respondentJudgment: 13 February 2019RESERVED JUDGMENT OF DOBSON JIntroduction[1] On 4 December 2018, the appellant (Mr Snowball) was sentenced by JudgeHastings in the Wellington District Court to two years and six months' imprisonmentin respect of the following charges:1(a) two charges of burglary;2(b) two charges of shoplifting items valued over $1,000;3(c) one charge of shoplifting items valued between $500 and $1,000;4 and1 Police v Snowball [2018] NZDC 25467.2 Crimes Act 1961, s 231(1)(a); maximum penalty ten years' imprisonment.3 Sections 219 and 223(b); maximum penalty seven years' imprisonment.4 Sections 219 and 223(c); maximum penalty one year imprisonment.(d) one charge of common assault.5[2] Mr Snowball has appealed on the basis that the sentence imposed wasmanifestly excessive. On his behalf, Mr Dallas argued that while the Judge took intoaccount, as mitigating factors, Mr Snowball's cognitive impairment and the fact thathe was experiencing psychosis over the period of offending, the discount allowed wasinsufficient.Factual background[3] On the afternoon of Sunday, 25 March 2018, Mr Snowball, along with twoassociates, gained entry into a central city café that was closed during weekends. Theylocated a safe and took it to a nearby carpark. They succeeded in opening the safe anddivided its contents, being cash in the amount of $731.10, amongst themselves.[4] Later that same afternoon, the group entered another café that is also closedduring weekends. Having been unsuccessful in breaking into the cash register, theystole a speaker and a cell phone, valued together at approximately $450.[5] Some weeks later, on 17 April 2018, Mr Snowball entered a jewellery storeand asked to view a gold chain necklace. When the shop assistant took the necklaceout of the cabinet, Mr Snowball grabbed it and turned to run from the store. The shopassistant ran after him and grabbed his jacket, but Mr Snowball struck the assistant'shand which caused him to release the jacket. Mr Snowball left the store. Thenecklace, worth $15,899, has not been recovered. The following day, Mr Snowballwas at another jewellery store. He grabbed four rings of a combined value of $752from a tray on top of the counter and ran from the store.[6] On 26 April 2018, Mr Snowball was in a furniture store. He seized a lampvalued at $4,975 from a display table, damaging another lamp worth $700 in theprocess. Having pushed past a staff member who was attempting to stop him, he wascaught by members of the public shortly after leaving the store, but the lamp wasdamaged and no longer saleable.5 Section 196; maximum penalty one year imprisonment.District Court decision[7] The sentencing Judge adopted a starting point of 16 months' imprisonment forboth burglaries, to be served concurrently.6 A cumulative approach was taken to theother charges, the Judge noting that these were discrete offences and that, if necessary,the totality principle could be applied to reflect Mr Snowball's culpability.7 A startingpoint of one year and two months' imprisonment was adopted for the 17 Apriloffending, three months for the 18 April offending, and nine months for the 26 Apriloffending, resulting in a cumulative starting point of three years and six months'imprisonment. The Judge determined this reflected Mr Snowball's culpability so therewas no need to adjust it by applying the totality principle.8[8] Previous convictions and the fact that this offending took place whileMr Snowball was on release conditions were identified as aggravating factorsresulting in uplifts of four months and two months respectively, resulting in a sentenceof four years' imprisonment.9[9] In terms of mitigating factors, the Judge cited from a report prepared unders 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, which indicatedthat Mr Snowball's presentation was consistent with schizophrenia and polysubstanceuse disorder. Mr Snowball was said to have been experiencing psychosis over theperiod of the offending and he had a cognitive impairment, both factors which werelikely to have impaired his decision making and therefore contributed to his offendingbehaviour. The Judge decided that a discount of five months was warranted for hismental condition.10 Mr Snowball's remorse entitled him to a further discount of threemonths. Once the full discount for his guilty pleas was taken into account, the Judgearrived at an end sentence of two years and six months' imprisonment.116 Police v Snowball, above n 1, at [8].7 At [9].8 At [11].9 At [12].10 At [13].11 At [14].Approach to appeal[10] The appeal is brought under s 250 of the Criminal Procedure Act 2011. It is anappeal against a discretion and must only be allowed if the Court is satisfied that, forany reason, there was an error in the sentence imposed and a different sentence shouldhave been imposed.12 The focus is on the final sentence, and whether that was in theavailable range and appropriately reflects the overall criminality of the case, ratherthan the exact process by which it was reached.13[11] Mr Dallas accepted that all steps in the sentencing analysis were reasonablyopen to the Judge, except for a claimed inadequacy in the extent of discount forMr Snowball's mental condition. He submitted that the five month discount shouldapply to both cumulative sentences, with 10 months allowed: five months for theburglaries and five months for the remaining offences. Mr Dallas argued thatMr Snowball's psychosis deprived him of normal perception of his wrong-doing, andalso made him vulnerable to being led by his co-offenders.[12] Mr Dallas sought a sentence of two years' imprisonment or less, which wouldallow the Court to impose a sentence of home detention for the remaining portion ofMr Snowball's sentence.[13] For the Crown, Mr Moore submitted that no aspect of the sentencing analysiswas in error. As to the discount granted for Mr Snowball's mental health, the Crownacknowledged that it was a relevant consideration at sentencing, but noted that the s 38report fell short of suggesting a direct causal link between his mental health and theoffending. Having regard to this contributory link to the offending, the Crown submitsthat the five month discount was appropriate.Discussion[14] The Court of Appeal has previously noted that discounts in the region of12-30 per cent are typically available for mental illness.14 The severity of the mental12 Tutakangahau v R [2014] NZCA 279.13 Ripia v R [2011] NZCA 101 at [15]; R v Dodd [2013] NZCA 270 at [31]-[32].14 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [71].illness and the causal link between the illness and the offending are treated as relevantconsiderations in identifying an appropriate discount.15 Where there is no causal linkand it cannot be seen as reducing the moral wrong, the mental disorder may warrantno discount at all.16[15] The writers of the s 38 report considered that Mr Snowball's account of eventssuggested that he understood the nature and quality of his actions and what wasmorally right and wrong. The report stated: it is likely Mr Snowball was experiencing psychosis over the period of thealleged offending. He also has a degree of cognitive impairment. Both thesefactors likely impaired his decision making and thus contributed to anyoffending behaviour.[16] This is therefore a case in which Mr Snowball's mental condition was acontributing factor to the offending, but not a cause of it. The extent of discountafforded by Judge Hastings (five months from the starting point of 48 months) wasmarginally more than 10 per cent. Given the recognised contribution of his mentalcondition, including the factor emphasised by Mr Dallas that his mental conditionrendered Mr Snowball vulnerable to being led by his co-offenders, I accept that asomewhat larger discount was warranted.[17] I consider an initial discount of 15 per cent from the starting point waswarranted, on account of the various relevant aspects of Mr Snowball's mentalcondition. This would mean that from the starting point of 48 months, an initialdiscount of 15 per cent for this factor would amount to a sentence of a little less than41 months. A further three month deduction for remorse would result in a sentence ofa little less than 38 months, before application of a 25 per cent discount for the guiltypleas, which would result in an end sentence of a little more than 28 months, or twoyears and four months' imprisonment.[18] During oral submissions, I raised with Mr Dallas whether, if I was persuadeda reduction in the end sentence of two months or thereabouts was appropriate, he couldsustain his submission that the sentence imposed by Judge Hastings was manifestly15 Edri v R [2013] NZCA 264 at [17].16 Nixon v R [2016] NZCA 589 at [43].excessive. The High Court is concerned not to interfere in thoroughly analysedsentencings where ordering a relatively modest difference can be criticised astinkering.[19] Whilst Mr Dallas's instructions were to press for a reduction in the length ofthe sentence sufficient to have Mr Snowball qualify for home detention, he argued thata lesser reduction, such as of two months, will still be meaningful and thatMr Snowball should not be deprived of a reduction which would be highly material tohim.[20] I am persuaded, because of the relative importance of correctly factoring inmental impairment on sentencing, that the appropriate recognition of that factor doeswarrant allowing the appeal, notwithstanding the relatively modest extent of reductionthat becomes appropriate.[21] I accordingly allow the appeal, quash the sentences imposed by Judge Hastingsand substitute them with end sentences of two years and four months' imprisonment.Dobson JSolicitors:J D Dallas, Wellington for appellantCrown Solicitor, Wellington for respondent