BEATTIE v POLICE [2017] NZHC 1626

BEATTIE v POLICE [2017] NZHC 1626 [14 July 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-60[2017] NZHC 1626BETWEEN AMY LEE BEATTIEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 July 2017Appearances: R Burnside for AppellantM McClenaghan for RespondentJudgment: 14 July 2017JUDGMENT OF MANDER J[1] The appellant, Ms Amy Beattie, appeals against an 11 month prison sentenceimposed by Judge O'Driscoll on charges of unlawfully taking a motor vehicle,driving whilst suspended, being unlawfully in a closed yard, wilful damage and common assault. The ground on which Ms Beattie brings her appeal is that the sentence was manifestly excessive.Background[2] Under darkness in the early hours of 28 March this year, Ms Beattie entered a property. She unlocked a front gate before proceeding to the rear of the address by unlocking a second secured gate. She then approached the door of the house and turned a door handle. These circumstances gave rise to the charge of unlawfully being in an enclosed yard.[3] The following day, 29 March, Ms Beattie, who is an unlicensed driver and forbidden to drive, unlawfully took her aunt's motor vehicle. She had previously been told that she was not permitted to borrow the vehicle.[4] The final episode of offending occurred in April whilst Ms Beattie was on bail. She assaulted a person with whom she was in a relationship at the time. Ms Beattie was in an agitated and aggressive mood. She started a verbal argument with the victim. She struck an internal wall with the palm of her hand, causing damage. After the victim had gone outside to call the police, Ms Beattie pulled the victim by his hair, causing him to fall to the ground. She then proceeded to punch the victim in the head three times. As a result, he required medical treatment for a gash to the back of his head.The appeal[5] Ms Beattie abandoned part of her appeal which had been based upon the conduct of counsel who represented her in the District Court. Her complaint related to the way sentencing had occurred without the preparation of a pre-sentence report.Judge O'Driscoll proceeded to sentence Ms Beattie after she entered guilty pleas at a Case Review hearing. It was indicated to the Judge that Ms Beattie had waived the need for a pre-sentence report and had requested to be sentenced immediately. JudgeO'Driscoll advised that he was prepared to do so on the basis he would impose a short-term sentence of imprisonment followed by release conditions.[6] In the absence of an affidavit having been obtained from Ms Beattie and the opportunity afforded to the Crown to make inquiries of counsel who represented her before the District Court, there was no proper basis upon which that ground of appeal could be advanced. Ms Burnside, who appeared for Ms Beattie on her appeal, advised that she had taken instructions from her client and that this aspect of the appeal would not be pursued.[7] However, Ms Burnside sought to submit that Judge O'Driscoll had erred in not considering a sentence of home detention or, at least, by not granting leave to Ms Beattie to apply to substitute such a sentence should a suitable address become available for that purpose.1 That submission is untenable in the circumstances. Sentencing proceeded on the basis I have previously outlined. Ms Beattie waived the need for a pre-sentence report and Judge O'Driscoll indicated imprisonment as1 Sentencing Act, s 80I.the type of sentence he intended to impose. The sentencing Court could not have entertained a sentence of home detention without the appropriate reports. It follows that the question of leave to apply for home detention, which must be predicated on home detention being the sentence which would otherwise have been imposed had a suitable address been available, simply did not arise.[8] Ms Burnside presented the appeal on the basis of two other grounds. Firstly, that the sentencing Judge erred in taking a starting point of 12 months imprisonment on the charge of unlawfully taking a vehicle. Secondly, that the Judge failed to afford credit for Ms Beattie's early guilty plea when imposing a cumulative sentenceof two months imprisonment on the assault charge.The District Court decision[9] Judge O'Driscoll took the offence of unlawfully taking a motor vehicle as the lead charge for the purpose of sentencing. It carries a maximum sentence of seven years imprisonment. Taking into account Ms Beattie's previous convictions fordishonesty, the Judge took a sentence of 12 months imprisonment as a starting point before reducing that by three months for Ms Beattie's guilty plea. The Judge thenadded a cumulative term of imprisonment of two months to reflect the assault before imposing a concurrent sentence of two months imprisonment on the charges of intentional damage and unlawfully being in a yard. On the charge of driving whilst forbidden, Ms Beattie was convicted and discharged.[10] In imposing an effective sentence of 11 months imprisonment, JudgeO'Driscoll noted the offending had occurred whilst Ms Beattie was on bail, and that she had an extensive list of previous convictions which related to a variety of offending, including and in particular, for dishonesty. The Judge also observed that Ms Beattie had been sentenced to imprisonment on a number of previous occasions.DecisionStarting point[11] On behalf of Ms Beattie it was submitted the Judge, in fixing the starting point of 12 months imprisonment, had unfairly focussed on Ms Beattie's previousdishonesty offences instead of the facts of the offending itself. She submitted her offending was at the lower end of the scale for a charge of this type.[12] By itself the starting point of 12 months imprisonment might be considered harsh. In O'Rourke v Police a starting point of nine months imprisonment for a charge of unlawful taking, where, as in the present case, the vehicle was taken for a relatively short time and was not damaged, was considered to be within the available range.2 Ms Burnside submitted that a nine month starting point should also have been applied in the present case. The difficulty with that submission is that inO'Rourke, from a starting point of nine months, the sentence was increased by three months to reflect the appellant's previous convictions. That uplift was not challenged.[13] In the present case, Judge O'Driscoll's starting point of 12 monthsimprisonment incorporated both the fact that the offending occurred whilst Ms Beattie was on bail but also her previous criminal history. Her convictions are not insubstantial. She has 23 dishonesty-related offences, 20 of which have occurred since 2013, and has served a number of custodial sentences. I do not thereforeconsider the sentencing Judge's starting point as being outside the range available to him.Guilty plea credit for assault[14] Ms Beattie complains that the two month period of imprisonment imposed to reflect the charge of common assault was not discounted for her guilty plea to that charge. There is no merit in this aspect of Ms Beattie's appeal. The two month imprisonment was added in order to adequately reflect her overall criminal culpability, and in particular the discrete episode of violence for which she was for2 O'Rourke v Police [2016] NZHC 273.sentence. The Judge made no error in imposing what was realistically a nominal additional period of imprisonment for the separate assault charge.[15] The focus of the appeal Court will be on the correctness of the end sentence and not on the process by which the final sentence was obtained, nor its component parts.3 The appeal can only succeed if the ultimate sentence imposed is manifestly excessive or unjustifiable upon the application of relevant sentencing principles.4[16] There were multiple ways in which the effective sentence of 11 months imprisonment could have been achieved which may have included the imposition of a variety of combinations of cumulative and concurrent sentences. Taking into account the range, nature and seriousness of the offences for which Ms Beattie was before the Court and such relevant factors as her previous history of offending, the end sentence was clearly available to the Judge in the exercise of his discretion.[17] The appeal is therefore dismissed.Solicitors:Roz Burnside Law, ChristchurchRaymond Donnelly & Co, Christchurch3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [20111] NZCA 101 at [15].