GRAHAM v POLICE [2017] NZHC 442

GRAHAM v POLICE [2017] NZHC 442 [15 March 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000031[2017] NZHC 442IN THE MATTER OF an appeal against sentenceBETWEEN ANDREW REX GRAHAMAppellantAND NEW ZEALAND POLICERespondentHearing: 13 March 2017Counsel: M B Meyrick for the AppellantL B T Belk for the RespondentJudgment: 15 March 2017JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 15 March 2017 at 11.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Berman and Burton, AucklandKayes Fletcher Walker Limited, AucklandIntroduction[1] Mr Graham pleaded guilty to 11 charges of dishonesty related offending andone charge of breach of bail. He was sentenced to 25 months' imprisonment for thatoffending by Judge Hikaka on 5 October 2016 (October sentence).1[2] On 30 November 2016, Mr Graham pleaded guilty to breaching a protectionorder and was sentenced to nine months' imprisonment cumulative on the existingsentence (November sentence).2[3] Mr Graham appeals both sentences. He challenges the October sentence onthe grounds that the uplifts to take into account the totality of the offending and hisprevious convictions were too high and led to a manifestly unjust sentence.[4] He appeals the November sentence on the grounds that the Judge failed to takeinto account the October sentence in determining an appropriate sentence.The offending[5] The October sentencing was for the following charges:(a) Six charges of take/obtain/use credit bank credit card for pecuniarygain;3(b) Theft ex car (over $1,000);4(c) Theft ex car (under $500);51 New Zealand Police v Graham [2016] NZDC 19932.2 R v Graham [2016] NZDC 24310.3 Crimes Act 1961, s 228. Maximum penalty is seven years' imprisonment.4 Crimes Act 1961, s 223(b). Maximum penalty is seven years' imprisonment.5 Crimes Act 1961, s 223(d). Maximum penalty is three months' imprisonment.(d) Theft property (under $500);6(e) Shoplifts (under $500);7(f) Theft ($500 – $1,000);8 and(g) Failure to answer District Court bail.9[6] Only the summary of facts for five of these offences was located prior to theappeal hearing. The parties were nevertheless agreed that the appeal should proceed.The events giving rise to these charges are therefore taken from the summary of factsavailable, and the October sentencing notes.[7] The dishonesty charges relate to thefts of a laptop, cellphones, a drill off abuilding site, a wallet and its contents, and groceries. There was also one instancewhere the complainant was at the emergency department at hospital and Mr Grahamstole that person's card and used it at least three times, obtaining a benefit of over$600. Some of the thefts were from places of work, and the taking of property frombehind shop counters. One of the charges involved smashing a window and stealinga laptop, causing approximately $2,600 worth of damage and loss.[8] The November sentencing was for the thirteenth breach of a protection order.That order had been issued in favour of Mr Graham's former partner. Mr Grahamlives in the Waikato and his former partner lives in Auckland. They have two childrentogether. The summary of facts records that there has been a long history of familyviolence between the defendant and the complainant with police attending a total of48 incidences between the couple.[9] In the early evening of 11 May 2016, the complainant returned home to findMr Graham waiting in his car on her front lawn inside her property. He ignored herrequests to leave. He took the complainant's baby from the complainant's car and6 Crimes Act 1961, s 223(d). Maximum penalty is three months' imprisonment.7 Crimes Act 1961, s 223(d). Maximum penalty is three months' imprisonment.8 Crimes Act 1961, s 223(c). Maximum penalty is one year's imprisonment9 Bail Act 2000, s 38. Maximum penalty is one year's imprisonment or a fine of $2,000.followed her into the house holding the baby. He continued to ignore requests to putthe baby down and for him to leave. The complainant's daughter consideredMr Graham was intoxicated and called the police.District Court sentences[10] In determining Mr Graham's October sentence, Judge Hikaka referred to thepre-sentence report which recommended a sentence of imprisonment and reparation.He also took into account Mr Graham's good family support and employmentprospects.[11] The Judge also referred to Mr Graham's extensive criminal record, whichstretches back to 1984. The Judge observed that Mr Graham had been in trouble fromthe ages of 14 to 47, and that his past convictions mainly related to dishonestyoffending.[12] The Judge took a starting point of 12 months for the lead offence, but did notspecify which offence that was. He then applied an uplift of 12 months to cover theremaining charges before the Court. A further uplift of 12 months was imposed torecognise previous convictions. That led to a total starting point of 36 months.[13] The Judge then allowed a 20 per cent discount for guilty pleas which heregarded as generous given that some pleas were entered the day before or the day oftrial. That led to a sentence of 28.8 months. The sentence was further reduced by 3.8months to take into account remorse and Mr Graham's ability to pay reparation byvirtue of his job prospects. Reparation was ordered in respect of a number of thecharges.[14] In the November sentencing, Judge Ingram noted that this was Mr Graham'sthirteenth breach of the protection order. The Judge observed that Mr Graham hadshown that he was unable to control himself in relation to protection orders and thatMr Graham needed to "get the message" that if he breached a protection order then aserious penalty would be paid.[15] The Judge adopted a starting point of nine months' imprisonment and appliedan uplift of three months for Mr Graham's previous convictions for breach of aprotection order. He considered that was a relatively generous uplift in thecircumstances. A three month credit was given for the guilty plea which resulted inthe end sentence of nine months. A cumulative sentence was imposed as the Judgeregarded the dishonesty offending and the breach of protection order to be completelyseparate events. Leave to apply for home detention was denied. There was no releaseconditions imposed because Mr Graham was already subject to a parole boardsentence.Grounds of appeal[16] Mr Graham does not take issue with the starting point of 12 months adoptedon the lead charge in the October sentence. He challenges the uplift of 12 monthsimposed for the other offences. He says that the other offences were of a similar naturebut less serious and that if any uplift was required, it should have been a maximum ofthree to six months.[17] In terms of the 12 month uplift for prior convictions, Mr Graham says that theuplift effectively sentences him twice for prior offences. He says this is "doublejeopardy". Mr Graham submits that an uplift of three months would meetSentencing Act requirements.[18] In relation to the November sentencing, Mr Graham submits that theDistrict Court Judge erred by failing to take into account the totality principle whichrequired the Judge to have regard to the total effect of the two sentences ofimprisonment being served cumulatively.[19] The police submit that the uplifts applied in the October sentencing were withinrange and did not lead to a manifestly excessive sentence. However, it is accepted thatthe November sentence failed to take into account totality principles and that lead toan excessive sentence being imposed. The police submit that an appropriate sentencewould have been in the region of two to three months' imprisonment.Approach on appeal[20] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[21] In any other case, the Court must dismiss the appeal.10 An appeal court willnot intervene unless there is a material error, and if so, the appeal court will then goon to form its own view of an appropriate sentence.11AnalysisOctober sentence[22] Mr Graham challenges the uplifts applied by Judge Hikaka to reflect thetotality of the offending, and previous convictions.[23] The Court of Appeal has stressed on a number of occasions that it is the endsentence which is relevant on appeal, and not the process by which it is determined.12That precludes an approach which focuses solely on the uplifts applied withoutconsidering all components of the sentence which make up the sentence as a whole.[24] I have therefore approached this appeal by considering whether the overallstarting point of 24 months adopted by the Judge was within range for the 12 chargesbased on the information currently before the Court.10 Criminal Procedure Act 2011, s 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].12 Mita v R [2012] NZCA 137 at [28]; Ripia v R [2011] NZCA 279.[25] In R v Duncan, the Court of Appeal observed that considerations relevant tosetting a starting point for theft include the nature and value of the item stolen, whetherthe offending involves breaking into property, whether the offending was spontaneousor premeditated, and the effect on victims.13 The Court of Appeal made reference tothe cases which the Judge had relied on in setting a starting point in that case. Thosecases included Ropiha v Police,14 where approximately $5,000 worth of property hadbeen stolen and a starting point of two and a half years' imprisonment was adopted.In Falaoa v Police,15 a single theft of $2,500 was taken in cash and cheques, and anend sentence of 21 months' imprisonment was regarded as stern, but was neverthelessupheld.[26] In this case, the starting point of 24 months was adopted for 12 separatecharges. The offending was against a range of different victims. The police calculatedthe total value of property taken (in terms of the charges for which summary of factsare available) to be $4,800. The total value of property taken for all charges is likelyto be higher than that.[27] Mr Graham's offending involved smashing a car window to steal a laptop andbriefcase. In other cases, he stole a cellphone and credit card while the victim was atthe family doctors. He also stole a handbag from the staff room in the maternityhospital while the victim attended a medical emergency. Those victims wereparticularly vulnerable. That type of offending also suggests an element of pre-meditation.[28] I consider the cumulative effect of all these factors make Mr Graham'soffending more serious than the offending in Ropiha and Falaoa. By comparison withthe starting point and the end sentences in those cases, the starting point of 24 months'imprisonment appears lenient.13 R v Duncan [2009] NZCA 408 at [8].14 Ropiha v Police HC ROT CRI-2004-463-074, 22 July 2004.15 Falaoa v Police NC NAP AP54/98, 23 September 1998.[29] Mr Graham's second challenge is to the 12 month uplift for his priorconvictions. He says such an uplift punishes him again for those offences.[30] In Reedy v Police, Dunningham J reviewed the authorities in relation to upliftsfor previous offending and summarised the relevant principles as follows:16[19] The principles in relation to uplifting the previous offending cantherefore be stated as follows:(a) there will be no uplift for the bare existence of previousconvictions — to do so would be to punish offending morethan once;(b) The permissible lines of reasoning, justifying an uplift, fallinto three broad categories:(i) previous convictions bearing upon character andculpability;(ii) indication of predilection to offend in a specific way(an indicator of reoffending);(iii) the need to protect society by the imposition of adeterrent sentence.This necessarily requires the uplift to be firmly tied to specificaspects of the offender's criminal history.(c) the uplift must remain proportionate to the starting point fixedby the sentencing Judge.(d) there is no fixed figure beyond which an uplift will be held tobe disproportionate. This is a matter to be determined, at firstinstance, by the sentencing judge having regard to all relevantfactors (i.e. number, seriousness and nature of previousconvictions, previous sentences imposed, time elapsed sincethe last conviction etc).(footnotes omitted)[31] Applying the principles set out in Reedy, I consider Mr Graham's previousconvictions bear upon his character and his culpability. Mr Graham has over 100 priorconvictions. Sixty three of those convictions are for dishonesty related offending.17He has received a number of sentences of imprisonment for these convictions. His16 Reedy v Police [2015] NZHC 1069 at [19].17 This number includes charges for unlawfully taking/getting into/interfering with motor vehicles.record shows a sustained pattern of offending with no discernible break. As the Judgenoted, Mr Graham has been committing these types of offences for 33 years.[32] Mr Graham's extensive criminal record indicates a predilection to commitdishonesty type offences, and places him at high risk of committing these offences inthe future. Clearly a significant uplift was required to protect society, denounce hisconduct, and to fulfil the principle of deterrence.[33] Nevertheless, I accept that an uplift in the order of 12 months' imprisonment,as against a starting point of 24 months, was at the very upper level of what might beconsidered appropriate in the circumstances. But even if the uplift was outside theappropriate range, the low starting point adopted by the Judge means that any errordid not result in a manifestly excessive sentence. In that respect, it cannot be said thatMr Graham has been punished twice for previous offences.[34] It follows that the October sentence was not manifestly excessive in my view.The appeal against that sentence must be dismissed.November sentence[35] Mr Graham challenges the November sentence on the basis that the Judge didnot have regard to the term of the October sentence in fixing that sentence.[36] In Skelton v R, the Court of Appeal stated that "the correct approach at thesecond sentencing is for the Judge to ask what the appropriate overall sentence wouldhave been if the offender had been sentenced on all charges at the same time".18[37] The police accept that the Judge did not approach Mr Graham's sentencing onthis basis, with the result that the sentence for breach of a protection order wasexcessive.18 Skelton v R [2011] NZCA 35 at [33].[38] Some guidance on an appropriate end sentence which reflects totalityprinciples may be gained from Mitchell v R.19 In that case, the appellant was convictedof four breaches of a protection order following trial. The breaches involved fourvoicemail messages left by Ms Mitchell for her former partner. The appellant hadpreviously breached the protection order on a number of occasions. The sentencingJudge adopted a starting point of eight months' imprisonment on all four charges,which was then reduced to reflect the fact that the appellant had been recentlysentenced to two years and one month imprisonment for other offending. The Courtof Appeal observed that the starting point of eight months was towards the top end ofthe range, but approved the reduction for totality, noting that it may have even requireda slightly shorter term as an end sentence.[39] In light of the Court of Appeal's comments, a starting point of nine months,uplifted by a further three months for prior breaches was excessive in my view.Standing back and considering what sentence would have been appropriate ifMr Graham had been sentenced for all offences at the same time, I consider acumulative sentence of three months' imprisonment would reflect the culpability ofMr Graham's offending and his history of past breaches, and would also be consonantwith totality principles.[40] The appeal from the November sentence is accordingly allowed. The sentenceof nine months is set aside and a cumulative sentence of three months' imprisonmentis imposed for breach of the protection order.[41] In summary, that leads to an end sentence of 25 months' imprisonment for theOctober offending, and a sentence of three months' imprisonment for the breach ofprotection order. The effective end sentence is accordingly 28 months, or two yearsand four months' imprisonment. I am satisfied that this effective end sentence accordswith totality principles.Result[42] The appeal from the October sentence is dismissed.19 Mitchell v R [2015] NZCA 442.[43] The appeal from the November sentence is allowed. The sentence of ninemonths' imprisonment is set aside, and replaced with a sentence of three months'imprisonment cumulative on the October sentence.Edwards J