GRAHAM v NEW ZEALAND POLICE [2018] NZCA 112

GRAHAM v NEW ZEALAND POLICE [2018] NZCA 112 [23 April 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA467/2017[2018] NZCA 112BETWEEN ANDREW REX GRAHAMApplicantAND NEW ZEALAND POLICERespondentCourt: Cooper, Ellis and Katz JJCounsel: Applicant in personA J Ewing for RespondentJudgment:(On the papers)23 April 2018 at 11 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Andrew Graham seeks leave to appeal against a judgment of Edwards J in theHigh Court.1 Her Honour dismissed an appeal by Mr Graham against a sentenceimposed upon him in the District Court, but allowed an appeal relating to asubsequent sentence.1 Graham v Police [2017] NZHC 442.[2] By way of background, on 5 October 2016 Mr Graham was sentenced byJudge Hikaka, in the District Court at Manukau, to 25 months' imprisonment for arange of dishonesty offending and one breach of bail ("the October Sentence").2Mr Graham had stolen items (a laptop, phones and the like) from cars or workplacesand had dishonestly used six bank cards to withdraw money and make purchases.[3] Subsequently, on 30 November 2016, Mr Graham was sentenced byJudge Ingram to a further nine months' imprisonment, to be served cumulatively withthe October Sentence, for his thirteenth breach of a protection order granted in favourof his former partner ("the November Sentence").3[4] Mr Graham appealed both sentences to the High Court. Edwards J dismissedhis appeal against the October Sentence but allowed his appeal against theNovember Sentence. Her Honour considered Judge Ingram's imposition of anine-month sentence of imprisonment was excessive, and replaced it with acumulative sentence of three months' imprisonment.[5] Mr Graham, now self-represented, seeks leave to bring a second appeal againstboth sentences.Approach to application for leave to bring a second appeal[6] Second appeals in criminal cases are not available as of right. The CriminalProcedure Act 2011 requires convicted persons to obtain leave to bring a secondappeal.4 The Court of Appeal's jurisdiction to give leave for a second appeal is limitedto circumstances where the Court is satisfied that:5(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.2 New Zealand Police v Graham [2016] NZDC 19932.3 R v Graham [2016] NZDC 24310.4 Criminal Procedure Act 2011, s 253(1).5 Section 253(3).[7] Mr Graham did not suggest that his appeal involves a matter of general orpublic importance. Rather, his view is that a miscarriage of justice has occurred.This Court has previously confirmed that not every error will give rise to amiscarriage of justice.6 Rather, the concept extends "to an error, irregularity oroccurrence in or in relation to the appeal that has created a real risk that the outcomeof the appeal was affected".7The proposed appeal[8] Mr Graham's proposed grounds of appeal are essentially that:(a) In relation to the October Sentence, Judge Hikaka erred by:(i) misstating the facts to which he had pleaded guilty;(ii) describing his criminal history as mostly dishonesty offenceswhen that is not literally true; and(iii) not ordering further reparation when it was reasonablyavailable.(b) In relation to the November Sentence, Judge Ingram erred by imposingthe additional sentence on a cumulative rather than concurrent basis.[9] The alleged misstatement of facts by Judge Hikaka is relatively minor.Mr Graham was convicted on six charges of dishonestly using a document. In eachcase, the victim's bank card had been stolen shortly before Mr Graham used the cardto make purchases or withdrawals. The corresponding summaries of facts did notspecify who had taken the bank cards.8 Judge Hikaka's sentencing notes, however,refer to Mr Graham as having stolen and used one card, and also refer to him eitherstealing or coming into possession of others. Mr Graham takes exception to beingreferred to as the thief (or possible thief).6 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].7 Jackson v Police [2017] NZCA 374 at [29].8 Although Mr Graham was initially charged with receiving or stealing two of the bank cards, thosecharges were later withdrawn.[10] Realistically, only two scenarios were available on the facts. Mr Graham wasthe thief, or he had received the stolen bank cards from the thief. In either case, hethen dishonestly used them. The most serious aspect of Mr Graham's offending wasthe loss and damage he had caused by smashing a car window; stealing a laptop,phones and wallets; and using the six victims' cards to make purchases and withdrawmoney. It made little difference to his overall culpability whether he had stolen thebank cards himself, or received them from a third-party thief before then dishonestlyusing them. Any error by the Judge in referring to Mr Graham as the thief(or the possible thief) was not likely, in our view, to have impacted the sentencingoutcome.[11] Mr Graham's next proposed ground of appeal is that Judge Hikaka stated thatmost of his previous criminal history was for dishonesty offending. On Mr Graham'scalculation, however, only 53 of his 117 previous convictions are fordishonesty offences. There is nothing in this point. On any analysis, Mr Graham hasa very significant history of dishonesty offending, which was relevant forsentencing purposes.[12] Similarly, there is nothing in the points Mr Graham seeks to raise regarding theissue of reparation. His first point (that the Judge did not factor the value of arecovered drill into the reparation calculation) is simply wrong. As for his secondpoint (that greater reparation should have been ordered, with a correspondingreduction in his prison term), Mr Graham's limited employment history weighedagainst such a course. An offer of reparation must be genuine and capable offulfilment.9 Further, an offer will be given significant weight only to the extent that itrepresents a genuine effort to accept responsibility for the offence.10 Judge Hikakacannot be criticised for exercising caution in the circumstances.[13] Finally, there is also no appearance of a miscarriage arising out of the fact thatthe October Sentence and the November Sentence were imposed cumulatively.9 Sentencing Act 2002, s 10(2).10 See R v Singh (2003) 20 CRNZ 158 (CA) at [16]; and R v Conochie HC RotoruaCRI-2003-070-5357, 30 May 2005 at [28]–[32].The offending involved different victims and different types of offending.The imposition of cumulative sentences in such circumstances was appropriate.[14] For the reasons outlined, there is no appearance of a miscarriage, and thecriteria for leave to file a second appeal are not met.Result[15] The application for leave to bring a second appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent