MACDONALD v NEW ZEALAND POLICE [2020] NZHC 3217

MACDONALD v NEW ZEALAND POLICE [2020] NZHC 3217 [7 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-375[2020] NZHC 3217BETWEEN ANTONY JONATHAN DONNYMACDONALDAppellantAND NEW ZEALAND POLICERespondentHearing: 7 December 2020Appearances: M Pitch for the appellantR M Thompson for the respondentJudgment: 7 December 2020ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:M Pitch, Lawyer, AucklandMeredith Connell, Auckland[1] Antony MacDonald appeals his sentence of 24-and-a-half months'imprisonment, imposed by Judge P J B Winter in the District Court at Auckland on14 August 2020,1Background[2] Mr MacDonald was sentenced on a raft of predominantly burglary anddishonesty offending on dates between 23 January 2018 and 3 September 2019 atvarious central Auckland backpacker accommodation.2 He has an extensive history ofcomparable offending during and preceding that period, more or less continuouslysince attaining adulthood in 2006. Mr MacDonald now is 32 years old.[3] Mr MacDonald pleaded guilty to that offending after accepting the Judge'ssentencing indication of a 15 per cent discount from an end starting point of 30 months'imprisonment, with the possibility of further discounts for any additional mitigatingfactors accepted at sentencing.3[4] The Judge's sentencing indication was structured from 15 months'imprisonment for the lead burglary charge, uplifted by 10 months for the otherburglaries, a further month for the dishonesty offending, and four months for his prioroffending. He declined to impose any uplift for offending while on bail.4Decision under appeal[5] On sentencing Mr MacDonald, the Judge had regard for "very helpful" PACand s 27 reports, which noted Mr MacDonald as being "a recidivist offender",1 Police v MacDonald [2020] NZDC 18270.2 Burglary x 6, Crimes Act 1961, s 231(1)(a) (maximum penalty 10 years' imprisonment); loss bydeception (over $1,000), Crimes Act 1961, ss 240(1)(d) and 241(a) (maximum penalty 7 years'imprisonment); loss by deception (less than $500) x 2, Crimes Act 1961, ss 240(1)(d) and 241(b)(maximum penalty 3 years' imprisonment); use document for advantage x 2, Crimes Act 1961,s 228(1)(b) (maximum penalty 7 years' imprisonment); possession of utensils, Misuse of DrugsAct 1975, s 13(3) (maximum penalty 1 years' imprisonment and/or $500 fine); wilful damage,Summary Offences Act 1981, s 11(1)(a) (maximum penalty 3 months' imprisonment and/or$2,000 fine); breach of release conditions, Parole Act 2002, s 71(1) (maximum penalty 10 years'imprisonment and/or $2,000 fine).3 Police v MacDonald CRI 2019-004-0284, 17 June 2020 at [4]–[5]. The Judge calculated thediscount as leading to an end sentence of 26-and-a-half months' imprisonment. A 15 per centdiscount from 30 months' imprisonment is 25-and-a-half months' imprisonment.4 At [2]–[3].characterised by alcohol and substance abuse and an unstructured lifestyle, butrecorded positive aspects of his life, including children, modest work history, somemusical talent, and pro-social friends.5[6] Having regard also for legislative sentencing factors, the Judge restated hisindication's 15 months' imprisonment on the lead burglary charge, and uplifts of10 and four months respectively for the other burglaries and his previous convictions.But the Judge added "an uplift for the fraud of two months and a further uplift foroffending whilst on bail", taking him to a starting point of 31 months' imprisonment(meaning the last uplift was valued at zero).6[7] The Judge then added a further four months for breach of release conditions,and – having regard for Mr MacDonald's "very deprived upbringing directly relatedto [his] drug addiction" – factored in a 15 per cent discount additional to the 15 percent discount for his guilty pleas. Applying that 30 per cent discount to the 35-monthstarting point,7 the Judge arrived at an end sentence of 24-and-a-half months'imprisonment, which he noted to be "outside the parameters of a sentence which maybe served in the community".8[8] For Mr MacDonald, Maxine Pitch says the Judge erred in diverging from bothhis sentencing indication and the standard approach to discounting, and failing toapply a discrete discount for remorse. She contends for an end sentence of between18 and 21 months' imprisonment, which would enable conversion to home detentionas the least restrictive outcome if a suitable address was available.Approach to appeals against sentence[9] I must allow the appeal only if I am satisfied both there is error in the sentence,and a different sentence should be imposed.9 In any other case, I must dismiss theappeal.10 The approach previously taken by courts on sentencing appeals continues to5 Police v MacDonald , above n 1, at [3]–[8].6 At [14].7 In delivering this oral judgment, I misstated '30 per cent' as "30-month".8 Police v MacDonald , above n 1, at [16]–[18]. The Judge reissued his sentencing notes to correcthis previous calculation of an end sentence of 25-and-a-half months' imprisonment.9 Criminal Procedure Act 2011, s 250(2).10 Section 250(3).apply;11 the measure of error is the sentence be "manifestly excessive" – the principleis "well-engrained" in this Court's approach to sentencing appeals.12 I will notintervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.13Discussion[10] Plainly the Judge diverged from his sentencing indication at least in the initialstarting point. Using his 30-month starting point, instead of the 31 months used onsentencing, would have derived a lesser sentence after the uplifts and discounts heapplied at sentencing.[11] The Judge also may have diverged from his sentencing indication in applyingthe four-month uplift for "breach of bail conditions".14 That was imposed immediatelyafter the Judge observed he would not "impose an uplift for [Mr MacDonald's]offending while on bail" in respect of the earliest burglary charge,15 which pre-datedMr MacDonald's last sentence of imprisonment and would not likely then have givenrise to "a substantially increased sentence",16 and was 'cancelled out' by his time incustody and on remand.17[12] The Judge's sentencing indication notes state:18There is no uplift for the breach charges brought by the Probation service. Iwould not impose any uplift for the offending that occurred while on bail,noting that Mr MacDonald may have spent some time on bail which will notbe deducted from his sentence.I was unclear if the Judge's indication meant only to exclude the earliest charge, oralso to exclude Mr MacDonald's subsequent breach of release conditions. The"Probation service" charge may not have referred to the latter charge. Notably, in11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].12 At [33] and [35].13 Ripia v R [2011] NZCA 101 at [15].14 Police v MacDonald, above n 1, at [16].15 At [15].16 At [1].17 At [15].18 Police v MacDonald, above n 3, at [4].sentencing, the Judge noted Mr MacDonald was "for sentence today in relation to now14 charges" (emphasis added), suggesting there was new and material informationarising subsequently.19 But Ms Pitch emphasises the probation charges were beforethe Judge for indication.[13] As I previously have said,20 there is inconsistency on the part of first appealcourts as to whether a within-range end sentence, but not conforming to a sentencingindication, should be modified to conform to that indication.21 I (and other judges ofthis Court) doubt it.22 Subject to new and material information arising subsequently,while a sentencing indication is binding on the judicial officer who gave it,23 it is notbinding on other judicial officers,24 or on me on appeal. Rather the usual standard forintervention applies: there must be error in the sentence, and a different sentenceshould be imposed.[14] But the Judge's divergence from his sentencing indication nonetheless errs invarying from the indicated sentence, without establishing his satisfaction it wasaffected by new material information. I therefore must consider if a different sentenceshould be imposed.[15] But for its divergence from his sentencing indication, the Judge's burglarysentence and other offending uplifts were orthodox. Burglaries of residential premisesattract starting points in a range from 18 to 30 months' imprisonment.25Mr MacDonald's breach of release conditions is open to supporting a four-monthuplift here.26 Any complaint the Judge failed expressly to give credit for19 Police v MacDonald, above n 1, at [1].20 Kapea v Police [2019] NZHC 1453 at [8].21 See GG Hall Hall's Sentencing (online ed, LexisNexis) at [APPI.2.11(e)].22 Wilson v R [2015] NZHC 298; Appuhamilage v Police [2015] NZHC 2355; Scoles-Young v Police[2016] NZHC 1120; and Nuku v R [2016] NZHC 2255.23 Criminal Procedure Act 2011, s 116(2).24 Section 116(3).25 Arahanga v R [2012] NZCA 480 at [78], citing Senior v Police (2000) 18 CRNZ 340 (HC) at [19];Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012; Dudley v Police HC ChristchurchCRI-2009-409-1, 26 February 2009; Police v Vincent DC Palmerston North CRI-2008-054-4634,21 April 2009; Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010; andSnowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.26 Johnson v Department of Corrections HC Hamilton CRI-2009-419, 13 April 2010 at [18], citingTennant v Police HC Palmerston North CRI-20090454-20, 10 June 2009:The starting point is that the Court regards a failure to comply with parole conditions assignificant, and not minor offending release conditions are imposed in order to maintainMr MacDonald's remorse is redressed by the generosity of the Judge's 15 per centdiscount for the pre-sentence and s 27 reports, which include express references toMr MacDonald's remorse. I do not consider the other factors referred to in thosereports to be so causative of Mr MacDonald's offending alone to justify a substantialdiscount on grounds of his diminished culpability.[16] Counsel for the police acknowledges the ambiguity in the subject matter forthe Judge's sentencing may justify omission of the additional four-month uplift forbreach of release conditions, as being "against the general trend for a sentenceencapsulating a probation offence" and its omission "in the interests of justice".I disagree: to the extent the ambiguity constitutes error, it only entitles me to considerif a different sentence should have been imposed.[17] But a different sentence should have been imposed if the Judge maintained hisindication's starting point for the offending it addresses. Discounting the resultant34 months by 30 per cent gives rise to 23.8 months' sentence, which I would rounddown to 23-and-a-half months' imprisonment. Although the result is only of a minimaldifference in duration from the 24-and-a-half months' imprisonment to whichMr MacDonald was sentenced by the Judge, his sentence nonetheless is renderedmanifestly excessive by failing to attain the statutory "short-term" sentence ofimprisonment and the consequences that may follow.27 'Manifestly excessive' is"simply a means of examining the significance of the error",28 and the unavailabilityof those consequences by reason solely of the sentence's duration is very significant.Result[18] The appeal is upheld.a degree of control over behaviour, and in order to protect the community. Failure to complywith parole conditions is accordingly a matter of significance.In Johnson, two breaches of release conditions produced two concurrent sentences of six months'imprisonment for breaches. In Tennant, a two-month sentence of imprisonment was imposed forone release condition breach. A sentence of eight months' imprisonment was upheld as "verystern" but within range in McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007 at[7].27 Sentencing Act 2002, s 4(1) (definition of "short-term sentence"), referring to Parole Act 2002,s 4(1).28 Tutakangahau v R, above n 11, at [32].[19] The Judge's sentence is set aside, and substituted with a sentence of 23-and-a-half months' imprisonment, with leave to apply for home detention if a suitableaddress is located.—Jagose J