SHORT v NEW ZEALAND POLICE [2022] NZHC 2158

SHORT v NEW ZEALAND POLICE [2022] NZHC 2158 [29 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-103CRI-2022-409-104[2022] NZHC 2158BETWEEN BENJAMIN JAMES SHORTAppellantAND NEW ZEALAND POLICERespondentHearing: 25 August 2022Appearances: R A Peters for AppellantG E R Alloway for RespondentJudgment: 29 August 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 29 August 2022 at 2.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Benjamin Short was sentenced to eight months' imprisonment on a charge ofreceiving property valued over $1,0001 by Judge Garland.2 That sentence wascumulative on an earlier sentence3 of 12 months imprisonment imposed byJudge Maze on charges of wounding with reckless disregard,4 six charges ofdishonestly taking bicycles,5 two charges of receiving6 and charges of breaching bail,community work7 and supervision.8 At that earlier sentencing Mr Short was grantedleave to apply for home detention9 and his outstanding community work wascancelled. Judge Garland did not grant Mr Short leave to apply for home detentionand refused to cancel the same community work sentence.[2] Mr Short filed notices of appeal against Judge Garland's decision. He says thesecond sentencing was wrong in part and manifestly excessive. This is because theJudge had insufficient regard to the first sentencing decision when sentencing on theadditional charge.Facts[3] On 18 September 2020 Mr Short was sentenced to nine months' supervisionand 150 hours community work on charges of burglary and altering a document. Overthe subsequent months he failed to attend community work and report to his probationofficer.[4] On 8 November 2021, a mountain bike worth $6,000 was stolen from anaddress in Merivale. On 16 November, Mr Short was stopped by police on the bike.He said he had purchased the bike on Facebook Marketplace for the equivalent of$1,850 and it never crossed his mind it may have been stolen.1 Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years' imprisonment.2 Police v Short [2022] NZDC 5203.3 Police v Short [2022] NZDC 305.4 Crimes Act, s 188(2); maximum penalty seven years' imprisonment.5 Crimes Act, s 226(1); maximum penalty seven years' imprisonment.6 Crimes Act, ss 246, 247(a) and 247(b); maximum penalty one-seven years' imprisonment.7 Sentencing Act 2002, s 71(1)(a); maximum penalty three months' imprisonment.8 Sentencing Act, s 70(a); maximum penalty three months' imprisonment.9 Sentencing Act, s 80I.[5] Between 1 March 2021 and 8 March 2021, Mr Short and two co-offendersunlawfully took six bicycles from around Christchurch. Four of the bikes were takenfrom the grounds of Christchurch Hospital. They used bolt cutters to remove thebicycle locks. The value of the bikes ranged from $530 to $3,500. Mr Short was laterobserved by a police detective who had been investigating one of the earlier unlawfultakings and subsequent sale. Mr Short had offered to sell a bike to a pawnshop. Thedetective identified themselves and told Mr Short he was under arrest. Mr Shortviolently attempted to flee the store in order to escape arrest, fighting with thedetective. The detective requested the assistance of pawnshop staff and passers-by.Mr Short continued to violently struggle and bite at the owner of the store who washolding one of his arms. The detective suffered a complete break of the bone in hisleft ring finger causing a deep laceration, requiring surgery to remedy. He alsosuffered grazing and associated bruising.[6] Between 5 January 2021 and 16 January 2021, two mountain bikes valued at$800 and $7,300 were stolen from addresses in Christchurch. On 11 and 16 JanuaryMr Short pawned the bikes for $80 and $200.District Court decision[7] Judge Maze sentenced Mr Short on all of the charges except for theNovember 2021 offending. She took the wounding with intent as the lead charge,adopting a starting point of 16 months. She added a four-month uplift for thedishonesty offending, accounting for totality. That resulted in an overall starting pointof 20 months' imprisonment. The Judge noted Mr Short offended while subject tosentence but did not impose an uplift due to Mr Short's limited criminal history. Shegave 25 per cent credit for his guilty plea and, noting a doctor's letter which indicateda mental health diagnosis and major problem with addiction, further credit of15 per cent. That resulted in an end sentence of 12 months' imprisonment. Sheconsidered an additional term for the unserved portion of Mr Short's community workbut ultimately decided to cancel that sentence. She granted leave for Mr Short to applyfor home detention though noted he would need a significant change of attitude forthat to become realistic.[8] Judge Garland, two months after Judge Maze's sentencing, sentenced Mr Shorton the November receiving charge. He indicated Mr Short was extremely fortunate toreceive community work on his burglary conviction and declined to cancel thatsentence. The Judge does not appear to have been made aware that sentence hadalready been cancelled. The Judge noted Mr Short had outstanding fines andreparation and had been unemployed for some time. He considered the fact he was aserving prisoner. The Judge rejected a submission this charge would have made littledifference to the earlier sentencing had it been included. The Judge referred to Ellis vR where the Court of Appeal commented a 12-18 month starting point was appropriatewhere an offender had pleaded guilty to receiving goods worth approximately $5,000with a connection between burglar and receiver.10 The Judge noted Mr Short's mensrea on the receiving charge was recklessness not actual knowledge.[9] The Judge noted Mr Short had 10 prior convictions for dishonesty (taking theoffending Judge Maze sentenced for as previous convictions). He adopted a startingpoint of 14 months' imprisonment reduced to 10 months for totality. He then alloweda further reduction of two months for Mr Short's guilty plea entered at case review.That resulted in a cumulative end sentence of eight months' imprisonment.Principles on appeal[10] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.11 It is appropriate for this Court to intervene and substitute its own viewsonly if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.1210 Ellis v R [2012] NZCA 513.11 Criminal Procedure Act 2011, ss 250(2) and 250(3).12 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[11] Mr Peters, for Mr Short, acknowledged the appeal was filed out of time butsubmitted counsel in the District Court did not mention rights of appeal. He submittedno prejudice arises and the appeal should be heard out of time.[12] Mr Peters submitted the task of the Court at the second sentencing date was toconsider the sentence that would have been imposed on the first sentencing date hadthe later charge been before the court and dealt with at that time. He maintained, hadthe receiving charge been before Judge Maze, the outcome would have beensubstantially the same. He submitted the starting point was excessive, the allowancefor totality inadequate and a cumulative sentence of three months' imprisonmentshould have been adopted.[13] Mr Peters also submitted the Judge erred by suspending the sentence ofcommunity work which had already been cancelled, though acknowledged it waspossible the Judge was not aware of this. Likewise, he submitted the failure to grantleave for Mr Short to apply for home detention affected the sentence imposed at thefirst sentencing, which did allow for home detention. That said, Mr Short no longersought leave to apply for home detention, noting he was almost due for release on thesentence imposed by Judge Maze and any additional sentence imposed on appeal wasnot likely to be worth applying for home detention on.Respondent's submissions[14] Mr Alloway, for the Crown, did not oppose leave for the appeal to be heard outof time and responsibly conceded there were errors in the second sentencing whichwarranted the appeal being allowed.[15] Mr Alloway acknowledged Judge Garland did not have the full circumstancesbefore him at his sentencing. He observed:(a) when referring to Judge Maze's sentencing, the Judge only referred toa single charge of wounding;(b) the Judge refused to cancel the sentence of community work when ithad already been cancelled;(c) the Judge referred to the receiving/dishonest taking charges as previousconvictions without discussing Judge Maze's sentencing; and(d) the Judge said he had to apply the totality principle "given that[Mr Short has] been sentenced recently on this other charge" (emphasisadded), which suggested he was not aware of what charges wereaddressed in the earlier sentencing.[16] Mr Alloway conceded, had the further charge of receiving been considered incontext, it would have simply resulted in a greater uplift rather than a cumulativesentence. However, he did note it was the most serious of the charges in the dishonestycategory. He submitted Judge Garland's sentencing was correct as to its start and endpoints. However, it is clear he was not appraised of the full background to the earliersentence and made decisions which were inconsistent with it.[17] Mr Alloway acknowledged Judge Maze was approaching the matter on thebasis Mr Short would be able to substitute his sentence and it was unlikely the furtherreceiving charge would have altered that assessment. In the circumstances, hesuggested the appeal be allowed and orders made imposing an additional (reduced)cumulative sentence, granting leave to apply for home detention and confirmingJudge Maze's order cancelling the community work.Analysis[18] I confirm that leave to appeal out of time is granted. There is no prejudice, thedelay is explained and the appeal has merit.[19] As to the background, I agree with Mr Alloway' observations. It is apparentJudge Garland did not have full information when he sentenced Mr Short andconsequentially the sentence was wrong and manifestly excessive. In my view thiscourt should conduct a fresh sentencing exercise on the receiving charge having regardto Judge Maze's decision.[20] Where there has been a series of offending resulting in sentencing bytwo separate Judges, the proper approach is for the second Judge, if sentencing foroffences that occurred before those another Judge had already sentenced for, todetermine what overall sentence would have been appropriate had the offender beensentenced for all charges at the same time. The Judge must then adjust the sentencefor the second set of charges accordingly.13 As the Judge here does not appear to havehad Judge Maze's sentencing notes, nor accurate information as to the chargesresolved before her, this assessment was impossible. I am satisfied a cumulativesentence of 10 months' imprisonment on the additional charge was excessive.[21] As Mr Peters has submitted, in all likelihood the receiving charge would havebeen subsidiary to the wounding charge had it been considered alongside the rest ofthe dishonesty offending by Judge Maze. There would have been discounts forMr Short's guilty plea and his circumstances. However, I also agree with Mr Allowaythat this charge was the most serious of Mr Short's dishonesty offences. It would haveattracted a discrete uplift.[22] Other authority will be of limited assistance to such a totality assessment givenits application to a particular case but in R v Rolleston an uplift of four months'imprisonment was considered appropriate for a representative charge of receivingcovering the receipt of four stolen laptops.14[23] Judge Maze added an uplift of four months for all of the other dishonestyoffending. I consider that approach was generous to Mr Short and a higher upliftwould have been available. However, the Judge was entitled to take a more lenientapproach given she noted Mr Short's relatively insignificant history and mentalhealth/addiction issues. She then discounted the total sentence to account for the guiltyplea and addiction and mental health issues.[24] On its own, this receiving charge might have justified an uplift of aroundsix months' imprisonment. All of the dishonesty offending together might have13 Piao v R [2020] NZCA 607 at [22], citing R v Bradley [1979] 2 NZLR 262 (CA) at 263-264; andR v Jeffries [1992] 1 NZLR 134 (CA) at 137. See Simon France (ed) Adams on Criminal Law:Sentencing (online ed, Thomson Reuters) at [SA85.02].14 R v Rolleston [2018] NZHC 2656.justified an uplift in the vicinity of eight months' imprisonment before discounts wereapplied. In my view a total end sentence of 15 months' imprisonment would reflectthe totality of Mr Short's offending, so the cumulative sentence for this charge shouldhave been three months.[25] The Judge plainly could not decline to cancel the sentence of community workwhich had already been cancelled, as the Crown has conceded. Judge Maze cancelledit because she thought it would be counterproductive given Mr Short's limited history.For clarity, this court confirms the earlier order cancelling the sentence of communitywork.Conclusion[26] The appeal is allowed. The sentence of eight months' imprisonment isquashed, and a cumulative sentence of three months' imprisonment is imposed on theNovember charge of receiving stolen property valued at over $1,000 on the samestandard and special conditions as were imposed in the District Court.[27] The order suspending the sentence of community work under s 78(2)(b)Sentencing Act is revoked reflecting the fact the sentence of community work hasalready been cancelled.Solicitors:Alpers & Co., ChristchurchRaymond Donnelly & Co., Christchurch