HERBERT v POLICE [2016] NZHC 86

HERBERT v POLICE [2016] NZHC 86 [4 February 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-0011[2016] NZHC 86BETWEEN BLADE HOETA HERBERTAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2016Appearances: S E Giles for AppellantJ Murdoch and G M Woods-Child for RespondentJudgment: 4 February 2016JUDGMENT OF M PETERS JThis judgment was delivered by Justice M Peters on 4 February 2016 at 4.30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Public Defence Service, WaitakereMeredith Connell, Crown Solicitor, AucklandIntroduction[1] The Appellant appeals against sentence imposed in the District Court at Waitakere on 2 December 2015. To succeed on appeal, the Appellant must satisfy me that the sentence imposed was manifestly excessive.1[2] Following a sentence indication earlier on 2 December 2015, the Appellant pleaded guilty to:(a) two charges of contravening a protection order;2(b) one of driving while disqualified;3 and(c) one of dishonestly using a document.4[3] The Appellant was also convicted and discharged on a charge of resisting a constable acting in the execution of his duty.5 Because it is relevant to what follows, I record that by 2 December 2015, the Appellant had been on remand in respect of the charges referred to in [2](a) and(b) since 18 September 2015.Sentence indication[4] The Judge's indication was that, if the Appellant pleaded guilty, his "end sentence" would be seven months' imprisonment.[5] The Judge identified the charges of contravening a protection order as the lead offences. She adopted a starting point on those charges of four months'imprisonment.[6] The Judge then uplifted the starting point by two months because the offending had occurred whilst the Appellant was subject to release conditions; uplifted by one month on the charge of driving while disqualified; uplifted by two1 Criminal Procedure Act 2011, s 250(2).2 Domestic Violence Act 1995, s 19 and s 49(1)(b).3 Land Transport Act 1998, s 32(1)(a) and 32(4).4 Crimes Act 1961, s 228(b).5 Summary Offences Act 1981, s 23(a).months on the charge of dishonest use of a document; and reduced the sentence by two months on account of the Appellant's guilty pleas and efforts to rehabilitate.[7] The Appellant pleaded guilty and the Judge then imposed sentence as follows: seven months' imprisonment on each charge of contravening a protection order and on the charge of dishonest use of a document; one month on the charge of driving while disqualified; all sentences to be served concurrently.Grounds of appeal[8] The Appellant contends that the sentence on the dishonest use charge is manifestly excessive, on two grounds.[9] The first is a practical matter. Although the time the Appellant spent in pre-sentence detention is taken into account in computing the further time to be served on the charges of contravention of the protection orders and driving whilst disqualified, it is not taken into account on the "dishonest use" charge.[10] The second is that the sentence of seven months' imprisonment on thedishonest use charge is manifestly excessive, regardless.Chronology[11] The chronology is relevant to both grounds advanced by the Appellant.[12] The Appellant contravened the protection order on 12 September 2015 and drove whilst disqualified on 17 September 2015. He appeared on the three charges on 18 September 2015 and was remanded in custody.[13] The dishonest use charge, however, was only filed on 2 December 2015, although it concerned offending in March 2015, as to which see below. As a consequence, the Appellant's time on remand would not reduce the (further) time to be served on the dishonest use charge.Time on remand[14] Counsel advises that the Appellant accepted the Judge's indication in the belief that his time on remand would "count" as regards all charges, as did his counsel.[15] On realising that it would not, counsel for the Appellant filed a memorandum asking the Judge to revisit the matter. The Judge, correctly, advised that she was unable to do so.6Sentence manifestly excessive[16] The Appellant's second submission is that a sentence of seven months'imprisonment on the single dishonest use charge was and is manifestly excessive, having regard to the circumstances of the offending and to other matters.[17] As to the circumstances of the offending, the Appellant used a "pay wave tag" on 15 occasions to acquire items to a total value of $578.20. There is no explanation in the documents before me as to how the Judge arrived at a sentence of seven months' imprisonment for offending at such a level. Counsel have referred me to several authorities in support of or against the length of sentence. It is unnecessary for me to discuss them, however, because the appeal succeeds on a different point.[18] As I have said, the dishonesty offending was committed on 22 and 23 March 2015. It appears to have been part and parcel of a spate of offending between 10 February and 27 March 2015. That offending included the possession of methamphetamine, theft, resisting Police and failing to stop. The Appellant was sentenced on those offences on 29 June 2015.[19] Given that, the appropriate course was to sentence the Appellant as if the dishonest use charge had been before the Court on 29 June 2015.7 Indeed that was the reason the Judge convicted and discharged the Appellant on the charge of6 Minute of Judge B R Pidwell dated 18 December 2015 at [2]. See also Sentencing Act 2002, s 82.7 Sentencing Act 2002, s 85; and Adams on Criminal Law (looseleaf ed, Brookers) at [SA85.01].resisting arrest (see [3] above). The Judge convicted and discharged the Appellant on that charge as she did not consider it would have affected the sentences imposed in June 2015. That was the correct approach to take on the dishonest use charge.Result[20] I am not satisfied that the charge of dishonest use would have affected matters in June 2015. Accordingly, I quash the sentence of seven months'imprisonment imposed on the charge of dishonest use of a document. TheAppellant's conviction remains in place but he is otherwise discharged on that offending...................................................................M Peters J