FLANAGAN v NEW ZEALAND POLICE [2019] NZHC 302

FLANAGAN v NEW ZEALAND POLICE [2019] NZHC 302IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000004[2019] NZHC 302BETWEEN CHRISTOPHER HOWARD FLANAGANAppellantAND NEW ZEALAND POLICERespondentHearing: 28 February 2019Appearances: C Nolan for AppellantK A Courteney for RespondentJudgment: 28 February 2019ORAL JUDGMENT OF GENDALL JIntroduction[1] On 19 December 2018, Judge Garland in the District Court sentenced theappellant Mr Flanagan to 10 months' imprisonment for convictions of receiving over$1000, being found unlawfully in a yard, and theft under $500.[2] The appellant now appeals that sentence on the basis that it was said to bemanifestly excessive.Facts[3] Turning to the factual background in this matter, on 13 April 2018, a Fordmotor vehicle valued at $2000 was stolen from the roadside in Christchurch. Thefollowing day, 14 April 2018, the appellant was in possession of this vehicle. He wasstopped in the stolen vehicle by Police two days later on 16 April 2018. The appellanthad altered the vehicle by cable tying a different VIN plate to the vehicle andsellotaping a different warrant of fitness sticker to the inside of the vehicle.Identification markings on the windows had been scratched off and the ignition barrelwas removed. The appellant went to the AA and re-registered the vehicle under hisname, obtaining new licence plates. This was done to conceal the identity of thevehicle. When questioned, the appellant stated he had purchased the vehicle for$1,250 and a stolen vehicle check he made online through 'carjam' at the time hadstated the vehicle was not stolen. That offending constituted the receiving over $1000conviction.[4] As to the second set of charges, on 22 July 2018 the appellant went toThe Warehouse. He selected personal hygiene items valued at $101, concealed themon his body and then left the store without paying for them. The appellant wasfollowed by security staff and was later located by Police hiding in a garage onHavelock Street. The appellant did not know the owner of the garage and did not havepermission to be there. These made up the theft and unlawfully in a building charges.District Court decision[5] In his decision in the District Court, Judge Garland considered the pre-sentencereport. It noted the report writer considered the appellant had "minimised hisoffending" and took little responsibility for his actions. The writer considered theappellant posed a medium risk of reoffending.[6] The Judge noted the report writer also said that in the past the appellant hadbeen subjected to a wide range of community-based sentencing options and had beennon-compliant on all except home detention. The report writer recommended asentence of imprisonment, despite electronically monitored sentences being available.[7] A letter from the appellant was before the Court. It expressed his desire tosettle down and return to the workforce. The appellant's mother had written a similarlysupportive letter. A copy of a letter from her was handed up to me today, 28 February2019, again in support of her son, and I have taken into account the matters she hasraised in that letter.[8] In the District Court Judge Garland had regard to ss 7 and 8 of theSentencing Act 2002, and also, particularly, s 16. The present offences were theappellants 12th, 13th and 14th convictions for dishonesty. His Honour noted theappellant had last been before the Court for dishonesty offending in July 2017. Onthat occasion the Court had been persuaded to impose home detention with specialpost-release conditions to assist with the appellant's rehabilitation. His Honour wenton to note that "[r]egrettably that has come to nought".[9] The receiving charge was taken by Judge Garland in his sentencing notes asthe lead offence. For that, he adopted a starting point of 12 months' imprisonment. Astarting point of two months' imprisonment was adopted for the other charges,resulting in an overall starting point of 14 months' imprisonment.[10] His Honour then applied full 25 per cent discount amounting to four monthsfor the appellant's guilty plea resulting in an end sentence of 10 months' imprisonment.This was imposed on the receiving charge, with concurrent sentences of two months'imprisonment being imposed on the remaining two charges. Judge Garland didconsider commuting the sentence to one of home detention but took the view this wasunlikely to promote the appellant's rehabilitation as it had not done so before and, inall the circumstances here, it would not meet the purposes and principles of sentencing.Principles on appeal[11] Turning now to the principles on appeal, appeals against sentences are allowedas of right by s 244 of the Criminal Procedure Act 2011 and must be determined inaccordance with s 250 of that Act. An appeal against sentence may only be allowedby this Court if it is satisfied that there has been an error in the imposition of thesentence and that a different sentence should be imposed.1 As the Court of Appealmentioned in Tutakangahau v R quoting the lower court's decision, a "court will notintervene where the sentence is within the range that can be properly be justified byaccepted sentencing principles".2 It is only appropriate for this Court to intervene and1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].substitute its own views if the sentence being appealed is "manifestly excessive" andnot justified by the relevant sentencing principles.3SubmissionsAppellant's submissions[12] Turning now to the submissions advanced before me, and the appellant submitsthat the end sentence here is manifestly excessive for two reasons. First, because thestarting point adopted by the District Court Judge was too high having regard to thecircumstances of the offending and relevant case law and, secondly, because theDistrict Court Judge did not impose the least restrictive sentence in the circumstances.[13] Counsel for the appellant before me, Mr Nolan, points to case law which hesays is analogous. In Andrews v Police, a decision of this Court, a sentence of ninemonths' imprisonment was imposed on charges of receiving over $1000, possessionof cannabis and breach of a home detention sentence.4 The offender in that case had36 previous convictions which included drug and dishonesty offending. TheDistrict Court Judge emphasized Mr Andrews' previous community-based andrehabilitative sentences and noted that at the age of 40 he did not seem to be makingprogress. The starting point adopted for the lead offence of receiving over $1000charge was six months' imprisonment.[14] In a second decision, Nikau v R a sentence of 18 months' imprisonment wasimposed for charges of receiving over $1000, theft of property valued at over $1000,theft of property valued under $500, burglary and breaching community work.5Ms Nikau had 33 previous convictions including dishonesty offending. The Judgenoted Ms Nikau's significant history of offending and the fact that she had been givenmultiple sentences he considered lenient or compassionate in the past. The startingpoint adopted on the lead offence being the receiving charge was 12 months'imprisonment. In declining to impose a sentence of home detention the District CourtJudge noted that Ms Nikau had not complied with community work and had offended3 Ripia v R [2011] NZCA 101 at [15].4 Andrews v Police [2015] NZHC 2496.5 Nikau v R [2017] NZHC 1366.on bail. The appeal was allowed, the sentence imposed on appeal was seven months'home detention.[15] Taking into account the aggravating and mitigating features of the offendingand the case law, Mr Nolan before me submitted an appropriate starting point for thetotality of the appellant's offending here is in the range of six to nine months'imprisonment and not the 14 months' total adopted by Judge Garland.[16] In relation to the imposition of the least restrictive sentence possible, theappellant says that the pre-sentence report states that he fits the initial criteria for aDepartmental programme. The report recommends this as appropriate to address hisoffending related factors. The address proposed for an electronically monitoredsentence was with his mother who was supportive of him. As I have noted, a letterwas provided to the Court offering her full support. The appellant had not previouslyreceived a sentence of imprisonment. As Mr Nolan confirmed, he did receive asentence of home detention in 2017, there were no breaches of this sentence.[17] Overall, the appellant submits the end sentence of 10 months' imprisonmentwas manifestly excessive and the appropriate end sentence for him should be six toeight months' imprisonment. It is further contended this should be served on the basisof a home detention sentence.Respondent's submissions[18] Turning now to the respondent's submissions, in response, the respondent says,first, that Judge Garland's overall starting point of 14 months' imprisonment, whilststern, may have incorporated some recognition of the appellant's previous dishonestyoffending given the comment that the lesser offending was "also aggravated by (theappellant's) prior dishonesty offending". An uplift for the appellant's prior history wasavailable to the sentencing Judge, according to the respondent.[19] Ms Courteney for the respondent points to the decision of this Court in Te Raiv Police, where Moore J considered what the appropriate starting point was for chargesof unlawfully taking a $3,599 motor vehicle and receiving a Subaru motor vehiclevalued at $5,000.6 His Honour considered a range of authorities and noted that startingpoints between 12 to 18 months' imprisonment have routinely been consideredappropriate for offending of this type. His Honour referred to two Court of Appealdecisions in particular:(a) In Ellis v R Mr Ellis was charged with receiving stolen property, valuedat about $5000, shortly after it had been stolen.7 The Court consideredthe starting point adopted by the sentencing Judge of 18 months'imprisonment was within range, though stern. An aggravating factor inthis case, which the Court held the sentencing Judge was entitled to takeinto account, was the fact Mr Ellis had come into possession of theproperty very shortly after the burglary, suggesting some connectionbetween the burglar and the receiver. The Court accepted a startingpoint in the 12 to 18 months' imprisonment range was appropriate.(b) In the second Court of Appeal decision, Burkhart v R, the Court held astarting point of 12 months' imprisonment was available to thesentencing Judge,8 though it was possibly towards the top of theavailable range. In this case Mr Burkhart was for sentence for twocounts of receiving stolen property valued between $4000 and $4500.[20] Before me the respondent contended that given the close proximity in timebetween the vehicle being stolen and it coming into the appellant's possession, coupledwith the steps the appellant took to conceal the vehicle's identity, a starting point of12 months' imprisonment was within the available range. Given the appellant'shistory (11 dishonesty offences, including five for receiving property over $1000), anuplift was available. A figure of 14 months' imprisonment, accounting for the totalityof the appellant's current offending and his history, Ms Courteney maintained, couldnot be said to be outside the available range.6 Te Rai v Police [2015] NZHC 2453.7 Ellis v R [2012] NZCA 513.8 Burkhart v R [2013] NZCA 314.[21] Judge Garland's decision, too, not to commute the sentence to one of homedetention, according to the respondent, took into account the appellant's history andthe fact he had recently been sentenced to home detention on other charges to promotehis rehabilitation without, it seems, any degree of success. His Honour was entitledto view the appellant's continued offending as demonstrating that a home detentionsentence was not an effective deterrent and therefore a sterner sentence ofimprisonment was required. This too, it was noted, was supported by the pre-sentencereport. The overall sentence, whilst possibly stern, according to Ms Courteney couldnot be deemed manifestly excessive.Analysis[22] Turning to my analysis in this matter, there is no tariff case for the crime ofreceiving. However, decided case law has indicated that where the value of goodsreceived are around $2000 a starting point of approximately six months should beimposed:(a) A first case, Aurupa v Police, in that case, in relation to the receipt of$2000 of stolen goods, on appeal Her Honour Duffy J in this Court heldthat a starting point of six to eight months' imprisonment wasappropriate.9(b) In a second case, Ngatai v Police, the appellant received clothing fromthe burglary of a retail store, and a television and a stereo owned byMr Rental from a separate burglary of a residential property. In thisCourt His Honour Toogood J held that a starting point of six months'imprisonment was lenient. The value of the clothes taken was justunder $900. The value of the rental television and stereo is not statedin the judgment but can be presumed to be no more than about $1,000.10[23] On all of this I have regard to case law which seems to indicate that the gap intime between the taking of the goods and their receipt by the defendant can be an9 Aurupa v Police [2012] NZHC 2750.10 Ngatai v Police [2015] NZHC 2249.aggravating factor.11 Given the close proximity here between the theft and theappellant's purchase I am satisfied there should be an uplift of around one month toreflect the fact that immediate receipt of goods encourages burglary and the deleteriouseffects it has on society.[24] The Judge in the District Court also had regard to prior behaviour. There is aneed to disincentivise dishonesty type behaviour. An uplift for the substantial previousconvictions here is particularly appropriate where there is a need for individualdeterrence and/or a need to protect the community from continual offending.12 I amsatisfied that there is clear need for individual deterrence in all the circumstances here.An uplift of around two months for prior convictions is appropriate.[25] I would add one month for the way that the defendant actively altered thevehicle once received so as to prevent it being discovered.[26] From a starting point, therefore, which would need to be one of at least sixmonths' imprisonment, I would add these uplifts of four months. A further twomonths' imprisonment is then to be added for the other charges (having regard to thetotality principle). That makes a starting point of 12 months' imprisonment. Fromthat figure, the appellant is entitled to a discount for his guilty plea. I would allow thefull 25 per cent discount as Judge Garland did. This amounts to a figure of threemonths. That brings the final sentence to one of around nine months' imprisonment.Only one month less than the 10 months Judge Garland imposed.[27] To reduce the sentence here by one month, in my view, in all the circumstancesof this case, it might be said would amount to mere tinkering. It could not be said thatJudge Garland's decision, although perhaps a stern one, was manifestly excessive.[28] For these reasons I would thus dismiss this appeal.11 Ellis v R [2012] NZCA 513 the appellant was found with $5,000 worth of stolen property a fewhours after a property in Grey Lynn was burgled.12 Blackmore v R [2014] NZCA 109 at [12].Appropriateness of home detention[29] Turning now to the appropriateness of home detention, when considering theimposition of a period of imprisonment for a particular offence, the Court must haveregard to the desirability of keeping an offender in the community so far as that ispracticable and consonant with the community's safety.13 The Sentencing Act requiresthe imposition of the least restrictive sentence that is appropriate in the circumstances.[30] Where the sentence proper is a short-term period of imprisonment, the Judgemust decide whether to commute that sentence to a sentence of home detention.14 Butas the Court of Appeal has said in the decision of Fairbrother v R:15That does not mean that a short-term period of imprisonment must always becommuted to a sentence of home detention. That equally would be an error oflaw. What it does mean is that the judge must make a considered andprincipled choice between the two forms of sentence recognising that bothserve the principles of denunciation and deterrence and identifying which ofthem better qualifies as the least restrictive sentence to impose taking intoaccount all the purposes of sentencing.[31] The choice between imprisonment and home detention must be an intelligibleone. The Judge must properly identify and weigh the factors that really count.Sentences of imprisonment have been quashed and home detention substituted wherethe purpose of deterrence has been given complete priority without regard to any ofthe countervailing purposes of sentencing.[32] I agree here with the arguments advanced to me on behalf of the respondentthat Judge Garland's decision not to commute the sentence to one of home detentionproperly took into account the appellant's history and the fact he had recently beensentenced to home detention to promote his rehabilitation which did not seem in anysense to be achieved. His Honour was entitled to view the appellant's continuedoffending as demonstrating that another a home detention sentence was unlikely topromote the appellant's rehabilitation and was not an effective deterrent here. Norwould it meet the purposes and principles of sentencing and therefore a sterner13 Sentencing Act 2002, s 16(1).14 Section 15A(1)(b).15 Fairbrother v R [2013] NZCA 340 at [30].sentence of imprisonment was required. This was supported by the pre-sentencereport.[33] For all these reasons I have outlined, therefore, this appeal is dismissed....................................................Gendall JSolicitors:Anselm Williams, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch