SUNNEX v NEW ZEALAND POLICE [2019] NZHC 2589

SUNNEX v NEW ZEALAND POLICE [2019] NZHC 2589 [11 October 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000097[2019] NZHC 2589BETWEEN ETHAN PETER SUNNEXAppellantAND NEW ZEALAND POLICERespondentHearing: 10 October 2019Appearances: D J H Stringer for AppellantS Dayal for RespondentJudgment: 11 October 2019JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 11 October 2019 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 11 October 2019Introduction[1] Mr Sunnex was convicted of five charges of dishonestly using a document, andcharges of receiving a vehicle, theft from a vehicle, and burglary. He was sentencedby Judge Garland to two years and five months in the District Court on 28 June 2019.He appeals against that sentence.Facts[2] Between 27 July and 3 October 2018, the appellant was employed by ConcreteBrothers Ltd. During his employment, the appellant had access to a work vehicle andan NPD fuel card. Following an acrimonious employment dispute the appellant wasdismissed by Concrete Brothers. The appellant did not return his fuel card.[3] On 2 November 2018, the appellant drove a Toyota van and trailer into a fuelstation in Ohoka. There, he met another associate who was driving a stolen Suzukivehicle. The appellant, his passenger and the other associate filled up three 1000 litreplastic containers on the back of the trailer with fuel. The appellant paid for the drumswith the fuel card and then left. He returned two hours later with three more 1000 litredrums. The appellant returned at 4.00 am on 3 November, again towing a trailer withfour 1000 litre containers. The appellant filled those containers and left.[4] The transactions, valued at over $22,000 for the 5,344 litres of 95 octane and4,780 litres of 91 octane fuel, were paid for using the stolen fuel card.[5] Between 4 October 2018 and 3 November 2018, the stolen NPD card was usedto purchase another 29,625.26 litres of fuel on 92 separate occasions. The appellantwas physically present at about half of those occasions and assisted by providing thecard at the remaining half. The cost of the additional 29,000 odd litres of fuel was$67,774.16.[6] On 4 November the stolen Suzuki vehicle used to pick up petrol was parked inthe appellant's driveway equipped with stolen plates. The appellant said he boughtthe vehicle from an unknown person in the pub for $800. This constituted thereceiving a vehicle conviction.[7] On Thursday 27 December 2018, the appellant removed both the front and rearlicense plates from a parking vehicle. These plates were said to have been attached tothe Suzuki vehicle that the appellant had earlier received. This offending led to thetheft conviction.[8] On 11 January 2019 the appellant took a parcel that had been left by a courierat the door of a property. The parcel contained contact lenses and was valued at$206.10. This action led to the burglary charge.District Court decision[9] Judge Garland took the charges of dishonestly using a document as the leadoffending. He adopted a starting point of two years and nine months' imprisonment.Although there is no guideline judgment for this type of offending, the Judge took intoaccount the factors to assess culpability as set out in R v Varjan.1 The factors presentwere a breach of trust, persistent offending, a high degree of premeditation, and thesignificant loss to the victim, especially in light of the appellant not having any abilityto pay reparation.[10] In relation to the remaining dishonesty charges, taking into account the totalityprinciple, his Honour adopted a starting point of six months' imprisonment. This tookthe overall starting point to three years and three months' imprisonment.[11] No uplift was applied for previous convictions.[12] The sentence was reduced by eight months (or approximately 21 per cent) forguilty pleas being entered at case review stage.[13] This led to an end sentence of two years and five months' imprisonment. Asthe sentence was not a short term of imprisonment, the Judge did not have jurisdictionto consider home detention.Principles on appeal[14] 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 only be allowed by this Court if it is satisfied that there1 R v Varjan CA 97/03, 26 June 2003.has been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2[15] As the Court of Appeal confirmed in Tutakangahau v R, citing the lowerCourt's decision, "[an appellate] court 'will not intervene where the sentence iswithin the range that can properly be justified by accepted sentencing principles'".3 Itis only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and not justified by the relevantsentencing principles.4 The focus of an appellate court must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached."5SubmissionsAppellant's submissions[16] Mr Stringer for the appellant makes several submissions as to why the endsentence is manifestly excessive. These are:(a) While the Judge did not uplift the starting point in light of the limitedlist of previous convictions, given that there were no dishonestyconvictions, Mr Stringer suggests he could have been treated "muchlike a first offender".(b) The Judge erred in assuming the appellant did not have employmentand so could not make reparation, where defence submissions atsentencing referred to the fact the defendant had just gainedemployment and was willing to pay $150 per week.(c) The Judge overstated the level of premeditation involved in theoffending. Mr Stringer describes the appellant as naïve and gullibleand that co-offenders took a more active role in planning the offending.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Skipper v R [2011] NZCA 250 at [28].(d) The appellant is remorseful as evidenced by his letter dated14 August 2019 which notes that he has now had time to reflect on hisactions and is truly remorseful for the hurt he has caused his victims.(e) Guilty pleas were entered at the earliest reasonable opportunity afteradvice from counsel and discussions with the prosecution team at thecase review hearing and after some charges were withdrawn. Byimplication, Mr Stringer suggests a greater discount for a guilty pleawas available.Respondent's submissions[17] Although Mr Stringer did not take particular exception to the starting point,Ms Dayal points out that the starting point for sentencing on the lead charges wasconsistent with comparable cases. In particular, a starting point of 18 to 22 monthswas upheld in the High Court for theft of $23,691.30 from Trust accounts of a Maoriland trust,6 and, in Luoni v Police, Heath J considered a starting point of three years'imprisonment, for theft of $41,000 by an office administrator was stern but not outsidethe available range.7 The Judge's starting point of two years and nine months'imprisonment is therefore appropriate. Similarly, there was a "lenient uplift" on theremaining charges.[18] In terms of aggravating and mitigating factors personal to the appellant,Ms Dayal noted that the Judge did not impose an uplift for offending while subject toa sentence of supervision and that such an uplift could have been applied.[19] She also submits that the appellant is not entitled to a credit for remorse. Thepre-sentence report noted that while he stated he was remorseful, he was unable toexpand on his understanding of the impacts his actions had on the victim. To obtainsuch a discount he needed to show that, because of an understanding of thewrongfulness of the conduct, a tangible acceptance of responsibility for that conduct,and its effect on any victims, has occurred.8 The letter now provided to the Court does6 Matiu v Police [2018] NZHC 96.7 Luoni v Police [2016] NZHC 695.8 Whitcombe v Police [2018] NZHC 1409 at [27]not reach the threshold for admission as new evidence. It is not fresh, credible orcogent.[20] She also considers that the appellant is not entitled to credit for offering to payreparation. At the time he was interviewed for his pre-sentence report, he was on thesickness benefit. Although he did gain employment close to the sentencing hearing,the prospect of him paying full reparation was unrealistic due to the significant sumthat would have been ordered, and the fact he had only recently started employment.[21] The credit for guilty pleas of approximately 21% fairly reflected the fact thatguilty pleas were not entered at the earliest reasonable opportunity but rather, at casereview stage.[22] In short, she submitted that the sentence is not manifestly excessive and thereis nothing to warrant revisiting it.Discussion[23] I accept the respondent's submissions that the starting point was entirelyappropriate particularly given the number of occasions on which the ex-employer'sfuel card was used and the value of fuel acquired by its wrongful use. I accept, too,that a modest uplift could have been imposed to reflect that the offending occurredwhile he was serving a sentence of supervision. As his criminal history includedgiving false details as to his identity and obstruction of the course of justice, I rejectthe suggestion that he should have been treated as a first time offender.[24] I am also satisfied the Judge did not need to make an additional discount forremorse at the time of sentencing. It is clear at that stage, Mr Sunnex still sought tojustify his actions because of a grievance he had with his former employer. Althoughhis current letter reveals more insight into his offending and in particular, the impacthis methamphetamine addiction was having on his behaviour, that is, really too little,too late, to have any material effect on the sentencing exercise.[25] Mr Stringer's strongest point is whether the Judge was too dismissive of theoffer to pay reparation, which would, if an order was made, have reduced the sentencelength. However, I consider that whether or not the Judge was aware that Mr Sunnexhad started employment, he was correct to conclude that a significant reparation ordercould not be made. He points out that, even with employment, if he tried to pay thereparation off on a weekly basis it would take "a very long time". Furthermore, hislawyer cautioned the Judge about "making an unrealistic order for reparation". TheJudge also was aware that no reparation could be paid on the day and reparation waseven less likely given a sentence of imprisonment in excess of two years was the clearoutcome of the sentencing process. As Ms Dayal pointed out, a very significantreduction for any reparation order made would have been required to get the sentencebelow two years. I do not consider a reduction of that magnitude was open to theJudge given the seriousness of the offending, the relevant aggravating factors of boththe offending and the offender and the limited ability to pay a significant amount inreparation. Thus, even if the Judge misunderstood the position as to Mr Sunnex'scurrent employment, his conclusion as to feasibility of making a large reparation orderwas correct.[26] Similarly, I do not think the Judge's discount for a guilty plea can reasonablybe challenged. The discount given was close to the maximum available discount andwhere, it appears to me that there was a strong case against the appellant.[27] Looking at matters in the round, there is no basis for concluding the sentencewas manifestly excessive and the appeal is dismissed.Solicitors:D J H Stringer, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch