HENRY v NEW ZEALAND POLICE [2016] NZHC 800

HENRY v NEW ZEALAND POLICE [2016] NZHC 800 [27 April 2016]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI-2016-454-7[2016] NZHC 800BETWEEN JAMES WIKI HENRYAppellantAND NEW ZEALAND POLICERespondentHearing: 5 April 2016Counsel: E J Forster for AppellantN J Wynne for RespondentJudgment: 27 April 2016JUDGMENT OF CLARK JI direct that the delivery time of this judgment is4.00pm on 27 April 2016Introduction[1] Mr Henry, the appellant, pleaded guilty to 13 charges of theft (shoplifting),1one charge of breach of release conditions,2 and one charge of possession of methamphetamine.3[2] He was sentenced to nine months imprisonment in the District Court at Dannevirke on 26 January 2016.4Factual background[3] Six of the shoplifting charges involved theft from six different stores in Dannevirke on 16 May 2014. Between August 2014 and March 2015 the appellant stole on a further seven occasions from a variety of stores.[4] The appellant had only recently been released on parole from Whanganui Prison in August 2014 when he committed the August 2014 theft.[5] A small bag containing methamphetamine was found near the appellant in a bedroom when a search warrant was executed in April 2015.The sentencing decision[6] The approach the District Court Judge took was to deal with all of the shoplifting charges together. Having fixed a starting point for the shoplifting he then fixed starting points for the remaining two charges: breach of parole and possession of methamphetamine. A nominal sentence was reached for the three categories of offending then uplifts and discounts were applied.1 Eight charges relating to goods valued under $500 (Crimes Act 1961, ss 219 and 223(d): maximum available sentence three months imprisonment) and five charges relating to goods valued between $500 and $1000 (Crimes Act 1961, ss 219 and 223(c): maximum available sentence one year imprisonment).2 Parole Act 2002, s 71(1). Maximum available sentence: one year imprisonment.3 Misuse of Drugs Act 1975, ss 7(1)(a) and (2). Maximum available sentence: six months imprisonment.4 Police v Henry [2016] NZDC 1102.[7] The total value of the stolen goods was calculated to be $5,568.23. The Judge took a starting point of eight months. He increased that by two months to take account of previous offending. The appellant had 92 convictions for dishonesty offences. A discount of 25 percent was given for early guilty pleas. This resulted in a sentence of seven and a half months imprisonment.[8] For breach of release conditions the Judge started with four months imprisonment. He reduced that by one month for the appellant's guilty plea bringingthe sentence to three months imprisonment. (I note, however, from a later passage in his Sentencing Notes that the Judge's actual sentence on the charge of breach ofrelease conditions was two months imprisonment.5 Consistent with this actual sentence the Record of Hearing attached to the Charging Document records a two month sentence on conviction for this offence.)[9] For possession of methamphetamine the appellant was sentenced to three months reached by taking a starting point of three months, uplifting by one month for a similar previous conviction and then deducting one month for a guilty plea.[10] The resulting sentence of 13 and a half months imprisonment6 was reduced by three and a half months to reflect time on e-bail thus reaching a nominal end sentence of 10 months imprisonment.[11] Finally the Judge considered the timing of the charges. On 27 May 2014 the appellant had been sentenced to three concurrent short terms of imprisonment on unrelated charges. To be certain no injustice arose from the timing of the charges or when they were heard and dealt with the Judge allowed a further month reduction in sentence.7[12] The total end sentence for all matters was nine months imprisonment which the Judge allocated as follows:(a) four months imprisonment for the thefts valued over $500;5 At [29].6 At [10].7 At [12].(b) to be served concurrently, two months imprisonment for the thefts valued under $500;(c) for possession of methamphetamine, three months cumulative; and(d) for breach of parole, two months cumulative.SubmissionsAppellant[13] Mr Forster submitted that the way in which the nominal sentences were derived and cumulatively imposed led to a manifestly excessive sentence.[14] Alternatively, if the sentences were to be constructed in this way, the Judge was required to, but did not, assess whether the total period of imprisonment was proportionate to the gravity of the overall offending. Mr Forster submitted that totality might have been ensured by deriving a sentence for the lead charge and then uplifting that sentence to take account of other offending and other aggravating personal circumstances.Respondent[15] Ms Wynne submitted that the Judge's approach was entirely correct and the end sentence was not manifestly excessive. The Judge's approach was fair as it could accommodate differences in the appropriate discount for pleas but more importantly it ensures uplifts for previous offending are imposed only in relation to similar offending and are proportional to the sentence for that type of offending.Analysis[16] A first appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence and a different sentence should be imposed.8 The sentence must be manifestly excessive in view of the circumstances of the case or be8 Criminal Procedure Act 2011, s 250.wrong in principle before the Court will interfere.9 In general the focus will be on whether the end sentence is within the available range rather than the process by which it was reached.10[17] The appellant was sentenced for different categories of offences largely unconnected in time. In those circumstances the starting point is s 85 of the Sentencing Act 2002. Where an offender is to be sentenced for multiple offences s 85(1) requires individual sentences to reflect the seriousness of each offence. This"overarching requirement" is subject to the condition in s 85(2) that, where they are imposed, cumulative sentences must not result in a total period of imprisonment which is wholly out of proportion to the gravity of the overall offending.11[18] The approach to sentencing in these circumstances is guided by s 84 of the Sentencing Act 2002. Cumulative sentences of imprisonment are generally appropriate if the offences are different in kind whether or not they are a connected series of offences. Concurrent sentences of imprisonment are generally appropriate if the offences are of a similar kind and are a connected series of offences.[19] For reasons explained below I am not persuaded that the sentence of nine months imprisonment is disproportionate to the gravity of the appellant's overall offending. I have identified in the Judge's approach no error warrantinginterference.What should have been the approach at sentencing?[20] Six of the 13 shoplifting charges arose out of what may properly be viewed as a spree. Although the shoplifting was from six different stores it all took place on 16 May 2014.[21] The remaining seven shoplifting charges were for thefts occurring over an eight month period between August 2014 and March 2015.9 Tutakangahau v R [2014] NZCA 279 at [31]–[33].10 At [31].11 R v O CA258/05, 3 March 2006 at [19].[22] It would have been appropriate for the District Court Judge to conclude that, although similar in kind, the shoplifting offences were disconnected. The spree preceded the second wave of offending by some three months. The second wave took place on seven occasions over an eight month period.[23] The orthodox approach to sentencing would have been to identify a lead charge, impose a sentence that reflected the criminality of that lead charge and then impose sentences for the remaining offences.[24] Instead the Judge imposed a single sentence in respect of all the shoplifting offences. Nor is it apparent that the Judge reached his starting point of eight months by reference to any authority.[25] As observed by Clifford J in McMurtrie v New Zealand Police "that the sentencing Judge did not adopt the orthodox approach does not, of itself, mean the sentence arrived at was manifestly excessive or otherwise wrong in principle".12 But where there is a departure from the orthodox approach to sentencing there is a greater vulnerability to error.[26] It transpires that in this case the end sentence was not manifestly excessive despite the unusual route by which the Judge reached that outcome.Starting points[27] The Judge adopted a starting point of eight months for the theft charges, uplifted by two months for previous dishonesty offending.[28] The respondent relied on two authorities of the High Court to demonstrate that the starting point was within range. In McMurtrie v Police Clifford J reduced a starting point from 12 months to six months in relation to six charges of shoplifting from supermarkets and a department store. One charge concerned a bottle of perfume; the other five, theft of groceries from supermarkets. Only one charge was for goods valued over $500.12 McMurtrie v New Zealand Police [2015] NZHC 1031 at [17].[29] In McKenzie v Police Brown J followed McMurtrie, adopting a six month starting point for four charges of shoplifting.13 All theft charges were for goods worth less than $500. Three charges arose from theft of groceries and one from theft of portable hard drives from Warehouse Stationary.[30] The appellant was subject to a greater number of charges than arose for sentencing in either McMurtrie or McKenzie and a greater proportion of the charges are in respect of goods valued over $500. It would have been available to the District Court Judge to take a starting point of six months for the spree alone. The fact that a starting point was fixed in respect of all 13 shoplifting offences, while unorthodox, has not of itself resulted in a manifestly excessive sentence.Totality[31] Next, it is said that the Judge did not stand back and assess totality to ensure that the combination of sentences was not manifestly excessive. In reliance on R v Nuku14 Mr Forster submitted that cumulative sentences should be adjusted on appealto avoid a "crushing effect on the appellant".[32] A crushing sentence is one that has the effect of depriving an offender of all hope thereby undermining prospects of rehabilitation.15[33] The appellant is 45 years old. As at November 2015 he appeared to have prospects for employment and rehabilitation.16 It has not been suggested that theappellant's commitment to rehabilitating himself nor his prospects of employmentare diminished, much less dashed, as a result of his most recent sentence. The sentence of nine months imprisonment is not crushing in the sense required in order for it to be regarded as manifestly excessive.[34] Finally I turn to the question of whether there was a proper assessment for totality. On 27 May 2014 the appellant was sentenced to three concurrent sentences13 McKenzie v Police [2015] NZHC 2742.14 R v Nuku [1969] NZLR 343.15 R v Johansen (1997) 15 CRNZ 111 (CA) (14 years on top of an extant 10 years); R v Bradley[1979] 2 NZLR 262 (CA) (16 years, reduced to 12).16 Letter from Alcohol and Drug Counsellor dated 4 November 2015.of imprisonment for offences dating back to 2013 and 2014.17 The District Court Judge acknowledged that had the May 2014 charges been dealt with at thesentencing on 27 May 2014 "the end result may have been less in totality".18Consequently the Judge made a further deduction of one month.[35] The sentencing seems to have followed a sentence indication "just" given.19The appellant was represented by counsel to whose comprehensive submissions the Judge attributed the further reduction of one month which he allowed to ensure thetotal period of imprisonment for earlier and current offending was not "unjust".[36] I am satisfied that in his approach the Judge was intending to, and did, give effect to the totality principle recognised in s 85 of the Sentencing Act 2002.Conclusion[37] The appellant's recent convictions augmented a substantial history of offending. The shoplifting in August 2014 took place virtually on the eve of theappellant's release on parole. The PAC assessed the appellant's risk of re-offending as high and his risk of harming others as moderate. The report writer recommended imprisonment with release conditions. To the extent there is capacity for rehabilitation there is no particular reason (beyond the fact of being sentenced to imprisonment in the first place) why the sentence should inhibit that capacity.[38] The sentence is not manifestly excessive in the circumstances. Nor is thereany other error justifying this Court's interference.Result[39] The appeal is dismissed._____________________________Karen Clark JSolicitors:Crown Solicitor, Palmerston North for Respondent17 Two sentences were for periods of 14 days and the third sentence was for a period of one month.18 At [12].19 At [1].