BURRELL v NZ POLICE [2016] NZHC 2111

BURRELL v NZ POLICE [2016] NZHC 2111 [6 September 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI 2016-409-38[2016] NZHC 2111BETWEEN JEREMY BURRELLAppellantAND NEW ZEALAND POLICERespondentHearing: 6 September 2016Counsel: S Teki-Clark for AppellantK B Bell for RespondentJudgment: 6 September 2016JUDGMENT OF SIMON FRANCE J[1] Mr Burrell appeals a sentence of four months' home detention. He hadpleaded guilty to one charge of using a document for pecuniary advantage.1Facts[2] Mr Burrell was a mechanic who worked for a local firm. The firm was authorised to issue warrants of fitness for vehicles. Mr Burrell was certified to perform that task on its behalf.[3] For a two month period Mr Burrell, separate from his employer, carried out private warrant of fitness work. He was able to do so only because he misappropriated warrant of fitness certificates from his work. He issued these certificates to the vehicles, and then entered the details onto the New Zealand Transport Agency Authority website as if the work had been done under the auspices of his employer.1 NZ Police v Burrell [2016] NZDC 7025.[4] Mr Burrell did about 18 of these private certifications. He says he was paid for 10 of them. The total amount he received was no more than $500. Mr Burrell had stopped doing these private inspections and indeed had ceased work as a mechanic by the time the offending came to light.Personal circumstance[5] Mr Burrell has previous convictions for drink driving, and driving without a licence. He has previously been fined, and sentenced to community work. He is now 29 years old. The most immediately preceding driving offending was when he was 23 years old.[6] Mr Burrell has aspirations to be an elite cyclist and has achieved some level of success. It will not be possible for him to do the training necessary if the sentence of home detention stands.[7] Mr Burrell has lost his capacity to do warrant of fitness work, so that employment is gone for now should he have wished to return to it.Sentencing[8] The Judge's sentencing remarks emphasise the deceit involved in the offending, and the fact that it undermined the integrity of a system structured to ensure public safety. It was considered the recommended sentencing package of supervision, community work and a fine would constitute insufficient deterrence and denunciation.Appeal submissions[9] The respondent submits that no error was made, and it cannot be said the sentence was manifestly inadequate. The fact that an important safety system was compromised is emphasised. The conclusions of the District Court that there was a"chosen pattern of conduct" that involved "a gross breach of trust" are endorsed.[10] For the appellant it is said a less restrictive sentence could have achieved the sentencing purposes, and left Mr Burrell able to pursue his cycling endeavours. Concerning the work done, it is noted that all vehicles had been re-inspected and had been passed as fit. Although the conduct undermined the system, in actuality no risk was created.[11] Concerning Mr Burrell the following factors are noted:(a) he had voluntarily desisted before the activity was discovered;(b) the personal reward was minor;(c) there is no reason to believe harm has been done to his employer who is a victim;(d) there has been considerable publicity about the case. This publicity is itself a punishment;(e) he has been decertified as a person able to issue warrants of fitness, thereby closing the door on an occupation he trained for. (This would seem overstated. He can still be a mechanic.)Decision[12] The case and its attendant publicity have no doubt brought home to those in the industry the seriousness of the offending. A sentence of home detention may only be imposed if the Court considers imprisonment the otherwise correct sentence. The fact that this sentence was imposed here emphasises the disfavour with which such conduct will be viewed.[13] That said, I am satisfied a less restrictive sentence was available. There have been significant consequences already for Mr Burrell both in terms of future employment and negative publicity. The personal benefit was very much at the lower end and he voluntarily desisted well before his offending was discovered. It is not suggested he did the work other than to the correct standard.[14] I do not agree with the recommended sentence but consider a sentence of community detention sufficient deterrence in the present case. It will allow Mr Burrell to continue his studies towards a personal trainer/physical education type work, and continue his training. It will nevertheless represent a significant restraint on his liberty and will be accompanied by a sentence of community work. Mr Burrell has not previously been sentenced to something which restricts his liberty and it is the appropriate next step. He should be aware of the likely consequences of any future offending.[15] The adjustment in sentence in Mr Burrell's case should not be seen as lessening the message of deterrence. The original sentence shows the seriousness with which the conduct is viewed. The conduct is not just a case of moonlighting orusing the employer's name. It is regarded as potentially endangering public safety, and it undermines public confidence in the licensing system. Those who choose to engage in such conduct should now be aware of the possible consequences.Conclusion[16] The appeal is allowed. The sentence for four months home detention is quashed.[17] In its place I impose a sentence of four months community detention with the curfew to run each day from 7 pm to 5 am. The length of the sentence reflects the fact that Mr Johnson did some of his home detention sentence prior to it being suspended. The address is the same as the home detention address. The sentence is to commence on Friday, 9 September. The standard conditions apply. The existing sentence of 150 community hours remains. Otherwise the existing sentence is quashed._____________________________Simon France J