CASSIDY v POLICE [2017] NZHC 3079

CASSIDY v POLICE [2017] NZHC 3079 [12 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-392CRI-2017-404-393[2017] NZHC 3079BETWEEN KAHU CASSIDYAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2017Counsel: A M M Ives for AppellantD S Houghton for RespondentJudgment: 12 December 2017JUDGMENT OF BREWER JThis judgment was delivered by me on 12 December 2017 at 11:30 ampursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Annabel Ives (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] Mr Cassidy appeals the sentence of 20 months' imprisonment handed downagainst him on 6 September 2017 by Judge J Jelas.1 The submission made on behalfof Mr Cassidy is that this sentence is manifestly excessive when the totality of hisoffending is appreciated.[2] Mr Cassidy is a prolific offender. His criminal and traffic history amounts to11 pages. Mr Cassidy is 31 years old. When he came before Judge Jelas forsentencing, her Honour noted it was relevant that the offending for which he was tobe sentenced occurred only weeks into a sentence of 18 months' supervision imposedon him on 1 February 2017. All of the offending was committed while he was subjectto that sentence.Background[3] The charges fell into three categories. The first related to the theft of a walletwhich contained an eftpos card. Mr Cassidy used the eftpos card 19 times andobtained cash and goods to the total of $6,020. There was no prospect of reparation.[4] The second involved breaches of protection orders. On 30 July 2017, in breachof the protection order, Mr Cassidy went to the protected person's address. Theybegan to argue and Mr Cassidy hurled abuse at the victim and continuously called herobscene names. He was asked to leave the address but refused to do so, eventuallyfalling asleep on a couch. When he woke, he again began yelling at the victim andagain refused to leave. Some hours later the victim decided to telephone the Policeand, while on the phone to the Police, Mr Cassidy grabbed the cellphone from her andbroke it in half.[5] The third category is represented by a single charge of breach of communitywork. Mr Cassidy had accumulated 290 hours of community work, of which he had1 Police v Cassidy [2017] NZDC 20015.performed 53 hours. The Department of Corrections asked for the outstanding amountof community work to be cancelled, and this was done by Judge Jelas.Appeal[6] The Judge structured her sentence in this way:• Theft of the wallet and use of the eftpos card – 16 months.• Breaches of protection order – four months.• Breach of community work – three months.• Uplift for previous convictions – two months.• Credit for guilty pleas – five months (20%).[7] Ms Ives, in careful submissions, submits that Judge Jelas made a number oferrors in reaching her overall starting point of 23 months' imprisonment, and the endpoint of 20 months' imprisonment.[8] The Judge decided that the leading charges should be the theft of the walletand then using the eftpos card. On those charges, the Judge adopted a starting pointof 16 months' imprisonment. Ms Ives submits that the Judge wrongly placed relianceon Wright v Police.2 Ms Ives submits that while the offending in Wright may havebeen fraud of a similar value, the offending itself was considerably more seriousbecause it involved a breach of trust in an employment relationship. The charges weretheft by a person in a special relationship and the offending appears to have beenpremeditated and sophisticated, occurring over a period of some 10 months.Furthermore, the 15 months starting point adopted in Wright incorporated an uplift forrelevant previous convictions.2 Wright v Police [2015] NZHC 3016.[9] I agree that a 16 months starting point is stern. While I accept that theoffending in Wright is more serious than Mr Cassidy's offending, I note that JudgeJelas's starting point is not just for the 19 uses of the eftpos card but also for the theftof the wallet. That occurred in a context where Mr Cassidy had befriended the victimat a bar, offered him a ride home and stole the wallet en route. I also take account ofthe Crown's submission that there is no tariff case here and, having regard to casessuch as Costello v R3 and Colman v Police,4 the 16 months starting point, althoughstern, cannot be said to be out of range.[10] In my view, a starting point of 14 to 16 months was available to the sentencingJudge.[11] Ms Ives also criticises the uplift of four months' imprisonment imposed by theJudge for the breaches of the protection order. Her submission is that if these chargeshad been the only charges for which Mr Cassidy had been sentenced, then a non-custodial outcome would have been appropriate. This is because Mr Cassidy has nohistory of breaching protection orders and has no convictions for being violent towardsthe protected person.[12] First, I note that the maximum sentence for breach of a protection order is threeyears' imprisonment. My examination of the caselaw leads me to conclude thatsentencing outcomes are very fact-dependent, but multiple breaches unsurprisinglyattract the higher sentences. Ms Ives might well be correct that standalone charges inthis case would not have been met by a sentence of imprisonment. But, becauseimprisonment was inevitable on the lead charges, the breaches had to attract an upliftto the starting point. Ms Ives submits that two months' imprisonment would beappropriate, and I agree that had the Judge imposed that uplift then it would be withinrange. My view is that four months was stern but, given the facts as I have outlinedthem, the breaches were not technical or trivial and I am not prepared to say that anuplift of four months was out of range.3 Costello v R [2015] NZCA 512.4 Colman v Police [2014] NZHC 3215.[13] Finally, Ms Ives criticises the uplift of three months for breach of communitywork as being excessive because it is the maximum sentence for the offence. Theoffence cannot be said to be the worst of its kind and Ms Ives puts emphasis onMr Cassidy having performed 53 hours of his outstanding period. I agree. An upliftof two months was appropriate.[14] Ms Ives does not criticise the Judge's uplift of two months for Mr Cassidy'sprevious record of offending.[15] Ms Ives submits that a greater than 20 per cent discount for pleas of guiltycould have been given.Decision[16] As Ms Ives recognises, on an appeal against sentence the appellate Judge's taskis to decide whether the sentencing Judge made an error such that a different sentenceshould be imposed. It is the end sentence that must be looked at, against the totalityof offending, to see whether it is inside or outside of the range available to thesentencing Judge. It is open for defence counsel to criticise individual components ofthe sentence and, if accepted, the overall effect of the errors identified might well takethe end sentence imposed out of the range available to the sentencing Judge.[17] In this case, I assess the totality of Mr Cassidy's offending in narrative form asfollows:Mr Cassidy, a recidivist offender, was sentenced to a term of 18 months'intensive supervision with community work. Within a very short period oftime he began offending again. He was, of course, still subject to the terms ofhis previous sentence. The offending was in different categories.First, he befriended a victim, stole his wallet, and obtained a benefit of $6,020which he cannot possibly repay. In a different category of offending, hebreached a protection order twice in relatively serious circumstances. He wentto the home of the protected person, argued with her heatedly, twice refusedto leave and broke her cellphone when she was telephoning the Police toprevent her from continuing contact with the Police. Finally, in the thirdcategory, he has been non-compliant with his sentence of community work.He has had cancelled 237 hours of community work.[18] I accept Ms Ives's criticisms to the extent that I have indicated. Against thenarrative I have just given, I cannot say that a sentence of 20 months' imprisonment ismanifestly excessive. I take into account that the uplift of two months given by theJudge to mark Mr Cassidy's previous criminal record was very light. An uplift of fourmonths' imprisonment would have been well within range. Further, the Judge did notgive an uplift for the fact that this offending was committed while Mr Cassidy wassubject to his sentence of intensive supervision. A further uplift of two to three monthswas called for.[19] Bearing in mind that a sentence is always a point on a range, I cannot say,overall, that the sentence was manifestly excessive.[20] The appeal is dismissed.________________________________Brewer J