ASRES v POLICE [2019] NZHC 2760

ASRES v POLICE [2019] NZHC 2760 [29 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-441[2019] NZHC 2760BETWEEN MENASEA ASRESAppellantAND NEW ZEALAND POLICERespondentHearing: 29 October 2019Appearances: G Burns for the AppellantJ Kang for the RespondentJudgment: 29 October 2019ORAL JUDGMENT OF GAULT JSolicitors:Mr G Burns, Barrister, AucklandMr J Kang, Meredith Connell, Office of the Crown Solicitor, Auckland[1] The appellant was sentenced to nine months' imprisonment on 23 September2019 by Judge R G Ronayne in the Auckland District Court after pleading to variousdishonesty related offences.1[2] He appeals his sentence on the basis the Judge double counted a factor leadingto a manifestly excessive sentence. Mr Burns, for the appellant, submits the sentenceshould have been six to seven months' imprisonment. The Crown submits the sentencewas very much within the available range.Facts[3] On 21 January 2019 the appellant came into possession of a stolen debit cardand used it to purchase goods totalling $211.10. This founded the following charges:(a) receiving (under $500);2 and(b) dishonestly using a document.3[4] On 16 June 2019 the appellant stole two laptops from a study lab at UnitecUniversity, valued in total at $2,600. This founds two charges of theft (over $1,000).4[5] On 4 July 2019 the appellant met an acquaintance, borrowed his phone, leftand did not return it, founding a charge of theft ($500 to $1,000).5[6] On 26 June 2019 the appellant failed to report to Community Corrections, asrequired by a previous sentence of intensive supervision, founding a charge ofbreaches condition of intensive supervision.61 Police v Asres [2019] NZDC 18958.2 Sections 246(1) and 247(c) of the Crimes Act 1961, carrying a maximum penalty of three months'imprisonment.3 Section 228(1)(b), carrying a maximum penalty of seven years' imprisonment.4 Sections 219 and 223(b), carrying a maximum penalty of seven years' months' imprisonment.5 Sections 219 and 223(c), carrying a maximum penalty of three months' imprisonment.6 Section 70A(a) of the Sentencing Act 2002, carrying a maximum penalty of six months'imprisonment or a fine not exceeding $1,500.District Court decision[7] Judge Ronayne began by noting the appellant's recent history of petty crime.The Judge said that sentences of supervision and intensive supervision had not workedin the past.[8] The Judge took a starting point of nine months' imprisonment for the threetheft charges, added three months for the January dishonest use of a document andreceiving charges, then added another three months for the breach of intensivesupervision and bail breaches, coming to 15 months, but then deducted two monthsfor totality.[9] In terms of personal factors, the Judge uplifted by two months for theappellant's history. The Judge declined to give a discount for youth (the appellant is22), but did give two months for remorse, coming down to 13 months. The Judge thengave a 25 per cent discount for a guilty plea, being three months, and a further monthfor prospects of rehabilitation. This came to a final sentence of nine months'imprisonment.Approach on appeal[10] To succeed on an appeal against sentence, the appellant must satisfy the appealcourt that there has been an error in the imposition of the sentence and that a differentsentence should be imposed.7[11] The court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles. The court will onlyintervene and substitute its own view if the sentence is manifestly excessive or wrongin principle.8 The appeal court's focus is on the final sentence imposed rather than itscomponent parts or how the ultimate sentence was reached.97 Criminal Procedure Act 2001, ss 250(2) and (3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].Submissions[12] The ground of appeal is that the Judge double counted by uplifting the sentenceby three months for the January dishonesty charges, and then again for previousconvictions.[13] This requires explanation. The appellant committed a number of otheroffences in late 2018 to January 2019 and was sentenced for those on 25 May 2019 tointensive supervision of one year. The further January offending, which was thesubject of the sentence under appeal, only came to light after he had already beensentenced in May. Mr Burns submits that, had the offending been known as at 25 May,the offending would have been incorporated into that sentence of intensivesupervision. Mr Burns submits, then, that when the Judge applied a further uplift forprevious criminal history, this is in effect double counting.[14] Putting it more generally, Mr Burns submits the overall sentence wasmanifestly excessive. He cited authorities for comparative purposes.[15] The Crown submits that the sentence overall was relatively light. Mr Kang hasreferred me to Lang J's decision in Henriksen v R, where he upheld a starting point of12 months' imprisonment where the offender had stolen two tractors, valued at$1,600.10 The goods were recovered. The Crown submits the present offending ismore serious than in Henriksen, given the value of the goods and that they have notbeen recovered, so the sentence is overall in range.Discussion[16] I do not consider the appeal can succeed. This is for two reasons.[17] First, and primarily, I agree with the Crown that the sentence overall is in rangefor this offending. I say that notwithstanding the cases referred to by Mr Burns,including the case of Henry involving the same nine month sentence for offending ofgreater financial value but involving commercial premises.11 Here, the victim impact10 Henriksen v R [2015] NZHC 2572.11 Henry v Police [2016] NZHC 800; Samuels v Police [2019] NZHC 694.was not solely financial. As I have said, the appeal court's focus is on the finalsentence, rather than how that sentence was reached.[18] Secondly, I do not consider the Judge double counted. It is not clear whether,if the January offending had come to light earlier, the sentence imposed on theappellant in May would have been the same. The exercise becomes extremelyhypothetical. I do not consider the uplift of three months was excessive for theoffending. Even if the offending would have attracted a less harsh penalty if it cameto light earlier, the appellant is unfortunately the author of his own misfortune. Hecould have admitted to the offending earlier. I also do not consider that the uplift forprevious convictions was excessive. The uplift did not take account of the Januarydishonesty offending, as that did not form a part of the appellant's criminal history. Ido not consider, therefore, there was double counting.Conclusion[19] The appeal is dismissed.________________________________Gault J