GEMMELL v DEPARTMENT OF CORRECTIONS [2018] NZHC 1918

GEMMELL v DEPARTMENT OF CORRECTIONS [2018] NZHC 1918 [31 July 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-000029[2018] NZHC 1918BETWEEN MYCHAL SEAMUS GEMMELLAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 31 July 2018Appearances: J Alchin-Boller for AppellantA Pell for RespondentJudgment: 31 July 2018ORAL JUDGMENT OF GORDON JSolicitors: Crown Solicitor, HamiltonGrantham Law, HamiltonIntroduction[1] Mr Gemmell appeals a sentence of seven months' imprisonment and an orderto pay $200, imposed by Judge PS Rollo in the Hamilton District Court on 7 June2018.1 The sentence arose from two charges of breaching a condition of parole andone charge of wilful damage. Mr Gemmell pleaded guilty to all three offences at anearly stage. The issue on appeal is whether that sentence is manifestly excessive.Background and facts of the offending[2] Mr Gemmell was released from prison on parole in June 2017. He had beenimprisoned for offences committed in August and September 2014. His offendingincluded a violent assault, and wilfully damaging the victim's cellphone. On release,the appellant was under a parole condition not to associate with the victim.[3] On 12 May 2018, Mr Gemmell confirmed to Police that the victim had beenpresent at his address. A verbal altercation had occurred. The appellant was sentencedto come up if called upon for a period of six months. This was the first charge forbreach of parole conditions.[4] On 7 June 2018, Mr Gemmell went to the victim's address. He wanted hisgang vest, which was in the victim's vehicle. She refused to give Mr Gemmell herkeys and locked herself in her house. He broke a car window and obtained his vestbefore leaving. This resulted in the second breach of parole conditions and wilfuldamage charges.Sentencing decision[5] Sentencing before the District Court took place in the absence of a pre-sentencereport at the request of Mr Gemmell. The Judge described the breaches of parole as aserious matter. He relied on several High Court decisions, from which he reasoned1 Police v Gemmell [2018] NZDC 11525.that a breach of parole conditions goes to the heart of rehabilitating offenders andprotecting the community.2[6] The Judge did not adopt discrete starting points for each offence but noted thathe had taken into account the early guilty pleas. On the wilful damage charge theJudge imposed a sentence of one month's imprisonment and reparation in the sum of$200 to be paid in $25 instalments on release. For the first breach of parole conditions,he sentenced Mr Gemmell to two months' imprisonment, and for the second breach ofparole conditions the Judge imposed a sentence of four months' imprisonment. Thethree sentences were imposed cumulatively, resulting in a final sentence of sevenmonths' imprisonment along with the reparation payment.Approach on appeal[7] Section 250(2) of the Criminal Procedure Act 2011 provides:(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.[8] In any other case, the court must dismiss the appeal.3[9] A sentence may be set aside where it is manifestly excessive.4 Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached.5 The Court will not intervene where the sentence iswithin range. But, if the Court determines the sentence is manifestly excessive, it willform its own view of the appropriate sentence.62 Jenkins v Department of Corrections [2014] NZHC 2895; Johnson v Department of CorrectionsHC Hamilton CRI-2009-419-93, 13 April 2010; and McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007.3 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].5 Kumar v R [2015] NZCA 460 at [81].6 Tutakangahau v R, above n 20, at [30].Arguments on the appeal[10] Ms Alchin-Boller submits that if it is accepted the Judge gave a full 25 per centguilty plea reduction, a starting point in the range of 9 to 10 months must have beenadopted. But she submits a lower starting point, in the region of six months'imprisonment, was warranted. With a 25 per cent reduction for guilty pleas, thatresults in an end sentence of four and a half months. Ms Alchin-Boller submits that asentence in that range reflects the totality principle in the Sentencing Act 2002, towhich the Judge did not expressly have regard.[11] For the respondent, Mr Pell submits the Judge properly viewed the offendingas serious and was correct to impose cumulative terms of imprisonment. He notes theJudge did not apply any discrete uplift for the appellant's five previous convictions forbreaches of supervision and community work orders. Mr Pell submits that havingregard to the aggravating factors in this case a starting point of around six to eightmonths' imprisonment was warranted for the parole breaches. Following an uplift forthe wilful damage and history of non-compliance, the sentence of seven months'imprisonment is in range.Discussion[12] It is not clear from the District Court judgment what starting point was adoptedfor each offence, nor whether a full guilty plea reduction was applied to each offence.I therefore consider it necessary to conduct the sentencing exercise afresh. As notedearlier, the Court is concerned with the end sentence, not the process employed toreach it.[13] The lead sentence is the second breach of parole conditions, whereMr Gemmell went to the victim's address. That offending is, in my view, more seriousthan two of the cases referred to by the Judge.7 In Jenkins v Department ofCorrections, Lang J adopted a five-month starting point on appeal, for an offenderwho had gone to Northland for two days in deliberate breach of parole.8 In Johnson v7 The Judge also had regard to McLean v Police HC Invercargill CRI-2007-425-34, 1 October 2007,but Mr Pell responsibly acknowledges that involved more serious offending than in this case.8 Jenkins v Department of Corrections [2014] NZHC 2895.Department of Corrections the appellant committed two breaches of parole by leavinghis address and failing to report to a probation officer.9 Allan J found the sentence of6 months' imprisonment was in range in light of the serious and deliberate breachesand because the appellant had previously breached those parole conditions. Both thosecases involved breaches of general conditions to appear.[14] In this case Mr Gemmell breached a condition intended to protect the victimof his earlier offending. That offending was serious. Mr Gemmell took the victim'scellphone, snapped it in half, and in front of her children he grabbed her and draggedher on the floor, stomped on her legs, dragged her to the hallway and punched herthree times to her head. Mr Gemmell then followed her into her bedroom and stabbedher twice in the leg with a screwdriver which resulted in two puncture wounds.[15] Although the conduct giving rise to the breach was of shorter duration than inthe two cases I have referred to, having regard to the interests of the victim in this casewhich the condition was designed to protect, I consider that the breach is more seriousthan the breaches in those earlier cases.[16] Mr Gemmell was on notice about the importance of that condition, having beensentenced to come up if called for the earlier breach. The second breach shows adisregard for the importance of the condition and the prior warning. I would thereforeadopt a starting point of six months imprisonment for that offence.[17] The first breach was comparatively less serious. It involved the victim goingto Mr Gemmell's property, rather than any intentional or deliberate conduct onMr Gemmell's part. I note also that at the time of the breach an order to come up ifcalled was considered appropriate, suggesting it was not deemed to be a serious breachat that time. I therefore consider an uplift of only one month is appropriate to reflectthe first breach.[18] I do not consider it necessary to impose a further uplift for the wilful damagecharge. When deciding whether to take a cumulative approach, a Judge may considerthe time the offences occurred, the overall nature of the offending and the relationship9 Johnson v Department of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010.between the offences.10 The wilful damage offence occurred at the same time as, andfor the same purpose of, the conduct underlying the second breach. I thereforeconsider that a sentence of imprisonment of one month should be imposed on thewilful damage charge, concurrently with the sentence for the second breach. I wouldnot disturb the Judge's order for reparation.[19] I therefore adopt a starting point of seven months' imprisonment.[20] Next, I turn to Mr Gemmell's personal circumstances. No mitigatingcircumstances have been identified. Mr Pell submits that the Judge could haveimposed an uplift for prior breaches of supervision and community work orders.Mr Gemmell breached a supervision order in 2007, he breached bail in 2012 and hasfour convictions for breaching community work orders between 2008 and 2014. Nofurther breaches have been recorded since that point, reflecting the fact thatMr Gemmell has been in prison. These breaches show a concerning disregard forcourt orders. Having regard to Jenkin, where Lang J imposed an uplift of two monthsfor an extensive criminal history, I consider an uplift of one month would beappropriate in this case.[21] That brings the sentence to eight months' imprisonment.[22] As both counsel accepted, a full 25 per cent reduction in sentence for the earlyguilty pleas is warranted in this case, resulting in a final sentence of six months'imprisonment.[23] I have reached the view that a lower sentence is appropriate in this case. I donot consider that interfering with the sentence imposed by the Judge would be "meretinkering", as the proposed reduction amounts to around 15 per cent of the sentence.1110 Sentencing Act 2002, s 84(3).11 It is frequently acknowledged by the Court of Appeal that small reductions in small sentences canbe appropriate and do not amount to unjustified interference with a lower court's discretion. See,for example, Helsby-Knight v R [2015] NZCA 315; Maihi v R [2013] NZCA 69; and Keown v R[2010] NZCA 492.Result[24] The appeal is allowed and the sentence of seven months' imprisonment isquashed. I impose a sentence of six months' imprisonment.___________________________________Gordon J