MEIKLE v NEW ZEALAND POLICE [2018] NZHC 2754

MEIKLE v NEW ZEALAND POLICE [2018] NZHC 2754 [24 October 2018]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2018-425-000023[2018] NZHC 2754BETWEEN MYLES WILLIAM BRIAN MEIKLEAppellantAND NEW ZEALAND POLICERespondentHearing: 23 October 2018Appearances: R G R Eagles for AppellantS N McKenzie for RespondentJudgment: 24 October 2018JUDGMENT OF DUNNINGHAMIntroduction[1] The appellant, Mr Meikle, was sentenced to 10 months' imprisonment on14 August 2018, having pleaded guilty to three charges of theft of a motor vehicle1and one charge of causing loss by deception.2 He now appeals his sentence sayingthe Judge made a reparation order that was too high, and made no allowance fortotality.Background[2] The events giving rise to these charges took place between June andSeptember 2017. On 28 August 2017, the police received a report that a Toyota Hiluxand a Suzuki motorcycle had gone missing from a farm in Lorneville. The farm was1 Crimes Act 1961, ss 219 and 223.2 Crimes Act 1961, ss 240(1)(d) and 241(a).owned by the parents of Mr Meikle's former partner, and who are the grandparents toMr Meikle's young son. After the vehicles went missing, the owners located apurchase receipt from Pacific Auto Repairs which showed that Mr Meikle had sold theHilux to that firm for $1,450.[3] Between 29 June and 5 September 2017, Mr Meikle also removed asecond Suzuki motorcycle and a Polaris four-wheel motorbike from the same farmwithout authority. The Suzuki was later sold to an associate through Facebook.[4] On 22 August 2017, Mr Meikle advertised the Polaris four-wheel motorbikeon Facebook. He entered into a conversation with a prospective buyer. The personwent to view the bike at Mr Meikle's address at Ryal Bush and was told that the Polariswas owned by Mr Meikle and that it was not stolen. Mr Meikle sold the motorbike tothat person for $800. Later, the purchaser realised that the motorcycle had a numberof issues and was not in running condition. He tried to return the bike throughFacebook but was told it was now his problem. The matter was referred to the police.[5] Mr Meikle was located by police at an address in Lorneville, at which timeaccess to his Facebook was granted voluntarily. The Police found a conversation onMr Meikle's Facebook account where he had attempted to sell three calves for $1,500.Mr Meikle arranged for the sale and was paid $1,500. The purchaser made severalunsuccessful attempts to collect the calves at the location Mr Meikle gave. The calveswere subsequently sold to a second purchaser who had also paid $1,500 through theinternet. The original purchaser did not have the $1,500 reimbursed and did notreceive any cattle as a result of the purchase.District Court decision[6] Judge Brandts-Giesen set a starting point of nine months' imprisonment for thethefts of vehicles and added three months for the deception in relation to the calves.[7] The Judge considered that he would be justified in uplifting that period bytwo months for similar offending in the past, but did not do so in the interests ofreturning Mr Meikle to the workforce (thereby enabling reparation to be paid). Heallowed a 10 per cent discount for the guilty plea, to reach a sentence of 10.8 months'imprisonment. Judge Brandts-Giesen treated Mr Meikle's stated remorse with adegree of scepticism but nevertheless also gave a credit for that of 0.8 months (thusreducing the sentence to 10 months).[8] That sentence of 10 months' imprisonment was imposed cumulatively on theexisting sentence of 18 months for drug related offending which Mr Meikle hadreceived and which the Judge described as being for offences which were quiteseparate in kind and against different victims.[9] The Judge ordered payment of reparations of $1,500 to the owner of the calves,and $4,300 to the owners of the vehicles.Principles on appeal[10] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 It is only appropriate for this Court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.4SubmissionsAppellant's submissions[11] Mr Eagles submitted that there was an error in the quantum of reparation. Thealleged loss as stated on the charging sheet was as follows:(a) Obtaining by deception - $1,500.(b) Four-wheel motorbike - $800.(c) Toyota Hilux - $1,450.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Ripia v R [2011] NZCA 101 at [15].(d) Two-wheel motorbike $500.[12] On the basis of these figures, the appellant submits that the total amountpayable in reparations should have been $4,300, instead of the $5,800 ordered.[13] In terms of the sentence, the appellant does not argue that an end sentence of10 months' imprisonment for this offending was excessive. However, Mr Eaglessubmits that the totality principle was not considered even though the appellant hadbeen sentenced on 15 May 2018 to 18 months' imprisonment for drug related chargeswhich occurred during the same period. Mr Eagles explained the offending wasrelated as the appellant needed money to support his drug habit.[14] In Mr Eagles' submission, the sentencing Judge made no allowance for totalityand the sentence imposed on 14 August should have been reduced by four months toreflect an appropriate sentence for the overall offending.Respondent's submissions[15] The respondent submits that while the totality principle was not expresslyarticulated, the application of the principle was impliedly taken into account, althoughthe part of the judgment relied on for that submission was not identified.[16] However, the respondent's primary submission was that the end sentence wasnot out of range. Despite the appellant having a lengthy criminal record, including21 various dishonesty convictions, he did not receive an uplift on sentence. While thesentencing Judge indicated an uplift of two months would be warranted, he expressedthe view that it was preferable not to have the appellant in prison for too long. Therespondent also said the 10 per cent discount applied for the appellant's remorse wasgenerous given it was in addition to the discount for a guilty plea which had only beenentered part way through the defended hearing.[17] When looked at in totality, the 10 month sentence to be served in addition tothe 18 month sentence for the drug offending was not manifestly excessive in light ofthe gravity of the offending, the generous discount for remorse and the lack of upliftfor prior similar offending.[18] The total reparation the appellant was ordered to pay was based on thereparation schedule provided to the District Court, and attached to the summary offacts. It stated the value of the Hilux was $3,000. While the value of the Hilux on thecharging document was stated to be $1,450, this was simply the amount the appellanthad on-sold the vehicle for. It is unsurprising that the appellant did not on-sell thevehicle for its true value and the appellant does not adduce any evidence that the Hiluxwas not worth the $3,000 stated on the reparation schedule. The respondent submitsthat the Judge was entitled to order the appellant to pay the amount recorded on thereparation schedule and if this figure was disputed, it should have been raised in theDistrict Court at sentencing.Discussion[19] I accept that the charging document is in error when it referred to $1,450 as thevalue of the Hilux rather than the amount it was on-sold for. However, that statementin the charging document was not an integral element of the offence and I consider noinjustice is done if the reparation schedule attached to the summary of facts, prevailsfor the purpose of awarding reparations. No evidence was adduced to suggest theschedule was in error in its attribution of value. Accordingly, I would not allow theappeal on this ground.[20] In terms of the totality principle, I accept it applies whether sentences areimposed cumulatively or concurrently and where that has the effect of lengthening theterm of a sentence or sentences of imprisonment to which the offender is alreadysubject. In R v Nuku the accused was sentenced by different Judges on the same dayfor offences committed several years apart.5 The Court of Appeal held that theappropriate sentence was one that would have been imposed by one Judge if all theoffences on which the appellant had been convicted were before the Judge at the sametime.[21] In the present case, the thefts occurred between 29 June and 5 September 2017,on 25 July 2017 and on 22 August 2017. The obtaining by deception happened on5 September 2017. The offending to which Mr Meikle had already been sentenced to5 R v Nuku [1969] NZLR 343.18 months' imprisonment included offering to sell cannabis on 1 and4 September 2017 and having possession of LSD on 2 September 2017. In terms ofdates, the events seem to be closely connected.[22] While the sentencing Judge described the offending as being for offences quiteseparate in kind and against different victims, I consider the pre-sentence reportsupports the conclusion that the two tranches of offending were related, with the drugaddiction prompting the dishonesty offending.[23] While the Judge clearly turned his mind to the considerations in s 84Sentencing Act 2002, as to whether a cumulative or concurrent sentence should beimposed, it is not clear that he turned his mind to issues of totality. As s 85(2) provides,"if cumulative sentences of imprisonment are imposed they must not result in atotal period of imprisonment wholly out of proportion to the gravity of the overalloffending".[24] Being left uncertain as to whether the totality principle was taken into account,I need to review the sentence imposed to decide whether the end sentence wasmanifestly unjust.[25] In this case, the sentencing Judge did not impose any uplift to reflectMr Meikle's prior offending and as he said, an uplift of two months to the 12 monthstarting point would have been justified. I consider the deliberate decision to limit theoverall sentence in an attempt to get Mr Meikle back into the workforce was an indirectapplication of the totality principle and I do not consider it would be appropriate togive him the benefit of this discount and a further discount for totality. In addition, Iaccept that the allowance of 10 per cent for a guilty plea part way through the hearingalong with the further reduction for remorse also compensated for not directly avertingto totality.[26] I consider any reduction for totality would be in the order of two tothree months, and has to be seen in the light of Mr Meikle receiving discounts whichwould not necessarily be afforded him in a fresh sentencing exercise. In my view,were the sentencing exercise to be conducted afresh, taking totality into account, theend sentence would still be at or near 10 months, to give an overall sentence of at, ornear, two years four months, which is the total length of sentence imposed.[27] As a consequence, I do not consider the sentence imposed is manifestly unjust.Conclusion[28] The appeal is dismissed.Solicitors:Eagles, Eagles and Redpath, InvercargillPreston Russell Law, Invercargill