MARTIN v NEW ZEALAND POLICE [2016] NZHC 886

MARTIN v NEW ZEALAND POLICE [2016] NZHC 886 [5 May 2016]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCRI-2016-454-10[2016] NZHC 886BETWEEN SHANNON MARTINAppellantAND NEW ZEALAND POLICERespondentHearing (AVL): 3 May 2016Counsel: E J Forster for AppellantM J Blaschke for RespondentJudgment: 5 May 2016JUDGMENT OF WILLIAMS JIntroduction[1] On 28 August 2015, Mr Martin was sentenced by Judge Ross in the District Court at Palmerston North on 20 charges to a total of two years, one month and 21 days' imprisonment. He appeals against that sentence on the ground that there should have been a reduction for totality. This failure, it is argued, meant the sentence imposed was manifestly excessive.District Court decision[2] The Judge bundled the offending into groups either of type or common incident and sentenced on that basis as follows.[3] For the most serious charges arising from events of 15 February 2015 (unlawful taking of car, possession of shotgun, possession of ammunition, driving while forbidden, dangerous driving and burglary), the Judge took possession of the shotgun as the lead offence, with a starting point of 12 months. This was uplifted to 24 months for all other offending. Two months were added for the fact that theappellant was on sentence and on bail at the time. Twenty-five per cent was then deducted for the guilty plea. This resulted in a sentence of one year and seven months. This sentence was imposed for the possession of a firearm, with all other lesser sentences imposed concurrently.[4] The second set were loosely described by the Judge as Justice System breach charges. Mr Martin was convicted and discharged for two counts of breach of community work and breach of release conditions. For using a cellphone without permission at community work, and a related count of breach of release conditions, Mr Martin was sentenced to one month for each, concurrent inter se but cumulative on the rest of the sentence.[5] In relation to a dangerous driving incident on 15 October 2014 and counts related to that incident, the Judge imposed three months for the possession of utensils charge, and, concurrently, one month for possession of cannabis, one for refusing to undergo an impairment test, two for dangerous driving, and one for possession of a knife. The lead sentence of three months was cumulative on the rest of the sentence but all 15 October 2014 sentences were concurrent inter se.[6] For theft of a meal, the Judge imposed a further one month, and $40 reparation.[7] For making a false 111 call, a further one month.1[8] For having a cellphone as a prisoner, the Judge adopted a starting point of one month, which was reduced to 21 days for the guilty plea.1 Judge Ross does not specifically impose a one month sentence with respect to this charge in his Sentencing Remarks but in the record of hearing for the same date (28 August 2015), a onemonth sentence is recorded under the offence description "Use phone for fictitious purposes"CRN 15035000125. This short notation is then signed by the Judge. It seems that the fictitious emergency call sentence was mistakenly transposed into a cumulative breach of community work sentence of one month (15035000251) when that particular sentence, according to [13] of the Sentencing Remarks, should have been concurrent instead of cumulative. The overall effect of this mistake was to transpose the fictitious use to the breach of community work, but the result in total remains the same.[9] That brought the sentence to a total of two years, one month and 21 days. I set the final sentence calculations out in table form for ease of reference. I am grateful in this respect for Mr Forster's work, which I have essentially copied.Category Sentence Cumulative total1 15 February 2015 drivingincidentPossess weapon & ammunition= 12 monthsPlus burglary & unlawful takesmotor vehicle – 12 monthsPlus uplift for being on bail &on sentence = 2 monthsLess 25% = 7 months= 19 months or 1 year and7 months' imprisonment1 year 7 months2 "Justice System" breaches Convicted & discharged and1 month imprisonment1 year 8 months3 15 October 2014 drivingincident3 months' imprisonment 1 year 11 months4 False telephone call to 111 1 month imprisonment 2 years5 Lone Star theft 1 month imprisonment 2 years 1 month6 Fail to answer bail Convicted & discharged –7 Using a cellphone as aprisoner21 days (1 month less 25%discount)2 years 1 monthand 21 daysAppellant's submissions[10] Counsel submits that the usual approach to multiple sentencings is to determine a lead charge and uplift for the range of offending. It is submitted that determining sentences in categories and accumulating them is in error, because determining an end sentence by accumulating specific ones has been described as an error.[11] Counsel submits that the approach taken by the Judge required an assessment of totality in relation to the overall sentence. The Court of Appeal has used this approach because otherwise the aggregated effect of consecutive sentences would becrushing. Although each individual sentence is not submitted to be manifestly excessive, counsel submits that the combined effect of the sentences is.[12] Counsel submits that there therefore should have been a reduction for totality.Crown submissions[13] Counsel submits that the Judge's approach of grouping the offending andapplying cumulative sentences was correct, and that the end result was appropriate. Counsel notes particularly:(a) in relation to the 15 February offending, totality was taken into account in reaching a starting point of 24 months;(b) the sentence for possession of utensil and related charges was at the lower end of the scale, given that it involved distinct elements; and(c) in convicting and discharging Mr Martin for failure to answer bail, theJudge referred to the "whole of the circumstances".[14] Counsel submits that when there are distinct groups of offences involving unrelated offending, especially when they may have come before the Court at different times, the approach taken by the Judge is fair. It accommodates differences in the appropriate discount for guilty plea (depending, for example, on the timing of plea), and ensures that uplifts for previous offending are imposed only in relation to the sentence for that offending rather than more generally. Totality and discounts that are applicable to all charges can be considered separately, if appropriate.[15] Counsel submits that the offending had occurred while Mr Martin was either on sentence or on bail. He had a significant criminal history, including offending relevant to the present circumstances.[16] Counsel submits that although the Judge did not explicitly refer to the totality principle in his decision, this has not resulted in a manifestly excessive sentence, particularly when adjustments were actually made.Discussion[17] The general principle as to cumulative sentences is that they are appropriate where the offences are unrelated or comprise different forms of criminality. That isthe case here, and the Judge's approach was entirely orthodox.[18] As to totality, the appellant is correct that this should have been explicitly considered by the Judge. The overall sentence should reflect the offender's overallculpability in respect of the entire sentencing exercise.2 However, where the end sentence is not "wholly out of proportion to the gravity of the overall offending", noreduction is required.3 In short, any failure to consider totality must be material in the sense that it produced a manifestly excessive result.[19] In this case, it cannot be said that the Judge's failure to address totalityresulted in a manifestly excessive sentence.[20] Taking the lead offending, the 12 months starting point for possession of a shotgun pistol plus ammunition was easily justified as was the 12 months for burglary and unlawful taking of the motor vehicle. The uplift of two months for the fact that the appellant was subject to sentence-based release conditions and bail at the time was equally well within range. The full 25 per cent discount was given, making the end sentence of one year seven months well within range.[21] The 15 October 2014 driving incident involving being forbidden to drive, failure to stop, dangerous driving, possession of utensils and cannabis and a knife, together with a refusal to be tested easily justified a three month term even on an accumulating basis. A three month uplift on the lead offending already discussed would have been seen as unexceptionable. Similarly, the one month each for"Justice System" breaches, meal theft and a false 111 call were all proportionate on a cumulative basis.[22] Finally the imposition of a sentence of 21 days for using a cellphone in prison (one month subject to a 25 per cent discount) was proportionate in the context of the2 See s 85(2) and (3) of the Sentencing Act 2002.3 Ashcroft v R [2014] NZCA 551 at [32].wider offending. Thus, an end sentence of two years, one month and 21 days cannot, on any assessment, be considered manifestly excessive in respect of the number, breadth and seriousness of the offences in question as a whole.[23] If I have a slight disquiet, it is that Judge Ross did not consider providing guilty plea discounts for the October driving related offences and the earlier more minor counts. But the month or less discount that might have resulted would amount to no more than tinkering with the final sentence, and the authorities are clear that this is impermissible on appeal.[24] The appeal is dismissed accordingly.___________________________Williams JSolicitors:E J Forster, Barrister, HastingsBVA Law, Palmerston North