TAHJ OLDHAM v NEW ZEALAND POLICE [2017] NZHC 2602

TAHJ OLDHAM v NEW ZEALAND POLICE [2017] NZHC 2602 [25 October 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-238CRI-2017-404-239[2017] NZHC 2602BETWEEN TAHJ OLDHAMAppellantAND NEW ZEALAND POLICERespondentHearing: 9 October 2017Appearances: S Brickell for the AppellantK E Tuialii for the RespondentJudgment: 25 October 2017JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 25 October 2017 at 11.30 am pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarCounsel/Solicitors:Public Defence Service, AucklandKayes Fletcher Walker, ManukauIntroduction[1] On 7 April 2017, Mr Oldham was sentenced by Judge Jonathan Moses in theAuckland District Court to 4 years and 4 months' imprisonment after pleading guiltyto 10 charges of receiving stolen property, assault with intent to injure, unlawful entry into a motor vehicle and breach of release conditions. The sentences imposed on those charges were:(a) Receiving (six counts, lead charge): 3 years, 6 months' imprisonment;(b) Receiving: 8 months' imprisonment (concurrent);(c) Assault with intent to injure: 8 months' imprisonment (cumulative);(d) Unlawfully getting into motor vehicle: 8 months' imprisonment(concurrent);(e) Breach of release conditions: conviction and discharge.[2] Having decided those sentences, the District Court Judge then imposed aminimum period of imprisonment of two years and six months' imprisonment.Facts[3] I adopt the summary of the offending outlined in the Judge's sentencingnotes:1[1] Mr Oldham, you are for sentence on a large number of charges before me today. You have been charged and have pleaded guilty to receiving a number of expensive motor vehicles between 10 and 13 October last year [2016].[2] A commercial premises was broken into in Penrose which stored recently imported motor vehicles, it was broken into at some stage between 8 and 10 October by cutting a large hole in a chain-linked fence. Persons entered into the office area and obtained keys to between 30 and 40 vehicles and they were taken. You received a number of vehicles from persons unknown, they included a Porsche motor vehicle valued at $50,000, a Land Rover valued at $50,000, two Mercedes Benz motor vehicles each valued at1 Police v Oldham [2017] NZDC 7639.$60,000, an Audi valued at $40,000, there is also a Maserati motor vehicle valued at $180,000. That meant you were in receipt of some $440,000 worth of stolen motor vehicles.[3] Subsequently on 20 November last year you were at home with your then partner, an argument erupted between the two of you and you then grabbed her, forced her on the floor of the bedroom, you punched her a number of times while she lay on the floor and used your hands to cover her mouth to stop her from screaming. You then walked out of the house taking her car keys, she followed you and was kicked in the right shin area, shewent to a neighbour's house to get help. She returned to see you in hermotor vehicle, she ran towards it and managed to turn the vehicle engine off. You then walked back inside the house and once inside when the victim returned you grabbed her hair, pulled her to the floor, banged her headagainst the floor several times yelling at her, "Are you going to call thecops? Snitches get stitches." You then went outside with the vehicle keys.[4] Then on 29 November you again received a stolen BMW motor vehicle and were subsequently arrested.[5] There is also a charge of breaching prison release conditions.Grounds of appeal[4] There were two grounds of appeal, namely that:(a) The length of the minimum period of imprisonment imposed was unlawful having regard to ss 86(1) and 86 (4) of the Sentencing Act 2002; and(b) The Judge erred in imposing a minimum period of imprisonment.Approach on appeal[5] For a first appeal against conviction, s 250 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 on conviction; and(b) a different sentence should be imposed.[6] The appellant must show an error — the application of an incorrect principle, insufficient or excess weight being given to a factor, or that the Judge was plainly wrong.2DiscussionWas imposition of the minimum period of imprisonment wrong in law?Section 86 of the Sentencing Act 2002 provides:86 Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—(a) two-thirds of the full term of the sentence; or(b) 10 years.[7] Mr Brickell, counsel for Mr Oldham, submitted that s 86(1) provides that any minimum period of imprisonment must be in relation "to that particular sentence"and cannot be set by reference to a cumulative sentence. This was confirmed by the Court of Appeal in R v Kite3 and more recently in C v R (CA100/16).4 Section 86(4) specifies that the minimum period of imprisonment must not exceed two-thirds of the full term of the sentence or 10 years, whichever is the lesser. The Judge imposeda term of imprisonment of 3 years, 6 months' imprisonment on the receiving charge.Two-thirds of 3 years, 6 months' imprisonment is 2 years and 4 months. Therefore,2 James v R [2010] NZCA 206.3 R v Kite [2007] NZCA 385 at [12].4 C v R (CA100/16) [2017] NZCA 58 at [24].the minimum period of imprisonment set by the Judge of 2 years and 6 months'imprisonment exceeded by 2 months the maximum permitted under s 86(4).[8] Ms Tuialii for the Police properly acknowledged that the minimum period imposed by the Judge exceeded the two-thirds statutory maximum.[9] The Judge erred when he set a minimum period of imprisonment that exceeded the statutory maximum. Accordingly, I quash the minimum period imposed.[10] The second question now is whether it was appropriate to impose any minimum period of imprisonment on Mr Oldham — a question I must consider afresh but also having regard to the decision of the District Court Judge that a minimum period of imprisonment was appropriate.Should a minimum period of imprisonment be imposed?[11] Section 86(2) of the Sentencing Act 2002 provides:(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:(a) holding the offender accountable for the harm done to the victim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing the same or a similar offence:(d) protecting the community from the offender.[12] After deciding on the periods of imprisonment for the various charges to which Mr Oldham had pleaded guilty, the Judge considered whether to impose a minimum period of imprisonment in the following terms:[15] It then remains for me to consider whether a minimum period of imprisonment is appropriate. When I consider your history both in terms of property and violent offences and when I consider the sophistication and commercial nature of the receiving offences and I consider the pre-sentence report where you are assessed as having a high likelihood of furtheroffending and a medium to high risk of harm to others in my view that leads to an unavoidable conclusion that a minimum non-parole period is required to hold you accountable for the harm you have done, to denounce your conduct and to deter others from embarking on professional involvement of burglary and/or receiving and in terms of the violent offences you have carried out and I intend to impose a minimum non-parole period for two years and six months.[13] It is apparent that in deciding whether a minimum period of imprisonment was appropriate, the Judge had specific regard the factors of accountability, denunciation and deterrence identified in paragraphs (a)–(c) of s 86(2). However, it is also apparent that, in addressing the threshold question of whether to impose a minimum period of imprisonment, the Judge had regard to Mr Oldham's previous offending ("both in terms of property and violent offences") and the sophisticationand commercial nature of the receiving offences, as well as the likelihood of Mr Oldham re-offending and his risk of doing harm to others.[14] Mr Brickell for Mr Oldham contended that the Judge erred by having regardto Mr Oldham's previous convictions for violence offences — when the minimum period of imprisonment related only to the receiving or dishonesty offences. He saidMr Oldham's previous convictions for dishonesty-related offending — on 18 counts of burglary — had occurred within a short period in late 2009 when Mr Oldham was only 19 years old and should not be taken into account when setting a minimum period of imprisonment for the receiving offences committed in 2016. He also saidit was not apparent that the Judge had taken into account Mr Oldham's remorse andhis efforts at rehabilitation.[15] Ms Tuialii for the Police contended that, despite the error in imposing a minimum period of incorrect length, the Judge did not otherwise err when deciding that a minimum period of imprisonment was warranted. She said the Court was not confined to the circumstances of the index offending alone and referred to Tereora v R,5 where serious offending over a 10-day period provided the context for the offending narrative and it was held that the cumulative effect of the three offences committed justified the imposition of a minimum period of imprisonment.5 Tereora v R [2015] NZCA 120.[16] As confirmed by the Court of Appeal in R v Gordon,6 the approach to the interpretation of s 86 has changed since the policy and purpose of s 86 were discussed in R v Brown.7 The Court in Gordon said:8[15] The legislative purpose underpinning s 86 was extensively discussed by this Court in Brown. The effect of the section is to enable sentencing Judged to over-ride those provisions in the Parole Act 2002 requiring that all offenders be eligible for parole after serving one-third of the sentence imposed; where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, the Court may confer a degree of reality on the sentence and the overall outcome by imposing a minimum period of imprisonment.[16] As originally enacted, s 86 permitted the imposition of a minimumterm where the offence was "sufficiently serious", that is, where thecircumstances of the offending took the case out of the ordinary range of offending of the particular kind. But under s 86 as it now stands, a minimum period of imprisonment may be imposed even where the case does not disclose any unusual or abnormal features for offending of the kind in question, although such features may well remain relevant to the overall assessment required under s 86(2): R v Wirangi [2007] NZCA 25.[17] On the question of whether previous offending can be taken into account when considering whether to impose a minimum period of imprisonment, the Court of Appeal in R v Nguyen held:9[33] In determining whether an order should be made under s 86, the Court must focus on the four specified purposes in s 86(2). Both the principles in s 8 and the aggravating and mitigating factors in s 9 are applicable to the extent they are relevant to one or more of the four purposes:R v Walsh (2005) 21 CRNZ 946 at 951 (CA). [18] Section 9(1)(j) of the Sentencing Act 2002 provides:9 Aggravating and mitigating factors(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent they are applicable in the case:(j) the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions6 R v Gordon [2009] NZCA 145.7 R v Brown [2002] 3 NZLR 670 (CA).8 R v Gordon [2009] NZCA 145.9 R v Nguyen [2009] NZCA 239.for which the offender is being sentenced or otherwise dealt with at the same time[19] It follows that all previous offending, as well as the offending for which Mr Oldham was being sentenced at the same time as the receiving charges, can be taken into account when deciding whether to impose a minimum period of imprisonment, provided the offending is relevant to that question.[20] On the issue of relevance, I accept Mr Brickell's submission thatMr Oldham's convictions for the spate of burglaries that took place in 2009, someeight years earlier and in rather different circumstances, are not especially relevant to the receiving offences which, as the Judge noted, were sophisticated and commercial in nature. I consider the District Court Judge over-emphasised that aspect of Mr Oldham's previous offending in his consideration of whether to impose aminimum period of imprisonment.[21] However, given that Mr Oldham was being sentenced on a violence-related charge, namely assault with intent to injure, at the same time as he was being sentenced on the receiving charge, I consider the Court could properly take intoaccount both the conviction on that charge and Mr Oldham's recent convictions forviolence-related offences when deciding whether to impose a minimum period of imprisonment. The fact that these charges were of a different nature from the dishonesty offences did not exclude them from consideration, given the terms of s 9(1)(f) and bearing in mind the observations of the Court of Appeal in Tereora v Rthat it is permissible to look beyond the index offending when considering whether to impose a minimum period of imprisonment under s 86:10We are satisfied that it is consistent with the terms of s 86 for our analysis to extend beyond the particular circumstances of the index offending. In particular, we note that subs (2)(b), (c) and (d) are not necessarily focused only on the index offending. Rather, they entitle the sentencing court to denounce, deter and protect in the context of the whole offending narrative.[22] The offending narrative in the present case included the charges of receiving and assault with intent to injure. That is, it included:10 R v Tereora [2015] NZCA 120 at [52].(a) Mr Oldham's involvement in a large-scale commercial burglary operation. While, as Mr Brickell observed, there was no evidence of Mr Oldham's precise role in the operation, it is clear that he hadconsiderable involvement in receiving the stolen goods — he received 7 of the 30–40 vehicles taken in the course of this operation, which is a significant proportion. Further, the value of this offending exceeded $440,000.(b) Mr Oldham's assault on his partner who, as the pre-sentence reportnoted, "has been a victim in Mr Oldham's past offending andrehabilitative programmes have not mitigated his risk of re-offendingto date."(c) The high risk of further offending and the medium-to-high risk of harm to others also identified in the pre-sentence report and specifically noted by the Judge.[23] These elements, combined with Mr Oldham's previous convictions forviolent offending (assault with intent to injure (1); injuring with intent to injure (1); male assaults female (4)), could well lead to the conclusion that the offending was sufficiently serious that release after one-third of the sentence (in Mr Oldham's, case16 months) would constitute an insufficient response in the eyes of the community, having regard to the considerations of accountability, denunciation, and deterrence ins 86(2). Such an assessment is implicit in the Judge's comments in paragraph [15] ofthe sentencing judgment, even if it was not articulated.11[24] However, one significant difficulty is that, when considering and setting the minimum period of imprisonment, the Judge made no reference to aspects of Mr Oldham's offending that set it apart from other offending of a similar type. Nordid the Judge have regard to minimum sentences imposed in similar circumstances.[25] While the Court of Appeal in Gordon established that it is no longer necessary to identify circumstances of the offending that take the case out of the11 See [15] of the sentencing judgment at [12] above.ordinary range of offending of the particular kind before imposing a minimum period of imprisonment, and that a minimum period of imprisonment may be imposed even where the case does not disclose any unusual or abnormal features for offending of the kind in question, it added the important rider that any minimum period of imprisonment must take into account s 8(e) of the Sentencing Act 2002:12[17] A sentencing Judge has a discretion as to whether or not to impose a minimum period of imprisonment, and as to the assessment of an appropriate minimum period if imposed. But in doing so, he or she must have regard to s 8(e) of the Sentencing Act 2002, which requires the Court to take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.[26] In the present case, the Judge had regard to sentences imposed in other serious and less serious cases of receiving for the starting point for Mr Oldham'ssentence. Indeed, the Judge chose a starting point in the sentencing range for less serious receiving offences than that committed by Mr Oldham, and at the lower end of that range. But it is not apparent that the Judge undertook a similar analysis when considering the imposition of a minimum period of imprisonment. There was no discussion or citation of decisions on minimum periods of imprisonment imposed in similar circumstances. Nor did the Judge give any reasons for setting a minimum period at the maximum end — indeed beyond the maximum end — of the permitted statutory range.[27] I agree with the Judge, for the reasons he gave, that a minimum period of imprisonment was appropriate in this case having regard to the statutory considerations of accountability, denunciation and deterrence. However, in the absence of corroborating information about minimum periods of imprisonment imposed in similar cases, I do not consider it was appropriate to set a minimum period of imprisonment at or close to the statutory maximum of two-thirds of the sentence on the lead charge.[28] The mid-point in the permitted range is 21 months' imprisonment or one yearand nine months. I consider that is the appropriate place starting point for setting a minimum period of imprisonment in the circumstances of this case where a12 R v Gordon [2009] NZCA 145 at [17].minimum period is appropriate but there is an absence of comparative information. I also take into account the point made by Mr Brickell, and acknowledged by Ms Tuialii, that when setting the minimum period, some account should be taken of the remorse expressed by Mr Oldham and his efforts at rehabilitation. However, I also note the questions raised in the pre-sentence report about the sincerity of Mr Oldham's expressions of remorse considering his attitude in the pre-sentence interview towards the victim of his offending. Weighing these matters in the balance, I reduce the minimum period of imprisonment by a further month.Decision[29] I allow the appeal. The minimum period of imprisonment directed by the District Court is quashed and a minimum period of imprisonment of one year andeight months' imprisonment is substituted. The rest of the sentence stands.______________van Bohemen J