HENRY v NEW ZEALAND POLICE [2021] NZHC 573

HENRY v NEW ZEALAND POLICE [2021] NZHC 573 [19 March 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000031[2021] NZHC 573BETWEEN VALINTINE JAMES HENRYAppellantAND NEW ZEALAND POLICERespondentHearing: 16 March 2021Appearances: N N Mani and R E V Slade for AppellantD A McGivern for RespondentJudgment: 19 March 2021JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 19 March 2021 at 3.30 pmRegistrar/Deputy RegistrarDate:Solicitors:Meredith Connell, AucklandPublic Defence Service, AucklandIntroduction[1] The appellant, Valintine Henry, was sentenced to 20 months' imprisonment byJudge Collins in the Auckland District Court on 22 January 2021.1 Mr Henry hadpleaded guilty to two charges of dishonestly using a document and to one charge ofreceiving.[2] Mr Henry now appeals his sentence. He says that the Judge did not give himcredit for remorse, that as a result the sentence is manifestly excessive and that theJudge failed to impose the least restrictive sentence available. The Crown supportsthe sentence, submitting that it is within the available range given Mr Henry'soffending and his culpability.Background factsDishonestly using a document – first charge[3] On 29 November 2019, HL parked his vehicle on Cliff Road in St Heliers.There was a passenger in the vehicle, SG. They left the vehicle, leaving some of theirbelongings in it. When they returned to the vehicle a short time later, they found thatthe front passenger's window had been smashed and that SG's handbag and itscontents, valued at approximately $450, had been stolen. One of the items that hadbeen in the handbag was an ASB credit card. Mr Henry used that credit card at aservice station in Glen Innes later in the day to purchase two items with a combinedvalue of $111.50.Dishonestly using a document – second charge[4] On 30 August 2020, RB was in her vehicle in Ronaki Road, Mission Bay. Hersister, JM, was with her. They left the vehicle after locking it. JM's satchel was onthe back seat of the vehicle. It contained an iPhone and a debit card issued by a Britishbank. The combined value of the items was approximately $1,400. When theyreturned to the vehicle approximately half an hour later, they discovered that the leftrear window of the vehicle had been smashed and that the satchel was missing. Later1 Police v Henry [2021] NZDC 968. (The judgment erroneously records that the sentencingproceeded on 22 January 2020).on the same day, Mr Henry was captured on CCTV at a service station in St HeliersBay Road using the stolen debit card to purchase items to the value of $77.50.The receiving charge[5] On 18 September 2020, an employee of a construction company was using asurveying camera mounted on a tripod in Mechanics Bay, Tamaki Drive. Atapproximately 4.25 pm, a Toyota vehicle drove past the site. The driver of the vehicle– a male – was seen looking towards the area where the surveying camera was beingused. About three minutes later, the vehicle headed back in the opposite direction. Itstopped briefly. A female got out of the vehicle, picked up the camera and tripod andplaced them in the rear of the vehicle. The vehicle then sped off. Two days later,Mr Henry went to a Cash Converters store in Glen Innes. He was in possession of thesurveying camera and tripod. He pawned the items to Cash Converters for $200. Thecamera was valued at $60,400.Sentence indication[6] Mr Henry sought a sentence indication.2 The Judge, in giving the indication,adopted a starting point for all three charges of 20 months' imprisonment and upliftedthis by six months to recognise Mr Henry's criminal history. He indicated that he wasprepared to allow a 20 per cent discount if guilty pleas were entered, and noted thatthere might be other discounts available depending on the reports obtained. The Judgerecorded as follows:No Judge favours sending people to prison. If there if is a genuine and realisticoption to that, that is what I would favour but I am not promising it, it woulddepend upon the reports.[7] The sentence indication was accepted on the same day and Mr Henry wasremanded in custody. The Judge called for a pre-sentence report, and directed thatenquiries be made about a restorative justice conference. The matter was called beforethe Court in early December 2020 but sentencing was then adjourned to allow therestorative justice conference to proceed. Sentencing ultimately proceeded on 22January 2021.2 Police v Henry DC Auckland CRI-2020-004-008090, 12 November 2020.District Court sentencing decision[8] The Judge treated the receiving charge as the lead charge. He referred to thesentence indication and adopted the starting point he had then indicated. This was thestarting point contended for by counsel for Mr Henry – namely 18 months'imprisonment for the receiving charge. He uplifted that starting point by two monthsto take into account the additional offending, and then by a further six months to reflectMr Henry's "extraordinarily long list of previous convictions".3 That took the startingpoint to 26 months' imprisonment. The Judge then allowed Mr Henry a discount of20 per cent for the guilty pleas (five months two weeks, which he round up to sixmonths), leaving an end sentence of 20 months' imprisonment.[9] The Judge noted the submission advanced for Mr Henry that a communitybased sentence was appropriate. He recorded that a restorative justice conference hadbeen held with one of the victims, RB, and that at that conference, Mr Henry haddisclosed more serious offending than that with which he had been charged. The Judgeexpressly recorded that Mr Henry could not be punished for that. He then went on tosay:4 but nor am I going to give you credit by way of remorse and attempts tomake amends when you use the mechanism that you would call an (sic) aid todo that, use that same mechanism to make admissions of far more seriousoffending.The Judge noted that the probation officer who had prepared the pre-sentence reportrecommended a sentence of intensive supervision but stated that he did not regard thatas a realistic option. Accordingly, he sentenced Mr Henry to 20 months' imprisonmenton the charge of receiving and to two months' imprisonment on each of the othercharges, all to be served concurrently. He imposed standard and special releaseconditions, to apply for a period of six months post the sentence expiry date.3 Police v Henry, above n 1, at [4].4 At [8].The appeal[10] The appeal is brought pursuant to s 244(1) of the Criminal Procedure Act 2011.The fact that Mr Henry received and accepted a sentence indication does not affect hisright to appeal the sentence imposed.5[11] This Court must allow the appeal if it is satisfied that, for any reason, there isan error in the sentence imposed on conviction and that a different sentence should beimposed.6 This Court does not start afresh. Nor does it simply substitute its ownopinion for that of the original sentencer. Rather, it must be shown that there was anerror by the original sentencer, whether intrinsically or as a result of additional materialsubmitted on appeal. If there is an error, the Court will then consider whether thaterror is material and whether it has resulted in a manifestly excessive sentence. Thefocus is on whether the sentence imposed is within range, rather than the process bywhich it was reached.7Submissions[12] Mr Mani, for Mr Henry, did not challenge the starting point sentence for thereceiving charge or the uplifts for the other offending and for Mr Henry's criminalhistory. Rather, he argued that the sentence imposed was manifestly excessive becausethe Judge did not give Mr Henry credit for remorse and for his attempts to makeamends. He also argued that the Judge erred in failing to consider alternatives to asentence of imprisonment and in failing to consider the least restrictive sentenceavailable. He argued that the least restrictive sentence was a sentence of intensivesupervision. In the alternative, he argued that, at the least, Mr Henry should have beengranted leave to apply for home detention.[13] Mr McGivern, on behalf of the Crown, submitted that there was ample materialbefore the Judge which suggested that the remorse expressed was not genuine. Henoted Mr Henry's criminal history and that he had failed to acknowledge his offendingto the pre-sentence report writer. It was further argued that the purposes and principlesof sentencing required the imposition of a custodial sentence.5 Criminal Procedure Act 2011, s 245.6 Section 250(2).7 Tutakangahau v R [2014] NZCA 279 at [30]-[36].Analysis[14] As noted, there was no challenge to the Judge's finding that the charge ofreceiving was the lead offence or to the starting point sentence adopted for thatoffending. Nor was there any challenge to the uplifts for the additional offending andfor Mr Henry's criminal convictions. The appeal is of narrow compass – should therehave been a discount for remorse and/or did the Judge err when he imposed a sentenceof imprisonment, rather than a community based sentence?[15] Mr Mani argued that Mr Henry's remorse was shown in a number of ways:(a) Mr Henry attended a restorative justice conference with RB. Her sister,JM, was the victim of the August 2020 offending. In the course of theconference, Mr Henry admitted to disposing of JM's iPhone. Thatphone had been inside the satchel that was taken, along with SG's debitcard. Mr Henry had not been charged in relation to the theft of thesatchel or of the iPhone. It was argued that this openness showedMr Henry's acceptance of responsibility. I was also told by counsel thatMr Henry has not previously attended a restorative justice conference.It was submitted that the report of the conference discloses thatMr Henry exhibited real insight into his offending and its impact onJM. He apologised and his apology was accepted. It was submittedthat this evidences genuine remorse.(b) At the conference, Mr Henry said that he intended to pay reparation toJM. He said that, if reparation was not ordered by the Court, he wouldmake private arrangements to pay $100 per week, once he was releasedfrom custody. An initial payment was made by Mr Henry of $50 on 15January 2020. There is no evidence that any further payments havebeen made, although I was told by Mr Mani that a member ofMr Henry's family has been making some payments on his behalfwhilst he has been in custody.[16] Insofar as I am aware, there is no other indication of remorse. Mr Henry didnot write a letter expressing remorse to the Judge.[17] There are other matters which suggest that Mr Henry is not truly remorseful.When he was spoken to by the probation officer for the Provision of Advice to Courtsreport, he denied the offending. He said that he was not the person who had stolen thesurveying camera; rather he said it was his ex-partner and her friend. He asserted thatthe police were wrong when they prepared the summary of facts asserting that he wasin the vehicle at the time. He admitted entering the Cash Converter's shop to pawnoff the surveying camera, but he explained that by saying that he made a stupidmistake, believing what his ex-partner had told him. He denied that he was theoffender in relation to the two charges of dishonestly using documents; he said that hehad been given the cards to use and that he was not aware that they had been stolen.He said that he was not involved in obtaining the cards. He said that police officerstended to make things up, just to get files off their desks. He said that the policetypically arrived at his address, saying that it is him, and knowing that he is an "easyarrest to get their figures up". He asserted that the police make things up. Heasserted that he had been wrongly charged and that he entered guilty pleas, becauseno matter what he said, no-one would believe him.[18] Remorse by a defendant is a mitigating factor recognised by the SentencingAct 2002.8 Whether a defendant is genuinely remorseful is a question of fact andjudgement. True remorse requires acceptance of responsibility for the offending inissue, and a defendant claiming to be remorseful bears the onus of showing that his orher remorse is genuine.9 A Court can properly be sceptical of claimed remorse wherethe circumstances indicate that it is not genuine.10 Where a Court is faced with arecidivist offender, it is entitled to place little weight on an expression of remorse.11Expressions of remorse by defendants who contest aspects of their offending or whoare reluctant to accept responsibility have to be properly and robustly assessed.12Remorse is not necessarily shown simply by entering guilty pleas.13 The Courts lookfor something tangible, such as attendance at a restorative justice conference. Judgesare required to evaluate all the circumstances bearing on claimed remorse. Credit canbe given at sentencing for remorse where it is genuine, but not if it is nothing more8 Sentencing Act 2002, s 9(2)(f).9 Section 24(2)(d); Moses v R [2020] NZCA 296 at [24].10 R v Lambert CA456/05, 4 April 2006 at [25].11 R v Ngamo [2009] NZCA 512 at [9].12 Williams v R [2012] NZCA 176 at [15].13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].than "crocodile tears" as a result of the circumstances the defendant finds him orherself in.[19] In the present, the Judge was entitled to be sceptical of the claimed remorsenotwithstanding that Mr Henry attended a restorative justice conference with the sisterof one of his victims. First, Mr Henry's comments to the author of the Provision ofAdvice to Courts report are at odds with his attitude only a few weeks later at therestorative justice conference. Secondly, while it seems that Mr Henry made an initialpayment by way of reparation, there is no evidence to suggest that any additionalpayments have been made. Thirdly, Mr Henry has an appalling history of dishonestyoffending. He started offending at age 17. He has offended on a very regular basisever since and amassed over 150 convictions. He has been sentenced to more than 60terms of imprisonment. Much of his offending involves dishonesty related matters –for example, unlawfully converting a motor vehicle, receiving, theft, shoplifting,unlawfully entering a building, burglary, possession of instruments for conversion,using a document for pecuniary advantage, unlawfully getting into a vehicle and beingunlawfully in an enclosed yard. He has multiple convictions for most of theseoffences.[20] I do not consider that the Judge erred when he declined to grant Mr Henry adiscount for the remorse claimed. Given the circumstances of this case, the Judge wasentitled to conclude that the remorse expressed was not genuine and to decline to allowa discount for it.[21] Nor do I consider that the Judge erred by refusing to grant leave to Mr Henryto apply for home detention or by declining to impose a community based sentence.[22] In the pre-sentence report, it was noted that Mr Henry's mother did not thenconsent to her son staying at her address. She told the report writer that she had givenMr Henry "ample opportunities in the past to get his act together" but that herentreaties had fallen on "deaf ears". Mrs Henry also said that she had custody ofMr Henry's three children and that she wanted to protect them from being exposed totheir father's criminal behaviour.[23] The Judge at sentencing referred to a letter which he had received fromMr Henry's mother. A copy of that letter has been made available to me and it isconfirmed in a supporting affidavit (which was not available to the Judge). Mrs Henryrecords her consent to her son serving an electronically monitored sentence at herhouse and explains her change of position by saying that she was upset with her sonwhen she spoke to the report writer.[24] Be this as it may, I agree with the Judge that Mr Henry is not a suitablecandidate for a community-based sentence. His criminal record tells strongly againsthim. As noted, he has amassed over 150 convictions and he has been sentenced tomore than 60 terms of imprisonment. The offending in respect of which he wassentenced by Judge Collins was not an aberration. It was similar to very many otheroffences he has committed in the past. He was assessed as posing a high risk ofreoffending and he has failed to comply with community-based sentences and otherCourt orders in the past. The offending in respect of which Mr Henry was beingsentenced occurred while he was subject to a sentence of intensive supervision.[25] In my judgment, the Judge did not err in imposing a sentence of imprisonment.A sentence of imprisonment was necessary to denounce Mr Henry's offending. It wasalso necessary to, yet again, try and deter Mr Henry from reoffending, as well as to tryand protect the public from Mr Henry's manifest dishonesty. A sentence ofimprisonment best gives effect to the relevant purposes and principles of sentencingin this case.[26] For the reasons I have set out, I do not consider that any error was made by thesentencing Judge. The sentence imposed was not manifestly excessive. The appeal isdismissed.___________________________Wylie J