CORNELISSEN v NEW ZEALAND POLICE [2020] NZHC 2139

CORNELISSEN v NEW ZEALAND POLICE [2020] NZHC 2139 [24 August 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2020-488-0029[2020] NZHC 2139BETWEEN VINNIE ANTONIO CORNELISSENAppellantAND NEW ZEALAND POLICERespondentHearing: 17 August 2020Appearances: N J Moore for the AppellantB M O'Connor for the RespondentJudgment: 24 August 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 24 August 2020 at 4.30 pmRegistrar/Deputy RegistrarDate:[1] On 19 June 2020 Judge H B Shortland sentenced the appellant,Vinnie Cornelissen, to two years and five months' imprisonment and disqualified himfrom driving for 13 months.1 Mr Cornelissen had pleaded guilty to a wide range ofrelatively low-level offending between July and December 2019. The offendingcomprised a single charge of burglary;2 two charges of unlawfully getting into a motorvehicle;3 two charges of driving while disqualified;4 two charges of breach of releaseconditions;5 a single charge of unlawfully getting into a motor vehicle;6 and a chargeof failing to stop.7[2] Mr Cornelissen appeals against his sentence on the grounds it was manifestlyexcessive. Specifically, Mr Cornelissen contends that Judge Shortland erred by:(a) failing to adjust the starting point to address the totality of the overalloffending;(b) failing to give sufficient discounts for personal mitigating factors andguilty pleas; and(c) declining to impose a sentence of home detention.The District Court decision[3] Judge Shortland identified Mr Cornelissen's offending as a series of sprees anddeemed a cumulative sentence appropriate. However, for offending occurring withina spree Judge Shortland proposed that the offences would "be grouped together interms of a concurrent sentence and added to the overall total cumulative sentence".8His Honour then configured a starting point as follows:1 Police v Cornelissen [2020] NZDC 11684.2 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years' imprisonment.3 Section 226(2). Maximum penalty 2 years' imprisonment.4 Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty 2 years' imprisonment.5 Sentencing Act 2002, s 96(1). Maximum penalty 1 year imprisonment.6 Crimes Act 1961, s 226(1). Maximum penalty 7 years' imprisonment.7 Land Transport Act 1998, ss 52A(1)(a)(i) and 114(1). Maximum penalty $1,000 fine.8 At [3].(a) five months' imprisonment for the breach of parole charges in July andDecember 2019;9(b) seven months' imprisonment to reflect the driving while disqualified,unlawfully getting into a motor vehicle and failing to stop beginning inKerikeri on 17 August 2019;10(c) 12 months' imprisonment for a burglary carried out in Warkworth on25 October 2019;11(d) six months' imprisonment for driving while disqualified in Hamiltonon 5 November 2019;12(e) six months' imprisonment for unlawfully taking a motor vehicle inHamilton on 8 December 2019;13 and(f) three months' imprisonment for the further charge of unlawfully gettinginto a vehicle in Hamilton on 15 December 2019.14[4] This resulted in an overall starting point of 3 years and 3 months' (39 months)imprisonment. From here Judge Shortland proceeded to consider appropriatedeductions and stated: 15I take into consideration what your Counsel has said, I have seen your apology letter.I do not give it much credit because it has come right at the end. I see the culturalreport, a place an emphasis on that. I see there are issues of drugs but that is not somuch of a mitigating factor. There have been guilty pleas in all matters. I do applythe Hessell discount. What I do sense is that maybe it is time for you to address someissues. On those matters I give a deduction of 10 months. That brings it down to twoyears five months.9 At [20].10 At [21].11 At [20].12 At [22].13 At [23].14 At [23].15 At [24].[5] At the end of the judgment Judge Shortland initially seemed to suggest thatwhile home detention was presently unavailable Mr Cornelissen might be able to makean application once he had spent further time in prison. This was clearly wrong, butJudge Shortland subsequently apologised for his error and confirmed that rather thanbeing able to apply for home detention it would be parole that Mr Cornelissen couldapply for.16The appellant's position[6] Ms Moore, on behalf of the appellant, submitted that Judge Shortland erred bysetting a starting point that was too high. Although no issue was taken with the discretestarting points for the individual 'sprees' identified by Judge Shortland, Ms Mooresubmitted that His Honour failed to adjust the starting point to address the overalltotality of the offending, and that a deduction of six to nine months was appropriate.[7] Ms Moore also submitted that Judge Shortland failed to apportion the relevantdiscounts clearly and adequately. Rather than the total discount of 10 months awarded,equivalent to just over 25 per cent, Ms Moore submitted that Judge Shortland'sreference to applying "the Hessell discount" meant that a full 25 per cent deductionfor guilty plea under Hessell v R should have been given, together with discretedeductions for remorse and factors raised in the s 27 report. Beyond this, Ms Mooresubmitted that where an end sentence is on the cusp of home detention andimprisonment, as it is in this case, a further deduction for time spent on remand shouldhave been provided to bring the sentence under two years.[8] Finally, Ms Moore submitted that with an appropriately adjusted starting pointand/or adequate discounts the end sentence ought to be less two years' imprisonment,thereby warranting the consideration of home detention. Having regard to the need toimpose the least restrictive outcome, as well as the significant restrictions imposed byhome detention and the rehabilitative purposes it will serve, Ms Moore submitted that16 At [28]. For completeness, prior to noting the ability to apply for parole Judge Shortland firstincorrectly found "You can use the credit you have had in prison to reduce [the sentence] furtherand I will allow you to apply for home detention and then the proper date can be sorted formthere At the conclusion of whether you are granted home detention or not, you more than likelywill have the opportunity to have release conditions. I hope you can build on those cultural mattersraised in the s 27 report". Later on, Judge Shortland then stated, "I apologise for the confusion inthe matter, but I want to re-emphasise that this really is a matter that requires imprisonment".a sentence of home detention was appropriate, particularly with reference tocomparable cases.17Discussion[9] Mr Cornelissen's appeal against sentence is governed by the CriminalProcedure Act 2011, and s 250(2) provides that the Court must allow the appeal ifsatisfied that for any reason, there is an error in the sentence imposed on conviction,and a different sentence should be imposed. In any other case, the Court must dismisshis appeal.18 The measure of error that must be shown, is that the sentence is"manifestly excessive".19 The High Court will not intervene where the sentence iswithin the range that can properly be justified by accepted sentencing principles.Whether a sentence is manifestly excessive is to be examined in terms of the sentencegiven, rather than the process by which the sentence is reached.[10] I begin my analysis by addressing the issues taken with the starting point,namely that the starting point adopted by Judge Shortland was too high as there wasno adjustment to reflect the principle of totality. In short, I do not find this submissionpersuasive. Judge Shortland, at the outset of his analysis, adopted a starting point ofthree years and three months' imprisonment. This starting point reflected the totalityof the entirety of the offending; there was not just a single set of offending but multiplesets (or sprees), spread over a considerable time period and geographically distinct.Recognising this, Judge Shortland systematically went through and broke down howhe had arrived at this cumulative starting point, with each of the individual componentsidentified clearly, providing for the totality assessment within those groupings.Having regard to the nature of the offending, the number of charges, the temporal andgeographical spread of the offending, the fact that the offending was committed whileMr Cornelissen was subject to release conditions and the offences post 13 November2019 were committed while on bail, the starting point adopted by Judge Shortland waswell within the available range. In fact, as Mr Annandale submitted, a further upliftmay have been warranted to acknowledge the aforementioned aggravating factors aswell is Mr Cornelissen's significant criminal history.17 Ms Moore referred to Benson v Police [2018] NZHC 296; and Kent v Police [2017] NZHC 1160.18 Section 250(3).19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].[11] Likewise, I disagree with Ms Moore's submission that when Judge Shortlandstated he would "apply the Hessell discount", he intended to apply the full discountavailable, being 25 per cent. The reality is that Judge Shortland was not precise aboutwhat he meant. A "Hessell discount" is in fact an appropriate discount given to reflectthe making of a guilty plea, for which a discount of up to 25 per cent is availabledepending on the circumstances of the case with a full 25 per cent generally grantedif a defendant pleaded guilty at the first available opportunity.20[12] In this case, despite some complexity arising from the fact that differentcharges were called in different courts on different dates it is nonetheless clear thatMr Cornelissen did not enter pleas of guilty on the first available opportunity, andindeed after his initial arrest and appearance in Court went on to breach bail andcommit further offences. In the circumstances it is clear that a 25 per cent discountwas not available, and instead something in the vicinity of a discrete 15 per centdeduction for the guilty pleas would have been appropriate.[13] As Judge Shortland gave a total discount equivalent to 25.6 per cent, it followsthat the total deduction awarded for other factors including remorse (to which, asnoted, Judge Shortland did "not give much credit") and the cultural report preparedby Louise Henare, upon which Judge Shortland noted he placed some emphasis on,was approximately 10 per cent. This discount essentially corresponded withMs Moore's submission, both at sentencing and at appeal, on what was an appropriatediscount for these matters. Having read the letter provided by Mr Cornelissen and thecultural report I agree that such a discount was entirely within range.[14] As a result, I conclude the deductions given by Judge Shortland were withinrange and not otherwise in error.[15] This leaves Mr Cornelissen with his original end sentence of two years andfive months imprisonment. This was, and remains, well outside a short-term20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 as modified by Moses v R [2020] NZCA296.sentence,21 and there can be no basis for a further discrete deduction for time servedas urged by Ms Moore, simply so that home detention can be considered. Instead, theappeal must be dismissed.[16] In any event, although I accept that the cultural report now evidences a genuinedesire on the part of Mr Cornelissen to avoid further offending and an ostensiblysuitable address to serve home detention was identified, I nonetheless consider homedetention would not have been appropriate. As I discussed with Ms Moore, the addressproposed was, what appears to have been, an isolated rural address in Northland witha friend not mentioned as significant in the cultural report, and with no identified planas to what will occur when the other occupant was away working.[17] In circumstances where Mr Cornelissen is an admitted methamphetamineaddict who is in clear need of treatment to address a wide range of issues, I am notsatisfied that Mr Cornelissen would be capable of complying with a sentence of homedetention, noting that much of the current offending was carried out in breach ofrelease conditions or while on bail. In short, imposing a sentence of home detentionon Mr Cornelissen would have been setting him up to fail, thereby imposing aconsequential risk to the public. Had it been a short-term sentence I would havelooked at reserving leave to apply if a suitable residential or similar wraparoundprogramme was available to treat his issues. Given the final end sentence however,such an option does not stand for consideration.Decision[18] The appeal is dismissed._______________________________Powell J21 See Parole Act 2002, s 4. A short-term sentence "means a sentence of imprisonment that is adeterminate sentence of 24 months or less".