DOUGHTY_x001e_MAAKA v POLICE [2019] NZHC 87

DOUGHTY-MAAKA v POLICE [2019] NZHC 87 [5 February 2019]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI 2018-416-25[2019] NZHC 87BETWEEN WILLIAM DAVID JACKDOUGHTY-MAAKAAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019 (via AVL)Counsel: S Taylor for AppellantC C Gullidge for RespondentJudgment: 5 February 2019JUDGMENT OF SIMON FRANCE J[1] Mr Doughty-Maaka appeared for sentencing on two charges:(a) receiving a broken mobile telephone, value less than $500;1 and(b) failing to attend an assessment he was required to undertake as part ofa temporary protection order.2Cumulative sentences of 100 hours and 40 hours community work were imposed.3Mr Doughty-Maaka appeals the severity of this sentence on the ground that it wasmanifestly excessive, with particular focus on the 100 hours for the receiving charge.1 Crimes Act 1961, ss 246 and 247(c), maximum penalty three months' imprisonment.2 Domestic Violence Act 1995, s 51T, maximum penalty six months' imprisonment.3 New Zealand Police v Doughty-Maaka [2019] NZDC 5019, 12 November 2018.[2] On 31 July 2018, a person's home was burgled. Taken were two televisions,two speakers, five watches, medical equipment associated with diabetes managementand a broken mobile phone. Mr Doughty-Maaka was originally charged with theburglary and alternatively with receiving all items. However, a search of his hometurned up only the broken phone. Eventually the charge was amended to receivingthat item and a guilty plea immediately entered.[3] The facts concerning the other charge are somewhat confused. On the basis ofthe summary of facts, the non-attendance was either January 2016 or January 2017.Action by way of a summons was first taken on the non-attendance in September 2017and eventually Mr Doughty-Maaka was sentenced in November 2018. This was either22 or 34 months after the non-attendance. Either way it is a very long time for such amatter. The deterrence aspect of any sentence is rather lost.[4] Like the original sentencing exercise, appeals of this sort do not lendthemselves to great analysis. This is Mr Doughty-Maaka's first receiving offence buthe has other property convictions, the most recent being unlawfully getting into avehicle in March 2017. It would also appear the receiving offence was committedshortly before the expiry of a one year sentence of supervision.[5] Those points noted, this remains a first conviction for receiving of a single itemof very little value. The Crown referred to Selwyn v New Zealand Police whichinvolved an offence where the value of the received item was between $500 and$1,000.4 The difference between the two offences is that receipt of an item valuedbetween $500 and $1,000 has a maximum penalty of one years' imprisonment,5whereas receipt of an item valued under $500, as here, has a maximum penalty of threemonths' imprisonment.6 The cases discussed in Selwyn v New Zealand Police suggestthat 100 hours for a single low value item is too high.7 The current sentence impliesa starting point of 125 hours which in my view is at least 50 hours too much.4 Selwyn v New Zealand Police [2013] NZHC 107.5 Crimes Act 1961, s 247(b).6 Crimes Act 1961, s 247(c).7 Above n2, at [16]–[23].[6] The appeal is allowed. The sentence of 100 hours is quashed and in its placea sentence of 60 hours is imposed, meaning a final total sentence of 100 hours.____________________________Simon France J