Secker-Alison v Police [2018] NZHC 3277 (12 December 2018)

Last Updated: 17 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000364 [2018] NZHC 3277

BETWEEN	VINCENT WAYNE SECKER-ALISON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 December 2018
Counsel:	D Becker and CG Wright for Appellant DG Johnstone for Respondent
Judgment:	12 December 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 12 December 2018 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Auckland. Crown Solicitor, Auckland.

SECKER-ALISON v POLICE [2018] NZHC 3277 [12 December 2018]

The appeal

[1] Mr Vincent Secker-Alison punched his mother in the face, bruising her left eye. He and another burgled an Auckland restaurant, albeit the stolen property was recovered. Both offences were committed while Mr Secker-Alison was on bail for charges of assault and unlawfully being in a building. Judge P J Sinclair sentenced Mr Secker-Alison to a term of seven months and two weeks’ imprisonment.¹ Mr Secker-Alison appeals. He contends the sentence is manifestly excessive. Mr Secker-Alison invites attention to an uplift of two months’ imprisonment for his criminal record; and parity. The co-defendant received a sentence of 100 hours’ community work in relation to the charge of burglary.

Background

[2] Little additional background is required. The burglary involved the removal of soft-drinks and alcohol from the Soul Bar & Bistro in the early hours of 16 February 2018. The assault came later: 22 March 2018. As observed, Mr Secker-Alison was on bail on charges of assault and unlawfully entering a building. That offending occurred on 22 May 2017 when Mr Secker-Alison and another entered the home of the victim, punched him and stomped on his head. That attack was retaliatory: the victim had been seeing Mr Secker-Alison’s former partner.

[3] Judge Sinclair adopted a starting point of three months’ imprisonment for the male assaults female charge; a five-month starting point for the burglary charge; made these cumulative; and then uplifted the starting point by two months. The Judge mitigated the overall starting point by 25 percent; Mr Secker-Alison pleaded guilty “at an early opportunity”.² The Judge made the seven and a half-month term cumulative on the one-year prison sentence for the May 2017 offending, which had been dealt with by the time Mr Secker-Alison appeared for sentence before Judge Sinclair.

Uplift

[4] Mr Becker contends the Judge was wrong to uplift the sentence for previous convictions because the sentence was made cumulative on the May offending, and Mr Secker-Alison’s record did not warrant an uplift.

[5] I disagree. Mr Secker-Alison had 33 earlier convictions irrespective of the 2017 offending, including for common assault (2012), two for fighting in a public place (2009 and 2010), assaulting Police (2012), and threatening behaviour (2009). This unaddressed propensity for violence warranted an uplift. That uplift constituted 25 percent of the starting point, an unremarkable level, particularly as the offending was committed on bail for (similar) 2017 offending. No double-punishment occurred because the 2018 offending was discrete from that in 2017, and Mr Secker-Alison’s history disclosed recent violence apart from that in 2017.

Disparity? A manifestly excessive sentence?

[6] Mr James Bennett was the co-offender in relation to the burglary. Judge R J Collins sentenced Mr Bennett to 100 hours’ community work.³ Mr Secker-Alison contends he should not have received an additional penalty, simply because imprisonment was required for the assault on his mother.

[7] Judge Collins’ remarks are brief, presumably because sentencing occurred in a busy list. The Judge did not identify a starting point. The Judge appears to have been impressed by the prospect of reform notwithstanding Mr Bennett’s “unfortunate history”.⁴ Mr Bennett had a job.

[8] I accept the two sentences are disparate; indeed, difficult to reconcile. There is nothing to suggest one defendant played a significantly lesser role; both defendants were the same age (then 26 or 27); and both have significant criminal histories. Indeed, Mr Bennett’s is worse vis-à-vis dishonesty. However, the Court of Appeal “has said on many occasions that a disparity argument cannot be built on an
unjustifiable sentence” if the sentence under review is otherwise unimpeachable.⁵ Mr Bennett’s sentence was particularly lenient—the Judge’s remarks suggest he was on parole for fraud when he committed the offence. Nor should it be overlooked. Mr Secker-Alison was already in prison when sentenced by Judge Sinclair.

[9] For these reasons, I do not consider Mr Bennett’s sentence controlling. Rather, the decisive question is whether Mr Secker-Alison’s sentence is manifestly excessive.

[10] Burglary of commercial premises does not always result in imprisonment.⁶ But, it often does. For example, in Wratt v Police the defendant cut through the wire fence of a hardware store and attempted to steal timber.⁷ He was caught, red-handed, by a Police officer. Mr Wratt’s sentence of 15 months’ imprisonment was quashed, but Ronald Young J held a starting point of seven months’ imprisonment was available. In Craigie v R the defendant and another burgled commercial premises overnight and stole property worth $600.⁸ The offending was premeditated. The Court of Appeal quashed Mr Craigie’s sentence of 16 months’ imprisonment and substituted a sentence of 14 and a half months’ imprisonment. That reflected a starting point of 12 months’ imprisonment, which was “well within range”.⁹

[11] Mr Secker-Alison’s offending was not premeditated. But, he and Mr Bennett made several trips into the restaurant’s storeroom to steal property over a 15-minute period. The cases above reveal a five-month starting point was readily available. So too the overall starting point (and sentence).

Result

[12] The appeal is dismissed.

...................................

Downs J

⁵ R v Feterika [2008] NZCA 127 at [47].

6. Marra v Police HC Hamilton CRI-2008-419-5, 26 February 2008; Blance v Police [2015] NZHC 2566; and Department of Corrections v Waymouth HC Auckland CRI-2007-404-299, 5 August 2011.

⁷ Wratt v Police [2012] NZHC 3137.

⁸ Craigie v R [2012] NZCA 67.