THE QUEEN v CHARLES EDWARD WILLIAM COLLIER [2003] NZCA 199 (21 August 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA170/03

THE QUEEN

v

CHARLES EDWARD WILLIAM COLLIER

Hearing: 20 August 2003

Coram: Gault P

Rodney Hansen J

Salmon J

Appearances: J L Cagney for the Appellant

B R Northwood for the Crown

Judgment: 21 August 2003

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

[1]

The appellant pleaded guilty in the District Court at Manukau to charges of receiving a stolen motorcar and possession of a pipe for the purpose of smoking cannabis.On the receiving charge, he was sentenced to two years and nine months imprisonment.A one months term of imprisonment was imposed on the other charge.He appeals against the sentence imposed for receiving.

Background facts

[2]

The appellant was stopped for a minor traffic infringement while driving a Holden Commodore motorcar in Hamilton in September 2001.A check revealed that it had been stolen from an address in Auckland the previous day.The appellant said he had bought the car in Auckland for $14,000.There were clear indications, however, that the car had been stolen.There was no key in the ignition.The car had been wired so that it could start without a key.The doors remained locked.The appellant had to exit the vehicle through a window.

Sentence

[3]

The sentencing Judge referred to the appellant’s extensive criminal record which dated back to 1977 when he was aged sixteen.It included numerous offences of dishonesty.He identified a number of the offences as relating to motor vehicles.The Judge said he could not avoid the conclusion that the appellant looked to the dishonest trade in motor vehicles as a way to “supplement” his lifestyle.He referred to the close proximity in time between the theft of the vehicle and the appellant’s apprehension as showing that he was either part of a car ring or solely responsible for trading dishonestly in motor vehicles.

[4]

In selecting a starting point of three years imprisonment, the Judge referred to the appellant’s previous offending and the importance of bringing home to him that repeated offending will bring a salutary response.He decided that, as the appellant had been caught red-handed and could not have successfully defended the charge, a three-month discount was all that was warranted for his plea of guilty.

Grounds of appeal

[5]

Mr Cagney submitted that on the information before him, the Judge was not entitled to sentence the appellant on the basis that he was engaged in dishonest trading in cars.He maintained that neither his previous record nor the summary of facts could support such a conclusion.He noted that apart from a conviction for receiving in 1999 referred to by the Judge, he had not been convicted of an offence of dishonesty since 1993.He said the summary of facts established no more than that the appellant must have known the car to have been dishonestly obtained.

[6]

Mr Cagney further submitted that the sentence was excessive for a “one-off” offence.He referred to R v Hughes (CA 427/97, 26 February 1998) which similarly involved dishonest receipt of a motor vehicle.On the basis that there was no evidential foundation for a suggestion that the appellant was part of a wider car ringing conspiracy, a sentence of twelve months imprisonment was upheld.Mr Cagney submitted that, when compared with the sentence in Hughes, the sentence imposed by the sentencing Judge was manifestly excessive and should be replaced by a term of imprisonment in the six to twelve months range.

Decision

[7]

We agree that the information before the Judge did not warrant the inference that in some capacity the appellant was involved in the business of dishonest dealing in cars.The summary of facts did not permit him to draw that conclusion.It resulted in a sentence which was clearly excessive.The appellant should have been sentenced on the basis that the offence was an isolated one.Giving due allowance for the appellant’s plea of guilty, we consider an appropriate sentence to be twelve months imprisonment.

Result

[8]	The appeal is allowed.The sentence of two years and nine months imprisonment is quashed and a sentence of twelve months imprisonment substituted.The appellant is given leave to apply for home detention.

Solicitors:

Crown Solicitor, Auckland