R v Anderson CA305/05 [2005] NZCA 411 (14 December 2005)

Last Updated: 22 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA305/05

THE QUEEN

v

BRAD MARC ALAN ANDERSON

Hearing: 30 November 2005

Court: William Young, Potter and Ellen France JJ Counsel: A R Burns for Crown

R L Thomson for Appellant

Judgment: 14 December 2005

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by Potter J)}

Introduction

[1] Brad Marc Alan Anderson appeals against a sentence of two years and eight months imprisonment imposed by Judge Nicola Mathers in the District Court

R V ANDERSON CA CA305/05 14 December 2005

at Auckland. The appellant entered guilty pleas to two charges of receiving and charges of aggravated assault and intentional damage laid indictably, and a further two charges of receiving and a charge of reckless driving laid summarily. The appellant contends that the sentence fails to take into account a period the appellant spent on interim recall and is excessive. It was submitted that a sentence of two years would have been appropriate.

[2] The Crown resists the appeal on the ground that the sentence imposed was not manifestly excessive and that there is no proper basis for an allowance for the period spent on recall.

Factual background

[3] Three of the receiving charges related to three stolen vehicles – a Mitsubishi Legnum, a Holden Utility and a Chrysler Jeep - discovered in the possession of the appellant on three separate occasions. The vehicles were valued respectively at

$13,000, $15,000 and $55,000.

[4] On 13 April 2004 the appellant was seen in the Mitsubishi vehicle in the driveway at an address which the Police had attended on an unrelated matter. When approached by the Police the appellant reversed the vehicle at high speed out of the driveway and drove off. This incident gave rise to the summary charge of reckless driving.

[5] Also on 13 April 2004, a large amount of electrical equipment and the Holden Utility vehicle were taken from another address, and later found in the possession of the appellant.

[6] On 19 April 2004 the appellant was located in the Holden Utility vehicle in a driveway. Police pulled in behind the appellant in an attempt to block his vehicle in. The appellant reversed into the Police vehicle, striking it and causing damage to both vehicles. The appellant then attempted to escape on foot but was subsequently located. This incident gave rise to the charges of aggravated assault and intentional damage.

[7] The third vehicle stolen was the Chrysler Jeep valued at $55,000, found outside the appellant’s premises. This gave rise to a summary charge of receiving.

The sentence appealed from

[8] The sentencing Judge referred to the factual background and noted that this offending took place while the appellant was on parole from a lengthy term of imprisonment for violent offending. In addition to that aggravating feature she noted the gravity and number of charges, the amount of damage caused and the inconvenience and distress caused to the victims of the appellant’s offending. She referred to the appellant’s list of previous convictions as “appalling by any standards”. She noted as the only mitigating factor, the late plea of guilty on the day before trial in respect of the indictable charges.

[9] The Judge recorded from the pre-sentence report that the appellant has a propensity for violence and a record of poor response to past sanctions of supervision and parole. She noted that the re-offending occurred almost immediately after the appellant had been released on parole from a sentence of four and a half years imprisonment and that he had been recalled from parole on at least two occasions. Further, that he is assessed as at high risk of re-offending with a low motivation to change.

[10] The Judge observed that the Crown considered that a sentence of two years was within the available range from a maximum starting point of three and a half years, but stated that she considered an end sentence of two years to be wholly inadequate for the number and gravity of the offences, coupled with the other aggravating features, particularly the appellant’s previous convictions. Taking into account the totality of the offending the Judge took a starting point of three and a half years, allowed a credit of almost 25% for the guilty plea, and reached an end sentence of two years and eight months imprisonment for the lead charges, which she took as the three charges of receiving motor vehicles. She imposed concurrent sentences of seven months on the aggravated assault and intentional damage charges, and one month on the fourth charge of receiving. On the reckless driving charge the appellant was convicted and disqualified from driving for six months.

Submissions for the appellant

[11] The submissions for the appellant seemed principally to rely on the Crown’s submission at sentencing that an end sentence of two years imprisonment would be within the range available to the sentencing Judge although very much at the lower end of that range. Counsel for the appellant had made submissions in support of a sentence of two years.

[12] It was also submitted that because a period that the appellant spent in custody on interim recall from 19 April 2004 to 21 July 2004 does not count towards time spent on remand, it:

... would reflect a sentence of a further six months.

[13] It was submitted that taking that period into account, by a sentence of two years:

... society’s expectations would be met.

Crown’s submissions

[14] It was submitted for the Crown that the starting point of three and a half years adopted by the sentencing Judge and the final sentence imposed were both within the available range and cannot be categorised as manifestly excessive. The Crown referred to the significant aggravating features identified by the Judge and that a generous discount of almost 25% was allowed for the late guilty plea.

[15] The Crown emphasised that while at sentencing the submission was made that a sentence of two years was available to the Judge, it was noted that this was very much at the lower end of the available sentencing range. Counsel submitted that it was entirely correct for the sentencing Judge to perform her function to impose what she considered to be an appropriate sentence in all the circumstances, and that her stern view of the offending and the aggravating factors was entirely justified.

[16] As to interim recall, the Crown confirmed that on 13 February 2004 an interim recall order was made pursuant to s 62(1) of the Parole Act 2002 and that from the appellant’s arrest on 19 April 2004 until the recall application was heard and granted on 21 July 2004, the appellant spent time in custody on interim recall. It was submitted that time spent on interim recall relates to the prisoner’s previous sentence of imprisonment and cannot be taken into account under s 90 of the Parole Act 2002 which provides that:

An offender is deemed to have been serving the sentence during any period that the offender has spent in pre-sentence detention.

[17] The definition of “pre-sentence detention” in s 91 expressly excludes time spent “serving a sentence of imprisonment in a prison” (s 91(5)(a)). By s 91(6), “serving a sentence of imprisonment in a prison” includes time spent in custody following a recall order if the recall order is made final. Thus, the three months period spent by the appellant in custody on interim recall did not count towards the sentence imposed by Judge Mathers but did count towards the sentence in respect of which the appellant was recalled. It was submitted that there is no basis upon which it can be asserted that the Judge erred in failing to take into account this period of interim recall.

Discussion

[18] The appellant did not take issue with the starting point of three and a half years adopted by the Judge. Such a starting point was certainly open to her in all the circumstances. The allowance for the late guilty plea of almost 25% can only be regarded as generous.

[19] The period spent in custody on interim recall relates to the previous sentence which the appellant was serving and in respect of which he was released on parole on 10 December 2003 subject to conditions. Following the further offending he was recalled pursuant to an interim recall order made on 13 February 2004 with the recall application being heard and granted on 21 July 2004. It is entirely logical that the time spent on interim recall counts towards the sentence in respect of which the

appellant was recalled, but does not count towards any sentence subsequently imposed, as was the sentence imposed by Judge Mathers on 2 August 2005.

[20] Offending while on parole is an aggravating factor properly taken into account on sentencing. However, as this Court stated in R v Baynes-Carter CA60/98

28 May 1998 at 5:

... in the case of a prisoner who has been recalled, when referring to the fact that the prisoner offended shortly after release, or while on parole, a sentencing Judge needs to take care that an accused is not unfairly penalised in a double fashion, or that such an appearance is given.

[21] In this case, given the nature and extent of the offending and the appellant’s previous serious offending, the starting point of three and a half years was well available to the Judge, the discount was generous, and the end sentence of two years eight months cannot be regarded as manifestly excessive. There is no basis for the sentence to be disturbed.

Result

[22] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington