H M BOYES V NZ POLICE HC CHCH CRI-2007-409-000031 [2007] NZHC 222 (29 March 2007)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                                  CRI-2007-409-000031



                         HEATHER MARGARET BOYES
                                 Appellant



                               
           v



                             NEW ZEALAND POLICE
                                  Respondent



Hearing:       29
March 2007

Counsel:       R G Glover for Appellant
               S L L Litt for Respondent

Judgment:      29 March 2007


   
                ORAL JUDGMENT OF PANCKHURST J



[1]    In August of last year a burglary was committed upon a residential property
in Christchurch. One of the items stolen was a computer, including a keyboard, a
mouse etc. The value of these items was $3,300.
When the police executed a search
warrant at the appellant's home with reference to an unrelated matter on 13 January
2007, they
located the computer. Mrs Boyes admitted that she had acquired it and in
circumstances which meant that she knew it had to be stolen.
She did so in order to
provide a computer for her grandson who was in her care and resides with her, as
does the boy's mother, at
least from time to time.




H M BOYES V NZ POLICE HC CHCH CRI-2007-409-000031 29 March 2007

[2]    A plea of guilty was entered
to the charge of receiving. Mrs Boyes appeared
in the District Court 17 days after her apprehension. Judge Somerville imposed a
fine
of $3,300, being a match with the value of the computer. This was despite the
fact that the computer had been recovered and reparation
was not considered an issue
in the case.


[3]    Mr Glover appeared at sentencing, indeed he submitted that the appropriate
sentencing
response was a fine. He explained today that he did not comprehend a
penalty of the order of that which was imposed and that, unfortunately,
the issue of
Mrs Boyes' financial situation was not inquired into.


[4]    The basis of the appeal is that the appellant does not
have the means to meet
a fine of the level imposed. Hence, it is said, the sentence runs foul of s40 of the
Sentencing Act which
requires that in imposing a fine the Court "must take into
account, in addition to the provisions of s7-s10, the financial capacity
of the
offender."


[5]    What is Mrs Boyes' financial situation? She is in receipt of an invalid's
benefit which brings in about
$470 per week. Her rental obligation is $300 a week.
I do not have a declaration of means but Mrs Boyes has attended here this morning
and answered a number of questions I have asked of her concerning her situation.
She has indicated an ability to pay a fine at the
rate of $20 per week. At present her
daughter faces the predicament of a likely sentence of imprisonment for unrelated
offending.
I mention that because it suggests that Mrs Boyes will have the sole care
of her grandson, at least for some period of time.


[6]
   With counsel I have explored the possibility of a sentence of community
work and Mrs Boyes, despite her health difficulties, considers
that that is not
inappropriate. I do not regard this as a minor offence. Receiving is always a serious
offence. The more so in this
case because Mrs Boyes has a number of previous
convictions including one in 1997 for receiving stolen property. Offenders cannot
come to court and think that they will be treated leniently on account of age (in this
case 61 years) and financial circumstances.
The Sentencing Act contains a range of
options and they need to be employed in a case like this.

[7]     In my view the appropriate
course is a sentence of 40 hours community work
coupled with a $200 fine payable at the rate of $20 per week. Accordingly the
appeal
is allowed, the fine imposed in the District Court is quashed and the sentence
I have indicated is substituted.




___________________________________________________________________
Solicitors:
Rupert Glover Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent