WRATHALL V POLICE HC CHCH CRI-2009-409-000087 [2009] NZHC 1361 (1 October 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                               CRI-2009-409-000087



                             MARESHA WRATHALL
                                  Appellant



                                
            v



                                      POLICE
                                     Respondent



Hearing:       
1 October 2009

Appearances: AND Garrett for Appellant
             C Boshier for Respondent

Judgment:       1 October 2009


 
              ORAL JUDGMENT OF HON. JUSTICE FRENCH



[1]    This is an appeal against sentence.


[2]    Following pleas of guilty,
the appellant was sentenced to an effective term of
two years' imprisonment on one charge of burglary, one charge of receiving and
one
charge of attempted burglary.


[3]    The facts of the offending were as follows.


[4]    On 30 August 2008, the appellant
was an address in Hawthorne Street,
Christchurch.



WRATHALL V POLICE HC CHCH CRI-2009-409-000087 1 October 2009

[5]    She went
to the rear of the property and smashed a bedroom window using a
stone. The owner returned home and confronted the appellant, but
was unable to
apprehend her.


[6]    Then on 28 September 2008 the appellant burgled a dwelling house in
Fendalton Road.


[7] 
  She forced open a rear wooden door to the property, breaking the lock. Once
inside she searched the bedrooms and lounge, and removed
a large amount of
property valued in excess of $3000.


[8]    The appellant fled the scene but was later arrested by police.


[9]
   The following day, on 29 September, police executed a search warrant at her
address and located a number of stolen items.


[10]
  That discovery led to the receiving charge.


[11]   The pre-sentence report told the District Court Judge the appellant is 28
years
of age, with an extensive list of dishonesty related convictions, as well as one
conviction for aggravated wounding, wilful
damage, leaving a child under 14
without reasonable supervision and two convictions for excessive breath alcohol.


[12]   The appellant
was also reported as having a history of non-compliance with
previously imposed Court orders, failing to comply on four occasions
with work-
based sentences, three breaches of supervision, one conviction for breaching Court
release conditions and one conviction
for failing to answer District Court bail.


[13]   In the view of the report writer, a significant factor in the appellant's
offending
was an unaddressed problem with gambling.


[14]   The report concluded by stating that notwithstanding her obligations as a
mother,
the appellant's history of offending of this kind, the seriousness and totality
of the offending, her past failure to comply with
community-based interventions and

the matters raised by police were all factors seen to preclude a recommendation for a
non-custodial
sentence.


[15]   The reference to matters raised by the police was a reference to a police
report submitted to the District Court
in opposition to home detention.


[16]   In his sentencing notes, the sentencing Judge referred to the history of non-
compliance
with previous community-based sentences and went on to state:

       [6]     This gives me no confidence whatever that you are going
to comply
       with a sentence of home detention. Moreover I look at what the police have
       to say about it. The police are
opposed to your being granted home
       detention. This is by no means determinative of the matter, but I do note that
       when
the constable went to check on the then proffered address he found that
       you were in breach of your curfew and that he is of
the view that you show
       determination to ignore the orders of the Court. What can be said is that that
       seems to be the
track record.

       [7]      Now I have had placed before me by Mr Garrett, as he has done, a
       number of references which
have been written on your behalf on how things
       are much better so far as your custody of the children is concerned, but all in
       all quite frankly we have come
to the end of the road here Miss Wrathall.

       [8]     You have a lengthening list of previous convictions. They are
       consistently
repeated and it is time I think that the Court stands firm. The
       main charge is a burglary of a dwelling house which is a very
serious
       offence and causes a great deal of upset to those who are affected by it. You
       have only to read the victim
impact reports to see what effect the burglary
       has had on the householder and indeed on the householder whose house you
 
     attempted to burgle. All in all I consider that had you defended these
       charges and been found guilty you would have been
sent to jail for three
       years. I bear in mind the possible amendment to your behaviour and bear in
       mind the pleas of
guilty. On the charge of burglary you are sentenced to two
       years imprisonment. The release conditions are to continue for
six months
       from the sentence end date. On the charge of receiving 18 months
       imprisonment.      On the charge of attempted
burglary 12 months
       imprisonment. All to run together.

[17]   The Judge did not expressly state what his starting point was,
other than to
indicate that if the matter had been defended the appellant would have received a
sentence of three years' imprisonment.


[18]   On appeal, the appellant submits that the sentence was manifestly excessive
and that the Judge erred in refusing to impose
a sentence of home detention.

[19]   Originally the focus of the appeal was on the Judge's decision not to impose
home detention.


[20]   However, the proposed address for home detention is no longer suitable, and
accordingly the focus of the appeal has changed
to the length of the prison sentence.


[21]   Counsel for the appellant submits two years was too long and in support of
that submission
advances two grounds:


                i)    that the Judge was wrongly influenced by the police report in
                    
 arriving at a starting point of three years;


                ii)   that the Judge gave insufficient discount for mitigating factors,
                      most notably the co-operation the appellant had given the
                      police and secondly the fact
that her behaviour had changed.


[22]   Turning to the issue of the police report.


[23]   There is no doubt that the police report
contains some highly incriminating
information about the appellant.


[24]   However, the report was aimed at the issue of home detention,
as is
confirmed by its heading, which is "Opposition to home detention".


[25]   I am quite clear from reading the sentencing notes
that the report did not
influence the Judge in reaching the starting point of three years.


[26]   He does not mention the police
report until coming to the issue of home
detention, and even then he states it was by no means determinative of the matter.


[27]
  I am further reinforced in my conclusion that the police report has not been
an influential factor by consideration of the fact
that a three-year starting point was
well within range. Significantly, Mr Garrett has not cited any previous caselaw to
the contrary.

[28]    Turning then to the second ground regarding the discount for mitigating
factors.


[29]    The Judge gave a discount of
a third.


[30]    The guilty pleas were early, and it is arguable there should have been a
further discount for the additional mitigating
factors.


[31]    It is clear, however, from the sentencing notes that the Judge was cognisant
of them and did take them into account.


[32]    On appeal, the question essentially is the appropriateness of the end sentence,
regardless of the means by which the Judge
arrives at that end sentence.


[33]    In my view, this sentence was within range and if I were to interfere with it I
would only
be tinkering.


[34]    In my view, this sentence cannot be described as manifestly excessive such as
would warrant appellate intervention.


[35]    The appeal is accordingly dismissed.



Solicitors:
AND Garrett, Christchurch
Crown Solicitor, Christchurch