PAUL V NZ POLICE HC GIS CRI-2008-416-000018 [2009] NZHC 204 (24 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY
                                                                             CRI-2008-416-000018



                              MARCUS COLEMAN PAUL
                                    Appellant



                          
                         v



                                NEW ZEALAND POLICE
                                     Respondent



Hearing:        24 February 2009

Appearances: L J L Hemi for Appellant
             R J Collins for Respondent

Judgment:   
   24 February 2009 at 4:30 pm


                          JUDGMENT OF COURTNEY J
                         ON APPEAL AGAINST SENTENCE




                           This judgment was delivered by Justice Courtney
                                   on 24 February
2009 at 4:30 pm
                              pursuant to R 11.5 of the High Court Rules

                                     Registrar
/ Deputy Registrar
                                     Date............................




Solicitors:     Elvidge & Partners,
P O Box 609, Napier 4140
                Fax: [phone] ­ R Collins
                Burnard Bull & Co, P O Box 946, Gisborne
                Fax: [phone] ­ L Hemi


PAUL V NZ POLICE HC GIS CRI-2008-416-000018 24 February 2009

[1]       In November
2008 District Court Judge Woolf sentenced Mr Paul to three
months community detention on a charge of burglary (there were other aspects
of the
sentence such as supervision and non-association orders which I do not need to
consider). Mr Paul appeals on the ground that
the Judge did not give him credit for
his early guilty plea and that the Judge failed to properly take account of the issue of
parity
between Mr Paul and his co-offenders, who had been sentenced by another
Judge on an earlier occasion.


[2]       The conviction
arose from the late night burglary of a cafe committed by Mr
Paul and his two associates. Mr Paul was aged 17 at the time and had
previously
appeared in the Youth Court. His perception and the assessment of the Probation
Service was that a significant contributing
factor to his offending was the nature of
his associates.


No discount for guilty plea


[3]       Mr Paul pleaded guilty at an
early stage in the proceeding. However, there is
no mention of his guilty plea in the Judge's sentencing notes and no indication
as to
what, if any, recognition that guilty plea received in determining the sentence that
was ultimately imposed. Mr Hemi, for Mr
Paul, submitted that the failure to make
any mention of the guilty plea constituted an error by the Judge. Mr Collins, for the
Crown,
submitted that the sentence imposed was such as to make it implicit that
recognition had been given. Mr Collins further submitted
that, in any event, the
sentence was an appropriate one and should not be interfered with.


          I agree with the comments
of Ronald Young J in Taylor v Police1 as to the
[4]
importance of the Court acknowledging early guilty pleas and the desirability
of the
Judge indicating that the plea of guilty has been taken into account in the sentence,
preferably with the prisoner being able
to see exactly what discount has been given.
Where, as here, there is no mention of the plea itself nor any indication that the
sentence
has been determined by reference to that plea, I have to conclude that the



1
    HC WGN CRI2005-485-000182 28 February 2006

Judge did not take it into account in fixing the final sentence and thereby made an
error.


Parity with co-offenders


[5]     
Mr Paul's sentence of three months community detention involved residing at
his sister's address in Gisborne and being curfewed from
8 pm ­ 5 am Monday to
Sunday. The Judge noted that this sentence mirrored his then bail conditions. Mr
Paul's complaint is that his
co-offenders, Mr Wharepapa and Mr Harrison, were
received to 40 hours and 80 hours of community work respectively. Both had
previous
convictions and Mr Wharepapa's history included previous convictions for
burglary for which he had served a prison sentence.


[6]      Mr Hemi submitted that Mr Paul,
whose history was eight admonishments in
the Youth Court, was being treated more harshly than his older co-offenders because
his
sentence involved genuine loss of liberty. Mr Collins submitted that the Judge
had obviously considered the differences that existed
between the three offenders,
clearly attempting to find an appropriate sentence for Mr Paul that would have a
rehabilitative effect.


[7]      At [3] the Judge specifically recognised the need for parity but indicated his
view that there were reasons that sentences
of community work had been imposed on
the co-offenders e.g. one was already subject to an intensive supervision sentence.
The rationale
for the Judge's decision to impose community detention on Mr Paul
rather than community work is to be found at [7] namely that the
Judge wanted to
keep Mr Paul separate where possible from other offenders. Although Mr Hemi
submitted that this could have been achieved
in the context of community work
sentence, it is clear that the Judge had in mind trying to separate Mr Paul from his
less desirable
associates during the night time hours, when he was most vulnerable to
being drawn into offending.


[8]      It seems to me that
the Judge, whilst recognising the need for parity between
the offenders, was at pains to find a sentence that genuinely met the needs
of this
offender. I do not consider that he made any error in his approach to the issue of

parity nor an error in imposing a sentence
of community detention rather than
community work.


Result


[9]      The Judge made an error in failing to take account of the
guilty plea and I
consider that sentence of three months community detention was somewhat longer
than it should have been, as a result.
I therefore allow the appeal and set aside the
term of three months community detention and substitute it with a sentence of two
months community detention.




                                                           ____________________


              
                                            P Courtney J