WILSON (AKA SMITHERAM) V POLICE AND ANOR HC CHCH CRI-2008-409-000035 [2009] NZHC 366 (26 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                             CRI-2008-409-000035
                                                             CRI-2008-409-000036



               SHELLEY ANNE WILSON (AKA SMITHERAM)



                                             v



                               POLICE
                      DEPARTMENT OF CORRECTIONS



Hearing:       26 March 2009

Appearances: S Bailey for Appellant
             S J Jamieson & C J Lange for Crown

Judgment: 
    26 March 2009


               ORAL JUDGMENT OF HON. JUSTICE FRENCH


[1]    This is an appeal against sentence.


[2]    On
9 February 2009 the appellant appeared for sentence in the District Court
in respect of the following matters:

               i)
    using a document;

               ii)    two breaches of an intensive supervision order;

               iii)   two theft charges;

               iv)    two breaches of bail.




WILSON (AKA SMITHERAM) V POLICE AND ANOR HC CHCH CRI-2008-409-000035 26 March 2009

[3]    In addition, the appellant appeared for re-sentencing in respect of the matters
which had originally led to the imposition
of the intensive supervision order. These
include a breach of Court and police bail, possession of cannabis, and breach of
Court
release conditions.


[4]    The Judge sentenced the appellant to a total of 13 months' imprisonment.
This was comprised of 12 months
in respect of the using a document charge; one
month in respect of the breach of supervision charges, and concurrent terms on each
of the other matters, with the exception of the breach of police bail charge. In
respect of that matter, the appellant was convicted
and discharged.


Factual background

[5]    As will be readily apparent, the offending involved a detailed factual
background.


[6]    On 25 January 2008 , police found the appellant in possession of three foils
of cannabis, each containing 0.5 grams.


[7]
   The appellant appeared before the Court and was released on bail. She then
breached the conditions of bail, which led to more
charges. They were in addition to
a further charge involving breach of release conditions. That concerned conditions
imposed on the
appellant when she was sentenced to two months' imprisonment the
previous year in August 2007.


[8]    In August 2008, the appellant
was sentenced on all those matters to 12
months' intensive supervision. However, within 72 hours of that sentence being
imposed,
she had breached it too by failing to report to the probation officer. She
failed to report a second time in December 2008. There
was also evidence before the
sentencing Judge that on a number of other occasions when the appellant did report
she was so intoxicated
that probation had to send her away.


[9]    The Department of Corrections applied for cancellation of the intensive
supervision
order. That required the Court to undertake a re-sentencing exercise.

[10]      In addition to these old matters before the Judge,
there were a number of
other new matters. The most serious of these had taken place in February 2008 ­
that is to say the time while
the appellant was on bail for the cannabis offending.
The appellant had altered the face of a notice of credit for $74 that had been
issued to
her by Work and Income New Zealand. It had been issued to read "The Salvation
Army", but the appellant altered it by adding
the words "or Warehouse". She then
went to the Warehouse and used the credit note to purchase a number of items.


[11]      It seems
the offending was not discovered until September 2008, following
the appellant's arrest on 18 September when she had been discovered
shoplifting a
cask of wine valued at $22.45 from the supermarket. As at September 2008 the
appellant was of course in her first month
of the intensive supervision sentence.


[12]      She appeared on the shoplifting and using a document charges and was
released
on bail. In breach of bail, she failed in October, and again in December, to
attend.


[13]      In January 2009 there was a second incident of shoplifting: this
time a cask of
wine and moisturising cream valued at $35.10. At that time, the appellant was of
course still on bail, as well as
being under sentence of intensive supervision.


[14]      The appellant has an extensive criminal record, with a long history of
dishonesty offending, including shoplifting, theft and breach of Court orders. Sadly,
it seems clear that alcohol is a major factor
in her recidivist offending. As the Judge
noted in his sentencing notes at [4]:

          ... it is all encapsulated in the probation
officer's comment that when sober
          you present as a young woman who would like the opportunity to address
          your
addictions, but given your lack of compliance in the past you are unable
          to do this when you are in the community.


Grounds
of appeal

[15]      On appeal, counsel for the appellant, Ms Bailey, accepts that a term of
imprisonment was appropriate, but submits
that a period of 13 months was
manifestly excessive. In particular it is submitted that where the Judge went wrong

was to set the
starting point too high for the lead offence. Ms Bailey points out the
amount in issue was only $74, and that had it been a stand
alone offence it would
probably have attracted only a community-based sentence. As it was, a term of
imprisonment was warranted,
but not one as long as 12 months. Ms Bailey contends
that instead of 12 months, the appropriate benchmark should have been two months,
with six months for the remaining offences, making an overall total of somewhere
between eight and nine months' imprisonment.


[16]
  At the request of the appellant, Ms Bailey also provided me with a number of
letters. There are two letters from the appellant,
another from her sister, and one
from another prison inmate whom the appellant has befriended. I have read the
letters, which are
written in very heartfelt, personal terms.      They speak of the
appellant recognising for the first time the need to make changes,
and have a
newfound resolve to do something about it. Ms Bailey advised me that it is very
important for the appellant to know the
letters have been forwarded.


Discussion

[17]   It is clear from the sentencing notes that the Judge took the using a document
charge as his lead offence, and that in setting a starting point of 12 months, the Judge
took into account the other offending, other
than the breaches of intensive
supervision which attracted a cumulative sentence of one month.


[18]   It is also clear that the
Judge did recognise the appellant was entitled to a
discount on account of the guilty pleas, and also clear that he undoubtedly did
have
regard to the totality principle.


[19]   As stated in the Court of Appeal decision of R v Xie  [2007] 2 NZLR 240, the
primary focus for an appellate Court in cases of multiple offending is the end result,
rather than the means by which the sentencing
Judge arrives there. The question for
me is whether the total sentence reflects the totality and overall criminality of the
offending
and the offender.

[20]      Here, the offending involved a significant number of non-compliance
charges and a person with an exceptionally
bad criminal record. In my view, the
sentence of 13 months was not manifestly excessive having regard to the totality of
the offending
and the aggravating factor of the appellant's previous convictions for
similar offending.


[21]    In short, appellate intervention
is not justified, and the appeal is accordingly
dismissed.




Solicitors:
S Bailey, Christchurch
Crown Solicitor, Christchurch