Norman v Police HC Tauranga CRI-2011-470-20 [2011] NZHC 1595 (8 August 2011)

Last Updated: 21 November 2011

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

_{CRI-2011-470-20}

BETWEEN MURRAY TE WEHI NORMAN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 8 August 2011 (Heard at Hamilton)

Counsel: N Dutch for Appellant

J J Rhodes for Respondent

Judgment: 8 August 2011

(ORAL) JUDGMENT OF POTTER J

_{on appeal against sentence}

Solicitors: Crown Solicitor, Tauranga

_{Copy to: N Dutch, Tauranga}

NORMAN V NEW ZEALAND POLICE HC TAU CRI-2011-470-20 8 August 2011

Introduction

[1] Murray Te Wehi Norman appeals against the sentence imposed on him by Judge Everitt.[1] The appellant was sentenced on a number of charges to which he had entered early guilty pleas. They were:

(a) Breach of community work on 22 December 2010 – maximum penalty three months imprisonment.

(b) Failing to answer bail on 10 May 2011 – maximum penalty one year imprisonment.

(c) Receiving aluminium extrusion valued at $109.20 on 20 and 21

September 2010 – maximum penalty three months imprisonment under s 247 of the Crimes Act.

(d) Possessing cannabis on 8 June 2011 – maximum penalty three months imprisonment.

(e) Possessing a bong also on 8 June 2011 – maximum penalty one year imprisonment.

[2] The breach of bail charge on 10 May 2011 arose when Mr Norman was on bail for breaching the sentence of community work. The cannabis and bong charges on 8 June 2011 occurred when he was on bail for the receiving charge.

Sentencing

[3] The end sentence imposed by the Judge was five months two weeks imprisonment which the appellant contends, and the Crown accepts, was manifestly excessive. It is a little unclear from the sentencing notes how the Judge reached the

_{end sentence. He imposed a sentence of three months imprisonment on the receiving}

charge and ten weeks imprisonment on each of the breach of community work, breach of bail, possession of cannabis and possession of a bong. The sentence of ten weeks imprisonment on the cannabis related offending appears to have been made cumulative on the sentence of three months imprisonment for receiving to reach the end sentence.

[4] The Judge allowed no discount for the appellant’s guilty pleas. The Crown accepts the Judge erred in this respect. Home detention was declined but this is not an issue on appeal. The appellant has already been in custody for approximately three months.

Factual background

[5] The receiving charge arose when Mr Norman and a female associate sold some aluminium extrusion for $109.20. Originally Mr Norman had faced a burglary charge in relation to the theft of the aluminium but that was subsequently dropped. It appears the aluminium was stolen by associates of Mr Norman but his consistent contention has been that he simply received the relevant items and sold them for a comparatively small amount of cash, approximately $109.

[6] Counsel suggests it appears likely that because the Judge referred in some detail to the facts relating to the theft of the aluminium which related to aluminium planks valued at $4,500, he may have sentenced the appellant on the receiving charge on the basis that the maximum penalty was that which related to $4,500 worth of goods (seven years), rather than $109 worth of goods.

[7] Mr Norman was sentenced to 180 hours of community work for cannabis related offending on 10 March 2010. He failed to report to the Tauranga Community Work Centre which gave rise to the charge of breach of community work on 22

December 2010. He had at that time completed only 35 hours of his community service.

[8] On 8 June Police conducted a search of Mr Norman’s address and detected a strong smell of cannabis. They located two grams of cannabis plant along with a bong.

[9] The breach of bail arose from Mr Norman having failed to appear in Court on

10 May 2011 following his release on bail on 19 March 2011. Mr Dutch explained that this arose from a confusion about the dates.

Personal circumstances

[10] The personal circumstances of Mr Norman are detailed in the pre-sentence report which, as Mr Rhodes for the Crown says, is unfavourable to Mr Norman. The Judge refers to this report in his sentencing notes, identifying Mr Norman’s casual attitude to life, his sense of entitlement – for example if he needs money, other people’s property is fair game – and what he described as an “incorrigible attitude”.

[11] Mr Norman has previous convictions - three for breach of community work, one for failing to answer bail, and two for possessing cannabis and needle/syringe. In assessing his motivation for change the probation officer referred to the appellant’s sense of entitlement and his lack of remorse for his actions. He was assessed as being of medium risk to re-offending because he did not appear motivated to make any changes to his lifestyle.

Counsels’ submissions

[12] I have been assisted by constructive submissions from both the Crown and the defence. As I have mentioned, there is no dispute that the end sentence of five months two weeks was excessive and that there was no allowance for the guilty pleas. Mr Dutch for the appellant submits that an end sentence in the vicinity of three months would be appropriate. The Crown submits that an end starting point of five months would be appropriate but with allowance for the guilty pleas to be made from that of twenty per cent, to give an end sentence of four months imprisonment.

[13] I turn to the matter of sentencing on appeal given that the appeal must be allowed. I consider the appropriate approach is to reconstruct the sentence. Starting with the sentence for receiving which is accepted to be manifestly excessive given that the maximum sentence is three months imprisonment, I consider the appropriate sentence for the receiving offence to be one month two weeks imprisonment or one and a half months imprisonment.

[14] On the cannabis and bong charges I accept Mr Dutch’s submission that this is low level offending and, in accordance with the proviso in s 7(2)(b) against imprisonment for this type of offending, it would not normally have attracted a sentence of imprisonment. However, given the custodial sentence imposed for the receiving the Judge cannot be criticised for imposing a sentence of imprisonment. I conclude that the appropriate sentence for the cannabis offending and the bong offending in each case to be one month’s imprisonment. That sentence to be cumulative on the sentence for receiving.

[15] For the breach of bail and breach of community work, I consider a sentence of two months imprisonment in each case to be appropriate. Again to be cumulative on the other sentences because the offending arises from different circumstances.

[16] The revised starting point that I reach, therefore, is four and a half months imprisonment. I need to stand back and consider whether such a sentence is disproportionately severe having regard to the totality of the offending. I do not find the revised starting point of four and a half months to be disproportionately severe. From that revised starting point must be allowed a discount for the guilty pleas. I allow four weeks to reach an end sentence of fourteen weeks or three and a half months imprisonment. The discount allowed for the guilty pleas is just over twenty per cent which I consider appropriate taking account of the early guilty pleas, the inevitability of conviction on the charges, with a slight reservation only in relation to the receiving charge, and Mr Norman’s total absence of any remorse.

[17] The appeal will therefore be allowed. The sentence of five months two weeks imprisonment is set aside and substituted by a sentence of three and a half months imprisonment.

[18] For administrative purposes it is necessary to define the sentence to which the discount for the guilty pleas is applied. The discount of four weeks for the guilty pleas will be applied to the sentences of two months on each of the breach of community work and breach of bail, reducing those sentences to one month in each case.

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[1] New Zealand Police Department of Corrections v Norman DC Tauranga CRI-2011-070-002013,

23 June 2011