Roughton v Police HC Hamilton CRI-2010-019-9376 [2011] NZHC 403 (5 April 2011)

Last Updated: 16 June 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI-2010-019-9376}

BETWEEN CHRISTOPHER JOHN ROUGHTON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 5 April 2011

Appearances: C J Roughton, Appellant in person

R Guthrie for Respondent

Judgment: 5 April 2011

_{ORAL JUDGMENT OF PRIESTLEY J}

Counsel:

KRL Guthrie, Almao Douch, P O Box 19173, Hamilton 3244. Fax: [phone]

Email: [e-mail]

D J Allan, P O box 4443, Hamilton East, Hamilton 3247. Fax: [phone]

Copy to:

_{C J Roughton, 936 Scotsman’s Valley Road, RD4, Morrinsville}

ROUGHTON V NZ POLICE HC HAM CRI-2010-019-9376 5 April 2011

[1] The appellant was sentenced by Judge Tompkins in the District Court at Hamilton on

4 October 2010. He was represented at that hearing by experienced counsel, Mr D. Allan.

[2] The appellant had at that stage pleaded guilty to two counts. The first was exceeding a 50 kph speed limit on Christmas Eve 2009 on Anglesea Street. The second count, being more serious, was receiving stolen property under s 246 of the Crimes Act 1961.

[3] The receiving charge related to a motorcycle which the appellant was driving on the evening he was apprehended. It was a motorcycle which had been stolen some two years previously from its owner in Hamilton.

[4] The Judge convicted the appellant on both counts. The speeding charge is of no consequence in this appeal, although it forms part of the relevant background. Initially the appellant was charged with dangerous driving. Because of his employment in the dairy industry at that time, the appellant was, understandably, anxious not to incur the mandatory disqualification which a dangerous driving conviction would bring. Thus there was something of a plea bargain accomplished on that day.

[5] On the receiving charge the Judge, in an extremely short decision, from which I glean that he was undoubtedly sentencing a number of people that day, imposed a sentence of 200 hours community work and a reparation sentence of $2000, that figure to be paid to the bike’s owner.

[6] The appellant, who has represented himself today, has covered with me very lucidly a number of matters which are concerning him. The appellant’s major concern is that he feels he should not have pleaded guilty to the receiving charge. On his narration, he originally purchased the bike for $1250 from a person he has identified; he then exchanged it for a motor vehicle which he needed at that stage because his partner was pregnant. Subsequently, on Christmas Eve, he re-acquired the motorcycle and was on his way home to join his family for Christmas festivities when the police apprehended him. The appellant is adamant that he had no knowledge that the motorcycle was stolen.

[7] That assertion by the appellant raises two important issues. The first is, if he was innocent of receiving stolen property as he claims, why did he plead guilty? The next issue is whether that conviction can properly be challenged on what, at its best, is an appeal against sentence.

[8] Although I have some sympathy with the appellant’s dilemma, as I explained to him, the only possible redress he has, if he considers he has been wrongly convicted, is to seek leave in the District Court to vacate his guilty plea and to have the conviction set aside. I have further explained to the appellant that the threshold of persuading a court to vacate a guilty plea is high. There might be difficulties with the appellant doing this, given the legal advice he had when he entered his guilty plea.

[9] The Crown, in is submissions, as set out a number of factors which, in its view, point to Mr Roughton having a guilty mind, and indeed guilty knowledge or recklessness at the time he acquired the motorcycle. I do not intend to catalogue those points, except to observe that some of them are quite strong.

[10] Mr Roughton’s second challenge to his sentence relates to the quantum of the $2,000 reparation sentence. The Judge’s methodology was simple. The victim impact statement referred to the motorcycle’s lawful owner having bought it for $3,500 some time previously. The victim was without his vehicle for approximately two years. The statement informed the court that the vehicle was uninsured and that the victim was unable to afford another motorcycle.

[11] On recovery of the motorcycle the ignition had been destroyed, there had been no maintenance, the registration plates had been removed, and it had been de-registered. The victim’s explanation was it cost approximately $800 to get the vehicle re-registered.

[12] That information was factored into the Judge’s methodology. He arrived at the $2,000 figure by taking half of the original cost of the bike to reflect pre-theft depreciation (which would come to $1750) and making an allowance for damage done to the bike and re-instating its registration. Clearly all the figures used by the Judge are approximations.

[13] As Ms Guthrie rightly reminds me, the major purpose of a reparation sentence is to compensate, for as much as money is able to, damage caused to the victim of the crime. As I explained to Mr Roughton, had there been more evidence before the District Court, or this Court, as to the complex transactions he has referred me to; the money he himself had spent on the bike; and the state of the bike at the various times he acquired it, there might be some basis for interfering with the reparation sentence.

[14] At the end of the day, I am left in a position of being unable to treat an appeal against sentence as a proper basis for setting aside a conviction. Rightly so. (given his previous criminal history) Mr Roughton does not seriously challenge the 200 hour community work sentence. As he puts it, the sentence should never have been imposed in the first place because he was not guilty.

[15] The appeal against sentence must therefore fail on two grounds. The first ground is that it is not a proper vehicle for challenging a conviction. The second ground is that there is no proper basis on which I can interfere with the $2,000 reparation sentence, which although broad-brush and approximate, was nonetheless available to the Judge on the basis of the information he had before him.

[16] For those reasons, therefore, the appeal is dismissed.

[17] It may be sensible for Mr Roughton to seek some brief legal advice from Mr Allan once this judgment is available, to see whether there is any realistic prospect of him having

_{his conviction for receiving stolen property set aside and his guilty plea vacated.}

Priestley J