Sheridan v Police HC Gisborne CRI-2011-416-025 [2011] NZHC 930 (3 August 2011)

Last Updated: 27 August 2011

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

_{CRI-2011-416-025}

BETWEEN SAMUEL LEE SHERIDAN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 August 2011

Counsel: A M Simperingham for Appellant

F E Cleary for Respondent

Judgment: 3 August 2011

ORAL JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] On 22 June 2011 the appellant, Samuel Lee Sheridan, was sentenced to 30

months’ imprisonment at the Gisborne District Court.

[2] The primary charges he faced were receiving, escaping from police custody, burglary and dangerous driving. For these he received 15 months’ imprisonment.

[3] At the same time Mr Sheridan (who was now to be in prison for some time) was resentenced on some prior charges (arising from events in 2007, 2008 and 2009) in respect of which he had pleaded guilty and been sentenced to community detention and community work by another Judge in September and November 2009. Those charges were:

(a) 2007 charges: two charges of common assault and one of participation in an unlawful assault (when Mr Sheridan and his

_{relations invaded a 21}st _{birthday party);}

SHERIDAN v NEW ZEALAND POLICE HC GIS CRI-2011-416-025 3 August 2011

(b) 2008 charges: charges of driving with excess breath alcohol and dangerous driving;

(c) 2009 charge: one charge of threatening behaviour.

District Court Sentencing

[4] The Judge sentenced Mr Sheridan to 30 months’ imprisonment calculated on

a cumulative basis, allocated as follows:

(a) In relation to the receiving charges and the related escaping charge: on both receiving charges he is convicted and sentenced to six (6) months’ imprisonment. On the escaping charge he is sentenced to two (2) months’ imprisonment. Those sentences will be concurrent, as between themselves.

(b) In relation to the burglary charge and the related dangerous driving charge: on the burglary charge Mr Sheridan is sentenced to nine (9) months’ imprisonment and on the dangerous driving charge to a concurrent term of three (3) months’ imprisonment, together with one (1) year’s disqualification.

(c) In relation to the application to cancel sentence, that is granted. In relation to the excess blood alcohol and the related dangerous driving charge: taking into account the amount of community work that Mr Sheridan has done, on the excess blood alcohol he is sentenced to two (2) months’ imprisonment and on the dangerous driving to a concurrent term of three (3) months’ imprisonment. On both he is disqualified from driving for eighteen (18) months. On the threatening behaviour charge he is convicted and discharged.

(d) On the three charges dating from 17 November 2007, he is sentenced to six (6) months’ imprisonment, concurrent as between themselves, on each of those three charges.

(e) Finally, in relation to the outstanding fines, they are remitted and a further term of six (6) months’ imprisonment is imposed.

In relation to each of the separate groups of offending, the terms of imprisonment, whilst concurrent as between themselves, are to be served cumulatively. The effect is that Mr Sheridan has today received a total sentence of thirty (30) months’ imprisonment.

Appeal

[5] The appellant appeals on three grounds.

(a) First, the sentencing Judge misdirected himself in relation to the 2007 charges in respect of which Mr Sheridan was to be resentenced. The Judge appeared to understand that they included one of injuring with reckless disregard, whereas in fact that charge had been reduced to one of common assault.

(b) Secondly, when Mr Sheridan was resentenced on those charges the Judge did not take into account the fact that he had already completed a sentence of six months’ community detention and some 159 or so hours of community work.

(c) Thirdly, when resentenced to 18 months’ disqualification for the 2008 charges, that was manifestly excessive.

Incorrect charge ground (2007 charges)

[6] The Crown accepts that the injuring with intent charge had been reduced to common assault at the November 2009 sentencing.

[7] Although the Crown submits that the Judge had material before him showing that the unopposed application for resentence was based on a charge of common assault rather than one of injuring with reckless disregard, the Court file copy of the information had not been corrected and the Judge’s sentence note appears on that document. In addition, the Judge’s formal sentencing notes refer to the injuring with reckless disregard charge and imposed a sentence for that offence. I therefore proceed on the basis that the Judge had inadvertently misdirected himself because of the uncorrected information remaining on the court file.

[8] The circumstances of the assault were serious. It occurred at a 21st birthday party which the appellant gate-crashed with other members of his family. They behaved in an aggressive and threatening manner towards the partygoers. When asked to leave they refused. Fights then broke out. Indeed fighting appears to have been the appellant’s objective in going to the event. One partygoer was kicked in the face and several others were punched. The police were called and the appellant and

his group ran off. As a result of the assault the person kicked by the appellant was taken to hospital for treatment.

[9] It is only appropriate that the appellant be imprisoned in respect of these charges. The question is whether six months is manifestly excessive bearing in mind that the sentence is cumulative with the other assault charge and the charge of unlawful assembly.

[10] I bear in mind that the original sentencing judge, proceeding on the charges correctly described, saw fit to impose a sentence of six months community detention. He noted at that stage the appellant was still in employment and had a good work record. Those considerations are of course significantly disrupted following the June

2011 sentencing as a result of which Mr Sheridan now found himself in prison.

[11] I also bear in mind that as at the date of the original sentencing the appellant had only one prior conviction for crimes against the person, that being a charge of the use of threatening language in March 2009, for which he was sentenced to a term of community work.

[12] Taking all matters together, I consider that a term of six months’ imprisonment is manifestly excessive for an assault of this kind, given the circumstances of the offender. The sentence of six months’ imprisonment is quashed and a sentence of four (4) months’ imprisonment will be substituted.

Partial completion of community work sentence ground (2007 charges)

[13] The appellant was sentenced, on the 2007 charges, to 250 hours community work. That was in November 2009. The sentence was to be concurrent with community work for other convictions including the threatening language conviction I referred to earlier.

[14] The appellant has completed some 159 hours. The appellant says that it was open to the Judge to simply exercise his discretion under s 68(3)(b) and cancel the sentence. And that in the circumstances the cumulative six months sentence should

be cancelled to reflect that the lead charge had a maximum penalty of 12 months’ imprisonment, that the sentence of community detention was served, and that 159 hours of community work had been completed.

[15] The Judge did take into account the community work that had been performed in resentencing the appellant on the 2008 and 2009 charges relating to excess blood alcohol, dangerous driving and threatening language.1 He did not do so

on the 2007 charges.2 But the community work sentences were all to stand

concurrently.

[16] In my view there is merit in the appellant’s submission. Taking into account the extent of community work already undertaken I further reduce the four month imprisonment term for the 2007 charges to two (2) months’ imprisonment.

Disqualification ground (2008 charges)

[17] Mr Simperingham sought leave to raise a further ground of appeal, namely that the sentence of disqualification from driving imposed on the appellant on resentencing on the 2008 charges was manifestly excessive and should have taken account of the time that the appellant had already been disqualified for. The Crown did not oppose leave in relation to this ground.

[18] The disqualification sentences arise in this way:

(a) In September 2009 the appellant was convicted on the 2008 charges of driving with excess breath alcohol and driving in a dangerous manner. He was sentenced to 200 hours community work and one year’s disqualification.3

(b) On 22 June 2011 the Judge sentenced the appellant on the new charge of dangerous driving under s 35(1)(b) of the Land Transport Act 1998.

1 _{See at [4(c)].}

2 _{See at [4(d)].}

3. A final warning was given. The appellant had two prior excess breath alcohol charges dating back to 2001 and 2002. He also had three convictions for driving while disqualified.

And of course he was then resentenced on the 2008 charges just referred to.

(c) The Judge imposed a 12 month disqualification period for the new charge, and on the resentenced charges imposed 18 months’ disqualification.4

[19] But of course the appellant had already completed the period of 12 months’ disqualification for the resentenced 2008 charges, commencing on the original date of sentence of 1 September 2009. That had long expired by the time of resentencing in June 2011.

[20] The imposition of the resentence was for a greater period than that originally imposed and can only make sense if it was understood to run from the original sentence date. Otherwise the disqualification period would in effect be a term of 2½ years’ disqualification. Such a period in relation to those charges, having regard to the original sentence given, would be manifestly excessive. I am sure the Judge did not intend that outcome. But in any case, that aspect of the original sentence having been served in full, there was no cause for resentencing to any additional term of disqualification at all.

[21] The resentence of 18 months’ disqualification on the 2008 charges is therefore quashed.

Result

[22] The sentence of six months’ imprisonment in respect of the 2007 unlawful

_{assembly and common assault charges is reduced to two (2) months’ imprisonment.}

4 See [4(c)].

[23] The sentence of 18 months’ disqualification given upon resentencing for the

2008 driving charges is quashed.

Stephen Kós J

Solicitors:

Woodward Chrisp for Appellant

Crown Solicitor’s Office, Napier