O'Donnell v Police [2012] NZHC 997 (14 May 2012)

Last Updated: 21 May 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000017 [2012] NZHC 997

BETWEEN BRENDON PAUL O'DONNELL Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 9 May 2012

Counsel: H A Evans and S R Grieve for Appellant

M A V Raj for Respondent

Judgment: 14 May 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.30 pm on the 14th day of May 2012.

_{RESERVED JUDGMENT OF GENDALL J}

[1] The appellant pleaded guilty in the District Court at Christchurch on 20

September 2011 to one crime of burglary, two of receiving stolen property, one offence of driving whilst his licence was suspended on a third and subsequent occasion and breach of a sentence of community work.

[2] He was sentenced by District Court Judge A D Garland to 11 months’ home detention, 200 hours’ community work, ordered to pay reparation of $180 and disqualified from holding a driver’s licence for two years.

[3] The appeal is against the sentence imposed. Counsel contends it was manifestly excessive and reached by District Court Judge Garland adopting a wrong

_{and invalid process.}

O'DONNELL V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000017 [14 May 2012]

Background facts

[4] In the early hours of the morning of 8 November 2010 the appellant entered premises in Hart Street, Christchurch and stole 17 car batteries from a yard, having a total value of $170. When he appeared on that day he was remanded on bail. Six weeks later, on 18 December 2010, the garage of a neighbour of the appellant was burgled and property to the value of $700 taken. Within a short time thereafter the appellant pawned two items of property that had been taken.

[5] On 5 January 2011 the same neighbour’s garage was burgled again and items to the value of $2,800 were stolen, including a mountain bike which was pawned 10 days later by the appellant. He was not charged in relation to those two matters until July 2011. He denied being involved in the burglary but admitted receiving items from his partner, who he said had received them in payment to services that she had rendered to someone else. He was charged only with receiving the items stolen on

18 December 2010 and 5 January 2011.

[6] The appellant’s driver’s licence had been suspended for three months on

9 December 2010. On the afternoon of 31 December 2010 he was apprehended by the police whilst driving a motor vehicle in Christchurch. He gave as an explanation that he had only been a passenger in a vehicle, which was being driven by his partner but she had some form of seizure so he drove her to seek medical assistance. He pleaded guilty to that charge.

[7] Earlier, on 6 July 2010, the appellant had been convicted of being unlawfully in an enclosed yard and was sentenced to 50 hours’ community work. He breached the conditions of that sentence by failing to report to the work centre as directed.

[8] When imposing sentence Judge Garland observed that the explanation given for the driving did not equate with that given to the police at the time. But it is apparent that after the appellant was apprehended by a police officer driving when driving, his partner was seen to exhibit some signs of seizure and she and the appellant were taken by the officer to a medical surgery. She was seen, gave a history, and was released within about a minute.

[9] Judge Garland said the appellant had a medium risk of reoffending, with a long history of offending for over 20 years. He observed that the appellant had little insight into, and no victim empathy minimising and attempting to shift the blame for his offending. The Judge noted that the driving conviction was the sixteenth of its kind and took the view that it justified a starting point of two years’ imprisonment. To this the Judge added a further one year in respect of the overall dishonesty offending, giving an overall starting point of three years. Judge Garland discounted that by nine months (25 per cent) for the guilty pleas, a further five months because the appellant had been on electronically monitored bail and for time spent in custody. From an indicative sentence of 22 months’ imprisonment the Judge imposed a sentence of home detention of 11 months, rather than imprisonment, given the probation officer’s recommendation for a non-custodial sentence (although that was for intensive supervision with further community work).

Appellant’s contentions

[10] Mr Evans on behalf of the appellant submitted the sentences of home detention was manifestly excessive because Judge Garland wrongly took as a starting point a term of two years’ imprisonment on the driving charge, failing to give proper recognition to the mitigating features relating to it, namely the appellant’s justified claim that he drove because of a medical emergency. He submitted that although the appellant had 15 previous convictions for driving whilst disqualified and other driving offences, the mitigating factors were so powerful that the Judge was wrong to adopt a starting point at the maximum of two years. Counsel submitted this was not a case where the appellant’s prior record should have been taken into account and in oral submission to the Court he contended that a starting point as low as six months, or no more than 12 months, was all that should have been taken for the driving charge.

[11] Counsel submitted that whilst the appellant had a poor history conviction (over 60 convictions) many of those matters were historical and there had been a five year gap in offending after 2002. Counsel accepted that allowing for a further starting point of 12 months’ imprisonment for the dishonesty offending might have

been appropriate, but he contended that that would only have led to a starting point for sentencing purposes of two years.

[12] Counsel said that he agreed with the 25 per cent allowance for guilty pleas and another five month discount for time on electronic bail and in custody. So he said this would have led (applying an arithmetical approach) to an end result of

11 months’ imprisonment. Counsel’s argument then proceeded on the basis that that would equate to a term of home detention of five and a half months and given the additional community work sentence an end result of five months’ home detention, but no more, was justified. Accordingly, on that basis counsel submitted the

11 months’ home detention was manifestly excessive.

Discussion

[13] Mr Evans’ careful submissions referred to the well known purposes of sentencing and s 7 of the Sentencing Act 2002 and the principles or otherwise dealing with offenders in s 8. He argued that those provisions impose a “rigid framework” on the sentencing process. He relied upon the High Court decisions of M v Police[1] (a decision of Heath J) and Peterson v Police[2] (a decision of Duffy J) as authority for the proposition that the correct appellate approach is not to assess whether the end sentence was appropriate, but whether the sentencing judge reached it using a “proper methodology”. He contended that the correct approach was to

consider the process by which the sentencing judge reached the end sentence. In M and Peterson reference is made to R v Finau[3] on the basis that an appellate court should start afresh and “resentence” an appellant. But I note that that approach was adopted because, as the Court of Appeal said, the sentencing judge did not have relevant evidence before him relating to the appellant and that the Judge regarded wrongly certain factors as justifying an uplift from the starting point and the Court of

_{Appeal was not sure on what basis the Judge reached the starting point.}

[14] I do not take any issue with what was said in those cases and appellate courts often are required to “resentence” if there are material and significant errors made by a sentencing judge through failing to take into account relevant mitigating factors or not adopting an appropriate process so as to reach a sentencing outcome that was inappropriate, questionable or manifestly excessive. I do not think that it necessarily follows because there may be imperfection or error made by a sentencing judge at some part of the process that it will lead, without more, to a conclusion that the end sentence is manifestly excessive. An error may be immaterial to the end result. But of course, it may be that the appellate court cannot bring a proper assessment to that question without, as was the case in Finau, itself adopting afresh a sentencing approach. So I turn to consider first the starting point adopted by the Judge.

[15] Conventionally, starting points are designed to reflect the overall culpability of an accused for the crimes or offences upon which he is to be sentenced. Multiple offending will reflect upon that culpability. If an offender is to receive concurrent sentences the starting point in the sentencing process obviously must be higher than what would be the case on any individual sentence viewed in isolation. Sometimes Judges impose cumulative sentences and in doing so take individual starting points for each sentence in framing the ultimate outcome.

[16] In the present case Judge Garland whilst imposing concurrent sentences adopted a methodology of adding together what he considered to be appropriate starting points for the driving offence and the dishonesty offence. I agree with counsel that the starting point taken for the disqualified driving offence was, in the circumstances, too high. Clearly it needed to reflect the fact that there had been

15 previous convictions for driving whilst disqualified but I consider it should not have exceeded 15 months if to be viewed in isolation. The burglary and receiving charges, would have justified a total starting point of at least 15 months’ imprisonment. Given that the two receiving offences occurred while the appellant was on bail on the burglary charges (in all probability not much longer than 10 days after bail was granted) the Judge’s starting point of one year’s imprisonment viewed for the dishonesty offences was lenient.

[17] Leaving aside for the moment the arithmetical approach, when the total culpability of the offending is viewed, involving three crimes of dishonesty in close succession, two whilst on bail, driving whilst his licence was suspended and breaching a sentence of community work imposed earlier in 2010 an overall starting point of two and half years at least would have to be taken to reflect those factors.

[18] As has been said on many occasions the process of sentencing is not a mathematical exercise and much depends on the judgment applied to the unique circumstances of the offending and the offender. Judge Garland was especially generous to the appellant in giving him what he said was “full credit” for the guilty pleas. That equated to 25 per cent and in terms of the Supreme Court decision in Hessell v R[4] that was excessive. It could not possibly have been said that the guilty pleas came at the earliest opportunity. The appellant first appeared on the burglary charge on 8 November 2010 and his guilty plea came over ten months later on

20 September 2011. He maintained not guilty pleas for many months. He first appeared on the driving matter on 5 January 2011 and pleaded guilty over eight months later. The receiving charges came later in 2011 and guilty pleas were reasonably prompt. But the maintaining of a not guilty plea on the burglary charge for such a period could not have justified a 25 per cent discount on the starting point. At best it may have been 10-12 per cent.

[19] Whilst counsel says problems involving appearances in the Courts after the February 2011 earthquake meant delays in entering the guilty pleas, the Court record shows that the appellant appeared at least on six occasions after being charged after February 2011 and further occasions between February and September 2011 before entering the pleas.

[20] Credit for the electronic bail and time in custody was generous. The appellant did not need to spend so long on electronic bail but for the fact that he maintained not guilty pleas.

[21] Adopting a proper starting point of two and a half years’ imprisonment for

_{the totality of the offending and allowing a 12 per cent discount for the guilty plea,}

applying further credit for the five months given by the District Court, the end result would have been an indicative sentence of 21½ months (if applying rigid mathematics 21.4 months). It could well have been more. The 200 hours’ community work was properly imposed to reflect the breach of the previous sentence of community work.

[22] When viewed against the multiple offending of the appellant, whilst on bail and serving a sentence of community work, his 15 previous driving offences, 17 dishonesty convictions and having served terms of imprisonment of up to one year (although not since 1994) the home detention sentence imposed in the hope of rehabilitative intervention was a lenient, but justified outcome. The term of

11 months’ home detention could not be said to be manifestly excessive in view of all the aggravating and mitigating circumstances. The sentence was justified and the

_{appeal is dismissed. Accordingly the appeal is dismissed.}

_{J W Gendall J}

Solicitors:

Young Hunter, Christchurch for Appellant

Crown Solicitor, Christchurch for Respondent

---

[1] _{M v Police HC Auckland CRI-2004-404-440, 10 December 2004.}
[2] _{Peterson v New Zealand Police HC Hamilton CRI-2009-419-11, 20 February 2009.}
[3] R v Finau [2003] NZCA 129; [2002] 20 CRNZ 333 (CA) at 337.

[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.