Selwyn v Police [2013] NZHC 107 (5 February 2013)

Last Updated: 15 March 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000404 [2013] NZHC 107

SHIRLENE DEBORAH SELWYN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 5 February 2013

Counsel: M J Kidd for the Appellant

K Snelgar for the Respondent

Judgment: 5 February 2013

_{JUDGMENT OF WOOLFORD J}

Solicitors/Counsel:

Dr Michael Kidd, Lawyer, Henderson, Auckland. Crown Solicitor, Auckland

SELWYN V POLICE HC AK CRI-2012-404-000404 [5 February 2013]

Introduction

[1] On 8 November 2012, in the Waitakere District Court, following a plea of guilty, Shirlene Deborah Selwyn (“the appellant”), was convicted and sentenced on one charge of receiving stolen property, namely, an Acer Laptop computer, being reckless as to whether or not it had been stolen. She was sentenced to 225 hours community work. She now appeals against sentence.

Background

Facts

[2] On 23 April 2012 between the hours of 7:30 am and 2:00 pm a dwelling house on Riverhead Road, Kumeu was burgled. During the burglary, a lime green Acer Laptop, valued at $800.00, was taken along with a large number of other items.

[3] Between 23 April and 11 May 2012 the appellant received the laptop from an unknown person. In explanation she said she bought it for $300. However she refused to advise Police from whom she had purchased it.

[4] At sentencing the appellant said that she had received the laptop from a family member or from someone known to the family. She said that she had paid

$300 for it and did not believe it was stolen. She said that whoever she got it from had “gone to the islands”. However she pleaded guilty and did not apply to vacate her plea.

[5] Judge Ryan is recorded as saying she took into account the appellant’s guilty plea, the Police evidence before her and the fact that the appellant had refused to name the person who gave her the laptop. She noted that the appellant had pleaded guilty at a late stage and was “no stranger to the court”.

[6] Although the Judge considered receiving to be a serious offence and despite the appellant’s long history of previous offending, she decided against imprisonment or an electronically-monitored sentence in favour of community work.

[7] Judge Ryan considered that a starting point of 250 hours community work, took into account the appellant’s previous history and the nature of the offending. From that the Judge deducted 25 hours, or 10 per cent, for the appellant’s very late guilty plea. The final sentence was therefore 225 hours community work.

Ground of Appeal

[8] The appellant appeals her sentence on the ground that the sentence of 225 hours of community work is excessive and does not take into account the appellant’s personal involvement in the offence and lack of previous convictions for dishonesty.

Appellant’s Submissions

[9] The appellant submits that the sentence is excessive on the basis that the appellant had paid a market price for a second hand laptop, and so had not been put on notice by an unusually low price. The appellant also submits that the Judge had not put sufficient weight on the fact that this was the appellant’s first dishonesty offence, her remorse and her cooperation when the Police arrived at her relative’s home and that she willingly fetched the laptop for them. Finally, the appellant submits that the Judge failed to show appropriate mercy.

[10] The appellant submits that the 100 hours community work would be an appropriate sentence.

Respondent’s Submissions

[11] On the other hand, the respondent submits that the end sentence of 225 hours community work is not clearly excessive. It is said to reflect the gravity of the offending and the aggravating feature of the appellant’s criminal history and is therefore within the available range. The respondent also submits that the guilty plea

discount was appropriate although generous given that the guilty plea was entered after the appellant had failed to appear at a defended hearing.

Appeal against Sentence

Approach to appeal

[12] An appeal against a sentence is a general appeal which shall be by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[13] The approach to be taken to appeals under s 121(3) was set out in Yorston v

Police where the Court said: [1]

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[14] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. There is nothing in the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar, which deals with the proper approach to be taken by an appellate court in general appeals, to show that decision was intended to apply in appeals against sentence: see D v

Police [2] _and Wright v Police.[3]

Substantive law

247 Punishment of receiving

Every person who is guilty of receiving is liable as follows:

(a) if the value of the property received exceeds $1,000, to imprisonment for a term not exceeding 7 years:

(b) if the value of the property received exceeds $500 but does not exceed the sum of $1,000, to imprisonment for a term not exceeding

1 year:

(c) if the value of the property received does not exceed $500, to imprisonment for a term not exceeding 3 months.

[15] There is no tariff case for receiving. However the following cases provide some guidance as to whether the sentence of 225 hours community work is manifestly excessive.

_{Property valued between $500 and $1,000 – s 247(b)}

[16] In R v Shaw,[4] Mr Shaw was sentenced in relation to a total of 60 offences that had been committed over a seven month period. This included one count of receiving stolen property of a value between $500 and $1,000. On this count Mr Shaw was sentenced to one month’s imprisonment, to be served concurrently with his other sentences, which totalled nine years 11 months’ imprisonment.

[17] In R v Mahanga,[5] Mr Mahanga received a stolen motorcycle valued at approximately $500. The Judge took into account Mr Mahanga’s remorse and references and applied a 25 per cent discount for his guilty plea. There were no aggravating factors. Mr Mahanga was sentenced to one month’s imprisonment. This was to be served concurrently with sentences of two years five months’ imprisonment and nine months’ imprisonment for cannabis-related offences and

_{aggravated assault.}

[18] In R v Hamerton,[6] Mr Hamerton was charged with receiving a stolen computer of a value between $500-$1000 and four counts against the Misuse of Drugs Act 1975 relating to the supply and possession of methamphetamine. The stolen computer was seized at the time of the search that resulted in the methamphetamine charge. This temporal linked lead the judge to impose a concurrent sentence of two months’ imprisonment on the charge of receiving.

[19] In Daniels v R,[7] Mr Daniels sold stolen video games to a toy store on three separate occasions and attempted to do so on a fourth. He was charged with receiving. The District Court Judge sentenced him to 150 hours of community work and reparation of $620. On appeal counsel for Mr Daniels argued that the sentence was manifestly excessive, given that he was 21 years old, was a first offender, and had been assessed by the reporting probation officer as being at low risk of re- offending. The Court of Appeal rejected Mr Daniels’ appeal against sentence. His offending was repeated on four separate occasions. He showed little or no remorse for it, causing the Judge to query whether he did in fact present a low risk of reoffending.

[20] In R v Fox, Mr Fox unsuccessfully appealed against the sentence he received on two charges of receiving stolen goods with a total value of $1,000. He was sentenced to 100 hours of community work imposed cumulatively on an 80 hour sentence for possession of methamphetamine. Mr Fox had two previous dishonesty convictions.

_{Property valued at over $1,000 – s 247(c)}

[21] In Roughton v Police,[8] Mr Roughton was charged with exceeding the speed limit and receiving a motorcycle. A total sentence of 200 hours' community work

_{and a reparation order of $2,000 was upheld on appeal.}

[22] In Wang v Police,[9] Mr Wang unsuccessfully appealed against his sentence of

250 hours of community work on four counts of receiving property. One item of property was valued at $6,400 and the other three were worth less than $500 in total. The Judge agreed with the District Court Judge’s assessment that Mr Wang’s offending could not be characterised as a discrete one-off incident, an error of judgment or a bad mistake.

[23] In Dunn v Police,[10] Mr Dunn successfully appealed against a sentence of 270 hours of community work for receiving electrical items valued at around $1,500. Mr Dunn had already completed 150 hours community work imposed earlier in the year for theft of a car, committed around the time of the receiving offence. The Judge considered 270 hours to be excessive; these were Mr Dunn’s first dishonesty offences and he was in full-time employment. A sentence of 150 hours of community work was substituted. The Court said “a sentence of the order of 300 hours would have been as much as would have been appropriate for the two offences, given his personal circumstances.”

Analysis

[24] With the exception of cases where a concurrent prison sentence was imposed, an end sentence of 225 hours community work is significantly higher than those imposed in the cases where between $500-$1,000 worth of stolen property was received. The highest sentence cited above was in Daniels, where 150 hours community work was imposed, despite the fact that the offending occurred on four separate occasions. In this case, the receiving was a one-off.

[25] Furthermore, 225 hours of community work appears to be at the high end of sentences for cases of comparable offending where over $1,000 of stolen property was received. For example, in Dunn, the appellant was sentenced to only 150 hours community work, even though the value of the property received was almost twice

_{as high ($1,500) as in this case ($800).}

[26] I am also of the view that Judge Ryan’s emphasis on the appellant’s previous

convictions is questionable in two respects. Judge Ryan held that a starting point of

250 hours of community work “takes into account [the appellant’s] previous history...” However the appellant’s previous convictions are relevant to the offender, not the offending. As such, it should not be factored into the starting point.[11] More importantly, the Judge arguably put undue emphasis on the fact that the appellant is “no stranger to the court”.

[27] The appellant has a relatively lengthy list of previous convictions but little of recent times. She has but two convictions in the last 10 years. In 2008 she was convicted of driving with excess breath alcohol on a third or subsequent occasion and received 200 hours community work. Almost 10 years ago now, in 2003, she was convicted of cultivating cannabis and sentenced to 150 hours community work on that occasion. Many of her convictions prior to that date relate to driving and blood alcohol offences.

[28] Moreover, this was her first dishonesty offence. Therefore it is arguable that little emphasis should have been placed on previous convictions as an aggravating factor.[12]

[29] I am therefore of the view that a lower starting point of 150 hours community work would be more appropriate for this level of offending. This also takes into account that it was a one-off incident.

[30] With regards to the guilty plea discount, 10 per cent was thought by the District Court Judge to be appropriate. In Hessell,[13] the Supreme Court considered that a 10 per cent discount was appropriate for pleas entered three weeks before trial. Accordingly, I am not prepared to interfere with the District Court Judge’s

_{assessment of the appropriate discount.}

Recommendation

[31] The appeal is therefore allowed. The sentence of 225 hours community work is quashed and replaced with a sentence of 135 hours community work.

.....................................

Woolford J

---

[1] _{HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].}
[2] _{HC Tauranga CRI-2008-470-22, 9 September 2008.}
[3] HC Whangarei CRI-2009-488-47, 20 October 2009.

[4] _{HC Timaru, CRI-2009-045-631, 16 December 2009.}

[5] HC Whangarei CRI-2011-088-2950, 12 December 2011.
[6] _{HC Auckland CRI-2009-004-20040, 3 June 2010.}
[7] _{[2011] NZCA 234.}

[8] HC Hamilton CRI-2010-019-9376, 5 April 2011.
[9] _{HC Auckland CRI-2008-404-316, 23 March 2009.}

[10] HC Christchurch CRI-2007-409-198, 8 November 2007.
[11] _{R v Mako [2000] 2 NZLR 170 (CA).}
[12] See for example R v Casey [1931] NZLR 594 (CA), affirmed in R v Ward - [1976] 1 NZLR 588 (CA), where the Court considered that the lower court had placed too much emphasis had on the appellant’s previous convictions for sexual offences when sentencing the appellant on a charge of receiving.

[13] [2010] NZSC 135, [2011] 1 NZLR 607.