Vujcich v Police [2013] NZHC 1747 (11 July 2013)

Last Updated: 23 August 2013

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-49 [2013] NZHC 1747

BETWEEN MATTHEW WAYNE VUJCICH Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 July 2013

Appearances: A Burns for Appellant

C Macklin for Respondent

Judgment: 11 July 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

MATTHEW WAYNE VUJCICH v NEW ZEALAND POLICE [2013] NZHC 1747 [11 July 2013]

[1] Mr Vujcich pleaded guilty in the District Court to charges of demanding with menaces and aggravated driving whilst disqualified. The latter charge was laid because this was the eighth occasion on which Mr Vujcich had been convicted of driving whilst disqualified.

[2] On 10 June 2013, Judge Munro sentenced Mr Vujcich to an effective term of two years one month imprisonment.[1] Mr Vujcich appeals against conviction on the basis that the end sentence the Judge imposed was manifestly excessive. He argues that the sentence ought to have been one of less than two years imprisonment so that the Judge could have considered a sentence of home detention. He contends that he was a worthwhile candidate for that sentence.

The facts

[3] The two charges arose out of two separate sets of events. The charge of demanding with menaces arose after Mr Vujcich went to visit family in the Kaikohe area. Whilst there, he ended up drinking with a relative and one of his relative’s associates on the evening of 10 December 2012. The three men then travelled to the victim’s address with the intention of obtaining money from him. The victim had apparently purchased a car from one of the group approximately 18 months earlier.

[4] When the three men arrived at the victim’s address, they walked inside and found the victim lying on the couch watching television. One of Mr Vujcich’s co- defendants, Mr George, then told the victim that they wanted the rest of the money they were owed for the sale of the car. He and others in the group then threatened to smash up the house and to beat up the victim and his family.

[5] The victim did not give in. He told the three intruders that he owed them nothing for the vehicle as he had paid for it in full. He said that he was not going to give them any money. Shortly after this, a violent incident arose in which the three men became involved in a wrestling match on the ground with the victim. At some stage during this, Mr Vujcich kicked the victim once in the back of the head. The

_{altercation ended when the victim was able to get to his feet and take possession of a}

spade that Mr George had been brandishing, and that he had used to strike the victim on the back of the head. Once the victim had got hold of the spade, Mr Vujcich and his associates then ran back to their car, shouting as they did so that they would be back. Fortunately, the victim received no substantive injuries as a result of the attack.

[6] When the police interviewed Mr Vujcich he admitted going to the address to get money and drugs, and said that he and his two associates had all formed the intention that they would be “getting the money no matter what”. He said that their intention was to intimidate the victim and get drugs out of him.

[7] The second charge arose out of an incident that occurred approximately four months later, on 15 March 2013. On this occasion, Mr Vujcich was driving a motor vehicle in Rotorua when he was stopped for exceeding the posted speed limit. When he was asked about why he was driving whilst disqualified, he said that he had been driving his daughter to day care and that he then intended to travel to complete periodic detention.

The structure of the sentence

[8] The Judge noted that the charge of demanding with menaces had serious aggravating factors. These included the fact that it involved a home invasion by three men. The attack was obviously premeditated, because they had earlier formed the intention of going to the victim’s address to obtain money from him. The incident then involved not only threats of violence, but also actual violence. Mr Vujcich participated in this by kicking the victim in the head.

[9] The Judge considered that the charge of demanding with menaces therefore warranted a starting point of two years eight months imprisonment. She reduced the starting point by seven months to reflect early guilty pleas, thereby leaving an end sentence on that charge of 21 months imprisonment. She considered the charge of driving whilst disqualified warranted a cumulative sentence of four months imprisonment, bearing in mind the number of occasions in the past in which Mr Vujcich has been convicted for similar offending. This produced the end effective sentence of 25 months imprisonment.

The argument on appeal

[10] The principal argument on appeal is that Judge Munro ought to have taken greater heed of the sentence imposed on Mr Vujcich’s co-offender, Mr George, when he was sentenced by Judge Weir on the charge of demanding with menaces. On 30

May 2013 Judge Weir sentenced Mr George to nine months home detention.[2] Mr

George was sentenced on that date not only on the demanding with menaces charge, but also on two charges of assaulting a female. Mr George has numerous previous convictions for violence, including domestic assaults and an aggravated robbery for which he received a sentence of two years ten months imprisonment.

[11] Counsel for Mr Vujcich submits that, if Mr George was regarded as a suitable candidate for home detention, then the sentence to be imposed on Mr Vujcich ought to have been around the same level.

[12] Judge Munro was clearly aware of the sentence imposed on Mr George because she referred to it in her sentencing remarks. She did not, however, consider that the sentence imposed on Mr George should affect the sentence to be imposed on Mr Vujcich. She took the view that there were mitigating factors available to Mr George that were not available to Mr Vujcich. These included, in particular, steps that Mr George had taken prior to sentencing to rehabilitate himself from several underlying issues.

[13] The Judge noted that Mr Vujcich has already received a sentence of home detention, and he failed to abide by the conditions of that sentence. He had been found cultivating cannabis in the roof of an address at which he was serving a sentence of home detention in 2008.

Decision

[14] The starting point, in my view, must be the gravity of the offending. The aggravating factors that the Judge referred to plainly mean that this was serious offending involving actual violence. I take Judge Weir to have also been of that view

_{because he said that, had Mr George not presented with mitigating circumstances, he}

would have imposed a sentence of more than two years imprisonment on the charge of demanding with menaces. That being the case, it would appear that Judge Munro adopted a sentence that was broadly in line with that contemplated by Judge Weir when he sentenced Mr George.

[15] The only issue that has given me cause for concern is whether the end sentence of 25 months imprisonment that Judge Munro imposed on Mr Vujcich was out of step with the end sentence selected for Mr George before consideration of the issue of home detention.

[16] Judge Weir’s sentencing notes do not reveal the sentencing structure he adopted in respect of Mr George. In particular, he did not select an express starting point for the sentence to be imposed in respect of the charge of demanding with menaces. The most that I can glean from his sentencing notes is that he considered an overall end sentence of 26 months imprisonment was warranted on all charges before having regard to the issue of home detention. I take this from the fact that Mr George’s end sentence was nine months home detention, which would normally equate to an 18 month prison sentence. In addition, the Judge noted that Mr George had already served four months in custody on remand. This would normally translate to a sentence of eight months imprisonment, because an offender is automatically released after serving one-half of any sentence under two years.

[17] Adding those two sentences together, I consider that the Judge must have concluded that an end sentence of 26 months imprisonment was appropriate. He arrived at that sentence, however, after taking into account mitigating and aggravating factors personal to Mr George.

[18] There are some factors that aggravated the position so far as Mr George was concerned. The most obvious of these was the fact that he had previous convictions for offending involving violence. Mr Vujcich by contrast does not have any previous convictions for offending involving violence. On the other hand, Judge Weir identified the very significant steps that Mr George had taken to rehabilitate himself prior to sentencing. Mr Vujcich cannot lay claim to that mitigating factor.

[19] It is not possible to properly weigh the seriousness of the other offending for which Mr George and Mr Vujcich were also sentenced. I do not have any details regarding the factual basis underlying the two charges of assaulting a female to which Mr George had also pleaded guilty. It is therefore not possible to determine whether the circumstances giving rise to those charges were more serious than those giving rise to the charge of driving whilst disqualified by Mr Vujcich. I consider, however, that Judge Munro cannot be criticised for selecting a sentence of four months imprisonment on that cahrge given the fact that this was Mr Vujcich’s eighth conviction for driving whilst disqualified.

[20] In the end, I am unable to say that the sentence of 25 months imprisonment that Mr Vujcich received was disparate to the apparent end sentence of 26 months imprisonment selected in respect of Mr George. The aggravating and mitigating factors in the case of Mr George may well have balanced themselves out. As I have said, I am unable to compare the seriousness of the offending on the remaining charges for which he appeared for sentence.

[21] That being the case, I do not consider that there is any justification for this

Court interfering in the sentence that Judge Munro imposed.

[22] I also record, however, that even if the sentence had been one of less than two years imprisonment, Mr Vujcich could not be regarded as a realistic candidate for home detention. His previous conduct in growing cannabis in his house whilst serving such a sentence counts very much against him, notwithstanding the fact that he says he no longer uses cannabis.

[23] In addition, as counsel for the respondent points out, Mr Vujcich now has a reasonably lengthy history of breaching Court orders other than those disqualifying him from driving. In particular, he now has several convictions for failing to answer District Court bail, and also three convictions for breaching sentences of community work. Any sentence of home detention requires an element of trust, because it is impossible to monitor what the person subject to the sentence is doing at any given time. The Court must trust an offender to abide by the terms of his or her sentence.

Mr Vujcich’s past history in relation to compliance with Court orders is such that the element of trust would not be there.

Result

_{[24] The appeal against sentence is accordingly dismissed.}

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:

C Macklin, Rotorua

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[1] New Zealand Police v Vujcich DC Rotorua CRI-2013-063-000468, 10 June 2013.

[2] New Zealand Police v George DC Rotorua CRI-2013-063-000274, 20 May 2013.