Terrell v Police [2013] NZHC 734 (12 April 2013)

Last Updated: 30 June 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-24 [2013] NZHC 734

BETWEEN CHRISTOPHER JOHN TERRELL

Appellant

AND NEW ZEALAND POLICE

Respondent

Hearing: 10 April 2013

Counsel: JHM Eaton for Appellant

N M Robson for Respondent

Judgment: 12 April 2013

_{JUDGMENT OF MILLER J}

[1] Mr Terrell was sentenced to six months community detention and 200 hours

_{community work on three charges, one of obtaining by deception}1 _{and two of theft}

_{by a person in a special relationship.}2

_{He appeals the sentence of community}

detention, saying that he should have got more community work, perhaps the maximum sentence of 400 hours.

[2] The offences happened at a time when Mr Terrell’s longstanding car dealing business was in its death throes. He agreed to sell a Porsche on the basis that its owner, the first victim, would receive $62,500. Instead he traded it, receiving

$47,000 and another car, a Passat. He paid the first victim $45,000, promising the rest when the Passat was sold. But when he sold the Passat he put the proceeds,

$19,000, into his own bank account. He lied to the first victim about selling the

Passat, and shortly afterward his business went into liquidation, owing creditors

_{$1.6m. The victim lost $17,500.}

1 _{Crimes Act 1961, s 240(1)(c) and s 241(a).}

2 _{Crimes Act 1961, s 220(1)(b) and s 223(a).}

TERRELL v NZ POLICE HC CHCH CRI-2013-409-24 [12 April 2013]

[3] The second victim purchased a vehicle from Mr Terrell, trading in a Dodge. The victim paid him $51,800 to cover finance owed to UDC on the Dodge. He sold the Dodge for $45,000, without disclosing UDC’s security interest. Several months later, shortly before liquidation, Mr Terrell paid UDC $24,000. UDC later took action against the second victim. The loss in that case was $22,800.

[4] These incidents led to the charges of theft. Mr Terrell made full reparation to both victims by the time of sentencing.

[5] The remaining charge arose from Mr Terrell’s relationship with a third victim, a close friend with whom he owned a company, GTI Investments Ltd. The company was under pressure from its financier. So the third victim arranged a loan from Southern Finance Ltd, a company which he also owned. Mr Terrell gave security over stock in his car yard. The list of vehicles he tendered included one that was encumbered, two that had been sold, and one that he was selling on behalf. The deficiency was identified when Southern Finance checked the schedule. Mr Terrell was required to provide additional security over his home, which was later sold to pay Southern Finance. So there was no loss on that occasion.

[6] Mr Terrell is aged 44, with only one previous conviction, for driving with excess alcohol. He is married with two children. He lost his business and home, and he has been bankrupted. However, he is in employment, and his employer is willing to support him. His reoffending risk is low.

[7] Having regard to reparation paid, the probation officer recommended community work only.

[8] However, the Judge considered the offending serious, stating that but for full reparation it would merit a prison sentence. Mr Terrell stole about $40,000 over a period of six to seven months, to prop up a failing business, and deceived a finance company to obtain a loan. The offences involved serious breaches of trust, and called for denunciation and deterrence. The Judge acknowledged the early guilty plea and previous good character. The maximum sentence of community detention

was imposed with a seven-day curfew of 8.00 pm to 6.00 pm, which the Judge was told would not affect Mr Terrell’s employment.

[9] Community detention is imposed under s 69C(1) of the Sentencing Act. It may be imposed where it would limit the risk of further offending, which is not the case here, or where it would serve certain sentencing purposes, including accountability, denunciation and deterrence. The maximum term is six months. The question is whether its use, in conjunction with community work, was wrong in principle or manifestly excessive in the circumstances.

[10] On appeal, Mr Eaton submitted that the Judge failed to take account of

Mr Terrell’s relationship with the third victim and that person’s status as both borrower and lender. He emphasised that this Court has recognised that community

_{work and community detention are not “soft” sentences.}3

_{I accept that. He argued}

that the Judge overstated the culpability of the third offence. Further, the Judge imposed the maximum community detention sentence with a seven-day curfew without discussing why that sentence was preferable to a longer term of community work, or how community detention would further the objects of sentencing. He submitted that community detention is designed to rehabilitate and control a particular offender, but there is no reason to suppose that the sentence is needed in

_{this case.}

[11] As to the first of these grounds, I accept that the Judge did not refer to the relationship with the third victim, but several points may be made about that. First, the point relates only to the last and least serious charge. Second, accepting that the two men were partners in the failing business, their business relationship nonetheless underwent a fundamental change when Southern Finance became the financier to the business. At that point the third victim was primarily a lender. Third, it is not suggested that he knew the schedule was wrong, or that it did not matter to him. On the contrary, the schedule was checked and when it was found to be in error further security was required. So I do not accept that the Judge made any material error of fact.

[12] Community detention takes its place in the hierarchy of sentences listed in s

10A of the Act, subsection (1) of which provides that:

10A Hierarchy of sentences and orders

(1) The hierarchy of sentences and orders set out in subsection (2) reflects the relative level of supervision and monitoring of, and restrictions imposed on, an offender under each sentence or order.

[13] The sentence was described in the Criminal Justice Reform Bill 2007 (93-1)4 as a sentence intended to provide a higher level of restriction and supervision of offenders than the then existing community sentences. That objective is evident in

_{s 69C of the Act. Subsection (1) provides:}

_{69C Guidance on use of sentence of community detention}

(1) A court may impose a sentence of community detention if the court is satisfied—

(a) that a sentence of community detention—

(i) would reduce the likelihood of further offending by restricting the offender's movements during specified periods, including, but not limited to, offending of a particular type or at a particular time; or

(ii) would achieve 1 or more of the purposes set out in section 7(1)(a), (b), (e), or (f); and

(b) that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender.

[14] However, it cannot be said that the sentence is available only where detention is needed to prevent further offending. Section 69C makes that clear. Subsections (1)(a)(i) and (ii) are alternatives. The sentencing purposes referred to in subsection (1)(a)(ii) include accountability, denunciation and deterrence, which indicates that the sentence is available as an alternative to imprisonment. That is how the Judge used it.

[15] That brings me to the question whether the sentence was plainly excessive. Ms Robson submitted that where the starting point is imprisonment any lesser sentence can seldom if ever be manifestly excessive. That surely goes too far. Further, a sentence can be manifestly excessive by reason of its form, not merely its duration. I accept, however, that the starting point must involve imprisonment. The Judge did not identify the starting point, but he did indicate that but for reparation the end sentence for the offending as a whole would be 12 to 18 months imprisonment. Mr Eaton did not contest that on appeal, and I accept it. The two charges of theft in a special relationship were serious, and the net amount misappropriated, approximately $40,000, was significant.

[16] However, Mr Terrell had made good. He was relevantly a first offender who offended under great financial stress. The offences were not large in number by the standards of such cases, nor did they occur over a long period. He pleaded guilty. Independently of reparation he has paid a high price; he has lost his business, his assets, his reputation, and his friendship with the third victim, to whom he had been close. He is not likely to reoffend. All of that significantly reduces the need for deterrence and denunciation. I accept too that the Judge did not discuss why he took the maximum term of community detention in combination with 200 hours community work rather than some other combination. I infer that he considered nothing less than the maximum would do, community work notwithstanding.

[17] If that is so, then I respectfully differ. My own assessment is that even had Mr Terrell not made reparation he should not have gone to prison, for the reasons just given. Home detention would be an appropriate alternative and the least restrictive sentence in those circumstances.5

[18] But of course reparation was in fact made, and I agree with the Judge that it deserves substantial credit. A reduction from say six months home detention to six months community detention would not be not enough. After all, had he received home detention Mr Terrell would have been permitted to leave home for work purposes. I also agree with the Judge, however, that notwithstanding reparation

_{community work alone could not meet the purposes of sentencing, which required}

5 R v Iosefa [2008] NZCA 453.

something more to recognise the inherent seriousness of the offences and the breaches of trust.

[19] For these reasons, I conclude that the sentence is too harsh, sufficiently so to qualify as manifestly excessive. So I will allow the appeal, but not so as to eliminate community detention. Rather, I will reduce the term to three months. I will not change the curfew; Mr Eaton could point to nothing that justified it. In other respects the sentence is unchanged.

Miller J

Solicitors:

Rhodes & Co, Christchurch for Appellant

Crown Solicitor’s Office, Christchurch for Respondent