Lee v Police [2014] NZHC 3061 (3 December 2014)

Last Updated: 13 February 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000248 [2014] NZHC 3061

CHARLES SIMON LEE Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	10 November 2014
Appearances:	Luke Wilson for the Appellant Lewis Mills for the Respondent
Judgment:	3 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

THIS JUDGMENT WAS RE-CALLED AND RE-ISSUED AT 5:30PM ON 3 DECEMBER 2014

This judgment was delivered by on 3 December 2014 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

LEE v NEW ZEALAND POLICE [2014] NZHC 3061 [3 December 2014]

Introduction

[1] Within the space of a little under a week Charles Simon Lee, on three separate occasions, by smashing the windows, broke into cars which were parked in the Downtown Auckland carpark. From the first car he stole $20 worth of items. From the second, $1,000 worth of items. On the last occasion he took nothing. When apprehended by the Police he admitted the offences and pleaded guilty on 6

May 2014. He was charged with two charges of theft ex-car ($500 to $1,000) and (under $500) and unlawful interference with a motor vehicle. The offences were committed while he was subject to a sentence of community detention and supervision.

[2] On 14 May 2014 Mr Lee was given given permission by his probation officer to attend his aunty’s tangi on 15 May 2014. He remained at the tangi until 20 May contrary to his probation officer’s instructions. He was thus in breach of the conditions of his community detention and supervision.

District Court decision

[3] Following pleas of guilty to these charges in the District Court the sentencing Judge adopted a starting point of 12 months’ imprisonment on the charges of unlawfully interfering with a motor vehicle and the two charges of theft ex-car. He then uplifted the sentence by four months for the breaches of community detention and supervision. An application was made by Corrections for Mr Lee to be re- sentenced on the 10 previous charges which had led to the sentences of community detention and supervision. His Honour declined to review or cancel these sentences but noted that as less than 50 per cent of the four month community detention had been served and very little of the one year supervision had been served, an uplift of eight months to reflect these charges was appropriate. A 20 per cent discount was given for the guilty pleas. The Judge declined to give Mr Lee credit for his remorse, offer of reparation and his prospects for rehabilitation.

Appeal

[4] Mr Lee appeals the sentence imposed on the grounds that the final sentence is manifestly excessive.

[5] Section 250 of the Criminal Procedure Act 2011 requires this Court to allow the appeal if it is satisfied that:

(a) for any reason there is an error in the sentence imposed on conviction;

and

(b) a different sentence should be imposed.

[6] In other case the Court must dismiss the appeal. This section confirms the approach taken by the Court under the Summary Proceedings Act 1957.¹

[7] This approach was set out in Yorston v Police where the Court observed:²

(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; and

(c) it is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[8] This Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

¹ _{Tutakangahau v R [2014] NZCA 279.}

² Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

Grounds of appeal

[9] As noted above the principal ground of appeal is that the Judge erred in imposing a final sentence which was manifestly excessive. More specifically, Mr Lee advances the following grounds in support of his appeal:

(a) the Judge erred in imposing a starting point of 12 months’ imprisonment on the charges of unlawfully interfering with a motor vehicle and theft ex-car (x 2);

(b) the Judge erred in imposing cumulative uplifts for both the breach of community detention and the breach of supervision;

(c) the Judge took into account irrelevant factors when uplifting Mr Lee’s

sentence by eight months for his previous convictions;

(d) the Judge erred by giving Mr Lee a 20 per cent discount for his guilty plea; and

(e) the Judge erred by failing to give a discount for Mr Lee’s remorse, his

offer of reparation and his prospects of rehabilitation.

Discussion

[10] In determining that a 12 month starting point was appropriate his Honour observed:

...those three offences need to be looked at globally and the seriousness of them needs to be assessed in light of the fact that you were subject to a sentence which had just recently been imposed.

[11] Mr Wilson, for Mr Lee, submits that a starting point of 12 months’ imprisonment was manifestly excessive. In support of that submission he relies on Wrobel v Police.³ In Wrobel this Court upheld a sentence of 18 months’ imprisonment imposed on two charges of theft and one charge of possession of

_{instruments. The starting point took into account that the appellant had more than}

³ Wrobel v Police HC Rotorua CRI-2009-463-37, 25 June 2009 per Lang J.

250 previous convictions including more than that 200 for dishonesty offending. The offending in the present case is broadly similar to Wrobel. The very substantial list of previous convictions in Wrobel justifies its elevation to a more serious level when compared to Mr Lee whose previous convictions are more modest with only

10 previous convictions for dishonesty between 1997 and 2012.

[12] Mr Wilson also relies on the decision of this Court in Carrington v Police⁴ where Venning J upheld a sentence of nine months’ imprisonment on two charges of unlawfully taking a motor vehicle and theft from those vehicles. In that case a starting point of 12 months’ imprisonment was adopted. That starting point included consideration of the appellant’s 25 previous convictions, 10 of which were for unlawfully interfering or taking motor vehicles. Mr Wilson submits that the offending in Carrington is more serious than in the present case because although more vehicles were interfered with, they were not taken. Although it must be noted that this case involves an additional charge.

[13] I do not accept that on these authorities the Judge erred in setting a starting point of 12 months’ imprisonment. Indeed, while care must be taken not to adopt too rigid approach in the analysis of comparable cases, the starting points referred to in Wrobel and Carrington support a starting point of 12 months’ imprisonment. This was within the sentencing discretion of the Judge.

Uplift for breach of community detention and breach of supervision

[14] In relation to these charges his Honour commented:

For the subsequent breaches in May of community work and supervision my view is that the sentence should be uplifted by four months.

[15] This was imposed in the form of two cumulative sentences of two months’ imprisonment. Mr Wilson submits that these sentences should not have been imposed cumulatively.

⁴ Carrington v Police HC Christchurch CRI-2011-409-000047, 3 June 2011.

[16] I agree these sentences should not have been imposed cumulatively. The breach of both orders arose from the same circumstances and were not separate and identifiable offences such as would normally attract the imposition of a cumulative sentence.

[17] However, I am required to examine whether an effective of sentence of four months’ imprisonment properly reflected the breach. Mr Lee breached these conditions for a nearly a week. He made no attempt to contact anyone within Corrections to seek an extension. In light of the maximum sentence of six months I am of the view that four months, whilst stern, was within the sentencing discretion of the Judge.

Uplift for previous convictions

[18] This ground is less straightforward.

[19] Mr Lee had served less than 50 per cent of the community detention sentence and very little of the sentence of supervision.

[20] The Judge was faced with an application from Corrections to cancel the sentences and re-sentence Mr Lee on the 10 charges on which the sentences for breach of community detention and supervision had been imposed. The 10 charges included a similar assortment of thefts ex-car (x 4), unlawful interference with vehicles (x 3), breach of community work and breach of supervision (x 2). The Judge declined to cancel and re-sentence. Instead, he imposed an uplift of eight months to reflect the offending on those charges.

[21] It is important to note that the effect of not cancelling the sentences was that they, as community-based sentences, were suspended by s 78 of the Sentencing Act through the operation of the subsequent sentence of imprisonment. Subsections 6 and 7 provide that any subsequent sentence of more than 12 months’ imprisonment operates to suspend the community-based sentence. If the term of imprisonment is quashed under s 80(3) the community-based sentence is restored and resumes. If it is not quashed and the sentence of imprisonment is served the community-based

sentences will be cancelled when the offender ceases to be detained under the sentence of imprisonment.

[22] Thus by declining to cancel the sentences and then re-sentencing Mr Lee on those charges the effect is that he will not have to serve any sentence in relation to those charges beyond what he has already served. No doubt as a consequence, the Judge determined that a high uplift for previous convictions was justified, effectively resulting in Mr Lee being re-sentenced in relation to the earlier offending.

[23] In my view the Judge erred in adopting this course. The proper approach would have been to have cancelled the community-based sentences and re-sentenced Mr Lee in relation to the earlier offending. The fact that he had not served the entire sentence relating to the 10 charges is not a consideration in sentencing for the current charges.

[24] Notwithstanding this conclusion I must nevertheless be satisfied that a different sentence should be imposed. Thus the question which arises is whether the eight month uplift was excessive for Mr Lee’s previous convictions. Aside from the

10 convictions contained in the resentencing application which I have outlined, Mr Lee has a variety of prior convictions including a further five theft ex car charges, a burglary charge and other dischonesty and breach of supervision charges.

[25] I am of the view that an eight month uplift is excessive to reflect Mr Lee’s previuos convictions. In my view a more appropriate uplift would be in the order of four to six months.

Guilty plea/remorse/rehabilitation

[26] Mr Wilson submits that the 20 per cent discount for the guilty plea and the failure to give a discount for Mr Lee’s expressed remorse and rehabilitation was insufficient. Although the guilty plea was early, it followed a full confession. Conviction was inevitable. The 20 per cent discount was open to the Judge.

[27] On the question of remorse and rehabilitation it was also open to the Judge not to give a discount. The pre-sentence report records that Mr Lee expressed some empathy for his victims. However, the author noted difficulty in accepting Mr Lee’s explanations when his earlier history, starting in 1997, was considered along with his claim that the employment problems which were claimed to be the catalyst for his offending started in 2007. Although an offer of reparation was made the pre- sentence report records Mr Lee’s financial circumstances as parlous. The offer, even if well intentioned, was impractical. I am not satisfied the Judge erred in this respect.

Conclusion

[28] Having determined that the Judge erred in imposing an uplift of eight months to reflect the previous offending the question is whether a different sentence should be imposed.

[29] The end sentence of 19 months’ imprisonment imposed on all charges is, in

my view, excessive and does not reflect the totality of the offending.

[30] In my view a more appropriate sentence would be one of 16 months’

imprisonment.

Result

[31] The appeal is allowed. The sentence of 19 months’ imprisonment on the charge of unlawful interference of a motor vehicle is quashed and a sentence of 16 months’ imprisonment is substituted.

[32] The sentences imposed on the remaining charges remain as is.

_{[33] The standard and special release conditions imposed by the Judge remain.}

Moore J

Solicitors:

Public Defence Service, Auckland

Crown Solicitor, Auckland