Prattley v Police [2014] NZHC 486 (18 March 2014)

Last Updated: 25 March 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-14 [2014] NZHC 486

NEIL RAYMOND PRATTLEY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 13 March 2014

Appearances: D J Matthews for Appellant

K B Bell for Respondent

Judgment: 18 March 2014

_{RESERVED JUDGMENT OF MANDER J}

[1] The appellant appeals his sentence of 2 years and 2 months imprisonment imposed by Judge Garland on two charges of unlawfully taking a motor vehicle, theft and using a document, breach of release conditions and breach of Police bail.

[2] The background to these offences commences when the appellant was released from prison on 16 January 2013. He was subject to release conditions, including the requirement to report to his probation officer as directed. On 21 May

2013 the appellant breached his release conditions and subsequently in June was

_{convicted and ordered to come up for sentence if called upon.}

PRATTLEY v NEW ZEALAND POLICE [2014] NZHC 486 [18 March 2014]

[3] On 10 September the appellant was outside the Pioneer Stadium in Christchurch when he walked into the car park area and approached a parked Mazda vehicle. Noticing that the vehicle was insecure, he entered and located a key in the ashtray. The vehicle, valued at $1,000, was driven off by the appellant. He was apprehended by the Police several hours later.

[4] The appellant was charged and released on Police bail but failed to appear in the Christchurch District Court on 24 September. Also on that day he failed to report to his probation officer, giving rise to the breach of release conditions and breach of bail charges.

[5] While still at large, the appellant on 29 September was at a softball tournament. Whilst alone in the umpires’ changing room, he searched through the bags of his fellow umpires and located a wallet from which he removed $40. He also took a BNZ MasterCard which he subsequently used to purchase $103 worth of alcohol.

[6] On 9 October 2013 the appellant gained entry to a motor vehicle parked on Park Terrace, using a spare key to work the lock. The appellant drove the vehicle away. The vehicle worth $1,000 was located a couple of days later undamaged.

[7] In respect of the two charges of unlawfully taking a motor vehicle and the fraudulent use of a document the appellant was sentenced to 2 years and 2 months imprisonment. On the charge of theft, he was sentenced to 2 months imprisonment, and on the charge of breaching his release conditions to 3 months imprisonment, on the charge of breaching Police bail he was convicted and discharged.

[8] In approaching the sentencing exercise it is apparent that the learned District Court Judge placed emphasis on the need to hold the appellant accountable for his actions, deterrence and in particular community protection as the overriding sentencing considerations. This was unsurprising having regard to the appellant’s extensive previous history of offending. At 30 years of age, the appellant has since

1992 been sentenced to 73 terms of imprisonment. Many of those convictions are for unlawfully taking or interfering with motor vehicles, theft and using documents

dishonestly. The last term of imprisonment of 1 year and 8 months imposed in 2012 was for a similar mixture of offending. The offences for which he was for sentence were all committed while on parole and the latter offending while unlawfully at large. The pre-sentence report, while noting the appellant’s willingness to engage with appropriate interventions to reduce the likelihood of further re-offending, assesses the appellant as being at high risk of further offending.

[9] The sentencing Judge, having assessed the dishonesty offending overall and the appellant’s history of previous offending, adopted a starting point of 2 ½ years. He uplifted that sentence by 3 months to reflect the breach of release conditions, before allowing a reduction of 7 months for the appellant’s guilty pleas.

[10] The appellant argues that the sentencing Judge erred in his approach to the sentencing exercise. In particular, it is submitted that the Judge did not apply orthodox sentencing methodology and this led him into error in the starting point that he adopted. In support of that submission a number of cases for offending of a similar character were referred to.

[11] The appellant is correct that the learned sentencing Judge did not strictly follow the approach as set out in R v Clifford.¹ Such a critique however will be one of form rather than substance, unless the appellant can substantiate the submission that the ultimate sentence imposed was manifestly excessive and therefore in error.

[12] Mr Matthews in his oral submissions took the Court through a number of sentencing decisions. In Pitihira v New Zealand Police,² a starting point taken in the District Court of 18 months imprisonment was reduced to one of 12 months by this Court. This sentence reflected one charge of unlawful taking of a motor vehicle, two charges of theft of items of limited value, one of wilful trespass, one of receiving stolen property and three charges of breach of community work. In reducing the starting point, Woolford J observed that the lead offence of unlawful taking was not the most serious of its type, noting the lack of any planning and its opportunistic

_nature.

¹ _{R v Clifford [2012] 1 NZLR 23.}

² Pitihira v New Zealand Police [2012] NZHC 1690.

[13] McCormack-Cameron v New Zealand Police³ was a case involving an offender opportunistically stealing a car, the keys of which had been left in the ignition. The car was subsequently dismantled and cut in half. A further vehicle was converted and a trailer stolen. A starting point of 26 months imprisonment was affirmed on appeal. In Ireland v New Zealand Police,⁴ three instances of unlawfully taking a motor vehicle combined with an assault on a female, two breaches of bail and five burglaries, resulted in Venning J affirming a starting point of two years imprisonment. Mr Matthews also referred to the case of McWatt v New Zealand Police⁵ which involved a charge of unlawfully taking a motor vehicle, four of theft, one of possession of cannabis, one of driving while disqualified, one of breaching the Medicines Act and one of failing to answer police bail. A starting point of 3 years was reduced to 2 years and 6 months imprisonment on appeal. The final case referred to me by Mr Matthews was Pearson v Police,⁶ in that case an appeal against an end sentence of 20 months imprisonment in respect of one charge of unlawfully taking a motor vehicle, four charges of theft, one charge of assault on a female, and six charges of driving while disqualified was dismissed. The sentencing Court took a starting point of 18 months imprisonment for the overall offending and uplifted it by 12 months to reflect the fact that the offender was on release conditions, that most of the offending had occurred while he was on bail, and his criminal history. France J observed that there were “different routes by which one could get to 30 months imprisonment before giving credit for the plea”.

[14] Mr Matthews submitted that in the present case the appellant’s offending was opportunistic, there was no evidence of any level of organisation or planning, that no damage had been done to either vehicle, and the vehicles were of a comparatively low value. Similarly, the offences of theft and using a document involved amounts that could be considered low and were again opportunistic in nature.

[15] In his written submissions, Mr Matthews accepted that a notional overall starting point of between 18-24 months imprisonment was available before the

_{appellant’s history was considered. An uplift of 6 months imprisonment was}

³ _{McCormack-Cameron v New Zealand Police [2012] NZHC 3586.}

⁴ _{Ireland v New Zealand Police [2013] NZHC 318.}

⁵ _{McWatt v New Zealand Police [2013] NZHC 1703.}

⁶ Pearson v Police HC Wellington CRI-2009-485-92, 12 August 2009.

acknowledged as being available in that regard. The Judge’s starting point was one of 33 months which included a specific uplift of 3 months on account of the breach of release conditions offence. In effect, it is that 3 months which marks the difference between the approach taken by the sentencing Judge and what is contended on behalf of the appellant as the available starting point. As France J in

Pearson⁷ observed, there are “different routes” by which a starting point can be

calculated. The sentencing Judge took the view that the breach of parole conditions required particular attention. That is unsurprising given the Court’s approach to his first lapse in May 2013, when he was convicted and ordered to come up for sentence. Despite that leniency, he breached his conditions in September. A contest about

3 months in the context of a starting point for a period of imprisonment of this length does not represent a particularly attractive argument. I appreciate the significance of a small number of months in terms of the appellant’s eligibility for a sentence of home detention, but I am not brought to the position where I can conclude that the sentencing Judge’s starting point was excessive.

Insufficient credit for remorse and rehabilitative prospects

[16] The appellant argues that, pursuant to s 9(2)(f) of the Sentencing Act, the sentencing Court was obliged to take into account “any remorse shown by the offender, or anything as described in s 10”, the latter includes “any measure taken or proposed to be taken by the offender to apologise to any victim of the offending”.

[17] Mr Matthews submitted all that could be said in urging the Court to the view that the appellant’s expressed remorse and offers to make amends should have resulted in credit to the appellant. He submitted a discount in the region of 5% was appropriate to reflect the remorse expressed in the pre-sentence report which included his offer to attend restorative justice conferences and the information provided by the appellant’s partner. The Supreme Court in Hessell v R⁸ observed that for credit to be extended to an offender for remorse, it needs to be demonstrated or, in terms of the 2002 Act, “shown” that such remorse is genuine and of such a

_{nature that it can validly be taken into account as a personal mitigating factor. In my}

⁷ _Above.

⁸ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

view the expressions of remorse may, after these many years, point to some belated insight by the appellant into the nature and affect of his offending, however I am unable to conclude that the Judge erred in not extending separate credit for that factor. This issue is further discussed in this judgment in the context of home detention.

Insufficient credit for time spent on electronically monitored bail

[18] Section 9(2) of the Sentencing Act states that the Court must take into account the fact that “the offender spent time on bail with an electronically monitored condition as defined s 3 of the Bail Act 2000.

[19] The appellant submits that the learned Judge erred in failing to address this issue and in not considering whether the end sentence should be reduced on this basis. Section 9(3A) sets out four matters which the Court is obliged to consider when regarding this potential matter of mitigation. The appellant was released on electronically monitored bail on 25 November 2013 and was finally sentenced on

5 February 2014. He spent some two months on electronically monitored bail before being sentenced.

[20] The Court must have regard to the relative restrictiveness of the EM condition. The appellant’s EM condition was absolute. He was only permitted absences to attend occasional Work and Income appointments and one approved absence on Christmas Day. Therefore his liberty was comprehensively restricted. The appellant did not breach any condition of his EM bail.

[21] The appellant submits that his compliance over this two month period demonstrates his motivation to avoid re-offending and his expressions of contrition. Mr Matthews on behalf of the appellant points to his compliance as an indicator that the support and stability offered by his partner at the address which enabled him to comply with the EM bail conditions is a factor in the appellant’s favour in terms of his desire to become rehabilitated. I accept that some credit ought to have been extended to the appellant for the 2 months on EM bail.

Error in calculating the appropriate guilty plea discount

[22] The appellant submits that the sentencing Judge did not properly extend the appropriate credit for early guilty pleas. The sentencing Judge concluded that from an overall starting point of 2 years and 9 months imprisonment (33 months) a credit of 7 months was appropriate. In percentage terms, this was a total credit of some 21 percent.

[23] The appellant argued that the full 25% discount ought to have been extended to the appellant. In making that submission, Mr Matthews relies upon Hessell v R,⁹ and that the maximum discount appropriate for an early guilty plea was one of 25%. In my view the premise for this submission is not correct. The Supreme Court held that a maximum discount of up to 25% was available. The earlier the entry of the plea, the stronger the position of the offender to receive a higher discount. It did not however follow automatically that because an early guilty plea is entered an offender is entitled to the 25% discount. While I accept that as a matter of practice there has

been a tendency for Courts at first instance to automatically deduct 25% when satisfied that the plea has been entered at an early stage, a sentencing Court is obliged to take into account all the circumstances that bear on the particular case in determining the appropriate credit. Just as it follows that an offender is not barred from obtaining a 25% discount when the guilty plea is entered at a later stage, it does not follow that an offender is entitled to a 25% discount when his guilty plea has come at an early stage in the proceeding. As the Supreme Court pointed out in R v Hessell, there will be a range of factors which will bear upon the appropriateness of the level of credit afforded to an offender. Judge Garland in his sentencing remarks does not express a view as to how he came to what amounts to a total credit of 21%. I do not however think that such a deduction from his starting point of 33 months (effectively a credit of 7 months) requires correction.

[24] Ms Bell in her written submissions has observed that the appellant was caught red-handed in relation to the first unlawful taking and that, in respect of the second unlawful taking charge, his actions were captured on a security camera.

_{There was a security photograph of him in relation to the stolen credit card, and}

⁹ See above.

while not a matter to be held against him, he admitted his offending to the Police. The breach of bail and failure to report, as noted by Ms Bell, were not capable of any sensible defence. That does not mean the entry of the pleas is something that ought not be properly acknowledged and provided for as a mitigating factor. It has long been recognised that it should be, particularly having regard to the utility that flows from such pleas. Having regard to all these factors however it cannot be said that the

21% (7 months) deduction was outside the range available to the sentencing Judge.

The issue of home detention

[25] It follows from the analysis so far that allowing for credit for the remand on EM bail, the appellant may just become eligible to be considered for a sentence of home detention. If 2 months credit was afforded to him, which would have to be considered a generous credit, the sentence that would otherwise be imposed would be one of 2 years.

[26] Mr Matthews, in addressing the issue of whether home detention was an appropriate sentence, largely emphasised the same matters which he put forward in support of the appellant’s rehabilitative potential. Mr Matthews submitted that the following factors favoured a sentence of home detention:

(a) The appellant had been complying with his terms of electronically monitored bail without fault for over two months. The restrictive nature of his electronic monitoring involved a 24 hour curfew which would be no different to a sentence of home detention. The appellant had therefore, in Mr Matthews’ submission, demonstrated that he was able to comply with a sentence of home detention which he had effectively been challenged to do by Judge Murfitt when he admitted him to electronically monitored bail in November 2013. It was noted that the appellant had previously successfully served two sentences of home detention in the past without compliance issues.

(b) It was submitted that a sentence of home detention would still protect the community from the appellant but would allow him to continue living in a situation which was described as “pro social and

supportive” of the appellant’s efforts at rehabilitation. Such a sentence may allow him to continue to reintegrate into society and break the cycle of offending which he has been engaged in over the last 20 years.

(c) A sentence of home detention would, it was submitted, still provide a sufficient punitive element, depriving the appellant of his liberty and thus serving as a deterrent to others. In terms of the Sentencing Act, home detention would represent the least restrictive sentence. Additionally, the appellant would be able to perform up to 400 hours community work as recommended in the original pre-sentence report as a punitive component.

[27] I have little doubt that the sentencing Judge was correct to place emphasis on a sentence that provides deterrence and protection to the community in respect of an offender such as the appellant whose history, both in the past and more recently, provides little ground for optimism in terms of his rehabilitative prospects.

[28] Mr Matthews on behalf of the appellant submitted that the strongest evidence that the appellant was motivated to live a more constructive life was his positive relationship with his new partner. He submits that her influence is the reason for his adherence to EM bail and for his determination to make changes as relayed to the pre-sentence report writer. Mr Matthews submits that this is an opportunity to encourage the appellant’s rehabilitative efforts.

[29] Mr Matthews submitted all that could be said in support of the submission to substitute a sentence of imprisonment with one of home detention. I am however, not convinced that two months compliance with EM bail, albeit coupled with the support of a new partner, is sufficient to outweigh not just the appellant’s years of offending but the nature of his present offending. That offending is marked by dishonesty, impulsivity and flagrant disregard for his personal responsibilities in respect of complying with his bail and parole conditions. The dishonesty offending occurred while he was still subject to his previous sentence. Even when afforded the opportunity to make good, with his lapse in May 2013 it subsequently became

apparent that such confidence was misplaced. I also have reservations about the fairness of the apparent responsibility being placed on the partner’s shoulders for the appellant’s continued good conduct. The appellant has to be self-motivated in himself not just out of a preference to do right by his partner.

[30] If the appellant is truly remorseful and sees a different future for himself as a result of this new relationship, then that should endure his period of incarceration. It will be appropriate for a Court to take a chance as it were, with a recidivist offender in the hope that his pleas of remorse and willingness to make a new start are well- founded. This is a case however where the present indications are insufficient to conclude the Judge’s approach was in error. These developments in the appellant’s life will no doubt be relevant ultimately to questions of his parole, which can be weighed against the history and prior breaches of his release conditions.

[31] Accordingly, while I am prepared to recalculate the period of imprisonment in order to give credit for the 2 months spent on EM bail, I am not prepared to make any further adjustment to the sentence imposed. The various factors bearing upon the appropriate length of the sentence have resulted in a sentence of 2 years. The focus of the appeal has therefore turned to a consideration of the appellant’s remorse and rehabilitation in the context of the issue of home detention. I have however concluded that it is not a sentencing option for this appellant at this time.

[32] The appeal is allowed to the extent that the sentence of 2 years and 2 months is reduced to one of 2 years.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch