Graham v Police [2016] NZHC 1696 (25 July 2016)

High Court of New Zealand

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Graham v Police [2016] NZHC 1696 (25 July 2016)

Last Updated: 29 August 2016

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-000023 [2016] NZHC 1696

BETWEEN	ARTHUR TOKA-PAUL GRAHAM Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	25 July 2016
Appearances:	W Hawkins for Appellant F E Cleary for Respondent
Judgment:	25 July 2016

_{JUDGMENT OF VENNING J}

Solicitors: Crown Solicitor, Napier

Public Defence Service, (Hawke’s Bay)

GRAHAM v NEW ZEALAND POLICE [2016] NZHC 1696 [25 July 2016]

[1] Arthur Graham pleaded guilty to burglary of a dwellinghouse, three charges of document fraud by using a stolen credit card and three charges of breach of bail. Sitting in the District Court at Hastings Judge Adeane sentenced him to an effective sentence of two years, three months imprisonment.¹ Mr Graham appeals against sentence.

[2] In support of the appeal Mr Hawkins submitted the Judge had erred by: (a) adopting an excessive starting point;

(b) adopting an excessive uplift from the starting point for the further offending;

(c) failing to give a full discount for the guilty plea;

(d) failing to give any discrete credit for youth or remorse.

[3] Mr Hawkins submitted that when the above factors were taken into account the appropriate end sentence was in the range of two years or less which would lead to consideration of home detention.

[4] The lead offending was the burglary. It was a dwellinghouse burglary committed by more than one burglar. Both had consumed alcohol and methamphetamine prior to the offending. The burglary was carried out at night. A significant number of items were stolen, including two television sets, a playstation, jewellery, and children’s Christmas presents. In addition the victim impact statement records the interior of the property had been vandalised. It was apparent the offending had a significant impact on the victims.

[5] The credit card fraud involved the appellant’s use of a stolen credit card on

three occasions. The amounts involved were relatively minor at $102.46 in total. That offending occurred almost a month after the burglary.

¹ NZ Police v Graham [2016] NZDC 11695.

[6] The Judge took a starting point of two years for the burglary and uplifted it by six months for the dishonest use of the credit card. He allowed a 10 per cent discount for the guilty plea but gave no further allowance for remorse or youth. That led to the end sentence of two years, three months. Counsel for the police submits that while stern, the sentence was within the acceptable range given the totality of the offending, particularly bearing in mind that the Judge did not impose any effective additional uplift on the breach of bail charges, imposing concurrent three month sentences.

[7] The Court of Appeal in Tutakangahau v R have confirmed that s 250(2) of the Criminal Procedure Act 2011 was not intended to change the previous approach taken by the courts to appeals against sentence.² The manifestly excessive test continues to apply:³

[33] Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached. [An appellate] Court will not intervene where the sentence imposed is within the range that can properly be justified by accepted sentencing principles.

[8] Mr Hawkins submitted that having regard to a number of authorities of this Court referred to in Arahanga v R a starting point of two years was out of line and no more than 18 months imprisonment was required.⁴

[9] In Arahanga v R the Court of Appeal held that:⁵

... Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

[10] Despite Mr Hawkins’ submission, in the circumstances of this offending, given that more than one offender was involved, given that they were influenced by alcohol and drugs, the burglary occurred at night, the heightened risk, taking into

_{account the items taken and the value of those items, and the damage to the home, I}

² _{Tutakangahau v R [2014] NZCA 279.}

³ _{Woods v Police [2015] NZHC 305.}

⁴ _{Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.}

⁵ Arahanga v R, at [78].

am satisfied it was open to the Judge to take a starting point of two years imprisonment.

[11] However I agree with Mr Hawkins’ submission that the uplift of six months for the obtaining by deception matters was excessive. While there were three transactions they were each of a relatively minor amount, totalling $3.30, $50.96 and

$48.20. All occurred on the same day, two of them at the same petrol station. Even taking account of the appellant’s past history no more than three months was required by way of uplift for that offending.

[12] Next, I also agree with Mr Hawkins that the allowance of 10 per cent for the guilty plea was not sufficient in the present case. While the Judge was entitled to reduce the discount for the guilty plea on the basis it was not entered at the earliest time, and part of the reason for the delay in entering the plea was the appellant’s failure to answer bail, a discount closer to 15 per cent was still available.

[13] But I do agree that the Judge was right to treat the expressions of regret by the appellant in the pre-sentence report with a degree of cynicism. This was not genuine remorse as contemplated by the Supreme Court in Hessell v R where the Court made it clear that a further discount might be applicable for genuine remorse.⁶

[14] Nor do I consider this to be a case where it was appropriate to make an allowance for youth. The allowance is most directly applicable and appropriate in cases of young people. In R v Churchward the appellant was 17.⁷ The appellant in this case was 19 years at the time of the offending and is now 20. He also had a significant previous list of prior offending, having been before the Youth Court several times but also with significant offending in the District Court. He has previously served time in prison and breached release conditions. No further

discount was appropriate for youth. Further, even if one was available I accept the force of Ms Cleary’s submission it was more than addressed by the fact the Judge did not provide an uplift for the previous offending or impose any additional effective

_{sentence for the breaches of bail.}

⁶ _{Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.}

⁷ R v Churchward [2011] NZCA 531.

[15] That then leads the Court to an assessment of whether the adjusted sentence that follows the above reasoning of 23 months means the sentence imposed was manifestly excessive. The difference between the sentence imposed of 27 months and 23 months is close to 15 per cent. It is in the circumstances of this case a sufficient difference to satisfy the Court the original sentence was manifestly excessive.

[16] At 23 months the Court is required to consider the issue of home detention. The pre-sentence report identifies the proposed address as suitable and suggests the appellant could be sentenced to home detention. However, given the appellant’s past history, his recent failure to comply with release conditions and his failure to observe his conditions of bail during the course of this proceeding, I am satisfied that home detention is not a realistic option in this case.

Result

[17] The appeal is allowed. The sentence of 27 months imprisonment is quashed. It is replaced with a sentence of 23 months imprisonment structured as follows:

(a) on the burglary charge – 23 months;

(b) on the counts of obtaining by deception – three months; and

(c) failure to answer District Court bail – three months. [18] The sentences are concurrent.

Venning J