McCormick v Police

[2012] NZHC 309

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-446 [2012] NZHC 309

BETWEEN  DANIEL JAMES MCCORMICK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 February 2012

Appearances: F Fenton for the Appellant

S Waalkens for the Respondent

Judgment:      29 February 2012

JUDGMENT OF GILBERT J

This judgment was delivered by me on 29 February 2012 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Solicitors:           Public Defence Service, Auckland:  [e-mail]

Crown Solicitor, Auckland:  [e-mail]

MCCORMICK V NZ POLICE HC AK CRI 2011-404-446 [29 February 2012]

[1]      On 4 November 2011 Daniel McCormick was sentenced to two and a half years’ imprisonment  after  pleading  guilty to  a  charge  of  burglary.    He  appeals pursuant to s 121(3)(b) of the Summary Proceedings Act 1957 on the grounds that the sentence is clearly excessive.  He claims that his previous history of offending was given disproportionate weight by District Court Judge Andrée Wiltens.

The offending

[2]      On 26 November 2010, Mr McCormick and an associate went to a seafood store in Otahuhu where Mr McCormick had been working on a casual basis.  They cut through a chain fence and then used a key to unlock a storage chiller and remove boxes of seafood to the value of $2,000.

[3]      Mr McCormick was co-operative with the Police and pleaded guilty to the charge at the earliest opportunity on 23 February 2011.

Sentencing judgment

[4]      Judge Andrée Wiltens took into account that Mr McCormick, who was 35, had 29 previous convictions for burglary.  The Judge categorised Mr McCormick as a “recidivist burglar” in terms of the Court of Appeal’s decision in Senior v Police.[1]

[1] Senior v Police (2000) 18 CRNZ 340 (HC).

[5]      On this basis, Judge Andrée Wiltens considered that the starting point for the offending had to be a term of three and a half years’ imprisonment.  In setting this starting point the Judge noted that the offending involved a breach of trust given that the seafood was stolen from his employer.  The Judge then allowed a 25 per cent discount for a guilty plea, reducing the end sentence to a term of two and a half

years’ imprisonment.

[6]      Ms Fenton, for Mr McCormick, referred to a number of comparable cases and submitted that an end sentence of no more than two years’ imprisonment could be justified in this case.

[7]      Mr Waalkens, for the New Zealand Police, responsibly acknowledged that the end sentence was clearly excessive and that the appeal must be allowed.  He agreed that an end sentence of no more than two years’ imprisonment would be appropriate. Having reviewed the authorities to which I have been referred, I am satisfied that this was a responsible concession.  The sentence imposed on Mr McCormick was clearly excessive and cannot stand.

Discussion

[8]      I accept Ms Fenton’s submission that Judge Andrée Wiltens erred in placing the weight that he did on Mr McCormick’s previous convictions and in failing to have sufficient regard to the fact that Mr McCormick has made significant progress in turning his life around having had a particularly bad start.  Mr McCormick has had no convictions for any offence involving dishonesty since 2002 and his last burglary conviction was for offending in 2001.   He has had no conviction of any kind since April 2006.

[9]      The learned Judge may have been entitled to describe Mr McCormick as a “recidivist burglar” and therefore within Category 2 in terms of the decision of Senior v Police.  However, as the Court of Appeal noted in R v Columbus,[2] the term “recidivist” may be a convenient description but cannot be determinative.   Undue emphasis cannot be placed on past dishonesty convictions in fixing the starting point. Care must be taken to ensure that the sentence is not primarily a punishment for previous offending.[3]    This is particularly so in this case given that Mr McCormick

has had no burglary convictions since 2001.

[2] R v Columbus [2008] NZCA 192 (CA).

[3] R v Ward [1976] 1 NZLR 588 (CA).

[10]     Having regard to  the comparable cases to which  I have been referred,  I consider that a starting point of 21 months’ imprisonment is appropriate.  This takes into account the fact that the offending involved a breach of trust, the value of the seafood taken, that this was not a residential dwelling and there was little prospect of any confrontation, and that this offending did not involve significant planning or sophistication.

[11]     I consider that an uplift of six months’ imprisonment for Mr McCormick’s prior offending should be applied.  He is entitled to a discount of 25 per cent for his early guilty plea and remorse, which would reduce the end sentence to 21 months’ imprisonment.

[12]     As this sentence is lower than two years, I am required to consider whether a sentence of home detention would achieve the purposes of, and be consistent with the principles in, ss 7 and 8 of the Sentencing Act 2002.

[13]     The pre-sentence report recommended community work together with home detention subject to various conditions.  Ms Fenton urged me to impose a sentence of home detention combined with community work.   She suggested 300 hours of community work.

[14]     I note that Mr McCormick has four children to his partner with whom he has been living for the past seven years.  Mr McCormick enjoys strong support from his family and friends.  It seems that these relationships have helped him to correct his ways and stay out of trouble.

[15]     At the conclusion of the hearing both counsel sought the opportunity to file further written submissions on the issue as to whether home detention would be appropriate in this case.  I have now received further helpful submissions from both counsel.

[16]     Ms Fenton maintains that it would be appropriate to substitute a sentence of home detention coupled with community work.   Mr Waalkens submits that home detention  is  not  appropriate  in  the  circumstances  of  this  case.    Mr Waalkens

acknowledges that Mr McCormick’s clean record for dishonesty offences over the past 10 years and his personal circumstances support a sentence of home detention. He agrees with Ms Fenton that rehabilitation is a relevant consideration in favour of such a sentence in this case.   However, he submits that home detention should be rejected because of the nature and seriousness of the offending and the need to hold Mr McCormick accountable.

[17]     Mr Waalkens also asked me to take into account that, at the conclusion of sentencing on 4 November 2011, Mr McCormick left the Court and was not arrested and taken into prison until 28 November 2011.  This is acknowledged by Ms Fenton. I am not prepared to take this matter into account in considering whether home detention is appropriate in this case, as I do not know enough about the surrounding circumstances.   The matter was only brought to my attention in the further submissions that were filed today.  In any event, my task is to consider what sentence ought to have been imposed by the Judge.

[18]     I consider that a sentence of home detention combined with community work is appropriate in this case. In my view, such a sentence is sufficient to meet the purposes and the principles set out in ss 7 and 8 of the Sentencing Act.

[19]     I take into account that Mr McCormick has now been in custody for three months.   In my judgment a sentence of seven months’ home detention combined with 300 hours of community work should be imposed.

Result

[20]     The  appeal  is  allowed.     The  sentence  of  two  years  and  six  months’ imprisonment is quashed and a sentence of seven months’ home detention and 300 hours of community work is substituted. The following special conditions apply:

(a)      Mr McCormick is to travel directly to 246B Bairds Road, Otara and remain at that address to be met by the supervising probation officer and a representative of the monitoring company.

(b)Mr  McCormick  is  to  reside  at  246B  Bairds  Road,  Otara  for  the duration of the sentence of home detention and may not move from that address without the written permission of a probation officer.

(c)      Mr McCormick is not to consume alcohol or take illicit drugs during his sentence of home detention.

(d)Mr  McCormick  is  to  attend  any  counselling  and/or  treatment programme as may be directed by the supervising probation officer.

(e)       The  standard  post-detention  conditions  pursuant  to  s  80N  of  the

Sentencing Act are to apply for a period of six months.

M A Gilbert J