Sunnex v Police HC Christchurch CRI 2010-409-43

[2010] NZHC 939

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000043

GEORGE MICHAEL SUNNEX

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 June 2010

Counsel:         A Bailey for Appellant

K B Bell for Respondent

Judgment:      17 June 2010

ORAL JUDGMENT OF THE HON JUSTICE FRENCH

[1]      On 22 April this year I delivered an oral judgment in which I dismissed Mr Sunnex’s appeal against a sentence of two years four months’ imprisonment imposed on him in the District Court for burglary and theft.  Mr Sunnex now wishes to appeal my decision to the Court of Appeal.   In order to be able to do that he requires leave under s144 of the Summary Proceedings Act 1957.

[2]      Before leave to appeal can be granted under s144 there must be: (i)    A question of law.

SUNNEX V POLICE HC CHCH CRI-2010-409-000043  17 June 2010

(ii)The question must be one which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision, and

(iii)    the Court must be of the opinion it ought to be so submitted.

[3]      Following R v Slater[1997] 1 NZLR 211 it is well-established that s144 is not intended to provide a second tier of appeals from the District Court and that neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance are to be diluted.

[4]      Mr  Sunnex’s  application  formulates  the  following  question  of  law  for submission to the Court of Appeal:

Whether or to what extent the Court of Appeal judgment in R v Chin remains an authoritative sentencing judgment.

R  v  Chin  CA43/04,  10  June  2004,  was  a  case  which  I cited  in  my  judgment. Mr Bailey had submitted that Chin was no longer authoritative and was contrary to more recent Court of Appeal decisions such as R v Columbus [2008] NZCA 192, R v Stevens  [2009]  NZCA  190  and  R  v  Brown  [2009]  NZCA  288.    I rejected  that submission saying that I did not understand the Court of Appeal to have indicated sentencing judges were now to treat burglary less seriously or that Chin was now out of date.

[5]      Mr Bailey submits that if the proposed question of law was allowed to go before the Court of Appeal, it would provide a direct answer as to whether or not the Court of Appeal has intentionally decided to lower the sentencing range for burglars, especially recidivist burglars.   This, he submits, is a matter of considerable public importance and raises issues that transcend the circumstances of this case and indeed the authoritativeness of Chin.

[6]      I accept that the question formulated is a question of law.  However, I do not accept that it is one by reason of its general  or public importance ought to be submitted to the Court of Appeal for decision.

[7]      In  my view  the  application  is  misconceived.    The  Court  of  Appeal  has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so variable.  It follows that inevitably there will be variations, sometimes significant variations, in sentences which in turn will be reflected in decisions of the divisional court of the Court of Appeal.

[8]      Where there has been a recent change is a change in sentencing methodology in  relation  to  recidivist  burglars.    The  change  is  designed  to  better  align  the sentencing methodology for recidivist burglars with the R v Taueki [2005] 3 NZLR

372 model.  That has meant that when fixing the starting point, the circumstances of the offending should predominate, not the circumstances of the offender, including in particular his or her previous convictions.  Previously there was a tendency to take full account of previous convictions in fixing the starting point rather than by way of uplift from the starting point.

[9]      The result of this recent change in methodology is to reduce the starting point levels because previous convictions are no longer to be factored into that assessment, or at least not to the same extent as they once were.  However, previous convictions nevertheless continue to be highly relevant.  I am very confident that had the Court of Appeal intended to rule that end sentences were to be reduced for recidivist burglars or intended to change the acceptable range, they would have said so.  Chin, which did not identify a starting point, represents the upper end of the range and there is adequate scope for Chin to be seen by sentencing judges in that light.

[10]     In my view the appeal system would become unworkable if the Court of

Appeal were to be burdened with an appeal of this nature.

[11]     The application is accordingly dismissed.

Solicitors:

Andrew Bailey Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent