IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000140 [2013] NZHC 1531

BETWEEN	PAUL NILS HERLUND Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	24 June 2013

Appearances:	R Keam (on behalf of H Steele) for Appellant
R Thomson for Respondent

Judgment:	24 June 2013

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

PAUL NILS HERLUND v NEW ZEALAND POLICE [2013] NZHC 1531 [24 June 2013]

[1]       Mr Herlund pleaded guilty in the District Court to two charges of receiving stolen property and five charges of being in possession of drugs including ecstasy, LSD, cannabis resin and methamphetamine.  He was also for sentence on a charge of being in possession of a methamphetamine pipe, breaching the terms of a sentence of supervision and driving a vehicle in a non-operable state.

[2]       On 19 April  2013,  Judge  Connell  sentenced  Mr  Herlund  to  an  effective sentence of 16 months imprisonment on those charges.  In addition, he remitted fines totalling $9,152.83.   In substitution for the fines, the Judge imposed a cumulative sentence of two months imprisonment. 1

[3]       Mr Herlund appeals to this Court against the sentences the Judge imposed. First, he argues that the Judge applied a starting point that was too high in respect of the lead charges of receiving stolen property.   Secondly, he argues that the Judge ought to have provided him with a further discount to reflect the fact that he had been on bail subject to a 24 hour curfew during the three month period prior to sentencing.  Thirdly, he contends that the Judge had no jurisdiction to remit his fines and impose a further cumulative sentence of imprisonment.

The facts

[4]       The  lead  charges  of  receiving  arise  because  Mr  Herlund  was  found  in possession of stolen property on 16 October 2012.  That property had been stolen in the burglaries of two residential addresses a short time earlier.

[5]       The police searched Mr Herlund’s vehicle in the early hours of 16 October

2012 after they saw him acting suspiciously in Newmarket.  In the vehicle they saw a 32” Sony flat screen television set that had been stolen the previous day in the burglary of a residential address in Newmarket.   Mr Herlund claimed that the television set belonged to a friend.  When the police searched the vehicle they also found .4 of a gram of methamphetamine, three ecstasy tablets, .5 of a gram of
cannabis resin and some cannabis plant material.

1	New Zealand Police v Herlund DC Auckland CRI-2013-004-000485, 19 April 2013.

[6]       When the police searched Mr Herlund’s person, they found $1545 in cash and a motel room key.   The police subsequently searched the motel room, and found several items that had been stole in two earlier burglaries.   First, they found a Hewlett Packard laptop computer that had been stolen in the burglary of a residential address in Eden Terrace on the night of 5 October 2012.  This was valued at $2000. Secondly, they found a passport and further electronic equipment that had been stolen in the same burglary as that in which the Sony television set found in Mr Herlund’s car had been stolen.  The items stolen in that burglary and found in Mr Herlund’s possession had a total value of approximately $1200 - $1500.

[7]       The remaining charges had been laid earlier, after the police stopped a vehicle driven by Mr Herlund on 24 August 2012 in Beachhaven.  The vehicle was bearing a “pink sticker,” indicating that it could not be operated on a road.  The police arrested Mr Herlund, and then searched the vehicle.   This led to them finding an ecstasy tablet and a methamphetamine pipe.

The structure of the sentence

The receiving charges

[8]      The Judge considered that the lead charges of receiving stolen property warranted a starting point of 18 months imprisonment.   I infer he included within this an uplift to reflect the fact that Mr Herlund committed the offences whilst on bail, and whilst he was also still subject to an earlier order of the Court requiring him to come up for sentence if called upon to do so within six months.  That order had been made in respect of another receiving charge.  In addition, Mr Herlund had two further previous convictions for receiving stolen property.

[9]       The Judge applied a discount of approximately 25 per cent to reflect Mr Herlund’s guilty pleas.   This led him to reduce the starting point on the receiving charges by five months to reach an end sentence of 13 months imprisonment.

The remaining charges

[10]     The Judge adopted a starting point of four months imprisonment as reflecting all the remaining charges, other than being in  possession of cannabis resin and driving a  non-operable  vehicle.    He applied  a  discount  of one  month  on  those charges to reflect guilty pleas.

[11]     This left him with an end starting point on the drugs charges of three months imprisonment.    That  sentence  was  imposed  cumulatively  on  the  end  sentence imposed in respect of the receiving charges. This produced an effective end sentence of 16  months  imprisonment.    He  convicted  and  discharged  Mr  Herlund  on  the charges of being in possession of cannabis resin and driving a non-operable vehicle.

Remission of fines

[12]     The  Judge  then  noted  that  Mr  Herlund  had  outstanding  fines  totalling

$9,152.83.  He considered that Mr Herlund had no prospect of paying these, and he accordingly remitted them.  In place of the fines, the Judge substituted a cumulative sentence of two months imprisonment.

Was the starting point too high?

[13]     Counsel for Mr Herlund argues that the end starting point in respect of both receiving charges ought to have been within the range of eight to 12 months imprisonment.  He accepted that the Judge could have applied an uplift of up to 25 per cent to reflect the aggravating factors personal to Mr Herlund referred to above. Counsel submits that this would have produced an end starting point on the receiving charges of no more than 15 months imprisonment, from which a deduction of 25 per cent (or approximately four months) should have been made to reflect guilty pleas. This would produce an end sentence on those charges of 11 months imprisonment.

[14]     Counsel for the respondent disagrees with this assessment.  She submits that a starting point of 18 months imprisonment on the receiving charges was within the available range.   She points to two decisions of this Court as having particular

relevance.   In O’Donnell v R,2  the appellant had pleaded  guilty to a charge of burglary, two charges of receiving stolen property and a charge of driving whilst his licence was suspended.  The appellant had received property stolen in two burglaries of residential premises having a total value of approximately $3,500.  The burglary charge  involved  the  theft  of  property  worth  $170  from  commercial  premises. Gendall J took the view that the burglary and receiving charges would have justified a total starting point of at least 15 months imprisonment.3

[15]     Counsel for the respondent points out that the property in the present case was worth between $3,200 and $3,500.  As a result, when taken together with the aggravating factors personal to Mr Herlund, she submits that the end starting point in the present case was within range.

[16]     Counsel for the respondent also relies on R v Hunter.4     In that case, the appellant had pleaded guilty to three charges of receiving stolen goods and one charge of attempted burglary.   In each case the goods had been stolen from commercial premises, rather than residential addresses.  The total value of property stolen amounted to approximately $5,500.  Only some of the property was found in possession of the appellant.   It is not possible from the judgment to determine the value of that property.  The relevance of the judgment is that the Judge reviewed a range  of  cases  where  sentences  were  imposed  on  charges  of  receiving  stolen
property.5       He  considered  that  an  appropriate  starting  point  was  18  months

imprisonment.

[17]     One of the cases referred to in Hunter6 was that of Vansilfhout v Police.7   In that case, the appellant had pleaded guilty to a single charge of receiving electronic equipment worth $4,000 and clothing valued at $500.  Priestley J considered that the
offending justified a starting point of between 18 and 21 months imprisonment.

2	O’Donnell v R [2012] NZHC 997.
3	Ibid, at [16].
4	R v Hunter [2012] NZHC 3196.
5	Ibid, at [21] - [25].
6	Ibid, at [25].
7	Vansilfhout v Police HC Rotorua CRI-2006-470-2, 7 March 2006.

[18]     Counsel  for  the  appellant  has  referred  me  to  several  decisions  that  he contends support his argument that the starting point was too high.  These include R v Holden,8 R v Singh and Cooper v Police.9   I find Holden and Singh to be of little assistance, because they involve different factual scenarios and were decided some time ago.10

[19]     I derive more assistance from Cooper v Police, a judgment of Whata J on 17

July 2012.  In that case, the appellant had pleaded guilty to two charges of burglary and one charge of reckless receipt of stolen electronic equipment.   The charges involved the theft and reckless receipt of property worth approximately $15000. Whata J considered that a starting point of 20 months imprisonment was appropriate on the lead charge, and that a four month uplift adequately reflected the remaining
charges.11       I  do  not,  however,  see  the  starting  point  approved  in  Cooper  as

necessarily being inconsistent with that selected by the Judge in the present case.

[20]     Either  of  the  two  charges  in  the  present  case  would,  in  my view,  have justified a starting point of around nine months imprisonment given the value of the property and the fact that Mr Herlund had come into possession of it very shortly after it had been stolen.

[21]     Applying totality principles, the two charges could easily have warranted a starting point of 14 or 15 months imprisonment.  The aggravating factors personal to Mr Herlund would then need to be taken into account.  Applying the proportions suggested by his counsel, I consider that the likely uplift should have been around three to four months imprisonment.  This would lead to the end starting point of 18 months imprisonment selected by the Judge.   For these reasons, I do not consider that  the  starting  point  was  too  high  having  regard  to  the  factual  matrix  of  the
offending and Mr Herlund’s personal circumstances.

8	R v Holden CA 329/04, 14 December 2004.
9	R v Hunter, above n 3; R v Singh CA17/05, 19 May 2005; Cooper v Police [2012] NZHC 1699.
10	In Holden, the appellant had received stolen property having a total value of more than $33,000.
The judgment does not reveal the starting point that the Court adopted, but it is likely to have been around two years six months imprisonment. In Singh, the appellant had received a number of stolen laptop computers over a period of three years.  The value of the property in question is not apparent from the judgment.  The Court of Appeal said (at [9]) that the appropriate starting point would have been in the order of seven or eight months.
11	Ibid, at [15]-[17].

Should a further discount have been given to reflect Mr Herlund’s bail conditions?

[22]     Mr Herlund was in custody from his arrest on 16 October 2012 until the point where he entered his guilty pleas on 14 January 2013.  He was granted bail at that point on the basis that he was not to take the grant of bail as an indication of the sentence likely to be imposed.  Counsel for Mr Herlund advises me the grant of bail was subject to a condition that Mr Herlund abided by a 24 hour curfew at the address to which he was bailed.  There is nothing on the file to indicate that is the case, but I obviously accept it coming from counsel.

[23]     There is nothing on the file, either, to suggest that Mr Herlund applied for electronic bail.  I therefore proceed on the basis that he was subject to a grant of bail simpliciter, but subject to a condition that he maintain a 24 hour curfew at his residential address.

[24]     As counsel for the respondent points out, a sentencing Judge has a discretion to reduce a sentence to reflect the fact that an offender has been subject to stringent bail conditions.12    Generally speaking, this will occur where the offender’s liberty has been substantially curtailed for a significant period.  It is most often applied in practice where the offender has been subject to a grant of electronic bail, and has remained confined to his or her home address for a lengthy period.

[25]     In the present case, Mr Herlund was probably fortunate to be bailed after he pleaded guilty to the charges that he faced.  It must have been fairly obvious to him then that a sentence of imprisonment was inevitable.  The Judge’s sentencing notes do not refer to any submission having been made on Mr Herlund’s behalf to the effect that he should receive a discount to reflect the fact that he had been subject to a 24 hour curfew.  I do not consider that it would be appropriate for this Court to revisit that issue, particularly when Mr Herlund was not subject to electronic bail.  I
therefore decline to interfere with the sentence imposed on the basis now suggested.

12	R v Tamou [2008] NZCA 88 at [18]-[19]; R v Faisandier CA185/00, 12 October 2000 at [28].

Was the Judge entitled to remit the outstanding fines?

[26]   The power to remit fines and substitute in their place a sentence of imprisonment is governed by ss 88 and 106E of the Summary Proceedings Act 1957 (“the Act”).  Section 88 relevantly provides as follows:

88	Actions if fine remains unpaid

(1)	This section applies if—

(a)	the Registrar has taken enforcement action under section 87(2), but the fine remains unpaid; or

(b)	the Registrar is satisfied that the defendant does not have the means to pay the fine; or

(c)	the Registrar is satisfied that—

(i)      reasonable steps have been taken to locate the defendant, but the defendant has not been located and therefore enforcement action would be unlikely to be effective; or

(ii)     for  any  other  reason  enforcement  action  would  be unlikely to be effective.

(2)	The Registrar may—

(a)	order that the defendant be brought before the Registrar; or

(b)	refer  the  matter  to  a  District  Court  Judge  or  Community
Magistrate with a report on the circumstances of the case.

(3)     If the Registrar refers a matter to a District Court Judge or Community Magistrate, the Registrar may order that the defendant be brought before the Judge or Community Magistrate.

…

[27]     In the present case, the Registrar was obviously satisfied that Mr Herlund did not have the means to pay his outstanding fines.  On 19 April 2013, the day upon Mr Herlund was to be sentenced, the Registrar sent a report to the sentencing Judge under s 88 of the Act.  This recorded that Mr Herlund had outstanding fines totalling
$9,152.83.  The Registrar recorded that the last payment had been in the sum of $20 on 16 April 2013. The Registrar noted that Mr Herlund was appearing on other matters, and that fines totalling $43,032.50 had been remitted in 2010.   On that occasion a sentence of imprisonment had been imposed in place of the fines.

[28]     When  dealing  with  this  issue,  the  Judge  asked  Mr  Herlund  to  indicate whether he was prepared to consent to the imposition of a sentence of two months imprisonment in return for remission of the fines.   After taking instructions, Mr Herlund’s counsel advised the Judge that his client did not wish to avail himself of that opportunity.  The Judge then imposed the cumulative sentence to which I have referred.

Referral by the Registrar

[29]     Counsel for Mr Herlund submits that the Registrar had no jurisdiction to refer the matter to the Judge under s 88.  He pointed out that the payment of $20 on 16
April 2013 indicated that Mr Herlund had the ability to pay his fines.

[30]     I do not accept that submission.  The Registrar was aware that Mr Herlund had accumulated a substantial sum by way of outstanding fines.  Earlier fines had been remitted and a sentence of imprisonment imposed because Mr Herlund could not pay the fines.   The Registrar also knew that Mr Herlund was about to appear before the sentencing Judge on other matters that were likely to lead to a further sentence of imprisonment being imposed.  The Registrar was therefore entitled, in my view, to reach the conclusion that Mr Herlund would not have the means to pay the fine in the future.  The Registrar was therefore entitled to refer the matter to the Judge under s 88(1)(b).

The Judge

[31]     Counsel for Mr Herlund also submits that the Judge had no jurisdiction to remit the fines because the requirements of s 106E had not been complied with. Section 106E provides as follows:

106E Restrictions on substituted sentences

(1)     A District Court Judge or Community Magistrate must not impose a substituted sentence on a defendant for non-payment of 1 or more fines under this Part unless—

(a)     an assessment of the defendant's financial capacity has been recently completed, being an assessment that does not include information given by a third party unless it also gives details of

the  source  of  the  information  and  the  date  to  which  the information relates; and

(b)   the Judge or Community Magistrate has considered the assessment; and

(c)     the Judge or Community Magistrate is satisfied that all other methods of enforcing the fine or fines have been considered or tried and that they are inappropriate or have been unsuccessful.

(2)     A District Court Judge or Community Magistrate may, subject to the restrictions set out in this section, sentence a defendant to community work or community detention for non-payment of 1 or more fines under this Part.

(3)     A District Court Judge may, subject to the restrictions set out in this section,—

(a)     sentence a defendant to home detention for non-payment of 1 or more fines under this Part:

(b)     issue, or direct the issue of, a warrant of commitment for the imprisonment of a defendant for non-payment of 1 or more fines under this Part.

(4)     In sentencing a defendant for non-payment of 1 or more fines under this Part, the Court must impose the least restrictive sentence that is appropriate in the circumstances.

(5)     A District Court Judge or Community Magistrate must not sentence a defendant to a sentence of community detention in accordance with subsection (2) unless—

(a)     a  pre-sentence  report  has been  provided  in  accordance  with section 26A of the Sentencing Act 2002; and

(b)     the Judge or Community Magistrate is satisfied of the matters in section 69C of the Sentencing Act 2002.

(6)     A District Court Judge must not sentence a defendant to a sentence of home detention in accordance with subsection (3)(a) unless—

(a)     a  pre-sentence  report  has been  provided  in  accordance  with section 26A of the Sentencing Act 2002; and

(b)	the Judge is satisfied of the matters in section 80A(2)(a) of the
Sentencing Act 2002; and

(c)	either of the following applies:

(i)      the defendant is already undergoing a sentence of home detention or is about to be sentenced to home detention for another offence at the time that the Judge is considering sentencing the defendant for non-payment of
1 or more fines under this Part:

(ii)     the Judge is satisfied that the defendant has the financial capacity to pay the fine or fines.

(7)     A District Court Judge must not issue, or direct the issue of, a warrant of commitment for the imprisonment of a defendant in accordance with subsection (3)(b) unless—

(a)     the   defendant   has   had   the   same   opportunity   for   legal representation as is available to a defendant who is liable to a sentence of imprisonment under section 30 of the Sentencing Act 2002; and

(b)	the warrant of commitment can be executed immediately; and

(c)	either of the following applies:

(i)    the defendant is already undergoing a sentence of imprisonment  or  is  about  to  be  sentenced  to imprisonment  for  another offence  at  the  time  that the Judge is considering the sentence for the defendant for non-payment of 1 or more fines under this Part:

(ii)     the Judge is satisfied that the defendant has the financial capacity to pay the fine or fines.

…

[32]     Counsel for Mr Herlunds points out that there is nothing in the record to suggest that an assessment of Mr Herlund’s financial capacity had been prepared in terms of s 106E(1)(a), much less that the Judge considered the assessment and concluded that all other methods of enforcing the fine had been considered or tried, and were inappropriate or unsuccessful.

[33]     This submission raises the issue of what constitutes an “assessment” for the purposes of s 106E(1)(a).  There is certainly nothing in the record to suggest that the Judge had any formal document before him purporting to be an assessment of Mr Herlund’s financial capacity.  Nevertheless, he had the Registrar’s report setting out the current position, as well as Mr Herlund’s previous history in relation to non- payment of fines.

[34]     In addition, the Judge had the benefit of a pre-sentence report prepared by the Department of Corrections.  This confirmed that Mr Herlund had been in receipt of benefits, but had been making efforts of late to obtain paid employment.   He had presented a letter to the Department confirming he had received a written offer of

employment as a trades assistant with an engineering firm.  This work was to be for a three month trial period.  Mr Herlund told the Department, however, that he would like to get his sentencing out of the way before commencing employment with the firm.

[35]     Counsel for Mr Herlund submits that the information before the Judge did not constitute an assessment in terms of the Act and, in any event, it did not indicate that Mr Herlund had no ability to pay the outstanding fines.  He pointed out that the pre- sentence report confirmed Mr Herlund was seeking employment and that he had been in receipt of benefits. At worst, Mr Herlund would be entitled to receive further benefits once he was released from prison.

[36]     It may be necessary at some stage in the future for this Court to consider what constitutes an assessment for the purposes of s 106E(1).  On that occasion it would be appropriate for the Court to have before it detailed information about the current practice in the District Court regarding assessments produced under the section.  I do not have that information before me, but do not propose to delay disposition of the appeal to enable it to be collated.

[37]     I take the view that there was sufficient information before the Judge to enable him to form a view that Mr Herlund had no possible means of paying the fines in the near future.   It is clear that the Judge reached that decision from the following passages from his sentencing remarks:13

[17]      The fines; you have $9152.83 outstanding.  As I understand it you previously have had fines remitted.  In other words you never pay them. You have a very long history of not paying fines.  I am told some $43,000 worth were remitted in 2010 and for that you received a term of imprisonment. You know what that is about.   I asked today if you would accept a two month term of imprisonment for remission of the $9000-odd.  I said to you I thought that was lenient and your counsel has approached you in the dock and has taken instructions.  Your instructions are that you would either wish to pay it and pay it off, or you will serve a term of community work once you are released.

[18]      I am not going to give you the choice unfortunately because I think any suggestion that you could pay is a doomed one.  You will not and you cannot and, secondly, I do not know that this is going to help you to get out of prison to still be saddled with a $9152 debt.  So I am saying to you I am

13	Herlund v New Zealand Police, above n 1.

remitting that money.  You do not owe it any more and you will do another two months’ imprisonment and that will go on top of the three months which you know is on top of the 13, so add that up in your head and you will not have too much trouble understanding the length of sentence that you have imposed on you.

[19]      You also know, and you will work this out quicker than I will, a two month term of imprisonment often reduces on remission to one, so you are not exactly suffering for the loss of not having to pay $9,000, are you?

[38]     I also note that jurisdiction to impose a sentence of imprisonment in these circumstances is governed by s 106E(7) of the Act.14    Mr Herlund was about to be sentenced to a term of imprisonment in respect of the charges to which he had pleaded guilty.   The other conditions set out in ss 106E(1)(a) and (b) were also satisfied.  As a consequence, I am satisfied that the Judge had jurisdiction to impose a sentence of imprisonment in respect of the non-payment of fines regardless of any view he may have held regarding Mr Herlund’s financial capacity to pay the outstanding fines.

[39]     It follows that I am not prepared to disturb the cumulative sentence the Judge imposed in respect of the non-payment of fines.

[40]     All grounds having failed, the appeal against sentence is dismissed.

Lang J

Solicitors:
Crown Solicitor, Auckland
Counsel:
R Keem, Auckland
H Steele, Public Defence Service, Auckland

14	Set out above at [31].