Adams v R

[2012] NZCA 515

IN THE COURT OF APPEAL OF NEW ZEALAND

CA601/2012
[2012] NZCA 515

BETWEEN  RICHARD HENRY ADAMS
Appellant

AND  THE QUEEN
Respondent

Hearing:         31 October 2012

Court:             Harrison, Chisholm and Ronald Young JJ

Appearances:  E Te Whata and S Cassidy for Appellant
M J Lillico for Respondent

Judgment:      7 November 2012 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Chisholm J)

1. Having pleaded guilty in the Manukau District Court to one charge of burglary Mr Adams was convicted and sentenced to 20 months imprisonment by Judge Andrée Wiltens in the District Court at Manukau.[1]  Mr Adams now appeals against sentence on the sole ground that the appropriate sentence was home detention.   

Background

[1]      R v Adams DC Manukau CRI-2011-055-2524, 31 August 2012.

1. Together with his co-offender, Mr Adams entered a commercial building in Auckland by jemmying open a second story office window.  Boxes of personal belongings of the business owners were opened and the contents were strewn around the room.  A large amount of property, including jewellery, suitcases, alcohol, mobile phones and computers was removed from the property.  The jewellery alone was valued at around $25,000. 

2. The following day the police stopped a motor vehicle driven by Mr Adams.  Some of the items that had been stolen the night before were in plain view.  All the stolen items were recovered. 

3. Mr Adams is 34 years of age.  He has 19 previous convictions for dishonesty, including three for burglary.  One of those burglaries took place the day before the burglary giving rise to this appeal.  His previous sentences have ranged from community based sentences to imprisonment.  At the time of the offending he was serving a sentence of community work for receiving and earlier breaches of community work. 

4. According to the probation officer Mr Adams had shown insight and remorse.  The probation officer reported that Mr Adams was addicted to alcohol and drugs, the risk of re-offending was medium to high, and home detention was recommended. 

Sentencing in the District Court

1. A letter from Mr Adams’ general medical practitioner was before the Court.  This letter indicated that Mr Adams now realised that a lot of his offending history was linked to his “unresolved psychological and emotional problems”, he had quit using drugs for some time, and he was trying hard to be a good solo father. 

2. There was also a detailed letter from a counsellor indicating that she was working with Mr Adams in relation to historical sexual abuse against him when he was young.  She reported that he was attempting to turn his life around and that he was now beginning to understand some of his behaviour patterns growing up.  She considered that it was “productive” to work with him. 

3. Judge Andrée Wiltens noted that all the goods had been recovered, the high value of the items that had been taken, and that Mr Adams had committed a burglary the night before.  Having started at 21 months imprisonment the Judge added three months for the previous convictions and then allowed a discount of 15 per cent which took into account that the evidence was “overwhelming”.  In response to Ms Te Whata’s submission that Mr Adams should be sentenced to home detention, the Judge said:[2]

   I do not think that is appropriate.  It seems to me that you have made your own bed by continually offending in a dishonest manner and it seems to me that home detention in that situation is inappropriate. 

After referring to Mr Adams’ previous convictions for dishonesty the Judge concluded that imprisonment was the least restrictive outcome that was available. 

This appeal

[2] At [11].

1. Ms Te Whata argued that when refusing home detention the Judge had placed too much weight on the value of the property stolen and Mr Adams’ previous convictions.  She submitted that those factors should have been balanced against the recovery of all the property and Mr Adams’ genuine attempts to turn his life around.  In her submission the Judge had failed to give any weight to the prospects of rehabilitation.   

2. Ms Te Whata also submitted that if he had been sentenced for this burglary at the same time as the burglary the day before he would have still received a sentence of home detention.  In all the circumstances, submitted Ms Te Whata, that would have represented the least restrictive outcome. 

Discussion

1. Rather than providing an opportunity to revisit or review the merits, an appeal against refusal to grant home detention requires this Court to decide whether the Judge erred in the exercise of his sentencing discretion:  James vR.[3]  We agree with Mr Lillico that the Judge did not err.  In all the circumstances home detention would not have been an adequate response in this case. 

   [3]      James vR [2010] NZCA 206 at [17].

2. This was serious offending carrying a maximum sentence of 10 years imprisonment.  As the Judge noted, the items stolen were of considerable value and this aggravating factor cannot be negated by the recovery of the goods.  Recovery was entirely fortuitous and certainly not attributable to any actions on Mr Adams’ part that should receive commendation. 

3. Adding to the seriousness of the offending was the fact that it occurred the day after an earlier burglary when Mr Adams was already subject to a sentence.  To make matters worse Mr Adams has numerous previous convictions for dishonesty, including a number for burglary.  While the letters from his medical practitioner and counsellor might offer some hope for the future, they cannot outweigh the need for a deterrent sentence in this case, which could not be achieved by home detention. 

4. Finally, we do not accept Ms Te Whata’s proposition that if Mr Adams had been sentenced for both burglaries at the same time he would have received home detention.  This was not a situation where the latest burglary could be accurately described as a “washing up” charge.  Far from it.  As we have already said, the latest burglary was serious in its own right. 

Result

1. The appeal against sentence is dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent