Aldridge v The Queen

[2021] NZHC 278

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2021-483-000003

[2021] NZHC 278

BETWEEN

PATRICIA ANN ALDRIDGE

Appellant

AND

THE QUEEN

Respondent

Hearing:

23 February 2021

Appearances:

J H C Waugh for Appellant

M M Wilkinson-Smith for Respondent

Judgment:

25 February 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 25 February 2021 at 3 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]    The appellant, Ms Aldridge pleaded guilty to charges of failing to appear, possession of utensils for the purpose of consuming methamphetamine and five charges of burglary. She was sentenced on 9 December 2020 to three years’ imprisonment by Judge Crayton in the District Court at Whanganui.1 Ms Aldridge appeals her sentence on the basis the Judge misapplied Moses v R and the correct end sentence should have been one of two years and one month’s imprisonment.2

1 R v Aldridge [2020] NZDC 25590.

2 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.

ALDRIDGE v R [2021] NZHC 278 [25 February 2021]

Facts

[2]    On 1 November 2018, Ms Aldridge entered a locked rural address at Kaitoke and took jewellery, including an engagement and wedding ring with a total value of

$4,000.

[3]    Three weeks later, on 23 November 2018, Ms Aldridge went into the office at the Nazareth Rest Home, took a handbag from under a desk and removed items from inside including a wallet.

[4]    On 19 December 2018, the police searched Ms Aldridge’s address in search of stolen property. They found a glass case with two glass pipes, a syringe, and numerous small methamphetamine point bags. These are the subject of the possession of utensils charge.

[5]    On 12 December 2018, around mid-morning, Ms Aldridge entered a locked residential address in Whanganui, and took rings, a gold watch and some personal items of clothing and electrical goods. The total value of these was approximately

$10,000. The victim was insured but had to pay a $250 excess.

[6]    On 14 December 2018 Ms Aldridge entered the back door of the Crafty Trout Brewery and took a backpack which was inside the shop. This contained a laptop, charger, an iPhone 5, two books, a wakeboard hoodie and makeup.

[7]    The final burglary charge was representative as the Crown identified she was responsible for at least one burglary on 17 December 2018 (of a possible five committed on that day) taking goods up to the value of $5,000.

District Court decision

Sentencing Indication

[8]    Ms Aldridge sought a sentencing indication which Judge Crayton gave on  30 September 2020. In this indication the Judge amongst other things noted, the value

of the property taken3, that the burglaries were of dwelling houses and, in some cases business premises, and all involved a high degree of premeditation. The financial loss and emotional impact on the victims was clear and Judge Crayton identified an appropriate starting point of four years for the offending. The Judge provided an uplift of 18 months (37.5 per cent) to account for her previous history of offending. A full 25 per cent discount was then allowed for a guilty plea. However, Ms Aldridge had recently breached EM bail after exiting the Odyssey House programme and removing her bracelet. She was unlawfully at large from July to September 2020 precluding her from attending her first scheduled sentence indication hearing. Judge Crayton provided a one-month uplift for this failure to appear.

[9]    The sentence indication recorded a five-year and seven month imprisonment start point, with the full 25 per cent discount for a guilty plea, giving an end sentence of four years and two months, but then the Judge said any further credits were to be informed by further reports provided to the Court.

Sentencing

[10]   On 9 December 2020, at Ms Aldridge’s final sentencing, Judge Crayton rejected submissions from her counsel that he should take the initial starting point of five years six months, without an aggravating personal uplift in line with Senior v Police4 and R v Columbus.5 The Judge said he felt bound by Moses and therefore did not follow the approach in Senior and Columbus.

[11]   In following the sentence indication, Judge Crayton at sentencing adopted a starting point of four years and one month, with  the uplift of 37.5 per cent for      Ms Aldridge’s personal aggravating factors, which he outlined as her previous dishonesty convictions, and then applied  a  total  discount  of  62.5  per  cent  for  Ms Aldridge’s personal mitigating  factors.  This  discount  was  made  up  of  the  25 per cent discount for her guilty plea and 37.5 per cent discount for other factors. These included that  drug  addiction  had  played  a  large  role  in  the  offending,  Ms Aldridge had largely completed an Odyssey House programme and she had shown

3      Which involved property which exceeded $20,000 and which has not been recovered.

4      Senior v Police (2000) 18 CRNZ 340.

5      R v Columbus [2008] NZCA 192

a commitment to maintain a drug free lifestyle. The Judge came to an end sentence of three years’ imprisonment.

Principles on appeal

[12]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8

Submissions

Appellant’s submissions

[13]   Mr Waugh, for Ms Aldridge, submits the Judge should have included the uplift for Ms Aldridge’s previous history of offending in the starting point as, in burglary cases, the appropriate starting point to reflect the offending inevitably takes into account the history of the defendant.9 Mr Waugh maintains the Judge was wrong to recount the criminal history at the second stage. Mr Waugh argues full credit of 62.5 per cent should have been available on the starting point of five years seven months, thus providing an end sentence of two years one month.

[14]   Mr Waugh also contends the Judge gave an inadequate discount for time spent on EM bail and at Odyssey House. He submits combining uplift and mitigation does not account for offenders who have been consistently revictimised, is inconsistent with Heta,10 and Zhang11 and the principles and purposes of sentencing.

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Ripia v R [2011] NZCA 101 at [15].

9 Senior v Police, above n 2; R v Rohloff CA193/03, 24 September 2003, at [16].

10     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241

11     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Respondent’s submissions

[15]   Ms Wilkinson-Smith, for the Crown, submits that in Arahanga  v  R  the Court of Appeal had deliberately:12

not set a tariff or burglary because the range of circumstances in which the offence can be committed is so varied. 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.

[16]   Citing R v Ormsby Ms Wilkinson-Smith argued that, where offenders are recidivist burglars, the protection of the public is important, and the Court is more likely to impose more severe sentences than previously imposed on previous appearances by the same offender.13

[17]   Ms Aldridge has 55 convictions for dishonesty offending. She has been imprisoned for burglary offending in 2004 for four years, in 2009 for four years and three months, in 2011 for three years and nine months and in 2015 for three years and six months for burglaries committed while subject to parole. The aggravating features of the offending were the burglary mainly of dwelling houses, the high level of premeditation, the high value of personal property taken, the financial loss caused, the emotional harm and the unease felt by victims at having their homes disturbed. Based on this Ms Wilkinson-Smith maintains an appropriate starting point would be five to six years’ imprisonment, taking into account Ms Aldridge’s previous convictions.

[18]Ms Wilkinson-Smith suggests the discounts of 25 per cent for guilty plea and

37.5 per cent for the remaining factors were generous. She says the final sentence was at the lower end of the range available to the Court. Mr Waugh’s approach, she argues, is not contemplated by Moses and would result here in a manifestly inadequate sentence. Ms Wilkinson-Smith contends too that the Judge took a structured approach that promoted transparency, predictability and analysis and the end sentence was just, or even perhaps somewhat generous, in all the circumstances.

12     Arahanga v R [2012] NZCA 480 at [78].

13     R v Ormsby [2017] NZHC 2508 at [15].

Analysis

[19]   At the heart of this appeal is whether the sentence reached by the Judge was within range. I consider the sentence was generally within range, regardless of the manner in which it was calculated. The Judge may have erred in his mathematical calculations given the approach required in line with Moses but, overall I am satisfied the end sentence was an appropriate and just one.

Starting point

[20]   R v Nguyen identified the relevant considerations in assessing the gravity of burglary offending. 14 These are the degree of planning, the nature of the premises entered. the kind and value of property stolen, the damage done, the impact upon occupants or owners, and the extent of the offending where multiple burglaries were involved. 15 Ms Aldridge is clearly a recidivist burglar. Her offending involved a high degree of planning, burglaries of several dwelling houses, and the removal of valuables of both high financial value, and high sentimental value. The offending deeply affected some of the victims.

[21]   In R v Williams Ms Williams burgled nine homes taking credit cards and treasured possessions.16 She targeted elderly people and would later call the occupants to trick them into divulging their PIN. Similar to Ms Aldridge, while on EM bail awaiting trial for the charges, she cut off her EM bail bracelet, and absconded. The Judge in R v Williams adopted a starting point of six years and applied an uplift of  18 months for Ms Williams’ dishonesty charges. The Court of Appeal found the starting point was high but not outside the available range given the predatory nature of the offending, the high risk of confrontation, and the emotional harm caused.17 The uplift of six months for previous burglary convictions was seen as firm but not excessive.18

14 R v Nguyen CA110/01, 2 July 2001.

15 At [17].

16 R v Williams [2019] NZCA 199
17 At [9].

18 At [10].

[22]   Ms Aldridge’s offending, in my view, was slightly less serious than that which occurred in Williams. She did not target especially vulnerable people. There was, however, a high risk of confrontation which was realised during at least one of her burglaries. If Ms Aldridge’s history of offending is taken into account in setting the starting point, a figure for this of five years six months’ imprisonment, as I see it, was appropriate.

[23]   Ms Aldridge breached her EM bail, absconded, and failed to appear for her sentencing indication and pleaded to the charge of possession of utensils for methamphetamine consumption. I consider the uplift of two per cent (one month) appropriate to account for this.

[24]   The Judge applied the maximum guilty plea discount of 25 per cent. Although at one level perhaps generous, I would adopt the same guilty plea discount.

[25]   Turning to other mitigating factors, in Sinclair v R, Mr Sinclair was charged with burglary and theft. Dunningham J held that a discount of 10 per cent was appropriate to account for the fact methamphetamine drove Mr Sinclair’s offending and that his addiction was linked to his difficult background and past trauma.19 If I was to intervene here and substitute my own views on an appropriate sentence here, I need to say that I consider a 10 per cent discount for these factors would also be appropriate for Ms Aldridge. A further 10 per cent discount would also be allowed for her other mitigating factors, including her commitment to rehabilitation.

[26]   Using a broad calculation method this reaches an end sentence of three years imprisonment which was the sentence adopted by Judge Crayton, although it does seem he may have used different calculation figures. Importantly, however, it is clear from his decision that the Judge had fixed on the three-year imprisonment sentence as a final and perhaps lenient position here. My substituted calculations, however, are:

(a)the starting point (including Ms Aldridge’s previous convictions) of five years’ six months;

19 Sinclair v Police [2020] NZHC 3091.

(b)a two per cent (one month) uplift for the other offending;

(c)a full 25 per cent guilty plea discount plus a further 20 per cent discount for the additional factors outlined  in  [25]  above,  making  in  all  a 45 per cent discount amounting to 30 or 31 months.

[27]   Therefore, I consider the end sentence reached by the Judge of three years imprisonment was within range, and appropriate in the circumstances.

Did the Judge, however, err in his calculation method?

[28]In Moses20 the Court of Appeal said:

[45]      The following sentencing methodology replaces the three-step methodology established in this Court’s judgment in Hessell at [14]. It also replaces the Court’s subsequent restatement in R v Clifford at [60].

[46]A two-step methodology should be used:

(a)The first step following Taueki, calculates the adjusted starting point, incorporating aggravating and mitigating features of the offence;

(b)The second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

[47]      Because the Court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology, it makes no difference to sentence length if the guilty plea discount is the last step in the sentence calculation…

[29]   The Court of Appeal in Moses indicated that what they were adopting provided a principled and consistent approach to ensure transparency in sentencing. In the present case Judge Crayton, as I see it, said he was endeavouring to apply the two-step test adopted from Moses in his sentencing exercise. In doing so I have no doubt that he tried to adopt what he considered was a principled and merciful approach to the sentencing exercise he was undertaking.

20     Moses, above n 2.

[30]   Before me, Mr Waugh submitted that the Judge incorrectly calculated the end sentence by, in effect, double counting. He said this occurred when the Judge effectively recounted Ms Aldridge’s conviction history at the second stage. This was on the basis, Mr Waugh said, that the Judge had already taken these into account in providing the 18-month uplift at the first stage. There is no doubt in my view that the 18-month uplift was appropriate given Ms Aldridge’s offending history, but I am satisfied too that it was appropriately provided at the first stage. To, in effect, adopt some steps in repeating aspects of this at the second stage I agree might possibly have a double-counting effect. But, in any event, from the authorities, it is clear that mathematical calculations are not more important than the end sentencing result.

[31]   The Court of Appeal in Moses is clear too that at stage two, mitigating factors of the defendant and a guilty plea discount are to be aggregated and one discount amount applied to the adjusted starting point. That is occurring here.

[32]   In this case, although a little unclear, it appears that the mathematical calculations Judge Crayton adopted at the second stage might be questionable.

[33]   Notwithstanding this, what I see as appropriate sentencing calculations outlined above at [22] to [26] must mean that the end sentence of three years imposed here by Judge Crayton was within an appropriate range and would reflect a reasonable approach to the sentencing principles to be applied. I am satisfied the final sentence reached by Judge Crayton is not manifestly excessive. For all these reasons this appeal must be dismissed.

Result

[34]The appeal is dismissed.

...................................................

Gendall J

Solicitors:

Jamie Waugh, Barrister, Whanganui

Wilkinson Smith Lawyers, Whangangui