Anderson v Police
[2013] NZHC 2632
•10 October 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2013-419-000007 [2013] NZHC 2632
BETWEEN LEVI RAWIRI ANDERSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
| Hearing: | 9 October 2013 |
Appearances: | GW O'Brien for Appellant RB Annandale for Respondent |
Judgment: | 10 October 2013 |
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 10 October 2013 at 3:30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
ANDERSON v NZ POLICE [2013] NZHC 2632 [10 October 2013]
[1] Levi Rawiri Anderson appeals against a sentence of three years four months’ imprisonment imposed upon him in the District Court at Hamilton by Judge Burnett on six charges of burglary, six charges of receiving, two charges of theft, one charge of being found in an enclosed yard, a charge of contravening a protection order, an associated charge of causing intentional damage and three charges of breaching prison release conditions. The offending occurred over a five to six month period between January 2012 and June 2012. The appellant pleaded guilty to all charges.
[2] Mr O’Brien, who now appears for the appellant but did not represent him in the District Court, informed me that he had been instructed by the appellant that an appeal against conviction had been filed. A comprehensive search of the Court’s database throughout New Zealand does not reveal any such appeal having been lodged and it appears Mr Anderson is mistaken about that. As I understood it from Mr O’Brien, the suggestion that an appeal against conviction should be made was motivated by Mr Anderson’s concern that he had entered into something of a plea bargain with the Police prior to entering his pleas and that he had anticipated that the sentence he would receive would be less than that actually imposed.
[3] Mr O’Brien has investigated the possibility of a conviction appeal and I have also given consideration to the matter. It is clear, however, that the exceptional circumstances which would be required to allow an appeal against convictions based upon guilty pleas simply do not exist here. The appropriate course for an appellant in these circumstances is to argue that the effective end sentence imposed was clearly excessive.
[4] That is what has in fact happened: the grounds of appeal in the notice filed by the appellant’s then counsel were that the sentence was manifestly excessive and wrong in fact and law, and that the Judge failed to take into account all mitigating factors.
[5] Mr O’Brien has focused his submissions on the starting point adopted in the District Court and on an argument that the Judge failed to give the appellant appropriate credit for genuine remorse and his motivation to change his behaviour.
Facts
Burglaries
[6] On 5-6 February 2012, the appellant forced open a front window at a residential address and stole $3,000 worth of property. On 24 February 2012, the appellant entered a residential address through an insecure door while the victim was at home and asleep, and took a laptop and a portable hard drive. On 1 March 2012, in the early hours of the morning, the appellant used a ladder to gain entry into a residential address while the victim was at home sleeping and took $300 worth of property. On 29 March 2012, in the middle of the night, the appellant entered a residential address through a bedroom window while people were at home asleep, and took property valued at $1,500. On 13 May 2012, the appellant entered a residential address in the middle of the night through an open window, while the victim was asleep, and took property valued at around $2,300. On 19 May 2012, the appellant committed a further burglary in which he stole $4,800 worth of property.
Theft and other charges
[7] At the time of committing the burglary on 24 February 2012, the appellant also broke into the victim’s car and took further items. In another incident between 12 May and 20 May 2012, the appellant stole a tricycle valued at $2,000.
[8] The domestic violence offending related to an incident where the appellant became upset while at the home of his mother, a protected person, and punched holes in the wall. It is unclear what factual background there was to the three breaches of prison release conditions but in the circumstances that is not material. The property concerned in the receiving charges, which related principally to electronic items, had a total value of $920.
The approach of the District Court Judge
[9] It is apparent from the sentencing notes that the Judge dealt with the matter in the course of a busy List and that she considered in the circumstances that she
needed to express herself in a somewhat condensed fashion which did not reflect a more orthodox approach to sentencing for offending of this kind.
[10] The Judge took the lead charges as being the burglary and receiving charges. Referring to Swinburne v R[1] and Cooper v Police,[2] Judge Burnett noted that it was not seriously disputed that a starting point of three-and-a-half years’ imprisonment was appropriate. Mr O’Brien indicated to me that, on the basis of his discussions with the appellant’s previous counsel, the Judge was mistaken in believing that the starting point was not an issue at sentencing. It certainly appears from the written
submissions filed by the appellant’s counsel that he argued that a starting point of two years’ imprisonment was appropriate, bearing in mind a comparison he made between the present case and the circumstances in Cooper v Police[3] where a starting point of 20 months’ imprisonment was applied on appeal.
[1] Swinburne v R [2010] NZCA 568.
[2] Cooper v Police [2012] NZHC 1699.
[3] Ibid.
[11] Cooper involved two burglaries in which property valued at in excess of
$15,000 was taken. There were also two receiving charges. I discuss below whether that case represents an appropriate comparator.
[12] The Judge then considered that an uplift of 12 months’ imprisonment should be applied for the thefts, intentional damage, breach of protection order and breaches of prison release conditions, as well as for the appellant’s extensive list of previous convictions. From the resulting sentence of four-and-a-half years’ imprisonment, the Judge applied a 25 percent discount for the appellant’s guilty pleas, resulting in an overall end sentence of three years and four months’ imprisonment.
Discussion
[13] A more conventional approach, which both counsel on appeal acknowledge, would have been to take the burglary charges as the lead offences; apply an appropriate uplift for the other offending, bearing in mind totality principles; consider the effect of the appellant’s personal circumstances, including any uplift for
the appellant’s criminal history and any discount for particular mitigating factors such as remorse; and then to apply the discount for guilty pleas.
[14] Counsel also agree that the Court’s focus on appeal is whether the final outcome is manifestly or clearly excessive and that the route by which the Judge reached that outcome is relevant but not in itself pivotal.[4]
[4] Ripia v R [2011] NZCA 101 at [15].
[15] In addressing the starting point of three-and-half-years’ imprisonment taken by Judge Burnett, I take the view that Cooper v Police does not represent an appropriate precedent for this case. In Cooper there were only two residential burglaries conducted during daylight at a time when the occupants were not at home. In the present case there were six burglaries and what I regard as the seriously aggravating feature of entry into residential buildings at night while the occupants were at home. Burglaries carried out in such circumstances are particularly traumatising for the victims and they carry the risk of a confrontation with potentially disastrous consequences. Bearing in mind those considerations, the total value of the property taken assumes less significance in assessing the overall seriousness of the offending.
[16] Mr O’Brien acknowledged that a reference to the starting point in Cooper may not have been appropriate, but suggested that a starting point of three years would have sufficiently marked the nature of the offending.
[17] In Swinburne v R[5] the Court of Appeal considered four burglaries in which the total value of the property taken or damaged was over $13,000 and there was no prospect of reparation. The Court said[6] that for the offending by itself a starting point of three-and-a-half years’ imprisonment was justified. I consider Judge Burnett was entitled to take a three-and-a-half-year starting point here.
[5] Swinburne v R, above n 1.
[6] At [15].
[18] A conventional approach would in my view have justified an uplift of nine months’ imprisonment for the other offending taken overall. Having regard to the appellant’s criminal history, a further uplift of three months would have been
appropriate, not to re-sentence the appellant for offending already dealt with by the Courts, but to acknowledge that extra weight is required to be given to deterrence for a persistent offender.
[19] I put aside for a moment the mitigating personal factors of expressions of remorse and motivation to change. The Judge applied a 25 percent discount for early guilty pleas. The appellant’s guilty pleas were not entered at the earliest opportunity but after some months of discussion with the Police during which a number of matters were resolved, no doubt involving concessions by both the Police and the appellant. In such circumstances a discount of 25 percent for guilty pleas may be considered to be generous with a discount of 15 to 20 percent being more appropriate.
Expressions of remorse and intention to change
[20] Mr O’Brien emphasised that the appellant was genuinely motivated to break out of the cycle of offending punctuated by periods of imprisonment which has marked his lifestyle over the past four or five years. The appellant wrote letters to each of his victims apologising for his offending and expressing regret for the consequences for them. It appears that he also made inquiries of the Hanmer Clinic and the Tai Aroha Residential Treatment Programme seeking assistance with overcoming his drug and alcohol problems. Mr O’Brien submitted that the District Court Judge had erred in not referring specifically to these significant matters and informed me that the appellant was particularly aggrieved by that omission. I acknowledge that the appellant did more in this case than merely express remorse through counsel.
[21] The fact that a sentencing judge does not refer to all matters touching on the appropriate sentence does not mean that they have not been taken into account.
[22] I note also that the writer of the pre-sentence report made available to the District Court observed that the appellant “displayed only a superficial level of insight and remorse towards his offending, and offered little by way of explanation” for it. According to the report writer, the appellant went so far as to deny the
burglary and receiving offending stating that he was “going for a retrial” on those matters.
[23] In the circumstances, I am not persuaded that the Judge was required to allow any additional discount for special remorse not already indicated by the guilty pleas.[7]
[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, at [64].
[24] Even if a separate discount for remorse was appropriate, it could have been no more than around five percent, which is about the amount by which I consider the 25 percent discount for guilty pleas was too generous.
[25] If the appellant is genuinely motivated to change, as he has instructed his counsel, appropriate programmes will be available to him during his period of imprisonment and, particularly, through release conditions which can be imposed by the Parole Board.
[26] Mr O’Brien has said all that could be said on the appellant’s behalf but I am satisfied that the overall end sentence imposed in this case was well within the range available to the District Court Judge and I dismiss the appeal.
........................................
Toogood J
3
1