Arbuckle-McCreath v Police
[2020] NZHC 2893
•4 November 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-476-19
[2020] NZHC 2893
BETWEEN KALYM MICHAEL ARBUCKLE- McCREATH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 03 November 2020 Counsel:
K M Henry for the Appellant A R McRae for the Respondent
Judgment:
4 November 2020
JUDGMENT OF DOOGUE J
[1] On 9 September 2020, Judge Mark Callaghan sentenced the appellant, Kalym Arbuckle-McCreath, to three months’ community detention and nine months’ supervision on two charges of burglary,1 and one charge of intentional damage.2
[2] For the sentence of community detention, the Judge imposed a curfew from 7 pm on a Friday until 7 am on a Saturday, and from 7 pm on a Saturday until 7 am on a Monday. Mr Arbuckle-McCreath appeals his sentence, and challenges only the length of his curfews as being manifestly excessive.
Factual background
[3] On 22 August 2019, Mr Arbuckle-McCreath and an associate drove to the victim’s farm in the Maniototo area. Mr Arbuckle-McCreath entered the property and
1 Crimes Act 1961, s 231(1)(a); maximum penalty of ten years’ imprisonment.
2 Section 269; maximum penalty seven years’ imprisonment.
ARBUCKLE-McCREATH v NEW ZEALAND POLICE [2020] NZHC 2893 [4 November 2020]
walked to an open bay shed, where he knew farm vehicles were located. He removed a Toyota land cruiser valued at $50,000, and his associate drove it towards Alexandra. Mr Arbuckle-McCreath remained in the area as a lookout, and then followed his associate in a separate vehicle.
[4] At another address, Mr Arbuckle-McCreath discarded a dog box from the rear of the land cruiser, and then continued driving. Mr Arbuckle-McCreath and his associate then arrived at Little Valley Station in Alexandra and drove to a large shipping container located on the property, and forced the lock on the container. They took a number of items before leaving the property, including a Can-Am quad bike, two Yamaha off road motorbikes, a further 2017 off road motorbike, a water pump, and a large quantity of tools and equipment. The value of the combined property taken was about $25,000.
[5] They then drove to Pleasant Point, where they met with another associate and arranged for the motorbikes and land cruiser to be sold in Christchurch.
[6] On 22 October 2019, the police located the Can-Am quad bike stashed away on the side of Little Valley Road. It was in good condition and had not sustained any damage, but the key was never located. Mr Arbuckle-McCreath’s address was searched on 25 October 2019, and during the course of that search a number of items stolen from Little Valley Station were located, including a motorbike helmet and other assorted tools.
[7] Mr Arbuckle-McCreath was arrested on 4 November, and following that arrest the police located numerous tools and batteries stolen from Little Valley Station. When spoken to, Mr Arbuckle-McCreath stated that all the items at his address had been left by associates.
[8] On the intentional damage charge, Mr Arbuckle-McCreath went to an industrial property in Oamaru on 4 November 2019, and cut the padlocks on a container which was storing household goods.
The District Court decision
[9] The Judge identified the burglaries as the lead offences. He found an aggravating feature of the offending was the presence of planning and premeditation, because Mr Arbuckle-McCreath’s associate obviously knew where the land cruiser was. The Judge noted the vulnerability of farm properties to burglaries due to the impossibility of alarming these properties and storage facilities to the same extent that a business might be able to do in a city. He adopted a starting point of 28 months’ imprisonment, due to the planning and the fact of there being two burglary charges. He did not apply any uplift for the unrelated charge of intentional damage.
[10] As to mitigating factors, the Judge recognised that the offending was “occasioned by drug related addictions that [Mr Arbuckle-McCreath] had”, and according to Zhang v R, a discount of 15 per cent was appropriate.3 The Judge considered Mr Arbuckle-McCreath was entitled to a discount as he was in the throes of his drug addiction, to such an extent that he was probably not functioning in life as he would have prior to his addiction. The Judge then gave the full 25 per cent discount for Mr Arbuckle-McCreath’s guilty plea. This, the Judge said, was a total discount of about 40 per cent, which brought the sentence down to 18 months. A further three months was deducted to recognise Mr Arbuckle-McCreath’s having been in custody for three months.
[11] The Judge acknowledged this brought the sentence within the range of home detention and that a home detention sentence of between seven and seven and a half months was indicated. He noted Mr Arbuckle-McCreath had been on electronically monitored bail (EM bail) for “that period of time of seven months”. However, the Judge rejected counsel for Mr Arbuckle-McCreath’s suggestion for a sentence of solely supervision. He said this did not meet the purposes and principles of sentencing for such serious burglaries. He therefore imposed a three month period of community detention with a curfew from 7 pm on a Friday until 7 am on a Saturday, and from 7 pm on a Saturday until 7 am on a Monday. In addition, the Judge imposed supervision for nine months with special conditions directed at drug rehabilitation.
3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[12] Finally, the Judge ordered reparation for the burglaries and indicated that outstanding fines would be remitted on the completion of 100 hours community work.
Principles on appeal
[13] 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.4 As the Court of Appeal mentioned in Tutakangahau v R, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 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.6 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.7
Issues on appeal
[14] Ms Henry, for Mr Arbuckle-McCreath, submitted that Mr Arbuckle-McCreath takes no issue with the type or length of the sentences that were imposed. She submitted that he only sought to challenge the length of the curfews. She submitted these are manifestly excessive given the length of time he has already spent in custody and on EM bail, and that his personal circumstances (having a young daughter and wanting to seek dairy farm work) make these curfews excessive.
[15] Ms Henry submitted the curfew should be varied to be between 8 pm to 3 am, to allow Mr Arbuckle-McCreath to spend time with his Timaru based seven year old daughter on Saturdays, as well as seek dairy farm work, which would entail early morning starts and possibly late finishes.
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 483 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
7 Skipper v R [2011] NZCA 250 at [28].
[16] Mr McRae, for the Crown, submitted the appeal must fail because Mr Arbuckle-McCreath cannot show that the curfew period was manifestly excessive or wrong in principle. He submitted the Judge took into account the time Mr Arbuckle-McCreath spent on EM bail and noted that the Judge had no evidence before him as to any difficulties that might arise in relation to visitation of Mr Arbuckle-McCreath’s daughter and work schedules.
[17] Mr McRae submitted Mr Arbuckle-McCreath’s concerns would more properly be dealt with by way of an application for a variation of his community detention sentence under s 69I of the Sentencing Act.
Analysis
[18]Section 69I of the Sentencing Act provides:
69I Variation or cancellation of sentence of community detention
(1)An offender who is subject to a sentence of community detention, or a probation officer, may apply, in accordance with section 72, for an order under subsection (3) on the grounds that—
(a)the offender is unable to comply, or has failed to comply, with any conditions of the sentence; or
(b)the curfew address is no longer available or suitable because of a change in circumstances; or
(c)having regard to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—
(i)the rehabilitation and reintegration of the offender would be advanced by the suspension or variation of the curfew period; or
(ii)the continuation of the sentence is no longer necessary in the interests of the community or the offender.
(2)A probation officer may apply for an order under subsection (3) if an offender, who is subject to a sentence of community detention, is convicted of an offence punishable by imprisonment.
(3)On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—
(a)suspend or vary the curfew period; or
(b)vary the curfew address; or
(c)cancel the sentence; or
(d)cancel the sentence and substitute any other sentence (including another sentence of community detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.
(3A) When an application is made under this section on the ground specified in subsection (1)(b) and there is no suitable alternative curfew address available, the court may do either or both of the following things:
(a)issue to a constable a warrant for the offender’s arrest:
(b)bail the offender or remand the offender in custody if the application cannot be determined immediately.
(4)When determining a substitute sentence to be imposed under subsection (3)(d), the court must take into account the portion of the original sentence that remains unserved at the time of the order.
(5)If the court cancels the sentence, the sentence expires on the date that the order is made or on any other date that the court may specify.
(6)If an application is made under this section for the suspension or variation of the curfew period, a probation officer may suspend the curfew period until the application has been heard and disposed of.
[19] Section 69I provides the proper avenue for Mr Arbuckle-McCreath to seek to vary his curfew hours on the basis of factual circumstances that were not before the Judge at sentencing, though it will be for Mr Arbuckle-McCreath to show that these matters amount to a change in circumstances.
[20] Alternatively, in so far as the concern about his ability to seek dairy farm employment with its irregular hours is concerned, Mr Arbuckle-McCreath could also seek the permission of his probation officer to leave his curfew address during the hours of his curfew period “to seek or engage an employment” under s 69E(2)(c)(i) of the Sentencing Act.
Conclusion
[21] Given the substance of these concerns was not raised before the Judge in the District Court, Mr Arbuckle-McCreath cannot show that this curfew period was manifestly excessive or wrong on principle.
[22] He has recourse to an application to the District Court to vary his curfew period and the ability to seek the permission of his probation officer to leave his address during curfew for employment purposes.
[23]An appeal to this Court was not the appropriate course of action here.
Result
[24]The appeal is dismissed.
Doogue J
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