Archer v Police

[2024] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000197

[2024] NZHC 1968

BETWEEN

TRAVIS ARCHER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 June 2024
Appearances:	C Fredric for the Appellant R Vercoe for the Respondent
Judgment:	17 July 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 17 July 2024 at 11 am Registrar/Deputy Registrar

Solicitors:

C Fredric, Barrister, Auckland
R Vercoe, KFW, Crown Solicitor Manukau

ARCHER v POLICE [2024] NZHC 1968 [17 July 2024]

[1]        On 18 April 2024, Judge GA Andrée Wiltens  sentenced  Mr  Archer  to  three years’ imprisonment.1 The sentence related to two tranches of charges accrued in 2023 and 2024. The 2023 charges are: burglary (x 2),2 theft over $1,000 (x 5),3 theft between $500–$1,000 (x 4),4  theft under $500 (x 17),5  breach of parole conditions  (x 1)6 and intentional damage (x 1).7 The 2024 charges are: burglary (x 1), theft over

$1,000 (x 7) and theft under $500 (x 4).

[2]        Mr Archer appeals his sentence. The sole issue on appeal is whether the sentence was manifestly excessive because the starting point was too high. The appeal is opposed by the Crown.

Background and offending

[3]        Mr Archer is only 30 years old but has amassed over 70 convictions for a variety of offences including a large number of dishonesty crimes since 2013.

[4]        Mr Archer was sentenced for a range of property-related and driving offences on 10 March 2023, for which he received an end sentence of one year and nine months’ imprisonment. He  was  released  from  custody  on  standard  parole  conditions  on 3 May 2023. Eight days later he embarked on the offending spree which is the subject of this appeal.

[5]        On 26 separate occasions between  11  May  2023  and  20  August  2023,  Mr Archer committed theft in various retail stores in Auckland, mainly of alcohol, food, and tools. On two occasions in July 2023, Mr Archer entered Smith & Caughey’s and took items valued at approximately $400 and $900 without paying. This led to two charges of burglary as he had been earlier trespassed from that store.

[6]        Mr Archer also failed to report to his probation officer on multiple occasions and on 8 June 2023, he was charged with breaching parole conditions. The charge as

1      New Zealand Police v Archer [2024] NZDC 8690 [sentencing decision].

2      Crimes Act 1961, s 231. Maximum penalty of 10 years’ imprisonment.

3      Crimes Act, ss 219 and 223(b). Maximum penalty of 7 years’ imprisonment.

4      Crimes Act, ss 219 and 223(c). Maximum penalty of 1 year imprisonment.

5      Crimes Act, ss 219 and 223(d). Maximum penalty of 3 months’ imprisonment.

6      Parole Act 2002, s 71. Maximum penalty of 1 year imprisonment or fine not exceeding $2,000.

7      Summary Offences Act 1981, s 11. Maximum penalty of 3 months’ imprisonment or a fine not exceeding $2,000.

to intentional damage resulted from Mr Archer spray painting the wall of a liquor store on 3 August 2023.

[7]Finally, on 21 August 2023, Mr Archer was arrested and remanded in custody.

[8]        Mr Archer appeared in the Manukau District Court on 19 January 2024 for a sentence indication.8 The Judge indicated a notional end sentence (prior to any personal mitigating factors) of 26.4 months calculated as follows:

(a)An initial starting point of 27 months’ imprisonment.

(b)Uplifts to the starting point by three months for previous convictions and a further three months for offending while subject to release conditions, for a total starting point of 33 months.9

(c)An available deduction of 20 per cent for guilty plea.

[9]        While the Judge considered that the burglary is “at the lower end of the scale”, he indicated that the spree of thefts warranted imprisonment as opposed to home detention.

[10]      Mr  Archer  accepted  the  sentence  indication  on  30  January  2024.    On   1 February 2024, he was released on compassionate bail for 24 hours. He then absconded.

[11]      While  on  bail,  Mr  Archer  committed  a  series  of  further  offending.  On 5 February 2024, he stole fragrances valued at $460 from another retail store which had previously trespassed him, resulting in a charge of burglary. On 11 separate occasions between 15 February 2024 and 23 February 2024, Mr Archer committed thefts against various retail stores in Auckland. The thefts included food, tools and a mobile phone.

8      New Zealand Police v Archer, DC Manukau CRI-2023-092-006541, 19 January 2024.

9      This did not adopt the Moses methodology as the aggravating factor uplifts ought to have been applied to a starting point of 27 months, as opposed to uplifting the starting point itself. This would have resulted in a notional end sentence of 27.6 months.

[12]      Mr Archer was re-arrested.   He pleaded guilty to all the 2024 charges  on    28 February 2024. The 2024 charges were sentenced together with the 2023 charges.

District Court decision

[13]      The sentencing Judge adopted the starting point of 26 months (including the 20 per cent guilty plea discount) for the 2023 charges. For the 2024 charges, the Judge uplifted that starting point by 18 months to get a total start point of 44 months, explaining:10

[8]  So, the way I see the position is that there needs to be a significant   uplift because of the multiplicity of further charges including the fact that one of them was a burglary. So, the uplift that I am adopting, from Judge Large’s position, is an additional 18 months’ imprisonment, which includes consideration of the fact that you have pleaded guilty to these further charges. So that gets me to an end point of the factors that relate to the offending, of 44 months’ imprisonment.

[14]      I read this to mean that the uplift imposed was in fact 24 months, reduced to 18 months for the guilty plea discount.11 While an unorthodox approach, it was pragmatic in the circumstances.

[15]      Mr Archer received a 15 per cent deduction for personal factors in the s 27 cultural report. The cultural report refers to many unresolved issues arising from his background which is very likely to be causative of his prolific offending.

[16]      The Judge was not prepared to give any allowance for remorse, noting that in the pre-sentence report Mr Archer was reported to have said of the shoplifting: “It gives me a kick and they say love what you do. It’s like a job.”12 Mr Archer accepted that he said this but considers it was taken out of context in the report to his detriment.

[17]      Accordingly, the Judge arrived at an end sentence of 37 months, which was then reduced by one month to “make it a round figure of three years’ imprisonment”.13

10     New Zealand Police v Archer, above n 1.

11     This calculates to a 25 per cent guilty plea deduction.

12 At [12].

13 At [11].

Relevant legal principles

[18]      The Court must allow an appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.14 Otherwise the Court must dismiss the appeal.15 The focus is on the end sentence. If the process by which a sentencing Judge arrives at the end sentence was flawed but the sentence can nonetheless be properly justified by accepted sentencing principles, then an appeal court will not intervene.16

Grounds of appeal

[19]      No issue is taken with the uplifts for offending while on bail and prior convictions, guilty plea discounts and discount  to  recognise  factors  personal  to Mr Archer. Nor could they be. The sole issue is the applicable starting point.

[20]      That said, Mr Fredric for Mr Archer, submits that the personal factors discount of 15 per cent was imposed on a start point of 44 months rather than the actual “total uplifted starting point” of 57 months once the three-month uplifts (x 2) for offending on bail and for previous convictions is included.17 The problem with that submission is that the uplifts for offending on bail and previous convictions are personal aggravating matters and according to the approach directed by Moses v R, are to be considered at the second stage of the sentencing process. They are not subject to percentage discounts.18

[21]      Mr Fredric maintains that the appropriate end sentence is 28 months (two years and four months) made up of:

(a)An overall starting point of 45 months’ imprisonment based on:

(i)a starting point of 27 months for the 2023 charges as per the sentence indication;

14     Criminal Procedure Act 2011, s 250(2).

15     Criminal Procedure Act, s 250(3).

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [36].

17 Mr Fredric estimates the “total uplifted starting point” adopted by the sentencing Judge to be approximately 57 months, including the 6-month (total) uplift for offending on bail and previous convictions.

18 Moses v R [2020] NZCA 296, [2020] NZLR 583 at [46].

(ii)uplift of 12 months for the 2024 charges, considering the totality principle; and

(iii)uplifts of three months for offending on bail and three months for previous convictions.

(b)22 per cent credit for guilty pleas, recognising that 20 per cent was indicated for the 2023 charges and presuming that 25 per cent is warranted for the 2024 charges given Mr Archer pleaded guilty at his first appearance.

(c)15 per cent credit for personal factors contained in the cultural report.

[22]      However, even on that analysis, once the Moses approach is applied, with the uplifts for offending on bail and previous convictions applied at stage two of the sentencing process (not added to the starting point), the end sentence is in fact

30.6 months and not 28 months.

[23]      Mr Fredric characterises Mr Archer’s offending as unusual and unsophisticated. He was generally identified via CCTV footage and committed his offending in broad daylight with no attempt to disguise his identity.19 Mr Fredric submits that a starting point of three years and three months (being 39 months before the inclusion of the three-month uplifts (x 2) for offending on bail and for previous convictions) appropriately reflects Mr Archer’s offending.

[24]      Ms Vercoe, counsel for the respondent, submits that the “effective global starting point” adopted by the Judge was 51 months, made up of the 27 month starting point for the 2023 offending and a 24 month starting point for the 2024 offending. This approach accepts that the sentencing Judge appropriately adopted a 25 per cent guilty plea allowance in his calculation of the additional 18 month uplift.20 She submits that a 51 month starting point is within range and the end sentence cannot be characterised as manifestly excessive.

19     He does not explain what relevance this has to the imposition of a starting point.

20     Comparatively, Mr Fredric estimates the “total uplifted starting point” adopted by the sentencing Judge to be approximately 57 months (see paragraph 20).

Decision

[25]      As evidenced by the respective submissions the difficulty lies in ascertaining precisely what the starting point was when the methodology required by Moses is applied. Against that background, I propose to reappraise the appropriate global starting point to assess whether the end sentence was in range.

[26]      Mr Archer’s offending does have some unusual characteristics in that it exclusively involves retail crime without elements of breaking and entering, assault, or drug offending. I accept that it was unsophisticated, having largely taken place in broad daylight. His counsel submits that an uplift of 12 months for the second suite of offending more appropriately reflects the totality principle.

[27]      Conversely, Ms Vercoe maintains that the starting point for the 2023 charges was generous and a starting point in the vicinity of 45 months would have been in range. Further, if considered in isolation, the 2024 charges could have attracted a starting point of 24 months’ imprisonment. Viewed in that light, the global starting point could not have been manifestly excessive. She submits that the sheer scale of Mr Archer’s offending should be reflected in a starting point approaching the statutory maximum for theft over $1,000 as the lead charge.21

[28]      I have had regard to the cases cited by counsel.22 The comparative scale and relentlessness of the offending is relevant. The combined value of the items involved in the 2023 offending was $20,560.74 while the 2024 offending totalled to the value of $17,055.98. I accept Ms Vercoe’s submission that the lead charges (if considered on a global basis) are the 12 charges of theft over $1,000 with uplifts for burglary, the remainder of the theft charges and the other charges. The combined value of items taken in regard to those 12 charges was $28,448.   A starting point in the range of   30 months would be appropriate.

[29]      I assess the uplift for the three burglary charges as six months, given they are at the lowest end of the scale.

21     Sentencing Act 2002, s 8(d).

22     Bimler v Police [2023] NZHC 2661; Ross v Police [2022] NZHC 2527; Charlett v Police [2014] NZHC 3002; Wilson v Police [2021] NZHC 198; Davies v Police [2019] NZHC 3091.

[30]      The remainder of the dishonesty charges, intentional damage and breach of release conditions warrant an uplift of nine months leading to a global starting point of 45 months.

[31]      In accordance with the second stage of the Moses methodology, the applicable discounts for guilty plea (averaged at 22 per cent across the two offending periods) and personal factors of 15 per cent lead to an adjusted start point of two years and four months. Thereafter, uplifts for offending while subject to release conditions and for previous convictions of three plus three months are appropriate. I find no error in these uplifts in view of the significant dishonesty history and disregard for court-imposed conditions.

[32]      The result is a term of two years and 10 months compared to the Judge’s end point of three years. Although the appropriate discounts were not in issue on appeal, I accept Ms Vercoe’s submission that they were at the more generous end of available discounts. In saying so, I do not overlook that Mr Archer’s offending is likely driven by untreated drug and alcohol addiction, in turn linked to untreated ADHD. Unless there is therapeutic intervention, I fear that Mr Archer is trapped in an offending cycle.

[33]      Therefore, standing back and looking at all the matters in the round, I conclude that the end sentence imposed by the Judge in the District Court was not manifestly excessive.

Result

[34]I dismiss the appeal.

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

Walker J