Arps v Police HC Christchurch CRI 2010 409 167

[2010] NZHC 1550

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010 409 167
CRI 2010 409 168
CRI 2010 409 169

CRI 2010 409 170

HARLEY JAMES ARPS

Appellant

v

POLICE

Respondent

Hearing:         2 September 2010

Appearances: B Meyer for Appellant

J W Wall for Respondent

Judgment:      2 September 2010

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against a sentence of two years and three months in relation to burglary (2), intentional damage, being found in a yard, possession of cannabis and driving while forbidden.   The appellant had pleaded guilty to each of these charges, albeit relatively late in the piece.

The offending

ARPS V POLICE HC CHCH CRI 2010 409 167  2 September 2010

[2]      In time sequence the offending was as follows.   On 7 February 2010 the appellant was drunk and agitated.  When the victim, his ex partner, returned home the  appellant  effectively went  “berserk”  and  smashed  holes  in  the  walls  of  the apartment.  The victim locked herself and their six month old child in the bedroom.

[3]      On 21 February 2010 the appellant jemmied the window of a dwelling and, having obtained access, took a laptop computer and a camera.   It can be inferred from  a  reparation  report  that  the  loss  was  around  $1,300.    The  other  burglary occurred a few days later on 24 February 2010.   Again access was obtained by jemmying a window.  A television valued at $3,000 was taken.  Again this was a residential property.

[4]      The next offence involved being unlawfully in a boat yard on 19 May 2010. According to the summary bolt cutters were found nearby.  When the appellant was searched it was found that he had 1.1 grams of cannabis leaf in his possession.

The appellant

[5]      He is 21 years of age.  His appearances in the Youth Court included burglary, unlawfully interfering with motor vehicles, possession of utensils for cannabis, and other  matters.    In  the  District  Court  he  has  previous  convictions  for  theft  (2), receiving (3), assault, and breaches of Court orders.

[6]      When he was sentenced the probation officer had only prepared a report in relation  to  the  charge  of  wilful  damage.    The  probation  officer  noted  that  the appellant had a drug problem, considered that there was a moderate risk of re- offending, and imprisonment was recommended.

Sentencing

[7]      When the appellant changed his plea on the other than wilful damage charges from not guilty to guilty, the sentencing Judge stood the matter down in the hope that there would be an opportunity to sentence the appellant during the afternoon.  In the event that opportunity arose and the Judge sentenced on the strength of the pre-

sentence report relating to the charge of wilful damage.  When imposing sentence the Judge traversed the offending and noted:  “Your main problem is dope and it is to pay for and obtain it that you are committing offences”.   He noted the probation officer’s recommendation and commented on the list of previous convictions, including the Youth Court appearances.  The Judge also noted that the appellant had recently received community detention for receiving.

[8]      With reference to the appellant’s age, the Judge said:

[10]      I look at the situation as follows.  It is submitted that an allowance should be made  for  your  age  but  experience  has  shown  that  a  very  large  number  of the burglaries in this city are committed by people 14 years to 20 years of age.  These burglaries are substantial.  The likelihood of the victims getting anything back seems to me to be remote.

As to the possibility of home detention, the Judge noted that the appellant’s compliance record was “so dismal” that home detention was not something that the Court would concern itself with.

[9]      Having decided that the appropriate starting point was at least two and a half years  imprisonment,  the  Judge  allowed  a  10%  discount  for  the  guilty plea  and arrived at a sentence of two years and three months on the burglary charges. Concurrent sentences were imposed in relation to the other charges.

This appeal

[10]     Mr Meyer has argued very ably on behalf of the appellant.  He submitted that a full pre-sentence report should have been called for and that the Judge erred by proceeding on the basis of a report that was confined to the wilful damage charge. Had such a report been provided, submitted Mr Meyer, it would have been possible for the appellant to have conveyed his views as to the offending, remorse, and related matters.  Possibly an appendix for home detention might also have been provided. He raised the possibility of the matter being remitted back to the District Court.  Mr Meyer accepted, however, that home detention is not a viable proposition in the context of this appeal.

[11]     As to the starting point, Mr Meyer submitted that two and a half years was too high.  He cited authorities to support his proposition that the starting point should have been no more than 18 months.   He does not challenge the discount of 10%. The submission is that the end sentence should have been 16 months imprisonment or thereabouts.

[12]     In response Mr Wall advanced equally able submissions.  With reference to the pre-sentence report issue, Mr Wall submits that the approach adopted by the Judge was justified by s 26(3) of the Sentencing Act 2002.  He strongly opposes any suggestion that the matter might be sent back to the District Court for re-sentencing on the basis of a full pre-sentence report.

[13]     As to the sentence itself, Mr Wall’s submission is that it was lenient.  With reference to the authorities relied on by Mr Meyer, Mr Wall submitted that one burglary alone could have justified a starting point of two years.  He argued that once the totality of the offending is taken into account the starting point adopted by the Judge was well within range.

Discussion

[14]     It is not necessary for me to decide whether s 26(3) of the Sentencing Act applied.  I am satisfied that in all the circumstances it was open to the Judge, as a matter of discretion, to adopt the approach that he utilised.  The pre-sentence report relating to the wilful damage was comprehensive and comparatively recent.  As Mr Meyer  responsibly  conceded,  the  fact  that  the  appellant  was  represented  at sentencing enabled him to advance any submissions that he might have wanted to advance through the probation officer, including any explanation for the offending, remorse etc.  Consequently I do not see the pre-sentence report issue as a matter of substance.

[15]     Turning to the issue of the starting point and sentence ultimately imposed, it is appropriate to make brief reference to three Court of Appeal decisions cited by counsel.

[16]     In R v Columbus[1]a sentence of two years and three months imprisonment was reduced to one year and 10 months.  The lead charge was burglary of a garage attached to a residential property.   The only loss was property damage of $672. There were also two counts of theft.   The Court of Appeal started at 18 months, applied an uplift of one year for the 13 previous burglaries, allowed a discount of eight months for the guilty plea (around 25%) and arrived at the sentence of one year and 10 months imprisonment.

[1] R v Columbus [2008] NZCA 192

[17]   While that decision is capable of offering some guidance, it is clearly distinguishable.  This case involved two dwellings as well as unlawful entry into a yard.  Despite Mr Meyer’s suggestion that those offences could be approached on a global basis, the reality is that they were all separate and the Judge was entitled to approach the matter on that basis.  Moreover, the loss occasioned by the burglaries was in the vicinity of $4,300 which is very significant compared with Columbus. Added to that there is an intentional damage charge which, in all the circumstances, was not a trifling matter.

[18]     Another Court of Appeal decision relied on is R v Stevens[2].   Again, that decision is clearly distinguishable.  It involved the burglary of copper piping from commercial premises.  The loss was $350.  The Court of Appeal expressed the view that the appropriate starting point was no higher than 18 months;   an uplift of 12 months for three previous convictions for burglary and the fact that the appellant had offended while serving a sentence of intensive supervision was then applied;   a further nine months was added for drug offending;   after a 20% discount for the guilty plea, the sentence was two and a half years imprisonment.

[2] R v Stevens [2009] NZCA 190

[19]     Despite Mr Meyer’s submissions I do not accept the sentence imposed on this occasion was out of step with that decision, especially taking into account that burglaries of dwellings were involved in the appellant’s offending.

[20]     Finally, counsel drew to my attention R v Brown.[3]That involved the burglary of a school.   The Court of Appeal specifically commented at [24] that while the offending was serious, it did not involve the same intrusive elements as the burglary of residential premises.  In that case the Court considered that the burglary count and the count of receiving justified a starting point of 18 months.  Again, it seems to me that that is well removed from the current case.

Outcome

[3] R v Brown [2009] NZCA 288

[21]     I have not been persuaded that the sentence of two years and three months in this case is manifestly excessive.  The appeal is dismissed.

Solicitors:         Crown Solicitors, Christchurch

B Meyer, Christchurch