Atkins v Police

[2024] NZHC 1730

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-019

[2024] NZHC 1730

BASS MANU ATKINS

v

NEW ZEALND POLICE

Hearing:

25 June 2024

Counsel:

S J Parsons for Applicant

G L Duncan for Respondent

Judgment:

3 July 2024

JUDGMENT OF GRAU J

[Sentence appeal]

Introduction

[1]                 On 20 May 2024, in the Palmerston North District Court, Judge Krebs sentenced Bass Atkins to two years and nine months’ imprisonment on the following charges:

(a)driving whilst disqualified (third or subsequent);1

(b)wilful damage;2

1      Land Transport Act 1998, s 32(4) (maximum penalty of two years’ imprisonment or $6,000 fine, court must disqualify driver for one year or more).

2      Summary Offences Act 1981, s 11 (maximum penalty of three months’ imprisonment or $2,000 fine).

ATKINS v NEW ZEALND POLICE [2024] NZHC 1730 [3 July 2024]

(c)        9 x theft (over $1,000);3 and (d) theft ($500-$1,000).4

[2]                 Mr Atkins appeals his sentence. He says the starting point was too high and there is a wide disparity between him and a co-offender. He considers the adjustment for totality was made on an incorrect basis and was insufficient. The uplift for personal aggravating factors was too high and no credit was given for personal mitigating factors. An appropriate end sentence would have been home detention.

[3]                 The respondent agrees the starting point was too high and the Judge could have given credit for personal factors but says the reduction for time spent on electronically monitored (EM) bail was generous and the uplift for personal aggravating factors could have been higher. Any difference to the final sentence would be small and it would amount to tinkering to reduce it. Imprisonment was the appropriate outcome.

The offending

[4]The offending is summarised in the decision of Judge Krebs:5

[1]        Mr Atkins, you were sentenced to 10 months’ imprisonment in January 2022. There were release conditions imposed, and you have breached those repeatedly. You also committed an offence of driving while disqualified. So, on 26 October 2022, you were sentenced to two further months’ imprisonment for those, principally for the breach of release conditions, and further release conditions were imposed.

[2]        You repeatedly breached those release conditions after you were released following 26 October 2022. As well as that, you have a conviction for escaping custody.

[3]        Therefore, on 11 July last year, you were sentenced to a further six months, with release conditions imposed again.

[4]        Now you face another series of charges. You were eventually arrested and charged with disqualified driving for a third or subsequent occasion on 12 October last year. There were several failures to appear in court, and warrants for your arrest were issued. You were eventually arrested in December last year and, while at court here, you did some damage to one of the cells in the court building. So, you are now charged also with causing that damage.

3      Crimes Act 1961, ss 219 and 223(b) (maximum penalty of seven years’ imprisonment).

4      Sections 219 and 223(c) (maximum penalty of one year imprisonment).

5      New Zealand Police v Atkins [2024] NZDC 11284.

[5]        You were bailed again. You failed to appear on 11 January. Following that point, after a warrant was issued for your arrest, we have a series of quite significant thefts sums from businesses in Palmerston North committed by you, in some cases with one or other of two young women, and of property worth sizeable.

[6]        On 13 January, you stole $2,000 worth of tools from Placemakers in Palmerston North. Later on the same day, you stole a Makita tool set valued at $3,183.68 from Bunnings in Palmerston North. A few days later, you stole a Makita hammer drill valued at just over $1,000 from the Tool Shed in Palmerston North. The next day,  17 January,  you stole socket sets valued  at

$1,415 from Blackwoods in Palmerston North. You stole a vacuum cleaner worth $999 from Godfreys in Palmerston North on that same day. Two days later, you stole $1,300 worth of property from Placemakers in Palmerston North. You stole a Makita power tool set valued at $2,959 from Mitre 10 on 21 January 2024. On the same day, you stole an AEG tool kit valued at $1,098 from Bunnings in Palmerston North. On 25 January, you stole a Big Green carpet shampooer valued at $1,699, also from Godfreys in Palmerston North. On 25 January, the same day, you stole a Makita power tool set valued at

$1,199 from Mitre 10 in Levin.

[5]        Some of Mr Atkins’ offending was committed with a co-offender: four thefts over $1,000 and one theft between $500-$1,000.6

The sentencing decision

[6]        The Judge noted that Mr Atkins had pleaded guilty at an early stage, thus he was entitled to a 25 per cent guilty plea discount.7

[7]        The Judge turned to consider the Provision of Advice to Courts (PAC) report, noting Mr Atkins’ 35 previous convictions in the past 13 years. Many of these offences were committed while Mr Atkins was on release conditions, and the report writer’s opinion was that there was no sign of any abatement in Mr Atkins’ offending.8 The report writer also noted an indifference to the law, an acknowledgement that the offending was pre-planned, fuelled by drug use, and in pursuit of settling a drug debt.9 The PAC report said that Mr Atkins had successfully been on EM bail since 3 April this year, but that the report writer had little confidence Mr Atkins would comply with any conditions of a non-custodial sentence.10

6      The thefts from Placemakers, Bunnings, Tool Shed, Godfreys, and Blackwoods.

7      New Zealand Police v Atkins, above n 5, at [7].

8      At [8]-[9].

9 At [11].

10 At [16].

[8]        The Judge said, however, that Mr Atkins had some positive things going for him. He noted that Mr Atkins has been employed on a number of previous occasions.11 The Judge addressed the submission for Mr Atkins that he wanted to address his drug addiction. However, he observed that Mr Atkins had said he did not want to participate in a residential programme.12

[9]        Turning to consider the issue of parity with co-offenders for some of the thefts, the Judge acknowledged that they had apparently received non-custodial sentences, but he considered Mr Atkins’ position was different because he had a large number of high-level theft charges and was before the Court with a significant criminal record.13

[10]      The Judge concluded that the  principles  and  purposes  of  sentencing  for Mr Atkins needed to focus on accountability. He found that theft had become a way of life for Mr Atkins and an easy way of making money to fund his drug habit. That, coupled with a disregard for authority, previous sentences and attempts to help him rehabilitate meant that a sentence of imprisonment was the only available option. He described Mr Atkins as now presenting a serious risk to the community.14

[11]The Judge sentenced Mr Atkins as follows:

(a)15 months’ disqualification for the driving charge;

(b)a starting point of six months for each of the theft over $1,000 charges, amounting to a 54-month (four and a half years) starting point;15

(c)an additional two month starting point for the remaining theft charge, taking the starting point to 56 months;

(d)an adjustment for totality reducing the starting point to 36 months’ imprisonment;16

11 At [17].

12 At [19].

13 At [20].

14     At [23]-[24].

15     At [26]-[27].

16     At [28]-[29].

(e)an additional three months for the driving while disqualified charge and one month for the wilful damage charge, making the global adjusted starting point for all the offending 40 months’ imprisonment;17

(f)a 10 per cent uplift to the starting point (four months) for offending on bail and on release conditions;

(g)a 25 per cent reduction for the guilty pleas (10 months);

(h)one month reduction for the month spent on EM bail;

(i)no reduction for personal factors, which had “been in the background for a long time”, and were now significant risk factors, Mr Atkins having had ample time to address his addiction issues; and

(j)an end  sentence  of  two  years  and  nine  months’  imprisonment  (33 months) imposed concurrently on each of the theft (over $1,000) charges.18

[12]      The Judge indicated that, even had home detention been an option, he would not have imposed it.19 Reparation was also imposed in respect of five charges.20

Approach on appeal

[13]      Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. The Court retains no discretion in the event that these criteria are not satisfied and must dismiss the appeal.

[14]      When considering whether a different sentence should be imposed, the Court will have regard to the end sentence, rather than the process by which it was reached.

17 At [30].

18 At [33].

19 At [34].

20 At [36].

It is appropriate for the Court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.21 It must be shown that there has been an error made by the sentencing Judge.22 The Court cannot “tinker” with a sentence imposed where that end sentence is within range.23

[15]      The Court of Appeal has outlined the correct approach when sentencing co- defendants:24

Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[16]      A Judge is not required to impose the same sentence to ensure parity in circumstances where a co-defendant has already received a more lenient sentence. An inadequate sentence cannot justify additional inadequate sentences, and disparity in and of itself does not produce an unjustifiable sentence.25

Discussion

[17]      Both parties agree the 54 months starting point for the theft (over $1,000) charges was too high. I also agree. It appears to be the result of the Judge selecting a starting point on each charge and adding them together on a cumulative basis. In my view, given the thefts involved a spree of offending, a safer approach would have been to fix a starting point for the most serious theft and apply an uplift to account for the remainder of the offending of the same type. I note here the guidance on the use of cumulative and concurrent sentences in s 84 of the Sentencing Act 2002 which provides that concurrent sentences of imprisonment are generally appropriate for offences of a similar kind that are a connected series. In this case, all of the thefts committed by Mr Atkins were very similar and occurred within a 12-day period.

21     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]-[35].

22 At [27].

23     R v Boyd (2004) 21 CRNZ 169 (CA) at [38].

24     R v K (CA345/02) (2003) 20 CRNZ 62 (CA) at [20]

25     R v Feterika [2008] NZCA 127 at [47].

[18]      Reassessing the starting point on this, more orthodox, basis, I take as the lead charge the theft from Mitre 10 Mega on 21 January 2024, given the value of the goods stolen was $2,959. Although I note the highest value theft was $3,183.68 of tools from Bunnings on 13 January 2024, the summary of facts suggests that Mr Atkins and his associate left the stolen items behind after they were challenged.26

[19]      There is no tariff or guideline judgment for theft; the circumstances of that type of offending are infinitely various. Starting points are commonly determined by reference to the value of the items stolen and any aggravating factors.27

[20]      An appropriate starting point would, in my view, be 12 months, taking into account the value of the goods stolen, and the degree of premeditation involved, but also recognising its unsophisticated nature.

[21]An uplift is then necessary to take into account the other thefts (eight over

$1,000 and one between $5,000 and $1,000). In Bimler v New Zealand Police an uplift of 18 months was considered appropriate to account for 16 thefts with a combined value of $15,421.20. There are less thefts in the present case and the value of the stolen property is also less, at around $14,000. In my view, an uplift of 16 months would be appropriate.

[22]      The other charges of wilful damage and aggravated driving while disqualified are unconnected and of a different type. Both require an uplift. Three months would have been appropriate.

[23]      The global starting point is therefore 31 months’ imprisonment, rather than the 40 months selected in the District Court. I consider that the starting point I have assessed disposes of any issue of disparity with Mr Atkins’ co-offender.28 Nor does it require any adjustment for totality.

26     I note that no reparation was ordered in relation to this theft. It also appears that Mr Atkins’ co-offender was charged with attempted theft.

27     See for example Davies v New Zealand  Police  [2019]  NZHC  3081  at  [10];  and  Riini  v  New Zealand Police [2016] NZHC 2218 at [14].

28     The starting point for the co-offender was 22 months: 12 months for the lead charge of theft (over

$1,000) and an uplift of 10 months for 11 other thefts, some of which were charged as attempts and some of which were very minor.  The total value of property stolen was less, at just under

$13,500. I also note she was charged as a party to two of the thefts that also involved Mr Atkins.

[24]      All of the theft offending occurred while Mr Atkins was on bail and on release conditions. I agree with the Judge that a 10 per cent uplift was appropriate. I observe the Judge did not uplift the starting point further to account for Mr Atkins’ criminal history. That was also appropriate in my view, where Mr Atkins does not have an extensive history of similar offending, and his earlier dishonesty offending was dealt with via community work.

[25]Early guilty pleas warranted a 25 per cent reduction.

[26]      The Judge’s reduction of one month for time spent on EM bail was generous, but available. However, the lack of any discount for personal factors causative of the offending was, as the respondent rightly points out, arguably an error when this is a clear case of addiction-fuelled offending carried out to fund that addiction. Although the details are relatively sparse, the PAC report does indicate that Mr Atkins is disconnected from his culture and he had a childhood that featured foster care at various homes between the ages of two and 12, before a difficult reintegration with his biological mother. I consider a modest discrete discount of five per cent should have been applied. I also agree with the Judge, however, that other sentencing principles needed to take priority, in particular accountability, deterrence, and the protection of the community from Mr Atkins’ ongoing offending, when his prospects of rehabilitation currently appear to be poor. That is why the reduction is modest.

[27]Accordingly, the end sentence reduces to 23 and a half months’ imprisonment.

[28]      Because I have reached an end sentence of a short-term sentence of imprisonment, home detention is available. However, I agree with the Judge that the relevant purposes and principles of sentencing cannot be achieved by a sentence other than imprisonment in this case. Mr Atkins continues to offend notwithstanding release conditions, bail conditions, and prior community-based sentences with a rehabilitative focus. The PAC report assesses him at a high risk of reoffending. Although he was on EM bail without issue for six weeks pending sentence, the PAC notes that he breached an EM release condition in 2023 and expresses doubts about his ability to comply with any conditions. When he is yet to address his addiction, or even

demonstrate a realistic willingness to do so, the need to protect the community from his offending must take priority.

Result

[29]The appeal is allowed.

[30]The sentence is set aside and substituted for 23.5 months’ imprisonment.

Grau J

Solicitors:

Cooper Cross Limited, Palmerston North for Appellant Crown Solicitor, Palmerston North for Respondent