BILSON EWE AND NEW ZEALAND POLICE

[2024] NZHC 2716

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-365

[2024] NZHC 2716

BETWEEN

BILSON EWE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 September 2024
Appearances:	S Tang and M W Budler for Appellant A Chan and A Al-Janabi for Respondent
Judgment:	20 September 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 20/09/2024 at 11am.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Public Defence Service Manukau, Auckland Kayes Fletcher Walker, Auckland

EWE v NEW ZEALAND POLICE [2024] NZHC 2716 [20 September 2024]

Introduction

[1]Mr Ewe was sentenced on 26 June 2024 in respect of the following charges:1

(a)burglary;2 and

(b)failure to appear for District Court bail.3

[2]        His Honour Judge Spear sentenced Mr Ewe to 17 months’ imprisonment and remitted his fines. Judge Spear refused to grant leave for home detention. The appeal is in respect of the refusal to grant leave for home detention.

Background

[3]        On 15 December 2023, Mr Ewe who was 24 years old, and an 18-year-old co‑offender went to a residential property in Takanini. They rang the doorbell of the address to check if anyone was home. They then went to the rear of the property and entered through an unlocked ranch slider. Mr Ewe and his co-offender took Christmas gifts from under the Christmas tree and pulled the tree to the ground. They went through each of the bedrooms at the address, pulling open drawers and taking personal belongings. The victim viewed the offending through a camera system and contacted police. Mr Ewe and his co-offender drove away but were arrested as they were leaving the scene. Police located a variety of items in the car with a total estimated value of

$1,200–$1,500. All of the items were returned.

[4]        Mr Ewe was 25 years old at the time of sentencing.   He has a total of         12 convictions in New Zealand between 2019 and 2023. His prior convictions include unlawfully taking a motor vehicle; shoplifting (under $500); failing to stop when followed by red and blue flashing lights; three convictions for burglary; and three convictions for possessing a knife in a public place. He has previously served a prison sentence of two years and three months’ imprisonment.

1      New Zealand Police v Ewe [2024] NZDC 14979.

2      Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.

3      Bail Act 2000, s 38(a). Maximum penalty: one year’s imprisonment or $2,000 fine.

[5]        In addition to his New Zealand convictions, Mr Ewe has three convictions in Australia from 2018. Two are for residential burglary and the other for stealing a motor vehicle.

[6]        Mr Ewe’s bail history shows that he was charged with driving offences  on  28 February 2024 while on bail for the burglary charge. Notwithstanding, the failure to answer District Court bail, he has one historic breach of bail offence.

[7]        Mr Ewe pleaded guilty to the current burglary charge on 18 January 2024. On 26 January 2024, he failed to present at the door despite multiple door knocks and voice appeals being made. He was readmitted to bail.

[8]        On 22 March 2024, he failed to appear for sentencing and a warrant to arrest was issued. This led to a charge of breach of bail.

[9]        On 30 April 2024, Mr Ewe appeared on a further breach of bail for being involved in a family harm matter with his partner and breaching his curfew. He received a s 39 warning and was readmitted to bail.

[10]      On 8 May 2024, the appellant appeared for another breach of bail. He punched a hole in the wall of his bail address during an argument with his mother who lived at the address. He threatened his mother, and she ran from the address into her car and locked the doors. The appellant followed and started kicking the car. The appellant’s mother withdrew consent for the appellant to be bailed to her address and he was remanded in custody.

The sentencing decision

[11]      Judge Spear set out the factual background and noted that the Court generally adopts a starting point of between 18 months and two years’ imprisonment for burglary of residential properties. The Judge noted that Mr Ewe was six years older than his co-offender and should have been responsible for exercising some control over him. The Judge observed that Mr Ewe has five previous convictions for dishonesty offending including three for burglary. The Judge was clearly of the view that a deterrent sentence was necessary, and that denunciation was required. The Judge told

Mr Ewe that he had to be “held completely to account for it”. Judge Spear noted that there did not seem to be an available address for an electronically monitored (EM) sentence but said that he would not have sentenced the appellant to an EM sentence in any event, describing the offending as blatant and crass. It was noted that the offending  involved  stealing  Christmas  presents.   The  sentence  imposed  was    17 months’ imprisonment, comprising: a starting point of 18 months; uplifted by one month for the breach of bail charge and a further three months for previous convictions; and a 20 per cent discount for guilty pleas.

The approach on sentence appeal

[12]      An appellant may appeal against sentence as of right under s 244 the Criminal Procedure Act 2011.

[13]      An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed on conviction and that a different sentence should be imposed.4 In any other case the appellate court must dismiss the appeal.5 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing judge.6 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.7

[14]      When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of sentence; or remit the sentence to the court that imposed it.

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

5      Section 250(3).

6      Palmer v R [2016] NZCA 541 at [17] citing Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

7      Kumar v R [2015] NZCA 460 at [81].

Submissions

[15]      Mr Ewe submits that the sentencing Judge erred in giving priority to the purposes of deterrence and denunciation; and gave insufficient weight to mitigating factors relevant to Mr Ewe when assessing whether leave should be granted for home detention.

[16]      Mr Ewe submits that the burglary offending is not the most serious of its type. It did not involve damage to the property nor was there any interaction with the victims. Additionally, the items were  recovered.  It was  submitted that,  although Mr Ewe did not have an available address at the time of sentencing, he should have been granted leave to apply for home detention if a suitable address became available.

[17]      Mr Ewe’s counsel says that at 25-years-old Mr Ewe is still a young man, and his youth at the time of his offending should have been considered when determining his rehabilitative prospects. Counsel said that Mr Ewe’s offending was motivated by drug dependency which was not taken into account. It was said that without addressing the root cause of the offending, Mr Ewe is unlikely to exit out of a cycle of offending and that, balancing the principles and purposes of sentencing, the factors lean towards a sentence of home detention as the least restrictive sentence available.

[18]Mr Ewe’s criminal history was described as not seriously significant.

[19]      Counsel for Mr Ewe acknowledged that no address was yet proposed but said that leave to apply for home detention would provide Mr Ewe with an opportunity to find an address which would be suitable for him to serve a sentence of home detention.

Discussion

[20]      Mr Ewe does not challenge the end sentence of 17 months’ imprisonment and nor could he realistically do so. It is correct that Courts generally adopt a starting point of between 18 months and two years’ imprisonment for residential burglaries. In this case, the Judge adopted a starting point at the lowest end of the range. I agree with the sentencing Judge that targeting Christmas presents and pulling over a Christmas tree was a particularly unpleasant aspect of the offending. At 25-years-old

at the time of sentencing, this is not a case where Mr Ewe can be described as a young person. He is a grown man and has a growing history of offending. Mr Ewe has received sentences of conviction and discharge; a suspended sentence; fines; reparation; supervision; returning offender order imprisonment; and parole. He attended a rehabilitation course in 2022. His history indicates that rehabilitation has not been successful. In the current offending he presented as a negative influence on a younger co-offender.

[21]      At the sentencing hearing, Mr Ewe did not have an available home detention address, so home detention itself could not have been considered. Nevertheless, I think that the Judge was entitled to regard denunciation and deterrence as priority factors in this sentencing.

[22]      Mr Ewe showed little regard for court orders while on bail breaching those orders, including acting in a violent way towards his mother. He had undertaken drug and alcohol counselling shortly beforehand and that had been ineffective.

[23]      The PAC report which was before the sentencing Judge stated that Mr Ewe appeared before the Court for sentencing for the fourth time since 2020. He was deported from Australia to New Zealand in 2019 due to his ongoing offending. In relation to his current offending, Mr Ewe said to the report writer that his parents left him and his little brother to fend for themselves at Christmas. That would be a sad situation were Mr Ewe not a grown man of 24 years old at the time. At that age I would expect him to be perfectly able to fend for himself and to look after his younger brother. It is no justification for offending.

[24]      Sentencing is a matter of discretion and the question for this Court is whether the sentence imposed was manifestly excessive or inappropriate. The appellate court must allow an appeal if satisfied that:

(a)for any reason here is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[25]      In my view, the sentencing Judge was perfectly entitled to come to the view that a full-time custodial sentence was the appropriate response. Judge Spear said:

[7] I need to impose a sentence on you that tells you in crystal clear terms that this behaviour is totally unacceptable, that you need to be held completely to account for it, and you need to understand now that if you are caught after your release from prison committing any further burglaries, the sentence will be longer and that is going to happen unless you change your ways. Probation will do their best to try and help you change your ways but that is going to require a commitment from you as well. It does not appear as if you are at that point.

[26]      The sentence imposed was not particularly lengthy and Mr Ewe is entitled to automatic parole when he has served one half of the sentence. By my calculation he has about another five months remaining. Home detention at anything short of a rehabilitation facility would not be appropriate given his failure to comply with bail and his abuse of his mother while bailed to her address. Mr Ewe’s recent history gives no indication at all that he is a good candidate for home detention including at a rehabilitation facility. In my view, the sentencing Judge made no error and the sentence imposed was appropriate.

[27]The appeal is dismissed.

Wilkinson-Smith J