Birch v Police

[2020] NZHC 878

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000009

[2020] NZHC 878

BETWEEN

KEVIN BIRCH

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS

Respondents

Hearing:	30 April 2020
Appearances:	R A Peters for Appellant S L Dayal for Respondent
Judgment:	1 May 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 1 May 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date…1 May 2020

Introduction

[1]                 On 17 January 2020 Kevin Birch was sentenced by Judge Kellar to two years and 10 months’ imprisonment on one charge each of burglary, shoplifting, possession of a knife, unlawfully takes motor vehicle, unlawfully gets into motor vehicle, unlawfully interferes with motor vehicle, reckless  driving,  failing  to  stop,  and  two charges of breach of bail.

BIRCH v NEW ZEALAND POLICE [2020] NZHC 878 [1 May 2020]

Facts

[2]On 10 October 2018 Mr Birch was released from prison.

Possession of a knife in a public place

[3]                 On 6 December 2018 police responded to an incident where a male wearing camouflage pants was presenting a knife at some campers. They stopped a car in Omamari, Northland in which Mr Birch was a passenger. Police observed him in a moderately intoxicated state and noticed he was wearing camouflage pants, so a search power was invoked. A small pocket knife was found in Mr Birch’s side trouser pocket.

First breach of parole

[4]                 On 7 December Mr Birch breached his release conditions by consuming alcohol.

Unlawfully gets into motor vehicle

[5]                 On 10 December Mr Birch got into a vehicle in Whangarei and drove away. It was found on 23 December in Dargaville.

Unlawfully interferes with motor vehicle

[6]                 On 24 December Mr Birch was found inside a vehicle in Dargaville tampering with the ignition.

Second breach of parole

[7]                 Between 19 December 2018 and 25 January 2019 Mr Birch breached his release conditions by failing to report to a probation officer.

Unlawfully takes motor vehicle, reckless driving and failing to stop

[8]                 Between 6.30 am and 5.30 pm on 12 February 2019, Mr Birch got into a vehicle in Orakei, Auckland and hotwired it, damaging the ignition barrel. He drove away, accompanied by two associates. At about 6.05 pm police located him driving around the Sylvia Park shopping centre. Police activated their blue and red lights and

siren but Mr Birch refused to stop and instead drove off at speed. He drove out of the Sylvia Park complex and onto the Mt Wellington Highway on the wrong side of the road, where he was recorded as driving at least 80 km/h. He then turned right onto Waipuna Road, driving through a red light. He turned right onto the South Eastern Highway by driving on the wrong side of the road and contravening the signed “no right turn” intersection. Police abandoned the pursuit due to safety concerns. Traffic at that time of the day was heavy along these roads.

Theft and burglary

[9]                 On 6 May 2019 Mr Birch and an associate entered the Farmers store in Riccarton, Christchurch. Mr Birch stole two Versace fragrance bottles valued at $198 and $143 by concealing them in his hoodie top.

[10]              At about 11.50 pm on 11 August 2019 Mr Birch and an unknown co-offender arrived at the Rebel Sport store in Hornby. The pair smashed a hole in a plate glass window to gain entry. Once inside they stole multiple items to a total value of $8,200. They had to make several trips between the store and vehicle to load the items.

District Court decision

[11]              Judge Kellar began the sentencing exercise by taking the burglary as the lead offence. He identified that the premises targeted were commercial, which he said makes the burglary less serious than a burglary of a residential premises where there is a risk of encountering occupants. However, there was a degree of premeditation and planning involved by bringing a vehicle to transport the stolen goods and the making of multiple trips between the vehicle and the store. Further, the value of property stolen, being $8,200, was also an aggravating feature. Finally, there was damage done to the premises in the course of the burglary.

[12]              The Judge acknowledged there was no guideline judgment for burglary, but pointed to a “roughly comparable case”, Waenga v Police.1 Having regard to that case

1      Waenga v Police [2016] NZHC 1712.

and the aggravating features of the index offending, he determined an appropriate starting point was one of one year and eight months.

[13]              For the 12 February 2019 unlawful taking of a motor vehicle and reckless driving, Judge Kellar adopted a starting point of one year and three months. For the three charges of unlawful interference with/gets into with motor vehicle, he set a starting point of nine months, for the two breaches of parole, three months, for the possession of a knife, one month, and for breaches of bail, he convicted and discharged the appellant. Thus, a cumulative starting point of four years and one month was reached.

[14]              In terms of aggravating personal circumstances, the Judge made an uplift of six months to reflect the fact Mr Birch was subject to release conditions at the time of all the offending, that he was on bail at the time of the burglary and for his previous convictions for dishonest conduct, for dangerous and reckless driving of vehicles, and for his relevant notations in the Youth Court.

[15]              The Judge then made a discount of eight months to reflect youth and the difficult upbringing suffered by Mr Birch. Thus, a provisional sentence of three years and 11 months was arrived at.

[16]              Next, a discount of nine months for the guilty pleas (a little over 19 per cent) was applied, indicating an end sentence of three years and two months.

[17]              Finally, the Judge made a downward adjustment for totality of four months. Thus, he arrived at an end sentence of two years and 10 months.

[18]              For simplicity, Judge Kellar imposed that term on the burglary charge and concurrent sentences for all of the other charges.

Principles on appeal

[19]              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.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 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.4 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”.5

Submissions

Appellant’s submissions

[20]              Mr Peters, for Mr Birch, submits the starting point for the burglary charge was too high in light of Waenga. He notes that in Waenga the offender had 12 or more previous convictions for burglary and the value of the goods stolen was $20,000, which attracted a 24-months starting point. He says here, the value of goods stolen was only $8,200, yet attracted a 20-month starting point.

[21]              Mr Peters further submits that Mr Birch’s previous convictions should not have been met by an uplift, because he has not been previously convicted of burglary or offences of dishonesty in relation to vehicles.

[22]              Mr Peters further submits the four-month reduction for totality was “modest in the extreme”.

Respondent’s submissions

[23]              Ms Dayal submits that the starting point for the commercial burglary was consistent with appellant authority. In relation to Waenga, Miss Dayal for the

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

4      Ripia v R [2011] NZCA 101 at [15].

5      Skipper v R [2011] NZCA 250 at [28].

respondent points out that the starting point adopted there did not take into account the offender’s previous convictions.

[24]              Miss Dayal cites R v Stevens where the Court of Appeal noted a starting point of no more than 18 months was appropriate for a burglary where the property taken was $350.6 The offender there had gone to a commercial premises which he used to clean, using his key to gain entry, and took copper piping from the walls.

[25]              Counsel also notes Gage v R where the Court of Appeal described a starting point of two years and two months as “well  within  range”  for  a  burglary of  a Dick Smith Electronics store where the value of goods stolen was $45,000.7

[26]              Miss Dayal submits, in accordance with the Court of Appeal’s guidance on the relevant factors in R v Nguyen, the offending was aggravated by the following:8

(a)Commercial premises were targeted.

(b)There was a degree of premeditation involved as he had an associate, carried the burglary out at night, and he used a vehicle.

(c)Property was of a high value and was not recovered.

(d)The offending involved actual damage.

[27]              Miss Dayal says a starting point here of one year and eight months was within range. It is lower than that in Waenga and Gage because in those cases the value of property stolen was higher and there were more associates, thus greater premeditation. The starting point was also appropriately higher than in Stevens where there was only one offender and the value of the property stolen was lower.

6      R v Stevens [2009] NZCA 190.

7      Gage v R [2014] NZCA 140 at [14].

8      R v Nguyen CA110/01, 2 July 2001.

[28]              Counsel submits the cumulative uplifts for the remaining charges were within range and appropriate with the offending not being connected to the burglary. As to the unlawful taking/interference charges she cites three cases:

(a)Duxfield v Police, where an uplift of 18 months upheld by Nation J on appeal for the charge of unlawfully taking a motor vehicle.9

(b)O’Sullivan v Police, where Mallon J  substituted a starting point of   12 months for the unlawfully takes motor vehicle charge on appeal, noting that the offender had the vehicle for a short period of time and had returned it to its owner.10

(c)Shufflebotham v Police, where Gendall J affirmed a 12-month starting point for a charge of unlawfully takes motor vehicle on appeal.11

[29]              As to Mr Birch’s personal circumstances, Miss Dayal notes the offending occurred while subject to release conditions and on bail, and he has previous convictions of dishonesty offences. She submits the six-month total uplift (amounting to 12 to 13 per cent of the starting point) for these factors was within range and could have been higher. To illustrate this, she notes a 20 per cent uplift for previous convictions, offending on parole and offending shortly after release from prison, was upheld by the Court of Appeal in Lavea v R, citing its earlier decisions in Vernon v R and Waterworth v R in which uplifts of 22 and 33 respectively were upheld.12

[30]              Finally, Miss Dayal addresses totality. She says the 10 per cent reduction was appropriate in the circumstances, noting that the fundamental test is an assessment of the totality of the offending, not the process by which the sentence is arrived at.13

9      Duxfield v Police [2015] NZHC 3018.

10     O’Sullivan v Police [2015] NZHC 2032.

11     Shufflebotham v Police [2015] NZHC 3114.

12     Lavea v R [2014] NZCA 192 at [24]; Vernon v R [2010] NZCA 308; and Waterworth v R [2012] NZCA 58.

13     R v Xie [2007] 2 NZLR 240 (CA) at [16].

Analysis

Sentence for burglary

[31]              There is no tariff or guideline judgment for burglary because of the variety of circumstances in which the offence may be committed.14 However, the Court of Appeal in Nguyen found six relevant factors as including: the degree of planning and sophistication, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.15

[32]              Here, as the Judge found, there was a degree of planning demonstrated by  Mr Birch taking a vehicle to the premises in order to be able to take as many items of value from the store as possible. In fact, he and his co-offender made a number of trips between the store and the vehicle to make use of its capacity.

[33]              These were commercial not residential premises. There was no risk of confrontation with any occupants.16 Nonetheless, the premises were deliberately targeted to maximise the potential value of goods to steal.

[34]              The value of property stolen is significant in this case. As $8,200 in reparation was sought, it appears none of the property was recovered. In addition, damage was done to the premises as a result of the substantial amount of force used in the course of the entry.

[35]              The cases of Waenga and Gage, which involved property stolen of appreciably greater value than here, rightfully attracted higher starting points than the 20 months adopted here. However, while the value of the property stolen is an important factor, it is not the only one. Here, although the value of property stolen was less, there are a number of similar features: commercial premises, forced entry, relatively high value property stolen and premeditation. Moreover, the Court of Appeal said in Stevens that a starting point of 18 months would have been the upper limit for a burglary involving

14     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

15     Nguyen, above n 8, at [17].

16     Arahanga, above n 14, at [78].

the theft of property worth only $350. A 20-month starting point in the present case was clearly within range.

Sentence for vehicle offending

[36]              As can be seen from the vehicle offending cases cited by Miss Dayal, where uplifts of between 12 and 15 months were applied, an uplift of 12 months for unlawfully taking a motor vehicle charge was within range.17

Uplift for personal circumstances

[37]              An uplift of six months for Mr Birch’s previous convictions and the fact he offended while subject to release conditions and committed the burglary while on bail, was appropriate. While Mr Peters notes Mr Birch has no previous convictions for burglary, he does have a number of dishonesty findings on his record. In the Youth Court, it was found proved he committed: burglary, theft (3), unlawfully takes/gets into motor vehicle (4) and possession of instruments for conversion (2). He then has a number of relevant convictions as an adult, including for receiving, theft, shoplifting, aggravated robbery and unlawfully gets into/interferes with motor vehicle. To be relevant, the charges do not have to be identical, but simply encompass offences of a similar type. I consider that to be the case here and the uplift to be appropriate for the combination of these factors.

Totality

[38]              While Mr Peters submits that the discount to reflect the totality principle was too modest, it is not clear what he bases that on.

[39]              Ultimately, this is an issue on which a great deal of judicial discretion must be exercised. Where there are a string of offences addressed in the sentencing process, which might result in a very high cumulative sentence, it would usually be appropriate to adjust downwards to reflect totality. However, I am satisfied that the Judge did so here, adjusting the sentence downwards by just over 10 per cent. In my view, the

17     Duxfield v Police, above n 9; O’Sullivan v Police, above n 10; and Shufflebotham v Police, above n 11.

overall sentence of two years and 10 months’ imprisonment for a wide array of offending, including a burglary and driving that put the public at risk does not strike me as manifestly excessive and I can see no error warranting adjustment to the end sentence.

End sentence

[40]              By reference to the available starting points, the appropriate uplift for personal aggravating features, the appropriate and generous discount of eight months (or approximately 17 per cent from the starting point) for youth and difficult upbringing, and a further adjustment for totality, the end sentence of two years and 10 months was undoubtedly within range.

Conclusion

[41]              The end sentence was within range and not manifestly excessive. The appeal is dismissed.

Solicitors:

Alpers & Co, Christchurch

Raymond Donnelly & Co., Christchurch