Black v Police
[2015] NZHC 2182
•10 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2015-404-000226 [2015] NZHC 2182
BETWEEN JESSE ROBERT BLACK
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 September 2015 Counsel:
K Scott for Appellant
Z Hamill for RespondentJudgment:
10 September 2015
JUDGMENT OF ANDREWS J
This judgment was delivered by me on 10 September 2015 at 3.15pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, ManukauCrown Solicitor, Manukau
BLACK v NEW ZEALAND POLICE [2015] NZHC 2182 [10 September 2015]
Introduction
[1] The appellant, Mr Black, appeared before Judge B A Gibson in the Manukau District Court on 21 July 2015, for sentencing on one charge each of burglary, unlawful possession of a firearm, unlawful possession of explosives, possession of utensils for using methamphetamine, possession of methamphetamine and possession of cannabis. He has appealed against his sentence of three years and nine
months’ imprisonment.1
Background
[2] At around 10.15am on 17 March 2015, Mr Black jemmied a door to break into the victim’s home. Once inside, he broke a lock on a gun cupboard containing firearms and ammunition. He stole two rifles and three shotguns, together with ammunition. The value of the stolen items was estimated to be in excess of $3,750.
[3] Mr Black was identified by a fingerprint on the door-frame of the gun cupboard. The Police conducted a search of a caravan at a golf club, where Mr Black was living, and found a snap-lock bag containing between 0.1g and 0.25g of methamphetamine, a package of about 0.5g of cannabis, a glass methamphetamine pipe, and some used methamphetamine syringes. The Police also found one of the stolen rifles in a locked implement shed a few metres away from the caravan.
[4] Mr Black first appeared in the District Court on 27 March 2015, and entered guilty pleas to all charges on 21 April 2015.
Summary of facts
[5] Before outlining the Judge’s sentencing decision, it is necessary to refer to the
Police summary of facts.
[6] Before Mr Black entered the guilty pleas on 21 April 2015, he accepted a
summary of facts by writing on it “I agree with this amended summary”. That
1 Police v Black [2015] NZDC 14029.
summary was in similar terms to the background summary set out above. I will refer
to it as “version one”.
[7] However, it is apparent that Judge Gibson was presented with a different, expanded summary of facts, and Mr Black was sentenced on the basis of that version, which will be referred to as “version two”. It appears that version two was prepared by the Police after Mr Black had made a statement to the Police on 30 April
2015.
[8] In his statement, Mr Black sets out his relationship with Mr Trent Matson. Mr Black said that he met Mr Matson after he went to live at the golf club. He had moved there as part of an attempt to get himself off drugs. He said Mr Matson first offered him a job carpet-laying, which Mr Black was happy to accept. In early March, the victim of the burglary came to a job where Mr Black was working with Mr Matson. The victim was a friend of Mr Matson.
[9] Mr Black said that Mr Matson told him that the victim had firearms at his home that Mr Matson wanted to have. The victim was a gun collector, and had a firearms licence. Mr Matson asked Mr Black if he would be keen to go and get them. Mr Black said he would think about it. About two days later, Mr Matson drove past the victim’s house, and pointed it out to Mr Black.
[10] Mr Black felt that Mr Matson was trying to pressure him into committing a burglary in order to get the guns. He said that when he said he would think about it, Mr Matson stopped giving him carpet-laying work. Some two weeks later, Mr Black told Mr Matson he would do the burglary. He said this was because he was dependent on Mr Matson for employment. He said he felt backed into a corner. After he said he would do the burglary, Mr Matson gave him more carpet-laying work.
[11] Mr Matson then arranged for the victim to be out of the house. Mr Black drove past the house but did not want to do the burglary. That happened again, on another occasion. Eventually, Mr Black did the burglary when Mr Matson arranged for the victim to be away from the house during the day.
[12] Version two of the summary of facts includes references to Mr Matson. It includes two particular statements that are objected to by Mr Black: first, that Mr Matson and he “hatched a plan to steal firearms and ammunition”, and secondly, that he had driven to the victim’s house “to carry out a reconnaissance” of it. On behalf of Mr Black, Mr Scott submitted that it was Mr Matson who “hatched” the plan (then compelled Mr Black to go along with it) and that it was Mr Matson, not Mr Black, who drove past the victim’s house for reconnaissance.
[13] Another discrepancy between version one and version two is that version two contains no reference to the drugs and drug paraphernalia found in Mr Black’s caravan.
[14] I accept Mr Scott’s submission that neither he nor Mr Black saw version two either at the time Mr Black entered the guilty pleas, or at sentencing. I accept that Mr Scott did not see version two until it was included in the documents provided to this Court and to counsel for the purposes of the appeal.
[15] In the circumstances, as sentencing had proceeded on the basis of a summary of facts of which the appellant was unaware, it may have been appropriate in this appeal to remit the matter back to the District Court for re-sentencing.2 However, Mr Scott advised that he had confirmed instructions from Mr Black that his objections to version two did not relate to matters that would materially affect determination of the starting point, or the end point, of Mr Black’s sentencing. Mr Scott submitted that I should proceed to consider the sentence imposed on the basis of version two (but taking into account that Mr Black had also pleaded guilty to the
drug-related charges).
[16] Ms Hamill, for the respondent, agreed that it was appropriate for me to consider the sentence appeal on that basis.
2 See Sionetuato v Police [2014] NZHC 626.
District Court sentencing
[17] The Judge began his sentencing by noting that Mr Black was “facing some very serious charges”. Of the burglary, which he took as the lead offence, the Judge said:3
This is a serious burglary in every way because not only was it premeditated and involved detailed planning and arrangements between you and a person who appears to be your co-offender, but you went on at least two occasions to the property to be able to effect the burglary.
[18] The Judge also stated that the property had been entered “at night”,4 and expressed concern that only one of the guns, and some of the ammunition, was recovered.
[19] The Judge said that denunciation, deterrence and protection of the community were paramount in imposing sentence, because Mr Black had allowed firearms to be let loose in the community.5 In reliance on this Court’s judgment in Shierney v Police,6 the Judge set the starting point for the totality of Mr Black’s offending at five years’ imprisonment, noting that the aggravating features were deliberate
premeditation and planning, the targeting of the firearms, and the fact that the firearms had not been recovered.7
[20] The Judge did not impose an uplift in respect of Mr Black’s previous convictions, as there had “not been too many serious convictions lately”.8 The Judge then allowed a discount of 25 per cent in respect of Mr Black’s guilty pleas, his expressions of remorse, and his co-operation with the Police.9
[21] That led to an end sentence of 45 months’ imprisonment. In imposing this sentence the Judge noted that it was “only by a thin margin” that he did not impose
“a minimum period of imprisonment”.10
3 Police v Black, above n 1 at [2].
4 At [3].
5 At [5].
6 Shierney v Police [2014] NZHC 2963.
7 Police v Black, above n 1 at [5].
8 At [6].
9 At [6]-[7].
10 At [8].
[22] The Judge imposed concurrent sentences for the other five charges to which
Mr Black had pleaded guilty.
Approach to appeal
[23] Pursuant to s 250(2) of the Criminal Procedure Act 2011, the Court must allow an appeal against sentence if satisfied that, for any reason, there is an error in the sentence, and that a different sentence should be imposed. The Court of Appeal in Tutakangahau v R11 confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957. Further, although there is in s 250 no express reference to “manifestly excessive”, the Court held that this principle is “well-engrained” in the Court’s approach to sentence appeals.12
[24] The approach taken under the Summary Proceedings Act was set out in R v Shipton:13 in essence it is necessary for the appellant to establish an error in the lower court’s sentence. The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.14
Appeal submissions
[25] Mr Scott submitted that the starting point of five years was too high, as the Judge misapplied comments in Shierney v Police,15 he had sentenced Mr Black on the basis of factual errors, and he had wrongly assessed Mr Black’s culpability. He further submitted that the Judge gave insufficient discounts for Mr Black’s remorse, his assistance to the Police, and his efforts towards rehabilitation. He submitted that the appropriate end sentence was one of between 20 and 24 months’ imprisonment.
[26] Ms Hamill acknowledged that the starting point and the end sentence were too high. She submitted that any difference between Mr Matson’s and Mr Black’s
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
12 At [33], [35].
13 R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
14 Ripia v R [2011] NZCA 101 at [15]; Gibson v R [2015] NZCA 57 at [9].
15 Shierney v Police, above n 6.
respective roles was relatively modest, as Mr Black’s role in actually carrying out the burglary was critical. As to the make-up of the sentence, she submitted that an appropriate starting point would be around two years to two years and six months’ imprisonment, with an uplift for the totality of Mr Black’s offending, and to recognise the need for a deterrent sentence. She submitted that modest discounts could then be applied in respect of Mr Black’s remorse, assistance to the Police, and rehabilitative efforts, then a more substantial discount for the guilty pleas, to arrive at an end sentence of around two years’ imprisonment.
Analysis
Starting point
[27] In Shierney v Police, Woolford J dismissed an appeal against a sentence of three years’ imprisonment imposed on one charge of burglary and six other more minor charges.16 The single charge of burglary in fact covered two separate entries to a residential property. One evening, Mr Shierney, together with another person, entered the house and stole jewellery, electronic products, and other items. During that visit, they noticed a secured locker. At about 4.00am the following morning, Mr Shierney and his associate returned to the house and forced the locker open, using a screwdriver. The locker contained numerous high-powered rifles and ammunition.
They stole three rifles before leaving when they realised they were being watched by a neighbour.
[28] The sentencing Judge adopted a starting point of three years and six months’ imprisonment. In his appeal judgment, Woolford J referred to the sentencing Judge’s observation that if he were of the view that the property had been targeted for firearms, a starting point of five years would have been appropriate.17
[29] In the present case, Judge Gibson noted Woolford J’s reference to what the
District Court Judge had said in Shierney v Police. He considered that in the case before him, Mr Black set out to steal firearms, and this was a significant aggravating
16 Shierney v Police, above n 6.
17 At [21].
feature which, when considered together with other aggravating features, made a starting point of five years (on a totality approach) appropriate.
[30] I am not persuaded that the Judge “misapplied” Shierney v Police. He did no more than refer to what the District Court Judge had said in that case.
[31] Mr Scott also referred to the Judge’s statement that the burglary was at night. This was said when the Judge was setting out the facts of the offending, but was not listed as an aggravating feature. While the reference to the burglary being at night was clearly wrong, it does not appear to have been taken into account in setting the starting point.
[32] As to the relative culpability of Mr Matson and Mr Black, it would have been open to the Judge to find (on the basis of Mr Black’s statement, and submissions made on sentencing) that Mr Black was coerced by Mr Matson into carrying out the burglary. However, as Ms Hamill submitted, Mr Black’s role was critical. Any distinction in culpability could only have been modest.
[33] However, I accept, as did Ms Hamill, that the starting point of five years was too high, and that this led to an error in Mr Black’s sentencing.
[34] In Arahanga v R,18 the Court of Appeal said:
This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling-house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.
[35] In this case, the target of the burglary was the victim’s collection of guns. It cannot be said that the Judge erred in regarding this as a significant aggravating factor. While it may be the case that it was Mr Matson who planned the burglary to obtain the firearms, Mr Black went into the property to obtain the firearms, and
nothing else.
18 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 198 at [78].
[36] The fact that the burglary was planned to be carried out when the occupant was well away from the property reduces, somewhat, the seriousness of the offending, but the burglary must be placed at the upper end of the Arahanga scale. I have reviewed the cases referred to by Mr Scott,19 and I have concluded that the appropriate starting point on the charge of burglary in this case was two years and three months’ imprisonment.
Adjustments to the starting point
[37] While the Judge did not apply any uplift to the starting point (as his starting point was on a totality basis), it would be appropriate to do so to account for the totality of Mr Black’s offending. A modest uplift could also be applied to recognise that his previous convictions for dishonesty offending (in particular his more recent convictions for theft) indicate some need for a deterrent sentence. An overall uplift of seven months is appropriate for these two matters.
[38] I turn now to Mr Scott’s submission that the Judge erred in failing to give separate discounts for Mr Black’s remorse, his assistance to the Police, and his rehabilitative efforts.
[39] Ms Hamill acknowledged that a discount is available to Mr Black in the light of his offer to give evidence at Mr Matson’s trial, although she submitted that Mr Black’s statement to the Police had not been instrumental in Mr Matson’s arrest, as he had been arrested and charged before Mr Black made his statement.
[40] Ms Hamill further accepted that a modest discount would be available for remorse albeit the pre-sentence report observed that Mr Black’s “remorse appeared to be in regard to the consequences of his offending”.
[41] I accept that a discount may be made in respect of Mr Black’s assistance to
the Police, his remorse (expressed as well in a letter of apology handed up in Court)
and his efforts to tackle his drug problem. For all of these matters, in combination, a
19 In particular, Nicol v Police [2013] NZHC 3326, Potini v Police [2015] NZHC 1517, R v Inia
[2015] NZHC 873, and Yukich v R [2010] NZCA 499.
discount of five months (just under 15 per cent) is appropriate, leading to an end
sentence, before a discount for the guilty pleas, of 29 months’ imprisonment.
[42] There was no dispute that Mr Black was entitled to the full discount for his guilty pleas, and the discount of 25 per cent given by the Judge was not challenged. A similar discount given now leads to an end sentence of one year and 10 months’ imprisonment. I am satisfied that such a sentence is appropriate for Mr Black’s offending, and his personal circumstances. It follows that I am satisfied that the end sentence of three years and nine months’ imprisonment imposed in the District Court was in error, and must be quashed.
Result
[43] The appeal is allowed. The sentence of three years’ and nine months’
imprisonment is quashed and a sentence of one year and 10 months’ imprisonment is imposed in its place.
Andrews J
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