Blackbourn v Police

[2023] NZHC 3271

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2023-416-014

[2023] NZHC 3271

BETWEEN

ROWAN BLACKBOURN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

14 November 2023

Appearances:

D A Berry for Appellant

M J M Mitchell for Respondent

Judgment:

17 November 2023

JUDGMENT OF LA HOOD J

(appeal against sentence)

An appeal against the length of a term of imprisonment for burglary

[1]    Rowan Blackbourn appeals against a sentence of two years’ imprisonment imposed by Judge K J Phillips at Gisborne District Court on 4 October 2023 on one charge of burglary.1 He submits that the sentence was manifestly excessive due to errors in the starting point adopted and the uplift and reductions for aggravating and mitigating factors.

[2]    The burglary involved Mr Blackbourn, on multiple occasions, watching the house where two young women lived, then entering the empty house early one morning through a louvre window and searching through drawers containing the women’s clothes (including underwear). He has a number of previous convictions for

1      Police v Blackbourn [2023] NZDC 21867.

BLACKBOURN v NEW ZEALAND POLICE [2023] NZHC 3271 [17 November 2023]

similar sexually motivated offending, including burglaries and making intimate visual recordings.

[3]    I conclude below that the end sentence was not manifestly excessive. I do not consider the starting point was too high given the level of premeditation involved, the sexually motivated targeting of the victims and the impact the offending has had on them. I consider the uplift for previous convictions was well within range and, although the credit for personal mitigating factors could have been greater, the end sentence was within the available range.

The circumstances of the offending

[4]    I gratefully adopt the following summary of the offending from Judge Phillips sentencing notes:

[2]        I understand that, on the summary of facts in this matter, you were aware of a property at [the victims’ address] near Gisborne. The victims of your offending live together there in this house. The house which bounders a disused racecourse cannot be seen from the road. However, you, in the months of October and November 2022, on multiple occasions during that period of time, went and parked opposite the property. You had the property and its occupants under close scrutiny during that period. You were watching the occupants’ movements over that period of time regularly and if you considered there was any question of you being seen yourself you tried to conceal yourself.

[3]        On 10 April 2023 the occupant who was at the house on that day left at 4.45am to go to the gym which she normally does to work out. The other two flatmates were not present at the house and had not been there overnight. You had parked down the road, and walked to the boundary fence, climbed over it and went to the laundry window at the rear of the house. You proceeded to remove the five glass panes from the laundry window, and you climbed into the building. You then closed the window. You went into the property, and you were specific in what you did (according to the police investigation) whilst you were there. You went through the clothing drawers of the occupants. You, as I understand it, entered the two female victims’ rooms, searching through their drawers containing their clothes, including undergarments, and sometime later you left via the same window. You particularly replaced the glass louvre panes and closed the window as you left.

[4]        [“Ms A”], the victim who had been to the gym arrived home. She noticed a washing trolley which was normally outside had been positioned under the laundry window, moved two metres into the section. She noticed footprints across the grass coming from the rear boundary fence towards that laundry window and noted amounts of sunflower seed freshly deposited on the concrete nearby. She inspected the window closer, noticed dirty hand marks and fingerprints on the windowpane as well as blades of grass on the inside of the windowsill and she contacted police. The fingerprints were identified as all belonging to you.

[5]        The same afternoon at 2.30 pm you, for some reason only known to yourself, drove past that address and [“Ms A”] identified your vehicle as it drove past. That shows quite clearly, in my view, the many times your vehicle had been outside parked as you had the house under observation. You were arrested. You denied ever having been to the address of [the victims’ address]. You were entirely unable to explain the presence of your fingerprints on the inside of the louvres.

[6]        The matter is of concern in that you have seven previous burglary convictions and that in August 2021 you were sentenced to 10 months’ home detention on two burglaries. An end sentence of home detention equates to an end point of sentence of some 20 months’ imprisonment. In May of 2018 for five burglaries, eight months’ home detention, end point of 16 months.

[5]    Mr Blackbourn is 26 years of age. As the Judge noted, he has a conviction history dating back to 2017, which includes seven burglary convictions and three convictions for making intimate visual recordings. He has not previously been imprisoned and has a six-month-old child, who was born after Mr Blackbourn was remanded in custody pending sentence on the current matter.

The circumstances of the previous offending

[6]    The circumstances of Mr Blackbourn’s previous convictions are relevant. He was sentenced by Judge Phillips in May 2018 to eight months’ home detention and 200 hours community work on five charges of burglary and three charges of making intimate visual recordings.2 The offending involved using his phone to surreptitiously record videos of young women while showering in their homes and entering the homes of young women and stealing their underwear.

[7]    In 2021, Mr Blackbourn was sentenced to 10 months’ home detention by Judge Bolstad on two charges of burglary. He entered the bedrooms of two young women in the early hours of the morning and tried to photograph one of them while

2      Police v Blackbourn [2018] NZDC 9925.

she was sleeping and stole the other’s underwear.3 The Judge warned him that “you will not be afforded this type of leniency if there is another occurrence”.4

What the District Court decided

[8]    Judge Phillips was concerned that Mr Blackbourn’s pattern of similar sexually motivated offending (targeting vulnerable young women) had not been broken by two previous sentences of home detention. The Judge adopted a starting point of two years and six months’ imprisonment having regard to the level of premeditation, the residential nature of the premises, the early time of the offending, and the serious impact on the victims. A four-month uplift was applied for the previous convictions.

[9]    The Judge allowed a 15 per cent credit for Mr Blackbourn’s guilty plea, noting that it was not entered until the case review stage hearing (which follows a not guilty plea) after clear fingerprint evidence had been obtained. A further 15 per cent reduction was made for Mr Blackbourn’s personal mitigating factors, which included a difficult childhood exacerbated by Mr Blackbourn’s mother’s death in 2017. However, the Judge expressed reservations about there being a nexus between these childhood factors and the offending.

[10]   This resulted in an end sentence of two years’ imprisonment. The Judge did not  consider  home  detention  was  appropriate  given  it  had   failed   to   deter   Mr Blackbourn to date and the proposed address was unsuitable.

The arguments on appeal

For the appellant

[11]   Mr Berry, for the appellant, submits that the offending can be categorised as a single burglary of a dwelling house targeting low value property,5 where no tangible preparatory steps had been taken in anticipation of the burglary,6 or where actual sexual contact had occurred.7 Even if the Judge was correct to reject the explanation

3      Police v Blackbourn [2021] NZDC 15630.

4 At [14].

5      Brown v Police [2017] NZHC 632.

6      Hayward v Police [2014] NZHC 2286.

7      Penitani v Police [2014] NZHC 1622.

that the offending was motivated to obtain money to pay a drug debt rather than sexually motivated, the starting point was too high having regard to other cases. Accordingly, Mr Blackbourn’s offending should have attracted a starting point of between 20 and 24 months’ imprisonment.

[12]   A lower starting point would then result in a proportionately lower uplift for previous offending. Mr Berry acknowledged that the uplift proportion of 13 per cent adopted by the Judge was appropriate (4 months against a starting point of 30 months).

[13]   Mr Berry takes issue with the guilty plea credit of 15 per cent. He submits that police did not particularise the imprisonable offence Mr Blackbourn was alleged to have intended to commit inside the victims’ house when he entered it. Only once discussions were held with police prior to case review could Mr Blackbourn be given informed advice, at which point he pleaded guilty promptly. Mr Berry says a credit of 20 per cent should be allowed in the circumstances.

[14]   Finally, Mr Berry submits that Mr Blackbourn’s personal mitigating factors were dealt with in an unclear way and warranted greater credit than 15 per cent.     Mr Blackbourn had expressed genuine remorse, which the Judge dismissed as self-serving, and had requested restorative justice to directly apologise to the victims. Mr Berry submits that the birth of Mr Blackbourn’s new baby, Mr Blackbourn’s willingness to participate in restorative justice, and engagement with rehabilitative programmes, along with background factors warrant a greater credit.

[15]   In particular, counsel submits that Mr Blackbourn’s s 27 report should have been given greater weight by the Judge. While much of what appears in his s 27 report may be described as self-reported, it was cross-referenced with Mr Blackbourn’s partner’s account, who has known him for some 14 years. Mr Blackbourn’s mother is dead, and his father was not involved in his upbringing, leaving little scope for further corroboration. On the point of nexus, counsel submits that Mr Blackbourn’s upbringing – involving poverty, serious abuse and neglect, an alcoholic single parent, and, importantly, exposure to burglaries as well as pornography at a young age under his brother’s influence – warrants an independent reduction of 20 per cent. This would lead to a total reduction of around 40 per cent.

[16]   Mr Berry does not challenge the appropriateness of imprisonment as the sentencing outcome.

For the respondent

[17]   The   respondent   submits   that,   given    the    aggravating    features    of Mr Blackbourn’s  offending,  the  starting  point   was   entirely   appropriate.  The 15 per cent credit for guilty plea took into account all the circumstances of the plea, including its entry at Mr Blackbourn’s sixth appearance and the strength of the evidence against him. The reduction for personal mitigating factors of 15 per cent was appropriate given the self-reported nature of the contents of the s 27 report, and no further reduction is required for the birth of Mr Blackbourn’s baby given there is no existing bond that will be disrupted by imprisonment.

The principles to be applied

[18]   Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence and a different sentence should have been imposed.8 Generally, the focus in a sentence appeal is on the final sentence rather than the process by which it was reached.9 In Tutakangahau v R, the Court of Appeal accepted, however, that there may be cases where “what has gone wrong as such as to require correction albeit the sentence imposed is within range”.10

[19]   Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of any error in sentence appeals.11 As the Court said in Tutakangahau v R:12

The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

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

9      Ripia v R [2011] NZCA 101, At [15].

10     Tutakangahau v R, above n 8, at [36].

11     At [35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

12     Tutakangahau v R, above n 8, at [32].

[20]   The Court also said if “there is an error of the requisite character, the Court will then form its own view of the appropriate sentence”.13

Assessment of the arguments

[21]   I do not accept the submission that the absence of the targeting of “high-value” property makes the offending less serious. The fact that Mr Blackbourn continues to deny the offending was sexually motivated is troubling. I consider the Judge correctly rejected the assertion that the motivation was to pay a drug debt, given the circumstances of the offending and Mr Blackbourn’s history. The premeditation involved in watching the house over a considerable period, targeting the clothing drawers of the two young women, and the inevitable impact on them of knowing they had been targeted in this way, makes this a serious example of a lower-level dwelling house burglary. I consider the starting point was within the available range albeit at the higher end.14

[22]   As noted above, no issue is taken with the percentage adopted for the uplift for previous convictions (13 per cent). In fact, I consider no issue could have been taken

13 Tutakangahau v R, above n 8, at [30].

14 I accept Mr Berry’s submission that the High Court has said that the 18 to 30 month range referred to in Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] should not be taken as setting a fixed starting point range for such burglaries: Borthwick v Police [2014] NZHC 2772. However, it remains a useful guide and when cross-checked against the other cases cited to me, I consider a starting point at the top of this range was available (albeit stern). For example, Hayward v Police, above n 6, involved the targeting of a woman in her home on three occasions by entering the property and moving security cameras so that they were pointing to the neighbour's property, including climbing a tree and attempting to peer through windows. A starting point of two years’ imprisonment was upheld on appeal on one charge of burglary and two of being unlawfully in an enclosed yard. Unlike this case, the burglary did not involve entry to the dwelling-house. The High Court noted: “While the most serious offence, the burglary, was not serious in itself, the totality of the offending carries potentially sinister overtones as to what might have been intended. The appellant is to be sentenced only on the basis of offending which has occurred, not that which might have occurred (sic). However, that context is relevant in assessing the seriousness of the offending which did occur.”

with a much greater uplift.15

[23]   Turning to consider credit given for personal mitigating factors. Guilty plea credit is an inherently facts specific assessment. As I understand it, Mr Berry wanted to explore  possible  defences  based  on  his  instructions,  but  ultimately  it  was  Mr Blackbourn’s decision to initially plead not guilty. While another judge may have given credit of 20 per cent, I consider 15 per cent was within the available range.

[24]   I am not persuaded the Judge erred by not giving discrete credit for remorse. Mr Blackbourn had the onus of showing that his remorse is genuine and warrants a discrete reduction.16 As Radich J recently noted in Pene v R, a mere willingness to engage in restorative justice does not by itself justify an independent reduction.17 Moreover, expressions of remorse are tempered by Mr Blackbourn’s denial that the current offending is sexually motivated, which is likely to be an impediment to him receiving the rehabilitative assistance he clearly needs.

[25]   Although Judge Phillips expressed reservations about the self-reported nature of  the  information  in  the  s  27  report  and   doubts   about   a  nexus  between   Mr Blackbourn’s background and the offending, 15 per cent credit was still given for personal mitigating factors. I do not share the Judge’s level of concern about the required nexus. I note the Supreme Court in Berkland held that an unduly rigorous

15 In Hayward v Police, above n 6, at [11]–[14], a one year uplift (50 per cent) for a “very serious” criminal history was upheld even though the convictions for burglary were not recent. In R v Columbus [2008] NZCA 192 at [14]-[15], the Court of Appeal imposed an uplift of one year against a starting point of one year, six months’ imprisonment (66 per cent) for a significant history of burglary and dishonesty offending. The rationale for such uplifts is explained in Adams on Criminal Law (looseleaf ed, Thomson Reuters) at [SA9.15(6)]: “Recidivist burglary is an exception; significantly higher uplifts for previous offending have frequently been upheld as appropriate: R v Columbus [2008] NZCA 192 at [14]–[15]. An 18-month uplift was upheld in Jones v R [2012] NZCA 273. A 12-month uplift was upheld in King v Police [2014] NZHC 2946; Hayward v Police [2014] NZHC 2286; and Moeroa v Police [2015] NZHC 2226. Indeed, previous dishonesty convictions, although aggravating personal circumstances, have often been treated as a component of the burglary starting point, on the basis that it is directly relevant to assessing the degree of the offender’s culpability for the present offence: R v Lowe CA62/05, 4 July 2005; Senior v Police (2000) 18 CRNZ 340 (HC) at [27]–[30]; Hayward at [14]. However, in this event it is important to avoid double-counting by taking into account previous convictions both in setting a high starting point and in applying a substantial uplift; this will amount to an error of law: Singh v R [2011] NZCA 139 at [15]; Putua v Police [2017] NZHC 103 at [21].”

16 Moses v R [2020] NZCA 296 at [24].

17 Pene v R [2023] NZHC 1234 at [27] and text accompanying footnote 26.

standard should not be applied when determining whether deprivation provides a causative contribution to offending.18

[26]   I accept that it would have been preferable if the Judge had expressly noted the impact imprisonment may have on Mr Blackbourn’s young child.19 Although it is  Mr Blackbourn’s criminal actions that mean he has been unable to form a connection with his baby, his child will also suffer if Mr Blackbourn remains unconnected to the baby in his early formative months.20

[27]   However, as Mr Berry notes, the various mitigating features overlap and the Judge did not articulate the specific source of the 15 per cent credit for personal mitigating features. Mr Berry accepted the Judge’s scepticism about the relevance of the s  27  report  makes  it  likely  that  the  15  per  cent  included  recognition  of  Mr Blackbourn’s current family circumstances. In any event, the question on appeal is whether an overall credit of 15 per cent for these factors was within the available range. While another Judge may have been more generous, I consider the credit was within range.

Resolution of the arguments

[28]   Drawing these threads together, I  consider that  there  was  no  error in  the 30 month starting point (albeit at the high end), or the four month uplift for previous convictions (which could have been much greater). Even if I am wrong about the starting point being within the upper end of the range, I consider the combination of the starting point and uplift for previous convictions (34 months) to be clearly within

18 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

19 The importance of giving consideration to credit for the impact of imprisonment on children has been recently emphasised by the Supreme Court in Philip v R [2022] NZSC 149 at [50]-[52] and see [53]-[58].

20 Although I also accept the submission for the respondent that the impact will not be at a similar level to R v Philip, above n 19, where a clinical psychologist provided a report about the impact of imprisonment on children who had a strong bond with the defendant.

range.21 More credit might have been given by another Judge for guilty plea, family circumstances and cultural factors, but 15 per cent was within range. I therefore consider the end sentence, although stern, was within the available range.

[29]   This case demonstrates the points made in Tutakangahau v R that sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer.”22

[30]   Mr Berry confirmed that Mr Blackbourn would be willing to undertake psychological treatment to address the sexual motivation for his offending despite maintaining there was no such motivation.23 I am grateful to both counsel for making enquiries post-hearing about the availability of this through the current standard release condition that he “take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer”.24 I have been told that a psychologist is not currently available in Gisborne but his Community Corrections case manager could assist him to obtain suitable counselling.

[31]   In the circumstances, I do not consider there is any utility in adding a special release  condition  that  would  require  him  to  attend  psychological  treatment.   Mr Blackbourn’s expressed desire to rehabilitate should mean he will complete any counselling his case manager can assist him to obtain. I note that Mr Blackbourn is still relatively young. At 26 years of age, it is well within his power to change.

21   For example, it was two months lower than the 36 months adopted in Hayward v Police, above   n 6. I have not overlooked Mr Berry’s submission that the starting points for Mr Blackbourn’s previous home detention sentences were also 30 months’ imprisonment, which was for five burglaries in 2018 and two in 2021 compared to one in this case. However, the correctness of those starting points is not before me and those offences did not share the same level of premeditation as this case. And, again, if I am wrong about the correctness of the starting point, the combined starting point and uplift for previous convictions was clearly within range.

22 Tutakangahau v R, above n 8, at [30] and [35].

23 The s 27 report, on page 3, noted that he accepted the sexual motivation for his previous offending but not for this offence. However, it was also noted he would undertake “sexual counselling if recommended”.

24 Section 93 of the Sentencing Act 2002 and s 14(1)(i) of the Parole Act 2002.

Conclusion

[32]   Accordingly, I am not satisfied that the sentence imposed was in error and that a different sentence should have been imposed.

La Hood J

Solicitors:

Woodward Chrisp, Gisborne Elvidge & Partners, Napier