Blance v Police
[2015] NZHC 2566
•20 October 2015
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-30
CRI-2015-441-31 [2015] NZHC 2566
BETWEEN JACK LYALL BLANCE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 October 2015 Appearances:
LPF Lafferty for the Appellant
MJM Mitchell for the RespondentJudgment:
20 October 2015
JUDGMENT OF MUIR J
This judgment was delivered by me on Tuesday 20 October 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel:
LPF Lafferty, Barrister, Napier
Solicitors:
MJM Mitchell, Crown Solicitors, Napier
BLANCE v NEW ZEALAND POLICE [2015] NZHC 2566 [20 October 2015]
Introduction
[1] Mr Blance pleaded guilty to and was convicted of one charge of burglary and one charge of breach of a protection order. He was sentenced to nine months and four months imprisonment respectively. The two sentences were cumulative. He appeals both sentences but focuses his grounds and submissions exclusively on the burglary charge on the basis that it is manifestly excessive and there is a gross disparity with a co-defendant, Ms Pascoe, who was sentenced approximately six weeks earlier. I do not therefore further comment on the breach of the protection order other than in the respect identified at the conclusion of this judgment.
[2] Ms Mitchell does suggest that were I to find the sentence in relation to the burglary manifestly excessive but considered that the sentence in relation to the breach of protection order generous then I might look at the totality of the sentence and consider maintaining it in relation to the burglary offence. I am uncomfortable approaching the appeal on that basis in light of the focus in the appellant’s submissions and the unrelated nature of the offending.
Facts
[3] In relation to the burglary charge the factual background is that on 23 January Mr Blance and two co-defendants, who are half-sisters, Ms Pascoe and a Ms Biles, arrived at a secluded address in Te Pohui which is in the Hastings District. That is the address of the victim. The victim was the partner of the mother of the two co- defendants Ms Pascoe and Ms Biles. Mr Blance and his associates jumped over a locked gate and they walked down the approximately 500 metre driveway to the back of the property where they found three garages. Mr Blance smashed a small window of one of the garages using a hammer. He entered the garage and took approximately 10 litres of diesel for which reparation of $65 has already been paid. Mr Blance and his associates carried the containers back to their car and emptied the contents into the vehicle, seemingly with the usual results of introducing diesel fuel into a petrol driven vehicle. When spoken to by the police Mr Blance stated that he was told by his associates that he was allowed to take the fuel.
Previous criminal history
[4] Mr Blance is 32 years old. His conviction history sadly spans the majority of his adult life. His most serious conviction is for manslaughter for which he served a sentence of imprisonment. His other convictions include minor theft, disorderly behaviour, male assaults female and two breaches of community work and conditions of supervision.
The District Court’s decision
[5] Judge Adeane noted that the burglary was not the most serious of its kind but that the sentences for all burglaries are stern. The Judge adopted a starting point of
12 months imprisonment following R v Columbus1 on the basis that Mr Blance broke
into another citizen’s shed on a secluded property. He allowed a 30% discount for the early guilty plea, which might, on its own, be considered generous, resulting in a sentence of nine months’ imprisonment on the burglary charge. The Judge briefly turned his attention to parity but observed he was not provided with sentencing notes for Mr Blance’s co-defendant. He stated that he “can only assume that there were extraordinary mitigating factors relating to the other offenders”. He clearly assumed that both had at that stage been sentenced when in fact it was Ms Pascoe only. Ms Biles has pleaded not guilty and her hearing is scheduled to occur later this year.
Approach to appeal
[6] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(a) if for any reason there is an error in the sentence imposed on conviction; and
(b) where a different sentence should be imposed.
[7] In any other case the Court must dismiss the appeal.2
1 R v Columbus [2008] NZCA 192.
2 Criminal Procedure Act 2011, s 250(3).
[8] The Court of Appeal in Tutakangahau v R3 has recently confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957. Further, despite s 250 making no express reference to “manifestly excessive” this principle is “well engrained” in the Court’s approach to sentence appeals and I follow it.
[9] The approach taken from the former Summary Proceedings Act is set out in R
v Shipton4 in terms that:
(a) There must be an error vitiating the lower Court’s original sentencing
discretion. The appeal must proceed on an error principle.
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[10] It is stating the obvious that the High Court will not interfere 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.5
Appellant’s submissions
[11] Mr Blance’s version of events is that he and his co-defendants were driving from Napier to Taupo when they started to run out of fuel in the vicinity of the burgled property. Mr Blance says together they came up with the idea to take petrol
from the victim’s property, but unfortunately ended up taking diesel.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
4 R v Shipton [2007] 2 NZLR 218 (CA).
5 Ripia v R [2011] NZCA 101 at [15].
[12] Mr Blance accepts, through his counsel, that Columbus is the lead authority but he then distinguishes the present case on the basis that he is a first time burglar; the garage was detached and there was accordingly no violation of the sanctity of the home; and the fact that the co-defendants’ mother lived at the property. Nor, says Mr Lafferty, was there any premeditation or tools of burglary involved.
[13] In relation to parity Mr Lafferty submits that Ms Pascoe was sentenced by Judge Adeane on 27 May to 80 hours of community work and nine months’ supervision. He submits that due to the disparity Mr Blance’s sentence is manifestly excessive. He says that Mr Blance’s culpability is no greater than that of his co- defendants. He also submits that Judge Adeane gave no reasons for why he sentenced Miss Pascoe to 80 hours of community work when he indicated to her that a typical starting point would be 18 months’ to two and a half years’ imprisonment.
Respondent’s submissions
[14] In her very thorough submissions Ms Mitchell states that the Judge did not err in adopting a 12 month starting point as Mr Blance had a higher culpability than his co-defendants and the case is factually similar to Columbus. She submits that a community based sentence would be inexplicably lenient and Mr Blance’s record of dishonesty, convictions and failures to comply with court orders supports the imposition of imprisonment rather than home detention.
[15] In discussions between Ms Mitchell and the Bench, however, Ms Mitchell, fairly in my view, concedes that there was a very substantial discrepancy between the sentence imposed on Ms Pascoe and that on Mr Blance and that this may be an appropriate basis for my intervention in relation to the sentence. She does emphasise, as I have previously indicated, the comparatively light sentence in relation to the breach of supervision orders which from my perspective was the more serious offending.
[16] In respect of parity the Crown submits that the Judge had been informed that Ms Pascoe had received a sentence “short of electronic monitoring”. The District Court Judge was the sentencing Judge of Ms Pascoe and, although at the time he
sentenced Mr Blance he does not appear to have recalled the specific circumstances of Ms Pascoe’s offending, that is scarcely surprising in respect of a sentencing which occurred six weeks earlier in a busy list. So I make no criticism of the judgment for that fact.
Relevant law
[17] There is no tariff decision for burglary. In R v Columbus, the defendant forced open a garage door of a residential property, causing approximately $600 worth of damage. He stole a mountain bike, gardening tools and a tool box. He did so with the intention, opportunistically, of raising cash. The bike was later recovered by the police. The defendant then committed another burglary, in which he stole a lawnmower worth almost $500, again for the same reason. While on bail, he stole
$68 of petrol by driving off without paying. The Court of Appeal observed that the intrinsic nature and gravity of the offence charged is the primary consideration in sentencing for burglary.6 Previous dishonesty offending should be considered in setting the starting point. It said:
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender's culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]-[30] (HC).
[18] Senior is also a decision to which Mr Lafferty referred. The defendant in that case had 13 burglary and 34 other property related offences. The Court found that the burglaries were opportunistic and spontaneous, but his recidivist tendencies did not suggest a professional disposition to burglary.7 On appeal the Court imposed a starting point of 12 months for the burglary, which it then uplifted by 18 months, consisting of a six month uplift for other offences and a year for previous similar
offending.
6 At [13].
[19] Senior was decided before the current Sentencing Act 2002 provisions were in force.8 The High Court in that case discussed three categories of burglars for the purpose of applying appropriate sentencing levels. The three categories were the first time burglar, the recidivist burglar, and the spree burglar. In relation to the first time burglar, the Court stated that depending on the burglar’s background and the existence of aggravating and mitigating factors, a sentence of imprisonment may be imposed, although frequently that is not the case.9 The Court did not give an indication of appropriate starting points for first time burglars.
[20] In R v Nguyen the Court of Appeal briefly discussed factors surrounding the offending conduct in burglary cases: 10
In burglary cases, these include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.
[21] All of those factors point to this being offending very much at the lower end of the range.
[22] The Court of Appeal then stated that where burglary involves entry into a private home, it will have an emotional impact giving rise to a sense of insecurity and violation that may not arise in the case of commercial premises.11 This case is possibly something of a hybrid in that it involves a detached premise at a residential location.
[23] I have considered a number of cases involving first time burglars and minor burglaries. I do so conscious of what the Court of Appeal has often said that although decisions as to sentences in other cases can sometimes and in some respects be helpful (particularly where it is suggested that disparity involves an unfairness or inappropriateness), fundamentally sentencing involves an approach by way of
principle. The cases I have, however, considered include:
8 Senior v Police (2000) 18 CRNZ 340 (HC).
9 At [25] and [26].
10 R v Nguyen at [17].
(a) Nicol v Police:12 there the defendant committed three burglaries of residential dwellings within a month. The defendant was also charged with possession of a small amount of methamphetamine. The defendant and his associates stole a rare arms collection worth
$13,000, most of which was never recovered. On appeal, and by consent of the parties, the Court imposed a sentence of eight months’ imprisonment and 400 hours community work on all the charges.
(b)Department of Corrections v Waymouth:13 the defendant had been sentenced by the District Court to 15 months’ imprisonment on a charge of burglary. The facts were that the defendant entered a residential premises at night and attempted to steal a case of wine. On appeal, the sentence was quashed and the defendant was directed to pay $1,000 reparation and to complete 200 hours of community work.
(c) Marra v Police:14 the defendant, who was in desperate financial circumstances, together with an associate, broke into a bar, causing
$500 worth of damage. They were apprehended before they could take anything. On appeal, the Court found that the offending was out of character and that the District Court did not have proper regard to s 16 of the Sentencing Act when it imposed a sentence of four months’ imprisonment. A sentence of 150 hours community work and reparation was imposed instead.
[24] In respect of parity between co-offenders, the Court of Appeal stated in R v
Lawson:15
… the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
12 Nicol v Police [2013] NZHC 3326.
13 Department of Corrections v Waymouth HC Auckland CRI-2007-404-299, 5 August 2011.
14 Marra v Police HC Hamilton CRI-2008-419-5, 26 February 2008.
15 R v Lawson [1982] 2 NZLR 219 at 223.
[25] In an earlier case of R v Rameka,16 the Court of Appeal found that the fact that one of two co-offenders jointly indicted had received too short a sentence was not a ground necessarily for interfering with a longer sentence passed on the other; that the whole surrounding circumstances and the situation of the offender had to be taken into account; and that the Court should have regard to disparity as a ground of appeal when it is unjustifiable or gross.
[26] It is also important, in my view, to keep in mind s 8(e) of the Sentencing Act
2002, which requires a Court to take into account the desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances.
[27] Equally, s 16 of the Act should be noted:
16 Sentence of imprisonment
(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.
…
Analysis
[28] I find that the learned District Court Judge made an error on sentencing and the appeal should be allowed.
16 R v Rameka [1973] 2 NZLR 592.
[29] In my view, Mr Blance should be considered a first-time burglar. He does has five convictions for minor theft or shoplifting, for which he was fined and ordered to pay reparation. While those offences are not an element of the present offending, they are a consideration for setting the starting point in terms of the Court of Appeal authority I have already set out.
[30] I agree with the Judge that the present case has some similarity with R v Columbus, however, I find that the Judge failed to acknowledge the important differences between that case and the present, which led the Judge, in my view, to erroneously set the starting point at the level he did. That case involved a recidivist burglar, higher value of goods, and the goods were taken for the purpose of conversion to cash (ie one of the usual circumstances of offending). By comparison Mr Blance, although clearly far from a model citizen in terms of his previous record, is a first time burglar. Moreover, the value of the fuel taken was very low in comparison with the least expensive item taken by the offender in Columbus and full reparation has already been made.
[31] Significantly in my view, there was no premeditation involved in this offending. It was the very ill-considered response to what I will call a spontaneous problem – running out of fuel on the Taupo-Napier Road. The only item taken from the shed was the fuel. There is no suggestion that the property was ransacked in an endeavour to identify other targets of theft. The fact that the property was occupied by the mother of Mr Blance’s co-offenders also takes the case outside the generality of burglary cases although it does not exonerate the offending.
[32] Overall my assessment of the offending was that it was at a very low level.
[33] I consider the sentence of nine months’ imprisonment, quite apart from the parity issues to which I return, to have been manifestly excessive. The offending was significantly less serious than Nicol and Waymouth and has a significantly lower level of premeditation and sophistication than Marra yet resulted in a much more restrictive sentence. The former two cases involved burglary of a dwelling, including at night time, and with the element of violation implicit in that. The property involved was also much more valuable.
[34] I find that the Judge did not give sufficient regard to the desirability of keeping offenders in the community as far as that is practical and consonant with the safety of the community. I do not consider that the two convictions for failing to comply with community work are sufficient to disqualify Mr Blance from serving a community based sentence. The sentencing purposes and principles may still be achieved by a less restrictive sentence.
[35] I am also troubled by the issue of parity. I consider that the disparity between sentences received by Ms Pascoe and Mr Blance would cause a reasonably minded observer to think that something had gone wrong with the administration of justice. From an objective stand point, nine months’ of imprisonment against 80 hours of community work and nine months’ supervision, without identification of any special personal or other circumstances to justify the much more lenient sentence on Ms Pasacoe does suggest that a miscarriage of justice has occurred.
[36] I do, however, consider Mr Blance more culpable than Ms Pascoe. It was Mr Blance alone who forced his way into the garage and took the containers with the diesel.
[37] Accordingly I consider that Mr Blance’s offending should attract a heavier
sentence than that imposed on Ms Pascoe.
Result
[38] Taking all these factors into account I find that the sentence imposed was manifestly excessive. I would impose by way of substitution a sentence of 120 hours community work and nine months’ supervision. That, however, gives rise to issues under s 19(4) and (5) of the Sentencing Act having regard to the custodial sentence imposed for the breach of protection order.
[39] With that in mind I allow the appeal in respect of both the protection order and burglary offences and substitute, in respect of each and to be served concurrently, a sentence of 120 hours community work and nine months’ supervision. The fact that the appellant has already spent time in custody can be
considered some recognition of my concern about the breach of the protection order.
Muir J
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