Blissett v Police

[2013] NZHC 156

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000374 [2013] NZHC 156

JOSHUA ALLEN BLISSETT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 February 2013

Counsel:         A J Holland for the Appellant

J M Pridgeon for the Respondent

Judgment:      11 February 2013

JUDGMENT OF DUFFY J [Re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on 11 February 2013 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:    Ministry of Justice (Public Defence Service) P O Box 90243 (DX CX 10075) Victoria Street West Auckland 1142 for the Appellant

Meredith   Connell   P    O    Box   2213   (DX CP24063)   Shortland   Street

Auckland 1140 for the Respondent

BLISSETT v POLICE HC AK CRI-2012-404-000374 [11 February 2013]

[1]      The appellant, Joshua Allen Blissett, appeals against a total sentence of three years,  three  months’ imprisonment  imposed  in  the  District  Court  following  his conviction on charges of burglary, receiving and possession of a glass pipe for the purpose of consuming methamphetamine.  There was also a charge of breaching a standard  prison  release  condition  for  which  he  was  convicted  and  discharged. Mr Blissett contends that the total sentence of imprisonment that he received is manifestly excessive. The appeal is opposed.

Facts

[2]      Mr Blissett entered guilty pleas to the offences on 17 July 2012.   He was sentenced on 12 October 2012.

Burglary offending

[3]      On the afternoon of 12 January 2012, Mr Blissett entered the outside area of a domestic dwelling and attempted to force open a window.  The window broke; he was cut by the broken glass; and left the scene.  Some of his blood had dropped onto the property, leaving DNA evidence that enabled the Police to identify his presence at the scene.

[4]      Then on 27 January 2012, during the daytime, Mr Blissett and an unknown associate broke into a domestic residence and took personal property, including a camera and items of jewellery, with a total worth of $2,000.

Receiving offending

[5]      On 1 February 2012, Mr Blissett’s residence was searched by Police and he was found to be in possession of personal items valued at $1,100 that were taken by a burglary on 1 January 2012 and personal items valued at $300 that were taken by a burglary on 18 January 2012. These burglaries were of domestic dwellings.

Misuse of Drugs Act 1975 offending

[6]      On 21 February 2012, the Police again searched Mr Blissett’s address.  They found  a  glass  pipe  on  his  person,  which  he  admitted  using  for  the  purpose  of smoking methamphetamine.

Breach of release conditions

[7]      At the time of the offending, Mr Blissett had recently been released from prison.  His release conditions included a curfew condition, which he breached on

10 January 2012.

Mr Blissett’s circumstances

[8]      Mr Blissett is 22 years old.   He has an extensive criminal history.   He has committed 68 offences, including youth offending.  This includes 13 convictions for burglary as an adult offender and seven such convictions in the Youth Court.   On

21 April 2010, he was sentenced to imprisionment for offences including burglary, and the present offending would have occurred not long after his release from prison.

[9]      The  pre-sentence  report  identifies  Mr  Blissett  as  having  an  unstructured lifestyle, which can be attributed to a number of factors, including: his addiction to methamphetamine;  his  association  with  gang  members  (his  father  was  a  gang member and his mother had an alcohol problem); and his deprived childhood, which was largely spent in the care of Child, Youth and Family Services.  Consequently, Mr Blissett has had little opportunity to rehabilitate himself.  The absence of strong support for doing so means that his chances of improvement are not good.  Thus, he is assessed as having a high likelihood of continued offending.  On the other hand, the pre-sentence report writer notes that based on past history, he presents as being a low risk of harm to others.

[10]     Realistically, it appears that unless Mr Blissett receives some active support and help to rehabilitate himself, the prospects of him doing so are dim, and he is likely to continue to offend in the same way as before.  His poor prospects, coupled

with his poor compliance with court imposed conditions to date, which is but a reflection of his circumstances, led the pre-sentence report writer to recommend a sentence of imprisonment.

District Court decision

[11]     The Judge reviewed Mr Blissett’s criminal history and characterised him as a

category 2 offender, a “recidivist offender”, according to Senior v Police (2000) 18

CRNZ 340 (HC).   He concluded that this attracted a starting point of up to four

years’ imprisonment.

[12]     The Judge rejected the defence submission that the burglary and receiving charges be served concurrently.   He stated (at [6]) that the charges are “entirely separate offences of a separate kind”.  There was no discussion of why he reached this view. Thus, he imposed cumulative sentences.

[13]     The Judge  adopted  a starting point  of  three  years’ imprisonment  for the burglaries and 18 months for the receiving charges.   As justification, he cited the seriousness of these home burglaries, the frequency of Mr Blissett’s offending and the number of his convictions in proportion to his age.  For the possession of a glass pipe offence, he imposed six months, to be served concurrently.

[14]     For the breach of release conditions, the Judge convicted and discharged

Mr Blissett.

[15]     The Judge was not particularly moved by Mr Blissett’s expression of remorse or  the  rehabilitative  steps  that  he  had  taken  to  help  himself.    The  Judge  gave Mr Blissett a full 25 per cent discount for his guilty pleas.  The receiving sentence was rounded down to 12 months.

[16]     The final sentence came to cumulative sentences of two  years and three months’ imprisonment for the burglary and one year’s imprisonment for receiving, with the sentence for the Misuse of Drugs Act offence running concurrently with one of these two sentences.

Ground(s) of appeal

[17]     Mr Blissett appeals his sentence on the following grounds:

(a)       The final sentence imposed was manifestly excessive;

(b)      The Judge erred in law by imposing a cumulative sentence; and

(c)      The Judge erred in law by considering the breach of parole to be an aggravating factor.

Appellant’s submissions

[18]     Mr Blissett supports the first ground of appeal with three submissions:

(a)      First, he submits that under s 85 of the Sentencing Act 2002, the final sentence is disproportionate to the totality of the offending,  when viewed as a whole rather than as aggregate charges.

(b)Second, he submits that the starting point was too high.  He contends that the authority relied on by the Judge in determining the starting point is outdated in light of R v Taueki [2005] 3 NZLR 372 (CA) because it is based on personal factors. Mr Blissett submits that Rota v R [2012] NZCA 49, Snowden v Police HC Hamilton CRI-2010-419-

52, 15 July 2010 and R v Povey [2009] NZCA 362 are comparable cases that support a starting point of two years.

(c)      Third,  he submits  that  the Judge erred  by giving no  discount  for remorse and rehabilitative prospects.  The discount for a guilty plea is separate from the discount for remorse and Mr Blissett submits it is appropriate to grant one in this case.  He points to the two letters he wrote to the Judge expressing remorse and taking responsibility, the rehabilitation   programmes   he   has   already   undertaken,   and   his proactive application for the Salvation Army Bridge Programme to help him overcome his addiction to methamphetamine.

[19]     Mr Blissett submits that a cumulative sentence is not appropriate in this case. The offending for receiving and burglary took place over 25 days, so it is akin to a spree of offending.  Mr Blissett also submits that receiving and burglary are the same in kind as both involve the misappropriation of property.   In support of this submission, Mr Blissett cites s 84 of the Sentencing Act, and the following cases as examples  of  concurrent  sentences:  Hungahunga  v  Police  HC  Napier AP2/2000,

25 February 2000, R v Taukei CA86/98, 27 May 1998, Tahau v Police HC Hamilton

CRI-2006-419-125, 23 November 2006 and Gill v Police HC Wanganui CRI-2006-

483-29, 21 December 2006.

[20]     Finally, Mr Blissett submits that the Judge erred in treating the breach of parole as an aggravating factor.

Respondent’s submissions

[21]     The respondent accepts that the conventional methodology for sentencing requires the Court to disregard previous offences in determining starting point, which is contrary to the approach in Senior.   However, the respondent submits that the methodology used is not a ground of appeal.  Further, it is possible to arrive at the same end sentence using the Senior methodology because previous convictions are still relevant.

[22]     The respondent submits that the language of s 84 indicates that it is merely a guide to determining whether to impose a concurrent or cumulative sentence. Additionally, constructing the sentence cumulatively does not mean the end length would be any different.

[23]     Further, relying on Nelson v Police [2012] NZHC 2266 and Johnstone v Police [2012] NZHC 551 to determine the starting point, the respondent submits that following the Taueki methodology and imposing an uplift rather than cumulative sentences, the end sentence would be four years.

[24]     The respondent submits that the Judge’s discount for Mr Blissett’s guilty plea

was sufficient to cover the degree of remorse that Mr Blissett has expressed.  The

respondent contends that R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 requires an extraordinary instance of remorse to attract a further discount. The respondent submits that the facts of the present case do not meet that standard.

Appeal against sentence

Approach to appeal

[25]     An appeal against a sentence is a general appeal which shall be by way of rehearing.   Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[26]     An appellate Court will not intervene where the end sentence is within the range that can properly be justified by accepted sentencing principles, even if the approach or methodology adopted contains an error.

Analysis

Approach to determining a starting point in burglary cases

[27]     Choosing a starting point for a burglary sentence is perplexing.  The Court of Appeal  has  specifically declined  to  provide  sentencing tariffs for this  offending because the circumstances of offending can vary so greatly: see R v Nguyen CA110/01, 2 July 2001 at [18].  In this regard, the offending can range from well planned and executed heists of valuable property to the opportunistic taking of a low value item by entry through an open window or unlocked door.  The former is likely to  lead  to  a  sentence  of  imprisonment,  with  the  question  only being  as  to  the duration, whereas the latter may be more appropriately dealt with by one of the non- custodial types of sentences that are at the lower end of the sentencing hierarchy.

[28]     In Senior, the Full Court of the High Court at [25] identified three categories of  burglar  and  noted  that  for  first  time  burglars,  depending  on  the  material

circumstances, “a prison sentence may be imposed although frequently this is not the

case”.

[29]     The categories given in Senior are: first time burglar, recidivist burglar and spree burglar. At [41], the Full Court observed that the categories are not “hard- edged”. So “some cases may straddle more than one category”: see [43]. When sentencing in accordance with Senior, the chosen starting point takes into account the category type of the burglar.

[30]     The appeal of Senior for the sentencing Judge is that it permits the adoption of a starting point that includes an assessment of the character of the burglar.  The starting point adopted for a recidivist burglar who while out for a weekend stroll happens  to  carry  out  a  low  level  opportunistic  burglary  (when  walking  by  an unlocked motor vehicle the attraction of taking a camera seen lying on the front passenger’s seat proves irresistible) will, therefore, be different from that applied to a young teenager who yields to similar temptation.   In this way, Senior reflects the recognition in Nguyen of the variable circumstances in which burglaries are committed.

[31]     However, since Senior was delivered, there has been a general change in sentencing that has been brought about by the Sentencing Act and the Court of Appeal’s decision in Taueki.  The result of this development is that the choice of a starting point is determined by the circumstances of the offending, with the circumstances and characteristics of the offender forming part of any adjustment up or  down  depending  on  whether  they  are  seen  to  be  aggravating  or  mitigating features.   The approach works well when dealing with offences such as those in Taueki.  The decision sets out sentencing guidelines for serious violent offending (for example, grievous bodily harm) which divide the offending into three categories of ascending seriousness.  However, the decision recognises that for offending of this nature, the starting point is always going to be one of imprisonment.  Conduct that falls  short  of  serious  violence  to  the  person  is  provided  for  elsewhere  in  the Crimes Act 1961.  In this regard, the Crimes Act provides for a graduated scale of violent offending, starting with common assault and ending at the level covered by Taueki.

[32]     It becomes difficult, therefore, to apply an approach that is tailored to dealing with a type of offending that sits somewhere on a graduated scale to offending that is covered by a one size fits all offence.  This is particularly so with burglary: it occurs over a range of variable circumstances; and a defendant may be proceeded against either summarily or indictably.

[33]     The Court of Appeal in R v Lowe CA62/05, 4 July 2005 at [31] recognised that the choice of a starting point for burglary sentencing did not follow the usual approach to this exercise. At [31] it said:

We  would  observe  in  passing  that  “starting  point”  in  cases  involving recidivist burglars appears to be used in a slightly different sense from normal. The normal meaning of “starting point” is the sentence appropriate for the offending, prior to considering aggravating and mitigating factors relevant to the offender. Relevant prior convictions are, if taken into account at all, taken into account by wayof uplift on the starting point. In the case of recidivist burglars, however, this Court appears frequently to have taken the appellant’s prior history into account when fixing the actual “starting point”. This is not the occasion to try to sort out this inconsistent use of language. In discussing whether the Judge adopted an appropriate starting point, we shall take into account the appellant’s prior convictions, as the other appellate authorities which were cited to us appear to have done.

[34]     In R v Columbus [2008] NZCA 192, a divisional Court of the Court of Appeal confirmed that it was not its function to resolve inconsistencies to approaches to starting points. Nonetheless, it gave some guidance in what it acknowledged was a difficult area: see [13]–[15]:

[13]     We agree that it is not the function of a divisional Court to resolve apparent inconsistencies in approaches to starting points between burglary and other offending. Nevertheless, we may be able to offer some guidance in this difficult area. As a Full Court of this Court has emphasised, the starting point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3 NZLR 372 at [42]-[44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served by this approach.

[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).

[15]     Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending:  R  v  Ward  [1976] 1 NZLR 588 (CA) and Power. The  terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.

[35]     There are appellate decisions in this Court that still apply the approach taken in Senior, whereas others prefer a Taueki approach.   Provided the offending is offending of a type that would attract a sentence of imprisonment, irrespective of the offender’s past record for burglaries, and provided there is no double counting of that record, the outcome is likely to be the same, whichever approach is adopted.  On a Senior approach, the starting point will be higher than with a Taueki approach, but the latter would then require an adjustment to take into account past burglaries as an aggravating feature of the offender.  So by the time the Judge comes to turn his or her mind to other relevant considerations, the point from which he or she will undertake this exercise will be much the same.  However, the difficulty with a Taueki approach comes when the Judge is faced with a burglary which, when looked at without regard to the offender, might not lead to a sentence of imprisonment.  The methodology of Taueki does not allow for starting points that are something less than a sentence of imprisonment, with a move to imprisonment only coming once aggravating features of the offender such as criminal history are taken into account. To attempt something like that starts to look as if the offender is being penalised for his or her past offences. There is no easy solution to this problem.

[36]     With the present burglary offences, the more serious offence is the burglary on  27  January 2012.    It  should  be treated as  the lead  offence.   The  offending involved the forced unlawful entry of a domestic dwelling, coupled with the taking of personal items to the value of $2,000.   Such offending suggests a sentence of imprisonment as a starting point: see discussion in Senior at [18] and at [16] of Snowden v Police for reasons why burglary of a domestic residence is considered a

significant aggravating feature at sentencing.   I am not, therefore, faced with a situation where the offence itself does not suggest a sentence of imprisonment as a starting point.  Thus, provided there is no double counting and provided the other respective adjustments are made, whether a Senior or a Taueki approach is taken, the outcome will be the same.  The sentencing Judge adopted an approach influenced by Senior as a means of checking the end sentence is within the appropriate range.  I propose to assess the circumstances using a Taueki approach.  Thus, I have chosen as a guideline the comparable cases cited to me in which the Court has focused solely on the circumstances of the offending when setting a starting point.  This will mean that the starting point I arrive at will necessarily be lower than that adopted by the sentencing Judge.  Such an outcome is inevitable: see the observations of French J in Sunnex v Police HC Christchurch CRI-2010-409-43, 17 June 2010 at [9].

Setting the starting point

[37]     The timing of the burglary (during the day) and the relatively low value of the items taken ($2,000) place the burglary at the lower end of the scale.  The fact it was carried  out  with  an  accomplice  raises  the  seriousness  of  the  offending.    Some planning was involved, as the summary of facts states that the offenders jemmied upon a garage door, which suggests that the offenders went to the property prepared to break into it.   Once inside the garage, they smashed an internal door, thereby gaining access to the house. The stolen property was not recovered.

[38]     The features of this offending are more serious than those in Columbus.  In Columbus, the offending was described as opportunistic and the value of property that was taken is not specified in the judgment.  It was a mountain bike, gardening tools and a toolbox.   The Court of Appeal adopted a starting point of 12 months’ imprisonment.  Without knowing more about the mountain bike, it is not possible to say whether its value was less than the $2,000 worth of items taken by Mr Blissett. Unlike the present case, the property was recovered.  However, there are features of Mr Blissett’s offending (the planning and partipicipation with an accomplice) that lead me to treat it as more serious than in Columbus; thus, a starting point in excess of 12 months is warranted.

[39]     Rota v R involved a planned burglary of a domestic residence during daylight hours by more than one offender.  Personal items to the value of $4,000 were taken. The offenders were armed.  The property taken was recovered.  The Court of Appeal considered that a starting point of 20 months’ imprisonment was warranted.   As Mr Blissett’s offending does not have all the features of the offending in Rota, this suggests to me that the starting point in his case could be less than 20 months.

[40]     In Povey, the offending involved two offenders; forced entry by night into a woman’s apartment; premeditation evidenced by gloves and a scarf for concealment; and the presence of a weapon.  The Court of Appeal considered that these factors justified a starting point of two years.   The difference between entry by night in Povey and Mr Blissett’s entry by day, as well as the absence of a weapon, lead me to conclude that Mr Blissett warrants a starting point that is less than that adopted in Povey.

[41]     In Snowden v Police, the offender burgled a domestic residence, stealing

$10,800 worth of property and dropping a cigarette on the carpet that caused further damage.  On appeal, the 18 month starting point was upheld.  The value of the items taken  is  much higher than  those  taken  by Mr  Blissett.    Nothing is  said  in  the judgment about the time at which the burglary occurred, or if the property was recovered.   Mr Snowden appears to have acted alone.   There are some common features with Mr Blissett’s offending.  The differences go some way to cancel each other out.   For these reasons, Snowden suggests to me that a starting point of no more than 18 months’ imprisonment would be warranted here.

[42]     Nelson v Police involved a burglary of a domestic dwelling at night time. The offending was premeditated, as evidenced by Mr Nelson possessing burglary tools and the items taken were readily saleable.  The stolen property was valued at

$800 and it was recovered as the Police apprehended Mr Nelson a short time after the offending occurred.  On appeal to this Court, a starting point within the range of

18 months to two years was adopted.  The timing of the offending and the degree of premediation are more serious than in Mr Blissett’s offending.  The items taken were of less value than those taken by Mr Blissett.   I conclude that the low end of the range  of  starting  points  adopted  in  Nelson  is  more  applicable  to  Mr  Blissett’s

offending than is the upper range.  I am confirmed in this view by the comparison I

have already made with the starting point adopted in Rota.

[43]     In Johnstone, the features of the lead burglary offence were: forced entry of a domestic  residence;  and  property  having  “significant  financial  and  sentimental value” was taken.  In addition, because the items included computers, there was the loss of data as well.  There was limited damage to the dwelling and little indication of premeditation.   On appeal, this Court adopted a starting point of two  years’ imprisonment.

[44]     It is difficult to compare Mr Blissett’s offending with that in Johnstone, as I do  not  know  how  the  value  of  the  items  taken  compares  with  those  taken  by Mr Blissett.  My impression is that property that is described as having significant financial  value  is  likely  to  exceed  the  $2,000  value  of  the  stolen  property  in Mr Blissett’s case.  There is nothing about what is known to me from Johnstone that would cause me to conclude that a two year starting point would be appropriate for Mr Blissett.

[45]     When I take all the comparable cases available to me into account, I find that

Mr Blissett’s offending would attract a range of starting point of somewhere between

16 and 18 months’ imprisonment.  I propose to take a starting point that falls in the middle and, therefore, will adopt 17 months’ imprisonment as a starting point.

Uplifts related to other offending

[46]     There is then the question of the other burglary.  Here, no entry occurred and nothing was taken.   The venture was abandoned once Mr Blissett cut himself on forcing the window to gain entry to the house.  The facts really suggest attempted burglary, though Mr Blissett pleaded guilty to burglary.  However, the circumstances of what occurred, including the fact it was daytime, place this burglary at the least serious end of the scale of this offending.  If it were the only offence, it is hard to see how a sentence of imprisonment of any length would be taken as a starting point. But as it is an additional offence and I am working from a starting point of imprisonment, I would add an uplift of three months to reflect this offending.

[47]     Provision  now  needs  to  be  made  for  the  other  offending.    Unlike  the sentencing Judge, I consider that the other offences are sufficiently connected with the burglary offences to make concurrent sentences appropriate.  The totality of the offending appears to be a spree that was embarked on to fund Mr Blissett’s methamphetamine addiction.  The sentencing Judge appears to have recognised this to some extent by his use of a concurrent sentence for the possession of the drug utensil; otherwise it is hard to explain why that was dealt with as a concurrent sentence.  I consider, therefore, that there needs to be a further uplift to take account of the other offending.

[48]     The value of the property for the receiving offences is low.  For one offence it was $1,100 and for the other $300.   Nonetheless, it was property that came from burglaries, as opposed to other unlawful conduct.  In this regard, persons who act as receivers for property stolen by burglars make it easy for them to dispose of their loot, which in turn only goes to help and encourage further burglaries.   Thus, the illegal means by which the received property was obtained adds to the seriousness of the receiving offences.   In Aurupa v Police [2012] NZHC 2750, I considered the starting point for receiving where it was the lead offence. I considered a range of cases and concluded at [24] that 12 months’ imprisonment was an appropriate starting point where the offences involved property exceeding $2,000, however, the property concerned was not always obtained through burglary. Whilst the value of the property here is lower than the property considered in Aurupa, which ordinarily would lead to a conclusion that something less than 12 months should be adopted, here there is the additional aggravating feature that it was obtained by burglary.  This leads me to conclude that an uplift that is close to 12 months is appropriate.  I would adopt an uplift of 11 months for the two receiving offences, with a further uplift of one month for the offence of possessing drug utensils.  This brings the sentence to one of 32 months’ imprisonment, before the personal circumstances of Mr Blissett are considered.

Personal circumstances of the offender

[49]     Now is the time to consider Mr Blissett’s past offences.  At 22 years of age, he is comparatively young for someone who has committed so many burglaries.  His

13 previous burglary convictions as an adult, and the earlier seven such convictions in  the Youth  Court  evidence  a  confirmed  tendency  on  his  part  to  commit  this offending.  There is no evidence to suggest that he is a professional burglar of the type that steals to order or who carries out well planned sophisticated burglaries. The available evidence suggests that he offends in this way to obtain funds to feed his drug habit.   Whilst this may explain his conduct, it does not mitigate the seriousness of his offending.  Such conduct needs to be denounced and deterred.

[50]     An uplift of 12 months’ imprisonment has commonly been applied to reflect an extensive history of burglary offending.   In Columbus, Rota, Povey, Snowden, Nelson  and  Johnstone,  this  was  the uplift  applied.    In  some  cases  there was  a significant gap between the offending and earlier offending, whereas in others there was  not.    In  Johnstone, the offender was 26 years old and had 26 previous convictions for burglary. Woolford J said that an uplift of 12 to 18 months’ imprisonment would be appropriate in the circumstances and ultimately decided on an uplift of 12 months’ imprisonment. The Judge considered that this reflected the offender’s “moderately serious previous offending and his age” (at [23]). In Skipper, the Court of Appeal considered an 18 months’ uplift to be appropriate but this was said in a context where the uplift included previous history and the fact the present offending was committed while Mr Skipper was on bail for a charge of burglary (see discussion at [27]).  The present case is distinguishable from Skipper.  I consider it is comparable to Johnstone in this regard.  I consider that there is no basis for departing from the uplift of 12 months’ imprisonment that was imposed in the cases I have already cited.   I am familar with those cases and there is nothing about them that would lead  me to  conclude that  I should  treat  Mr  Blissett  differently from  the offenders in those cases when it comes to uplifting for previous offending.

[51]     In adopting this figure, I have consciously considered if it would amount to re-penalising for the earlier offending.  I do not think it would.  It simply recognises the nature and extent of Mr Blissett’s offending as a burglar over his relatively short life-time as an adult offender.   This brings the sentence before discounts are considered to one of 44 months’ imprisonment.

Available discounts

[52]     Mr Blissett received a full 25 per cent discount for his guilty plea.  No other discounts were given.   He argues that he should have received a discount for his remorse, given the letter of remorse he provided to the sentencing Judge and the steps he has taken since on remand in custody to participate in courses that might assist in his rehabilitation.   Section 9 of the Sentencing Act permits the Court on sentencing to take into account an offender’s age and remorse.

[53]     Mr  Blissett  is  only  22  years  old.    He  needs  every  encouragement  to rehabilitate himself, otherwise he is destined for a life of crime where he is caught in a revolving door of offending followed by periods of incarceration.  His participation in the programmes that were available to him shows a degree of insight into his situation, remorse for his criminal conduct and gives the Court some hope that he is willing to attempt to rehabilitate himself.  I say attempt because without extensive expert help, it is hard to see how he can achieve this alone.  He simply does not have the necessary resources and support available to him.   I consider that a further discount to recognise his age and remorse would be warranted. Accordingly, I would increase the discount by a further five per cent, which would lead to a discount of 30 per cent, being 13 months when rounded down.

[54]     When the 30 per cent discount is deducted from the sentence of 44 months’ imprisonment, it comes to a sentence of two years, seven months’ imprisonment. This sentence is six months short of the total sentence imposed on Mr Blissett in the District Court.  I have considered whether a difference of six months can be said to fall within the range of available sentences.  I think it is too great a difference to be explained in this way, which means that it falls outside the range of appropriate sentences.  I think that the Judge’s reliance on a Senior approach must have led him to some double counting, despite his comments in the sentencing notes suggesting the contrary.   I also think that the Judge’s decision to sentence on the receiving charges cumulatively must have included a failure to pay due regard to the totality principle.  A sentence that falls outside the range of appropriate sentences is one that is also manifestly excessive.  I consider, therefore, that Mr Blissett has made out his

case on appeal.  The sentence imposed in the District Court should be quashed and replaced with a total end sentence of two years and seven months’ imprisonment.

Result

[55]     The  appeal  is  allowed.    The  sentence  imposed  in  the  District  Court  is quashed.  Mr Blissett is sentenced to two years and seven months’ imprisonment on the charge of burglary on 27 January 2012.  On the other burglary charge and the two receiving charges, he is sentenced to 12 months’ imprisonment on each charge.  On the charge of possession of a drug utensil, he is sentenced to three months’ imprisonment. All sentences are to be served concurrently.

Duffy J