Blissett v Police HC Auckland CRI 2010-404-64

[2010] NZHC 507

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2010-404-64

BETWEEN  JOSHUA ALLEN BLISSETT

Appellant

ANDPOLICE Respondent

Hearing:         12 April 2010

Appearances:  S Cowdell for Appellant

K Mills for Respondent

Judgment:      21 April 2010

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

21 April 2010 at 10.00 a.m., pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

S Cowdell, PO Box 76 683, Manukau City

BLISSETT V POLICE HC AK CRI-2010-404-64  21 April 2010

[1]      The  appellant  appeals  against  an  effective  term  of  imprisonment  of  three years that was imposed in the District Court at Auckland by Judge Field.

[2]      There  are  no  sentencing  notes. A  letter  from  the  District  Court  to  the Registrar of this Court explains that the recording made of the Judge’s remarks was faulty  and  what  he  said  has  not  been  able  to  be  transcribed.   Understandably,  the Judge   himself   was   unable   to   recall   the   specifics   of   the   sentencing. In   the circumstances, as both counsel accepted, it is necessary to approach the sentencing task anew.

The offending

[3]      The  appellant  pleaded  guilty  to  six  counts  of  burglary,  two  counts  of dishonestly using a document, and counts of unlawfully getting into a motor vehicle, unlawfully  taking  a  motor  vehicle,  driving  at  a  dangerous  speed,  three  charges  of breaching release conditions, three further offences alleged under the Land Transport Act  1998  (giving  false  details,  driving  carelessly  and  failing  to  stop),  and  three charges of breach of bail.

[4]      The burglary counts were plainly the most serious charges faced and carried with them maximum terms of imprisonment of ten  years in each case. The Judge imposed concurrent terms of three years’ imprisonment in relation to each count.

[5]      In relation to the offences of using a document, unlawfully getting into and unlawfully taking motor vehicles, concurrent terms of three months’ imprisonment were imposed.  For driving at a dangerous speed a concurrent term of one month was imposed and for each of the breaches of release conditions concurrent terms of two months were imposed.

[6]      The appellant was convicted and discharged on the remaining counts.

[7]      The burglaries were committed in six residential properties on six separate dates over a period of five months from 26 March  to  12  August  2009. They occurred  at  different  times  ranging  from  early  in  the  morning  to  mid  and  late

morning.  On one occasion the appellant entered through an open garage door, on the other occasions entry was forced.   A property situated in Waimauku Valley Road, Waimauku was burgled on 12 August 2009, the appellant acting with two associates. On  one  occasion  the  occupant  of  the  premises  was  in  bed  asleep,  the  appellant forcing the laundry door of a house situated in Epsom at some time between 3.00 and 4.30 a.m.

[8]      The respondent submits that the Waimauku offending showed a greater level

of premeditation than the other burglaries.  The premises were operated as a bed and breakfast business.   One of the three involved in the offending spoke to the victim about  the  possibility  of  renting  a  room.  When  she  left  the  premises  all  three followed her down the driveway.   They waited until she left the property and then drove back up the driveway to force their entry.   A large amount of gold jewellery was taken, but the victim returned while the appellant and his associates were still present.  They made their escape and the victim called the police.  The appellant was apprehended near Kumeu a short time later with jewellery valued at $20,000 found in the car. This offending occurred on 12 August 2009 when the appellant had been released on bail in respect of earlier offending.

[9]      In all, the appellant stole from the six residential properties goods to the value

of over $30,000.

The Crown’s submissions

[10]     Ms Mills for the Crown submitted that the end  sentence  imposed was well within the range available to the  sentencing Judge. She  noted  that  there  were six burglaries of residential premises and referred to the value of the property stolen. In one of the burglaries the victim had been present sleeping when the appellant broke

in and at least one of the burglaries showed a high degree of premeditation.  Further, the offending was aggravated by the fact that the appellant appeared for sentencing

on a further 14 charges relating to a variety of offending.

[11]     Ms Mills also referred to aggravating factors personal to the appellant.   He has a significant history of previous offending including seven burglary convictions

and seven other occasions when the Youth Court held that burglary had been proved against him and had sentenced him in accordance with the provisions of Part 4 of the Children, Young Persons, and Their Families Act 1989.   Ms Mills emphasised also that one of the burglaries had been committed whilst the appellant was on bail as had the offending charged as using a document, and the charges of driving at a dangerous speed, failing to stop and unlawfully getting into a motor vehicle.

[12]     In the circumstances Ms Mills submitted that a starting point of three and a half  years’  imprisonment  or  higher  was  available  to  the  sentencing  Judge,  that  an uplift of up to one year in respect of previous convictions would have been justified and  that  allowing  for  a  discount  of  30  per  cent  for  the  guilty  pleas  the  sentence imposed  was  not  clearly  excessive.          Ms Mills  submitted  that  the  extensive  list  of previous convictions meant that the appellant was not entitled to any discount for his age (he was aged 18 when the burglary offending commenced in March 2009, and turned 19 in May of that year).

The appellant’s submissions

[13]     In  her  written  submissions  Ms  Cowdell  argued  that  the  Judge  must  have taken a starting point of at least four and a half years, which he then reduced to three years  on  the  basis  of  the  guilty  pleas  and  possibly  an  element  recognising  the appellant’s youth.  She submitted that whatever the starting point was it was too high and  that  there  had  been  insufficient  deduction  for  mitigating  factors,  namely  the guilty pleas, his comparative youth and his remorse.

[14]     She submitted that the appellant was entitled to a reduction of at least a third

for his guilty pleas alone and  that  his  co-operation  with  the  police  by  making admissions should have been recognised.   She referred to a number of authorities.[1]

She submitted that all had involved offenders who were older and that they all had circumstances  more  serious  than  the  present  matter,  yet  all  had  involved  similar sentences to that imposed here.

[1] Including  R  v  Columbus  [2008]  NZCA  192,  R  v  Povey  [2009]  NZCA362,  Mason  v  Police  HC Palmerston North CRI-2009-454-48, 2 February 2010 and R v Aldridge [2009] NZCA550.

[15]     In the oral argument the main emphasis of Ms Cowdell’s submission was to request  that  the  Court  impose  a  community  based  sentence. She  noted  that  the appellant  had  commenced  offending  at  the  age  of  15,  and  that  he  had  frequently appeared in the Youth Court from then on.   He came from a dysfunctional family, being the son of a mother who was a drug addict and a father who was prominent in Black Power.  His parents had sent him to his grandmother’s house to look after him from the age of about five years on, but he had lived with his father when the latter was released from prison.  Ms Cowdell claimed that both parents had in fact played a role  in  teaching  him  to  commit  crime  and  that  he  had  essentially been  “run”  as  a burglar by members of Black Power.

[16]     Although  the  appellant  had  frequently  appeared  before  the  Courts,  he  had never been sentenced on a basis that emphasised rehabilitation.  From an early stage the sentences imposed had been custodial in nature.  She mentioned that of his own initiative the appellant had made application to Odyssey House.   At the time of the hearing  the  necessary  assessment  of  whether  he  would  be  accepted  into  Odyssey House had not been made but because he is under the age of 20 he would have some priority for acceptance into that institution.

[17]     To some extent Ms Cowdell’s submissions were reflected in the pre-sentence report that was available  to  the  District  Court  Judge.  That report noted that the appellant had been placed with Child, Youth and Family from the age of nine until

he  was  16.   He  evidently  ran  away  from  homes  that  he  had  been  placed  in.   He acknowledged that he had been in and out of prison since.   He also acknowledged that  he  was  a  daily  user  of  methamphetamine  and  smokes  cannabis  two  or  three times  a  week.  Departmental  screening  tests  for  drugs  identified  that  he  had  an extremely harmful pattern of drug use.

Discussion

[18]     I do not consider that it is a realistic option to sentence the appellant to anything other than a term of imprisonment. To do so would not appropriately hold him accountable, denounce his conduct, and serve the  purposes  of  deterrence  and protection as required by s 7(1) of the Sentencing Act. While his willingness to seek

treatment for his addiction shows, perhaps for the first time, a willingness on his part

to confront some of the issues that may offer a partial explanation for his unlawful conduct, his record of offending is too substantial for the Court to impose anything other than a custodial sentence. In that respect, it is not only the numerous charges

for  which  he  must  now  be  sentenced  that  need  to  be  taken  into  account,  but  also those that he has previously committed.

[19]     There  are  some  40  convictions  in  his  history,  including  seven  for  burglary and  other  offences  involving  theft  and  dishonesty. As  well  as  the  burglary convictions  some  account  may  be  taken  under  s 9(4)(a)  of  the  Act,  for  present purposes,  of  the  seven  other  occasions  on  which  he  was  sentenced  in  the  Youth Court for burglary.

[20]     While   Ms   Cowdell   is   correct   that   it   appears   sentences   of   a   purely rehabilitative emphasis have not previously been applied, it is simply not possible to adopt such an approach now, given the appellant’s history, the serious nature of the present offending and the number of offences for which the appellant was required to be sentenced.

[21]     Ms Cowdell submitted that the Judge must have adopted a starting point of four and a half years. It is possible that he did so, treating the appellant’s previous convictions as relevant to the starting point and recognising in accordance with the totality principle the need to ensure that the sentences for the lead offences reflected the gravity of the overall offending.   Suh an approach would not be in accordance

with the approach generally required by  R  v  Taueki,[2]   but  the  Court  of  Appeal

[2] R v Taueki [2005] 3 NZLR 372.

recognised in R v Columbus[3]that in dealing with offenders with a substantial history

[3] R v Columbus above n 1

of burglary convictions, previous dishonesty convictions are often treated as components of the burglary starting point, the  relationale  being  that  the  previous offending is directly relevant to assessing the degree of the offender’s culpability and

for  the  purposes  of  deterrence  and  community protection.  The Court in that case

referred to the earlier decision in R v Lowe,[4]  quoting what was said at [31] in that case:

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  way  of  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.

[4] R v Lowe CA62/05, 4 July 2005. 

[22]     Whether that approach is taken, or R v Taueki is followed ought not to make

a difference and it is important to ensure that there  is  no  double  counting  of  the aggravating element of the previous convictions. Given  the  circumstances  of  this case, and the absence of the Judge’s sentencing notes, I think it preferable to proceed

in  accordance  with  R  v  Taueki  and  fix  a  starting  point  which  is  not  weighted  to reflect the appellant’s previous convictions.

[23]     One of the  cases  to  which  Ms Cowdell  referred  was  R v Povey.[5] She contended  that  in  both  that  case  and  the  two  High  Court authorities  to  which  she referred,  the  offenders  had  all  been  older  and  in one  way  or  another  the  facts involved more aggravating circumstances. In Povey, the Court of Appeal upheld an end sentence of three years’ imprisonment  arrived at on the basis of a two year starting point, and an additional year to recognise the appellant’s previous convictions (the Court referred to a 40 year criminal history including a long list of dishonesty  offending, 22 convictions for burglary and other  convictions  for  theft, robbery and other associated dishonesty offences).  While the offender in that case was plainly an older man, the history of the appellant as I explain below is such that his age cannot justifiably result in a discount.  The main difference between this case and  Povey  is  that  the  present  appellant  required  to  be  sentenced  in  respect  of  six burglaries, and not one.

[5] R v Povey [2009] NZCA 362.

[24]     In R v Aldridge[6]the appellant was aged 44 and had 110 previous dishonesty convictions. In sentencing her for two burglaries, one committed in commercial premises and the other the burglary of a house the sentencing Judge adopted a five year starting point for the burglaries and the Court of Appeal upheld that approach on  appeal.   Although  the  offending  occurred  when  the  appellant  was  subject  to  a sentence  of  home  detention,  I  do  not  consider  that  this  case  really  assists  the appellant.

[6] R v Aldridge [2009] NZCA 550.

[25]     In Mason v Police,[7]another case referred to by Ms Cowdell, Joseph Williams J adopted a two year starting point  in respect of one charge of burglary but that case cannot really be influential here where the appellant was to be sentenced on six counts of burglary. Finally, in R v Columbus, to which I have already referred, the Court of Appeal adopted a two and a half year starting point, but once again the context was a guilty plea on one charge of burglary, with two lesser charges of theft, and comparatively minor offending under the Misuse of Drugs Act 1987.

[7] Mason v Police HC Palmerston North CRI-2009-454-48, 2 February 2010

[26]     In my view, a starting point in the present case in the vicinity of three years would be justified having regard to the totality of the offending.   With reference to the burglaries alone, the significant considerations are:

a)        The appellant had to be sentenced for six burglaries, that all involved burglaries of residential properties.

b)        All save one were cases of forced entry.

c)        In one case the occupant was present and asleep.

d)Goods to a reasonably significant value were stolen and in large part have not been recovered.

e)        In  the  case  of  the  Waimauku  Valley  Road  property  the  appellant appeared   to   act   in   concert   with   two   others   and   on   a   plainly premeditated basis.

[27]     Applying  the  totality  principle  some  account  also  needs  to  be  taken  of  the other offending for which the appellant must be sentenced and in respect of which the Judge imposed cumulative sentences ranging from one month to three months’ imprisonment.     In  those  circumstances  the  starting  point  of  three  years  is  plainly appropriate.

[28]     To  that  starting  point  there  needs  to  be  an  uplift  to  reflect  the  appellant’s previous offending.   I have already described it.   I consider it would be appropriate for there to be an uplift of nine months to reflect the previous offending.

[29]     I do not consider that this is a case where there should be any deduction on the basis of the appellant’s youth.  He was 18 years of age when the offending took place and 19 years when sentenced. He has previously been sentenced to custodial sentences  and  he has  re-offended. In my view, the time when there should  be  a discount  for  sentencing  purposes  on  account  of  age  has  passed. He  is,  however, entitled  to  full  credit  for  his  guilty  pleas  which  the  Crown  accepts  occurred sufficiently early for them to attract full credit.

[30]     In  the  result,  the  sentence  arrived  at  would  be  two  years  six  months’ imprisonment.   The  difference  between  that  sentence  and  the  three  years  that  the Judge imposed is significant enough to allow the appeal and substitute the sentence at which I have arrived.

[31]     It  is  unfortunate  that  the  appellant  has  apparently  only  recently  begun  to understand the desirability of obtaining treatment for his addiction and altering the course of his life.  It would be desirable for the prison authorities to take what steps it can  to  assist  him  whilst  he  is  in  prison.  If  he  maintains  his  present  attitude  that would  doubtless  be  a  significant  factor  when  the  question  of  parole  comes  to  be considered by the Parole Board.

Result

[32]     The appeal is allowed and the sentence of three years imposed in the District Court is quashed.  Instead, the appellant is sentenced, on the six burglary charges, to concurrent terms of two years six months’ imprisonment.   In all other respects the sentences imposed in the District Court remain.