Borthwick v Police
[2014] NZHC 2772
•7 November 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2014-483-15 [2014] NZHC 2772
BETWEEN KEEGAN BORTHWICK
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 29 October 2014
(Heard at Wellington by AVL)
Appearances:
S J Burlace for appellant
N A Refoy-Butler for respondentJudgment:
7 November 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Keegan Borthwick, pleaded guilty to three charges of burglary, one count of receiving and one count of unlawful possession of ammunition. Mr Borthwick was sentenced by Judge Lynch in the District Court to two years and three months’ imprisonment.1
[2] Mr Borthwick now appeals against that sentence as being manifestly excessive, essentially on the basis that the starting point of three years’ imprisonment identified by the Judge was too high.
Mr Borthwick’s offending – the facts
[3] Mr Borthwick burgled three separate properties on 23 June, 26 June and
3 July 2014.
1 Police v Borthwick DC Wanganui CRI-2014-083-001038, 23 September 2014.
BORTHWICK v POLICE [2014] NZHC 2772 [7 November 2014]
[4] On 23 June 2014 between 9.00 am and 1.30 pm Mr Borthwick entered a residential property through an unlocked door and stole $2100 worth of property, including three digital cameras, a cell phone and $200 cash.
[5] On 26 June 2014 at 11.30 am Mr Borthwick knocked on the open back door of a second residential property. When he got no reply he entered the property and stole a laptop computer valued at $890 and a compact disk of unknown value. Contrary to Ms Burlace’s submission, the owner – an elderly woman – was in fact at home. She would not appear to have been aware of Mr Borthwick’s presence, nor he of hers.2 Mr Borthwick later sold the laptop online for $50.
[6] On 3 July 2014, Mr Borthwick entered a shed at the back of a third residential property and stole a Bosch angle grinder. He then removed an unlocked padlock from a second shed and took two boxes of ammunition from inside. That ammunition was subsequently found during a search of Mr Borthwick’s home, and formed the principal basis for the charge of unlawful possession.
[7] The final charge on which Mr Borthwick was convicted was receiving. He knowingly received a stolen battery drill from an associate (although he refused to pay for it) before also selling it on line.
[8] All of this offending was committed while Mr Borthwick was subject to a sentence of community detention.
Personal circumstances
[9] Mr Borthwick is 20 years of age.
[10] He was convicted of shoplifting (under $500) in 2014 and of being unlawfully in an enclosed yard or area in 2012. He has various other convictions for wilful damage, breach of community work, failing to answer District Court bail and
driving while disqualified.
2 The fact that the owner was present is revealed in her victim impact statement, as the Judge noted in his sentencing remarks.
[11] These are, however, Mr Borthwick’s first convictions for burglary and this is
his first sentence of imprisonment.
The challenged sentencing decision
[12] The Judge adopted a cumulative starting point of 18 months for each of the first two burglaries and nine months for the third burglary, thus reaching an overall starting point of three years and nine months. The Judge reduced that starting point to three years in accordance with the totality principle, did not apply an uplift for the other offending or the fact that Mr Borthwick’s offending was committed while he was subject to community detention, and allowed a 25 per cent discount on account of Mr Borthwick’s early guilty pleas.
[13] The end result was a sentence of two years and three months’ imprisonment, made up as follows:
(a) for the first two burglaries, concurrent sentences of 21 months (one year and nine months);
(b) for the third burglary, a sentence of six months, cumulative on the
(concurrent) sentence for the first burglary;
(c) for the receiving, one month’s imprisonment (presumably also concurrent on the sentence for the first burglary but not expressed as such); and
(d)for the possession of ammunition, three months, similarly presumably concurrent.
[14] Although jurisdiction to impose home detention was not available the Judge commented that he did not consider home detention appropriate.
[15] The Judge fixed reparation at $2009 and cancelled $9,130.44 of outstanding fines, as well as the remaining three months of Mr Borthwick’s sentence of community detention.
Submissions
[16] Ms Burlace submits on behalf of Mr Borthwick that the starting point was too high. Referring, in addition to Senior v Police,3 to a number of more recent cases,4
Ms Burlace argues a two year starting point for all of the burglary offending was appropriate, suggesting a 12 month starting point for the first burglary with uplifts of six months for each of the other two burglaries. Ms Burlace noted that the two homes burgled were empty;5 the third burglary was of two sheds; the offending was committed during daylight hours and did not involve wanton destruction or vandalism; the sums involved in each burglary were minimal; and the minimal level
of sophistication or apparent planning of the offending. Ms Burlace also submits that a two year starting point is sufficient to take account of Mr Borthwick’s other offending, and the fact that all of the offending for which he was sentenced in the District Court was committed while he was subject to a sentence of community detention.
[17] Allowing a 25 per cent discount on account of Mr Borthwick’s guilty pleas would therefore result in a sentence of 18 months. On that basis, home detention was available. That was the appropriate, and least restrictive, sentencing outcome and one which would best promote Mr Borthwick’s rehabilitation.
[18] For the police, Ms Refoy-Butler acknowledges that the starting point identified by the Judge was a stern one. She submits, however, that when account is taken of the fact that the Judge imposed no uplift for Mr Borthwick’s receiving and unlawful possession offending, nor for the fact that he committed all these offences whilst subject to a sentence of community detention, the end sentence of two years and three months was within range. If this Court reached a different view, and reduced that sentence to 24 months’ imprisonment or less, Ms Refoy-Butler’s further submission was that home detention was not an appropriate sentencing outcome,
essentially because the offending for which that sentence would be imposed had
3 Senior v Police (2000) 18 CRNZ 340 (HC).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482; Kati v Police HC Napier CRI-2011-
449-19, 11 July 2011; Newton v Police [2012] NZHC 2829; R v Columbus [2008] NZCA 192; R v Povey [2009] NZCA 362; Curry v R [2010] NZCA 491; Hale v Police [2012] NZHC 1243; and McArthur v Police [2014] NZHC 201.
5 As already recorded, that is not correct as regards the second burglary.
been committed while Mr Borthwick was subject to a sentence of community detention.
Discussion
[19] In identifying his starting point sentence of three years the Judge set three cumulative sentences, two of 18 months and one of nine months, on the first two and the third burglaries respectively, before applying the totality principle. I recognise that the issue on a sentence appeal is not the method adopted by the Judge, but the actual sentence imposed. Nevertheless, I am concerned that in calculating Mr Borthwick’s starting point sentence on that basis the Judge may have adopted a starting point that was too high, notwithstanding his totality adjustment.
[20] In order to address that concern I will review the Judge’s sentencing exercise. Given that the appeal here is on the basis that the Judge’s starting, and hence end, point sentences were manifestly excessive, and that sentencing is not a precise science, I do so by reference to what I consider to be relevant available sentencing ranges. In doing so, I adopt the following remarks from the Judge’s sentencing notes:
[17] Setting a start point for burglary is a difficult exercise. As the Court of Appeal in Arahanga v R [2012] NZCA 480 observed at 78;
The Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries are at the relatively minor end of the scale tend to attract a starting point of approximately
18 months to two years and six months’ imprisonment.
[21] It would appear to be on the basis of the Arahanga decision that the Judge identified an 18 month starting point sentence for the first burglary, as well as for the second burglary. Therefore, it could be argued that there can be no challenge to a starting point of 18 months with respect to the first burglary Mr Borthwick committed.
[22] I recognise, as Kós J noted in Newton,6 that the Court of Appeal’s decision in Arahanga is not, as that Court expressly noted, a tariff decision. The Court’s observation as to the approximate starting point sentences that dwelling house burglaries at the relatively minor end of the scale tend to attract is just that, an observation. It is not to be taken as setting a fixed minimum sentence starting point for dwelling house burglaries. Moreover, and as Ms Burlace submitted, there are a number of Court of Appeal sentencing decisions, both before and after Arahanga, for dwelling house burglaries at the relatively minor end of the scale, where starting point sentences of less than 18 months have been seen as appropriate.
[23] Having said that, there are also sentencing decisions where, for similar offending, starting point sentences of 18 months have been imposed or upheld. On that basis, I do not think the starting point sentence of 18 months for the first burglary, as identified by the Judge, can be said to be manifestly excessive. By my assessment, the available range is in the vicinity of 15 to 18 months.
[24] The circumstances of the burglary of the second property are similar, although the amount stolen was less. Significantly, the owner of those premises was home at the time of the burglary. She suffers from emphysema and feels worried now for her safety. In my view, an uplift of nine to 12 months would have been appropriate.
[25] Finally, I note that the third burglary did not involve entry onto residential premises, although it did involve the entry of an unlocked garage attached to residential premises. My assessment is that a further uplift of three to six months would have been within range.
[26] Like the Judge, I do not think any uplift is called for on account of the receiving or ammunition offending: the receiving offending does not, in my view, add materially to the criminality of Mr Borthwick’s actions. The charge as regards
the ammunition essentially follows from the theft of ammunition.
6 Newton v Police, above n 4.
[27] I am also of the view that the potentially aggravating factor, that this offending was committed whilst Mr Borthwick was serving a sentence of community detention, is offset by his relatively young age. Whilst no longer a youth, I consider there to be a degree of immaturity in this offending, including as regards the fact that Mr Borthwick was at this time subject to a sentence of community detention. He would appear to have offended in the day time to avoid breaching his curfew.
[28] My assessment is, therefore, that the available starting point sentencing range for Mr Borthwick’s burglary offending would have been between two years and three months and three years. On that basis, and as Ms Refoy-Butler submitted, the Judge opted for a stern, but not manifestly excessive, starting point. I consider it was at the top of the range, but not outside it.
[29] On that basis, I dismiss Mr Borthwick’s appeal.
[30] In these circumstances, the issue of home detention does not arise. Perhaps the most difficult part of this sentencing exercise is the issue of whether or not Mr Borthwick should have received a sentence of home detention rather than imprisonment. A sentence within the range I have identified could have made home detention a possibility. Having said that, I make the following observations:
(a) Mr Borthwick was being sentenced for two burglaries of domestic premises, and one of a garage attached to domestic premises. The courts have consistently expressed concern at the serious nature of the offending involved in the burglary of domestic premises. Whilst that would not result in home detention being, by definition, unavailable, in these circumstances I am not persuaded that even if home detention was available it would have been the appropriate sentence.
(b)Had I been the sentencing Judge, I think the end sentence I would have imposed would likely have been in the vicinity of two years and six months’ imprisonment. On that basis, any sentence of home detention would have been at the very upper end of sentences of that type, and most probably close to the maximum 12 months. A
sentence of 12 months’ home detention is not an easy option, particularly for a young man like Mr Borthwick.
(c) Finally I note that, whilst not relevant in the sentencing exercise, on the basis of the sentence imposed Mr Borthwick will be entitled to be considered for parole after nine months. A lesser sentence of imprisonment, say of two years, would have meant he was entitled to release from prison, but after a somewhat longer period. As the Judge commented, Mr Borthwick should, with the support of his family, put himself in the best position to be considered positively for release on parole by the Parole Board at the first available opportunity. If a release at that time was available to the Parole Board, I think that would be a good outcome for Mr Borthwick, his family and the community.
“Clifford J”
Solicitors:
D Goodlet, Wanganui for appellant.
Crown Solicitor, Wanganui for respondent.
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