Brown v Police

[2014] NZHC 68

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-442-1

CRI-2014-442-2 [2014] NZHC 68

BETWEEN  ANDREW STEWART BROWN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   4 February 2014

Counsel:                  R W Ord for Appellant

E J Riddell and A L Mills for Respondent

Judgment:                5 February 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 5 February 2014 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Nelson

BROWN v NEW ZEALAND POLICE [2014] NZHC 68 [5 February 2014]

Introduction

[1]      Mr Brown appeals against a sentence of 14 months’ imprisonment imposed in the District Court at Nelson by Judge Zohrab,1 on the ground the sentence imposed is manifestly excessive because:

(a)       the Judge should have adopted a lower starting point; and

(b)Mr Brown should be entitled to a full discount of 25% for an early guilty   plea,   rather   than   a   discount   of   20%   as   allowed   by Judge Zohrab.

Circumstances of the offending

[2]      On 6 January 2014 Mr Brown pleaded guilty and was convicted of burglary, unlawful  possession  of  a  firearm  and  two  charges  of  receiving  property.    On

21 March  Mr  Brown  had  received  a  Tikka  .308  rifle  and  .308  ammunition  in exchange for $1500.   The rifle and ammunition were stolen in an earlier burglary and, according to the Crown, have an approximate value of $2000.  Mr Brown did not  hold  a  firearms  licence  for  the  rifle.    On  22  December  2013  Mr  Brown unlawfully entered a caravan and stole a radio, a camping gas cylinder and several grocery  items.     The   offending  was   described   by  the  sentencing   Judge  as opportunistic.

Previous history

[3]      Mr  Brown  has  a  number  of  previous  dishonesty  and  other  convictions, including 10 previous convictions for burglary.  Of relevance are the following.

[4]      In 1998 he was convicted on two counts of burglary ($500-$5000 and under

$500 respectively) and sentenced to three months’ imprisonment.  I note that, at this time, he was also convicted and sentenced to a cumulative term of imprisonment on three charges of attempted arson and one charge of wilfully setting fire to property so

as to endanger life.

1      New Zealand Police v Brown DC Nelson CRI-2013-042-002888, 14 January 2014.

[5]      In 2000, Mr Brown was convicted on two counts of burglary (under $500), five counts of burglary ($500-$5000), two counts of theft of property (under $500), three counts of theft of property ($500-$5000), two counts of taking a document for pecuniary advantage and three counts of obtaining accommodation through credit by fraud.  He was sentenced concurrently to a total of two years’ imprisonment.

[6]      In 2009 Mr Brown was again convicted of burglary and sentenced to six months’ imprisonment.    The  time  period  between  2000  and  2009  represents  a significant  gap  in  this  type of offending and  the lapse,  in  terms  of the present offending, appears to have occurred at a time when he was without work.

District Court decision

[7]      The Judge took into account the gap in time since Mr Brown’s last burglary conviction.    He commented that,  while this  was  a burglary of a caravan  not  a residential home, the caravan was being lived in at the time of the burglary.   He accepted that the rifle was not received for the purpose of further criminal offending, but noted that the criminal aspect of receiving is encouragement of burglars.

[8]      The Judge adopted a starting point of 18 months, referring to Arahanga v R, in which the Court of Appeal held that 18 months is a reasonable starting point for a stock standard burglary of a residential property.2   This starting point also took into account the receiving charge.  There was no uplift for prior history and a deduction of four months for Mr Brown’s guilty plea, to reach an end sentence of 14 months’ imprisonment.  A three month concurrent sentence was imposed on the remaining charges.

Appellant submissions

[9]      In   relation   to   starting   point,   Mr   Ord   argued   that   Arahanga   should distinguished because this was a burglary of a caravan and therefore should not be considered a “stock standard residential burglary”.  He referred to Wilson v R.3    In

that case Wilson entered a residential dwelling through a second storey bedroom

2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

3      Wilson v R [2012] NZHC 65.

window.  He woke the sole occupier and she told him to leave.  He had a lengthy criminal record, including 11 previous convictions for burglary and was subject to release conditions at the time of the offending.   He received 15 months’ imprisonment. The Court identified the following relevant factors:

(a)      the burgled property was a residential dwelling, which heightened the risk of confrontation with occupiers and meant there was a clear invasion of privacy;

(b)      the premise was occupied by a female in bed;

(c)       there was an unlawful entry into the dwelling house; (d)        the offending occurred at night; and

(e)      the offending occurred just after Mr Wilson had been released from custody for a recent burglary and he was in breach of his release conditions when he committed the offence.

[10]     The Court commented that the starting point of 20 months’ imprisonment was a little high and seemed to have included factors personal to Mr Wilson.   But the Court was satisfied that no manifest error had resulted because Mr Wilson had an appalling criminal history, was not remorseful and had not made any attempt at rehabilitation.

[11]     Mr Ord argued that the offending in this case was less severe than in Wilson and Arahanga and therefore a starting point of “considerably less than one year” was justified. He noted that the Judge had not applied an uplift for Mr Brown’s offending history, but submitted that any uplift for prior convictions would have been limited, given the length of time and the change of circumstances since prior similar offending.

[12]     In  relation  to  the  discount  for  no  guilty  plea,  Mr  Ord  submitted  that

Mr Brown was entitled to a full discount of 25%, or 4.5 months (as opposed to

4 months).

[13]     In  relation  to  the  remaining  charges,  Mr  Ord  submitted  that  a  short cumulative sentence was appropriate.

[14]     In conclusion Mr Ord pointed out that Mr Brown had been earning an honest living for some years before becoming unemployed.  He acknowledged that he “fell off the rails” by offending in this manner but submitted that a short sharp reminder not to reoffend was what was required.

[15]     In the alternative, Mr Ord submitted that community work and supervision ought to have been imposed.

Crown submissions

[16]     Ms Riddell, for the Crown, submitted that the starting point was within the range appropriate for the offending, particularly when taking into account the receiving and unlawful possession charges.  She said the Judge was correct to apply Arahanga to the present case.   The caravan is treated as a fulltime home by the occupier and should be considered as a residential dwelling house.   The burglary took place at night, which meant there was a high risk of the appellant coming into contact with the occupier.

[17]     In relation to the remaining charges, Ms Riddell submitted that the receiving offence was relatively serious and could easily have warranted a discrete uplift or cumulative sentence.  In particular, she referred to O’Connell v Police, in which the Court imposed a starting point of 12 months’ imprisonment for receiving firearms

valued at around $2000.4

Discussion

[18]     The Crown’s submission that the caravan ought to be treated as a residential house is clearly correct. As the Court of Appeal in Arahanga highlighted, the risk of confrontation with the occupant and the invasion of privacy are aggravating factors inherent in the burglary of a residential home.  Both factors were present here, and

the fact the property was a caravan is irrelevant.   Further, the starting point could

4      O’Connell v Police [2012] NZHC 3286.

have been uplifted to reflect the remaining charges.  The starting point adopted by the Judge was therefore within the range available to him.

[19]     Given  the  starting  point  could  have  been  higher,  I  am  not  satisfied  the discount for guilty plea applied by the Judge resulted in a manifestly excessive sentence.

[20]     For completeness, I note and agree with the Judge’s decision not to impose an uplift to reflect Mr Brown’s previous history, as Mr Brown has clearly made a serious effort to turn his life around and achieved some success in doing so, on record falling from grace on only two occasions in the past 14 years.

[21]     In  conclusion,  the  sentence  imposed  cannot  be  regarded  as  manifestly excessive. The appeal is dismissed.

Goddard J