Bryan v Police
[2021] NZHC 1147
•21 May 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-000013
[2021] NZHC 1147
BETWEEN KRUZ THORNE WILLIAM BRYAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 May 2021 Appearances:
S A Saunderson-Warner for the Appellant C J Bernhardt for the Respondent
Judgment:
21 May 2021
JUDGMENT OF NATION J
Introduction
[1] The appellant, Kruz Bryan, was convicted on one charge of burglary and sentenced to one years’ imprisonment.1 Mr Bryan appeals that sentence.
Background
[2] At about 8.40 pm on 29 December 2020, Mr Bryan and his co-offender went onto a residential property in Alexandra. They went to a garage that was located behind the house. The co-offender got into a vehicle that was parked in the garage and commenced searching it. As Mr Bryan left the property he was observed by the victim walking from the garage past the house. The victim went outside and confronted the co-offender, who was still in the vehicle.
1 Police v Bryan [2021] NZDC 5192.
BRYAN v POLICE [2021] NZHC 1147 [21 May 2021]
[3] The co-offender was aggressive towards the victim before leaving the address. He has entered pleas of not guilty and is awaiting trial.
[4]No items were taken during the burglary.
District Court decision
[5] Judge Turner referred to the Court of Appeal judgment of Arahanga v R in determining the starting point for the offending.2 He noted that, in Arahanga, the Court of Appeal said starting points for what he said they described as “straight forward burglaries of residential properties” fell within the 18 to 30 months’ imprisonment bracket.3 His Honour considered the key aggravating factors to be the residential nature of the premises and that the offending occurred in the evening which increased the risk of confrontation with the occupants. The Judge accepted the burglary appeared to be unplanned, no damage occurred to the property and nothing was taken. He accepted Mr Bryan took a lesser role than his co-offender. The Judge adopted a starting point of 15 months’ imprisonment.
[6] The first aggravating factor personal to Mr Bryan was his significant criminal history, including dishonesty offending, the most recent offending occurring in June 2020. Second, the Judge considered the most aggravating factor of his offending was that it was committed while Mr Bryan was subject to prison release conditions for serious violence offences. The Judge inferred that Mr Bryan had only been released from prison for some weeks. An uplift of three months was applied for these two factors.
[7] A discount of 20 per cent was applied for guilty pleas. A further 10 per cent was applied for Mr Bryan’s willingness to attend restorative justice and the matters contained in the pre-sentence report and, to a more limited extent, matters in a s 27 report filed by the defence. The Judge stated this brought the total credits amount to 30 per cent. The end sentence was just over one year’ imprisonment, which he reduced to 12 months.
2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
3 At [78].
[8] His Honour did not consider this was an appropriate case for home detention to be considered. In any event, Mr Bryan had declined to be assessed for home detention and no suitable address was provided.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.4 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Submissions
Appellant’s submissions
[10] Ms Saunderson-Warner, on behalf of Mr Bryan, submitted the District Court Judge erred in setting a starting point which was too high and failed to apply appropriate credits for mitigating factors.
[11] In written submissions, Ms Saunderson-Warner argued the appropriate starting point should have been nine months’ imprisonment.7 In oral submissions and no doubt in response to the submissions for the respondent, she submitted the starting point should have been no higher than 12 months’ imprisonment. She noted Mr Bryan was a party to the offending and there was no evidence he entered the garage. She submitted the offending was substantially less serious than a standard residential burglary. There was a distinction between entry into a garage and entry to the home itself.
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
7 Referring to R v Columbus [2008] NZCA 192; Gray v Police [2018] NZHC 3245; Chalmers v Police [2017] NZHC 1434.
[12] Counsel did not suggest the uplift for previous convictions was unwarranted but submitted it was relevant Mr Bryan had no prior convictions for burglary. She submitted the uplift had to be proportionate so if the starting point was lowered to nine months’ imprisonment, the uplift should be “marginally” adjusted to a two months uplift.
[13] Ms Saunderson-Warner submitted the guilty plea discount should have been 25 per cent. Mr Bryan first appeared before a Justice of the Peace on 30 December 2020. She submitted he was not required to enter a plea at that stage nor under those circumstances. A plea was entered on 11 January 2021, which was very close to the opening date for the Court in the new year.
[14] She submitted the District Court Judge was wrongly dismissive of the cultural report provided but did not challenge the discount of 10 per cent for personal factors.
Respondent’s submissions
[15] For the respondent, Mr Bernhardt said the starting point adopted was stern and a full 25 per cent discount for a guilty plea was appropriate.
[16] Mr Bernhardt submitted a starting point of 12 months’ imprisonment was appropriate when comparable cases are considered. He noted the only reason nothing was taken and no damage was caused was because the offenders were caught in the act by the property’s occupant. If the Court accepted a starting point of 12 months’ imprisonment was appropriate, he submitted the uplift of three months for prior convictions and offending while on bail remains proportionate.
[17] Mr Bernhardt did not challenge the 10 per cent discount for personal factors. Accordingly, on his analysis, an appropriate sentence would be between nine and 10 months’ imprisonment. He accepted for the Police that a reduction in sentence of approximately one quarter of the sentence imposed would be sufficiently significant to justify a substituted sentence.
Analysis
[18] Neither the District Court Judge in his sentencing notes nor counsel in their submissions arrived at or argued for an end sentence in accordance with the approach now mandated by the Court of Appeal in Moses v R.8 Mr Bernhardt said he had not approached matters that way because proceeding in the same way as the Judge was more favourable to Mr Bryan.
[19] In Moses v R, the Court of Appeal altered the methodology for deducting personal aggravating and mitigating factors and a guilty plea discount to a two-step approach. Relevantly, the sum of personal aggravating and mitigating factors and the guilty plea discount are deducted together from the adjusted starting point.9
[20] The District Court Judge applied a three month uplift to the adjusted starting point for Mr Bryan’s previous criminal history and for the fact the offending was committed while subject to release conditions. These were aggravating factors personal to the offender.10 Accordingly, under Moses, these two factors should have been applied at the second step of the sentencing exercise. A net deduction, reflecting aggravating and mitigating factors, should have been applied to the adjusted starting point. On that basis, in the District Court with the Judge’s starting point and various adjustments, the end sentence would have been 13 and a half months’ imprisonment.
Starting point
[21] The maximum penalty for burglary is 10 years’ imprisonment.11 There is no tariff case for this offence as the range of circumstances in which the offence may be committed vary greatly. The Court of Appeal in Arahanga v R considered “[d]welling house burglaries 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”.12 However, that decision is not a tariff or guideline case.13
8 Moses v R [2020] NZCA 296.
9 At [6]. The adjusted starting point is that which incorporates all aggravating and mitigating features of the offending.
10 Sentencing Act 2002, s 9(1).
11 Crimes Act 1961, s 231(1).
12 Arahanga v R, above n 2, at [78]. Emphasis added.
13 At [78].
[22] In R v Columbus, the Court of Appeal was concerned with a burglary where the offender had broken into a garage in the afternoon, damaged a door, stolen a mountain bike together with gardening tools and a toolbox.14 The mountain bike was pawned later the same day but was recovered by the Police soon after. The Court of Appeal described the burglary as being opportunistic or spontaneous because the offender wanted quick money. The Court said the circumstances of the burglary would not, themselves, justify a starting point of more than one year. R v Columbus was also not a tariff case.
[23] The Court of Appeal’s observations in Arahanga v R as to the range of starting points commonly adopted for burglaries “at the relatively minor end of the scale” was made some four years later.15 R v Columbus had been referred to by the sentencing Judge in Arahanga v R. It had also been discussed by the High Court in Arps v Police and Snowden v Police.16 Those two cases were cited by the Court of Appeal when they observed what they considered tended to be the range of sentences for burglaries at the minor end of the scale.
[24] At sentencing, Mr Bryan’s then counsel referred the Judge to the judgment on appeal of the High Court in Nelson v Police.17 The High Court had to consider the starting point adopted for a burglary of a dwelling house at night where there was a risk of confrontation but there was no information that the offender had actually entered the address, that the occupants were present or that he took anything. He had to be sentenced on the basis he had broken a window and reached in with his hand. On appeal, Hinton J considered an appropriate starting point for this offence would have been 14 months’ imprisonment.
[25] Hinton J referred to a number of cases the appellant had cited concerning burglaries of a dwelling house.18 Hinton J considered those cases and also mentioned
14 R v Columbus, above n 7.
15 Arahanga v R, above n 2, at [78].
16 Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010; Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.
17 Nelson v Police [2019] NZHC 2434.
18 McKee v Police [2012] NZHC 2684; Tairi v Police [2015] NZHC 187; Blissett v Police [2013] NZHC 156.
the cases referred to by Kós J in Newton v Police.19 She concluded that the Court of Appeal’s observation as to the range of sentences in Arahanga v R had not been reflected in the approach adopted in these cases.20 She suggested a more realistic range for dwelling house burglaries, as reflected in the starting points adopted in those cases, would have been between one year to two and a half years’ imprisonment.
[26] Hinton J’s judgment, with its careful consideration of a number of appeal judgments in the High Court, is information as to the range of sentences for somewhat similar burglary offending, as apparent from cases which had come before the High Court.
[27] Sentences for burglaries imposed in the District Court for the sort of offending that occurred here will not often be appealed. In terms of consistency with other sentences, this Court needs to be mindful that Judges in the District Court, through their experience, may be aware of the sentences they or other Judges have commonly imposed for the sort of offending they have to consider but which have never been the subject of appeal.
[28]Consistent with this, in Newton v Police, Kós J in the High Court observed:21
[8] But the High Court on appeal from the District Court will not lightly alter a sentence imposed by an experienced sentencing Judge. It is not the function of this Court to tinker with sentences, or alter them at all unless it feels that the sentence imposed is contrary to both principle and conscience.
[29] In Senior v Police, this Court set out factors which will make a burglary more serious.22 These included behaviour which involved the risk of danger and confrontation with the occupants of a property, a factor which they observed would almost always be present with a burglary of a dwelling house, particularly by night. There was a risk here of such a confrontation even though it was a garage which was entered. Another circumstance that would make a burglary more serious was when the offending occurred while the offender was on parole.
19 Newton v Police [2012] NZHC 2829.
20 Nelson v Police, above n 17, at [33].
21 Newton v Police, above n 19.
22 Senior v Police (2000) 18 CRNZ 340 (HC).
[30] The aggravating factors of the offending here were that Mr Bryan entered onto a residential property with a co-offender. This occurred at 8.40 pm in the evening when there was an increased risk of confrontation with the occupant, as in fact happened between the victim and the co-offender. To get to the garage, the offenders had to go past the home.
[31] It was a significantly aggravating feature of the offending that two offenders were involved.23 As the Court of Appeal acknowledged in R v Columbus, a burglary such as the present offending would have left the occupant of the home with a natural sense of emotional violation and distress.24 When two or more people combine in committing a burglary, the occupant or occupants of the home are likely to be more fearful and more reluctant to intervene to try and stop what is happening if they have the chance to do so. The offenders are however more likely to feel emboldened, increasing the risk of a confrontation and the potential consequences of that for the occupants of the property. I also consider there is likely to have been a greater degree of premeditation when two people are involved. That is because they could not both have been parties to a burglary without them both knowing they were going to enter a property to steal something. For them both to know that, it is likely there would have been prior discussion about what they were going to do and then a joint decision to do it.
[32] I nevertheless accept that the burglary appeared to have been opportunistic with little premeditation. The fact the offenders went to the property at a time when the occupant or occupants were more likely to be there increased the risk of confrontation but also suggests the offenders had not carefully planned a burglary.
[33] The co-offender entered the occupant’s car and must have been looking to see what he could find when the two men were disturbed. Had that not happened and had the co-offender found something of value, he must have been intending to take it. With his plea of guilty, Mr Bryan acknowledged he was assisting the co-offender to enter premises to steal property. The fact they were not able to do so because someone saw
23 As it was in R v Povey [2009] NZCA 362; Hale v Police [2012] NZHC 1243; Zimmerman v Police
[2014] NZHC 3233.
24 R v Columbus, above n 7, at [16].
them does not significantly detract from their culpability, but it does mean less harm was caused by the crime.
[34] The fact Mr Bryan was probably acting as a lookout and was not the person who actually entered the car does suggest it was probably the co-offender who instigated the burglary. With his guilty plea, Mr Bryan nevertheless acknowledged he was a party to the burglary and was assisting with it. He could well have been acting as a lookout. He was thus fully involved in the burglary. The Judge was generous in treating him as having played a lesser role. The Judge had also not identified the involvement of two offenders in the burglary as being an aggravating circumstance of the offending.
[35] In sentencing Mr Bryan, the Court had to hold him accountable for the harm done to the victim, denounce his conduct and deter him and others from committing a similar offence. The Court also had to arrive at a sentence consistent with other sentences imposed for similar offending.
[36] The Police submitted an appropriate starting point for the burglary should have been 12 months’ imprisonment. I discuss the matter further on that basis but consider that, although a starting point of 15 months’ imprisonment was stern, it was within the range of starting points available for this offending.
[37] The Judge adjusted his starting point of 15 months’ imprisonment with an uplift of three months because of Mr Bryan’s history of criminal offending, particularly the fact he was not long out of prison and on pre-release conditions.
[38] In Columbus, the starting point for the actual offending was 12 months for the burglary with an additional six months for multiple offences and for a series of minor offences, including theft, committed after that and while on bail, leading to an adjusted starting point of 18 months.25 Mr Columbus had an extensive history of criminal offending, including 13 previous convictions for burglary and another 34 for property- related offences. The Court said his history suggested his offending was of a spontaneous nature and did not suggest a professional disposition to burglary. The
25 At [16]-[17].
Court considered his history showed a risk of reoffending at the same reasonably minor end of the scale that characterised the criminal offending for which he was being sentenced. On that basis and to recognise the emphasis that had to be put on prevention and protection of the pubic, the Court considered an uplift of one year against the adjusted starting point of one and half years’ imprisonment was appropriate.
[39] On 28 January 2011, Mr Bryan was sentenced to imprisonment for burglary. On 15 June 2020, he was sentenced to community work for six charges of shoplifting between August and October 2019. He had a history of non-compliance with Court orders, seven offences for breach of prison release conditions, five for breaches of community work, three for breaches of community detention and five for breaches of home detention. He had been charged 15 times with offences committed while on bail. He committed the current offending when only recently released from prison and while still subject to release conditions. Contrary to the submission from defence counsel, he did have a prior conviction for burglary from January 2011. This was for an offence of burglary committed on 30 August 2010 by night. An order for reparation of $2,250 was made so the burglary had involved a theft of property of significant value. For that and other offending, he had been sentenced to imprisonment.
[40] I consider his circumstances at the time of this offending and his previous history indicated there was a significant risk of further offending. This increased the need for deterrence and protection of the public. An uplift of three months was consistent with the uplift adopted by Kós J in Newton for the fact, there, the offending had occurred while on bail and the offender had prior dishonesty convictions.26 In that case, the offender was to be treated as a first time burglar and there were a number of mitigating features of the offending which did not apply to Mr Bryan’s offending. I consider that uplift would have remained appropriate even if it was 25 per cent of a starting point of 12 months’ imprisonment.
[41] The Police acknowledge Mr Bryan should have had a discount of 25 per cent for his guilty plea. Although when he first appeared he entered a plea of not guilty, he pleaded guilty soon after that. There is no automatic entitlement to a 25 per cent
26 Newton v Police, above n 19.
discount for a guilty plea. The Judge may have been less willing to grant such a discount because of the way Mr Bryan had not acknowledged the criminality of his offending when he spoke to the pre-sentence report writer, telling the writer he only went onto the property to locate his cousin. The pre-sentence report also referred to Mr Bryan’s earlier involvement with Corrections where he minimised his offending history and blamed other people for his offences and outcomes. I note however that the summary of facts said the occupant of the subject property was unable to identify the two offenders. With his guilty plea, Mr Bryan acknowledged his involvement and his intentions at the time. There were significant benefits for the administration of justice generally with an early guilty plea. It was appropriate that he receive a credit of 25 per cent for that guilty plea.
[42] There was no challenge from either Mr Bryan or the Police to the discount of 10 per cent primarily for personal matters referred to in the pre-sentence report. I do not consider the Judge could be fairly criticised for the criticisms he made of the s 27 report. It was based entirely on the self reports of Mr Bryan. The report writer was suggesting there were aspects of his family background that could explain his current lifestyle and the way he was at risk of further offending. The report referred to Mr Bryan’s dishonesty, his tendency to blame others and the system for his offences and outcomes. The report would have been more useful if the report writer had been able to speak to members of his family to verify the information Mr Bryan had given.
[43] Just as importantly, the Judge would have benefitted from knowing whether, within his family or community, there might be pro-social support which could divert Mr Bryan from the associations and lifestyle which were significant factors in his offending. That was particularly important when Mr Bryan was saying he had plans to work on a fishing boat with his father.
[44] The report writer said Mr Bryan had not been able to provide contact details for any family members or any other persons to confirm or provide support for him.
[45] Mr Bryan is now aged 28. His history of criminal offending includes many offences for breaches of sentences or release conditions, but also several offences for driving while licence suspended or revoked and driving while disqualified. Combined
with that are offences of dishonesty, four assaults and in November 2020 a sentence of imprisonment for wounding with intent to injure. That history is suggestive of a generally antisocial approach towards people, the property rights of others and towards authority. This was not offending which could be attributed to the particular circumstances he was in or the way he reacted to people he was confronted with. In some situations, the way offenders deal with the situations they are in or the people they are involved with can be related back to the behaviour of others they were exposed to or suffered from when young. That can provide an explanation for their later offending. Here, Mr Bryan and his co-offender were simply taking advantage of the situation they were in to try and steal property. The s 27 report does not explain why Mr Bryan has chosen to live his life in the way much of his offending demonstrates and it did not establish there was a nexus between the background described in the report and this particular offending.
[46] The restorative justice report indicated Mr Bryan was willing to proceed with restorative justice. The victim did not wish to be involved. This was not however a situation where Mr Bryan could be given any credit for remorse over and above a guilty plea. In the pre-sentence report, he had denied the offending.
[47] The pre-sentence report did identify Mr Bryan appeared to have some insight into his criminal history and had been able to identify that his attitude was a contributing factor to his history of offending. The report however advised the Court that Mr Bryan’s engagement with his current probation officer had been poor, that he had been dishonest around his actions and whereabouts and, as a result, his ability to comply with a community sentence was assessed as low.
[48] Despite those considerations, the Judge gave Mr Bryan a discount of 10 per cent for personal matters. That is not challenged. I consider it was generous.
[49] To arrive at an end sentence on the Moses approach, against a starting point of 12 months’ imprisonment, there would first be an uplift of 25 per cent for his offending history. That would be cancelled out by a discount of 25 per cent for a guilty plea. There would then be a discount of 10 per cent for personal factors. This would result in a net adjustment to a 12 month starting point of 10 per cent, i.e. 1.2 months, to bring the end sentence back to a little more than 10 and a half months. That would be only around one and a half months less than the sentence actually imposed in the District Court.
[50] To succeed on an appeal against sentence, Mr Bryan has to show there were errors in the original sentencing and that the ultimate sentence was manifestly excessive. In R v Monkman, the Court of Appeal said:27
[6] Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).
[51] In R v MacCulloch, the Court of Appeal said the issue of whether or not a sentence is manifestly excessive is to be examined in terms of the sentence actually passed, rather than the process by which it is reached.28
[52] The R v Taueki29 or Moses30 approach to sentencing does require sentencing to be imposed on a formulaic basis but at various steps in that process there is a range of legitimate outcomes that would properly be available to a sentencing Judge. Here, even if 12 months could have been an appropriate starting point for the burglary offence, I do not consider the starting point adopted of 15 months’ imprisonment would have been in error.
[53] I do not consider there was any error in the uplift of three months for the previous offending and for offending while on parole.
27 R v Monkman CA445/02 3 March 2003.
28 R v MacCulloch [2005] 2 NZLR 665 (CA) at [50]. See also Islam v R [2020] NZCA 140, citing
Tutakangahau v R, above n 5, at [36].
29 R v Taueki [2005] 3 NZLR 372 (CA).
30 Moses v R, above n 8.
[54] There has been no challenge to a discount of 10 per cent for matters relating to Mr Bryan personally but that discount could have been less without being an error.
[55] On an appeal, the focus must be on the end sentence. It is important to stand back and assess whether a sentence of 12 months’ imprisonment was manifestly excessive for this offending and this offender. For all the reasons discussed, I have not been persuaded that the sentence imposed was manifestly excessive.
[56]Accordingly, the appeal is dismissed.
Solicitors:
S Saunderson-Warner, Barrister, Dunedin Crown Solicitor’s Office, Dunedin.
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