Byles v Police

[2016] NZHC 56

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-00049 [2016] NZHC 56

BETWEEN

ERRON JAMES BYLES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 February 2016
Counsel:	J C Hannam for Appellant S J Simpkin for Respondent
Judgment:	3 February 2016

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

Introduction

[1]      The appellant pleaded guilty to one charge of burglary.1     He appeals the

sentence of two years and six months’ imprisonment.

Offending

[2]      Mr Byles attended the scene accompanied by his partner.2    He alone went inside by forcing open a window, having previously failed in his efforts to open a door.   The house was occupied by its two owners, one of whom confronted the partner parked outside.  This led to Mr Byles leaving the property without removing

anything.

1      New Zealand Police v Byles [2015] NZDC 23828.

2      She is charged with the same offence but denies she was involved.  The trial has not yet taken place.

BYLES v NZ POLICE [2016] NZHC 56 [3 February 2016]

Offender

[3]      Mr Byles is 35 years old.  He has a bad history of past offending involving 99 convictions and 56 terms of imprisonment.  Of these, eight are for burglary, the latest being 2008.  That said, there have been 16 convictions since then, including robbery, being in an enclosed yard, demands to steal, threats to do various violent acts, and male assaults female (x2), as well as driving offences.

Sentencing

[4]      The Judge took  a starting point  of three  years’ imprisonment,  added  six months for past offending, and then discounted the total by one year for the plea and the fact there was minimal damage caused and no goods taken.3

Decision

[5]      The key question is always whether the outcome is within range.  Here a six month uplift for this criminal history, including the fact that Mr Byles was at the time of the offending both on release conditions and subject to a sentence of community work, was by no means stern.   Up to a year could have been expected in a case where considerations not only of deterrence but of protection of the public loom large.

[6]      As  regards  these  concerns  Mr Hannam  points  to  material  that  suggests Mr Byles is at last seeking to break this offending cycle he has long been in.  There are legitimate third party observations of a new-found commitment, tempered (as is often the case) by the reality that for now it is manifested only by words.   The objective facts show no change at all in a persistent and somewhat violent pattern of

behaviour.

3      It  is  common  ground  these  matters  have  been  incorrectly considered  as  part  of  personal

[7]      Important to the success of the appeal is the correctness of Mr Hannam’s submission that the starting point should have been 18 months rather than three years. The respondent has pointed to cases where a figure higher than 18 months has been  taken,  but  in  my  view  the  balance  of  authority  favours  Mr Hannam’s proposition.4     This was a single burglary of a dwelling during the day where no goods were taken and minimal damage caused.  It is aggravating that the occupants were present, but overall a figure nearer the bottom of the range for one residential dwelling burglary was to be expected, especially given nothing was stolen.

[8]      The respondent suggests an aggravating factor was the presence in Mr Byle’s car of his young children.  It is an unappealing feature, but not really a matter for uplifting a sentence.   The  young  children  were  not  at  risk  and  would  have no awareness of what was happening.  Pre-meditation is also suggested based on the use of a jemmy, but that is more to suggest the offending was not spontaneous rather than involving the sort of planning the Act is aimed at.  Finally I do not consider one can sentence on the basis there were multiple offenders when the other accused claims her presence was innocent.

[9]      In my view, however one constructs the package, 30 months was the highest available for the offence and aggravating factors.   A discount for the guilty plea would  then  leave  a  final  sentence  of  22.5  months.    However,  at  the  appeal Mr Hannam proffered a cheque of $400 reparation.   This is a genuine effort on behalf of a person in Mr Byles’ position and merits recognition both for its sum, and also for what it says about the commitment to change.

[10]     The appeal is allowed, the sentence is quashed and in its place I impose a sentence of 21 months’ imprisonment, together with an order for reparation of $400

to be paid immediately.

Solicitors:

Hannam and Co Lawyers Ltd, New Plymouth

Crown Solicitors, New Plymouth

Simon France J

4      In Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 the Court of Appeal described the