C v Police HC Wanganui CRI 2007 483 34

[2008] NZHC 2157

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI  2007 483 34

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 February 2008

Appearances: D Goodlet for Appellant

H Mallalieu for Respondent

Judgment:      7 February 2008

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal of 10 months’ imprisonment imposed in the District Court at Wanganui on 15 November 2007 on one charge of burglary.   At that time reparation of $900.00 was ordered, being the Appellant’s share of the damage caused to a Police car.

[2]      The essential grounds of appeal either was that the term of imprisonment was manifestly excessive for a first conviction of burglary.   Ms Goodlet responsibly accepts that a prison term was justified, given the nature of the crime and the other criminal history of Mr C  , but she submits that anything beyond six months

imprisonment was excessive.

C V NEW ZEALAND POLICE HC WANG CRI  2007 483 34  7 February 2008

[3]      The essential facts are unremarkable.  Mr C   who is said by the Probation Officer a fully patched member of the Wellington chapter of the Mongrel Mob (I am not  completely  sure  of  that).    The  Probation  Officer  says  that  it  is  probably Mr C  ’s father who is the fully patched member of the Wellington chapter of the Mongrel Mob since the age of 21.  But Mr C   himself is, at the very least, an associate, or linked with that organisation.

[4]      In any event, he in the company of two other men, went to a residential home in Hastings; a door was jemmied opened by an associate and all three entered the home removing a number of items including electronic items, computer system, Plasma television and other electronic material.   The total value of items was approximately $7,000.  Some other property was left at the front door of the dwelling in preparation for loading into the vehicle.  But for some reason the Appellant and his associates hurriedly left the vehicle with an associate driving.

[5]      A very alarming chase then followed whilst the vehicle was pursued by a Police patrol car in the vicinity of Hastings.   The associate of the Appellant accelerated up to 170km per hour, and at times this was in a 50km speed zone.  Of course the Appellant was not criminally responsible for that driving but he was one of three in the car who needed to evade the Police by reason of the burglary that had taken place, and the items that were in the vehicle.   Eventually the vehicle was stopped after being damaged by a Police car.  It seems that each of the men involved admitted committing the burglary.  It would have been difficult to defend given the recent possession of the stolen items and the damage to the door on the property.

[6]      The Judge when sentencing Mr C   set out those facts and the relevant matters contained in the pre-sentence report.  He noted that the Appellant “had been a member of a gang since an early age which no doubt is a contributing factor to your criminal liability”.   He said that the Appellant had fines of about $43,000 outstanding and that at the time of commission of this offence he was on bail.

[7]      The report indicated, and the Judge noted this, that there was little confidence that the Appellant would comply with a community based sentence.   A custodial sentence was recommended which was not, to a large degree, disputed by Counsel at

that time.   As I have said Ms Goodlet does not dispute that in this but says that

10 months was manifestly excessive.

[8]      In imposing the sentence of imprisonment the Judge said “burglaries are all too common and often, especially people in a gang life lifestyle.  It is … bread and butter to the survival, economically, of gangs but you need to know that people suffer terrible consequences from burglaries, not just the loss of property.”

[9]      I need to say that Judge, after imposing a term of 10 months imprisonment purported to give leave (even though that had not been sought), to Mr C   to apply for a substitution of sentence.  It is not contended that that is appropriate in this case. But, in any event the Judge appears to have overlooked the fact that a Judge can only grant leave, and indeed must do so, to apply for home detention, if the Judge would have sentence an offender to home detention but no suitable home was available at the time.  Then leave to apply for the substitution arises, should it be, that a suitable residence becomes available.

[10]     The   Appellant’s   co-offenders   received   terms   of   2   years,   2   months imprisonment, (for a defendant who had a very serious criminal history including two for other burglary offences), and Mr Reweti was sentenced to 17 months imprisonment, he having a significant criminal history but on my reading of the material before me, it did not have any previous convictions for burglary.

[11]     It is sometimes said that first time burglars do not usually go to prison, and that is based upon the marks that were made in Senior v New Zealand Police (2000)

18 CRNZ 340.   However, earlier Tipping J in Tawa v New Zealand Police (HC Dunedin AP 20/95, 17 March 1995) had this to say about first time burglars:

“This Court in recent times, if not generally, has expressed concern about dwelling house burglaries.  I have myself have said … that the Courts in the past in my respective view have tended to be rather lenient in this area because of the distress that this sort of crime causes to those who have had their properties broken into and possessions stolen.  Not only is it the loss of the physical property but it is the feelings of invasion of privacy and emotional worries that tend to follow from dwelling house burglaries that should be borne in mind.

Therefore, if there is any feeling abroad that the Courts will give people one or two free runs at dwelling house burglaries before sentencing to imprisonment, that feeling had better be dissipated quite quickly.  There is nothing wrong, in my view, in a sentence of imprisonment for a dwelling house burglary first up.  Of course all the individual features of the case must be carefully weighed, but if the community of burglars think that for their first time they are necessarily going to get a sentence of periodic detention [and I interpolate a community base sentence], they are wrong.”

[12]     That approach was supported by Ellen France J in Peka v New Zealand Police (HC Napier CRI 2004 001 056/57, 14 February 2005) and later by Williams J in Pearse v New Zealand (HC Hamilton CRI 2005 419 117, 13 October 2005).  It is also been referred to and adopted in Osborne v Police (HC Whangarei AP 21/02,

13 May 2002) when a sentence of nine months imprisonment for burglary, was reduced to six months on appeal.  The Court said, nevertheless, that a sentence of imprisonment was justified for an offence relating to a first time burglary of a domestic dwelling.

[13]     The  issue  is  whether  10  months  was  manifestly  excessive  in  this  case. Mr C   has 11 previous convictions spanning a period of five years between 2002 and 2007.  In respect of four of those convictions, he has been fined.  None of his fines according to material before the District Court Judge have been paid.   They involved fines imposed in 2002 and 2006 for possession of heroin and possession of implements for using drugs and a fine of $300 imposed in 2007.  There are of course a lot of other fines for minor offences but the simple fact is that Mr C   does not pay his fines when they are imposed by the Court.  It was an aggravating feature that he was on bail when this offence occurred.  I think it is an aggravating feature that the amount of the value of property stolen was significant.  It has been recovered but that is simply because of a result of successful Police chase.

[14]     When viewed against the sentences imposed on his co-offenders and bearing in mind the differences of their criminal histories, and culpability, as well as the recommendation of the Probation Officer, and the obvious inability or disinclination of Mr C   to comply with community based sentences through the imposition of fines,  it  is  difficult  to  conclude  that  a  term  of  10  months  imprisonment  was manifestly  excessive.     It  is  four  months  above  what  his  Counsel  says  was appropriate, but cannot fall into the category of being manifestly excessive.

[15]     There  are  ample  examples  of  cases  where  imprisonment  followed.    For example, 12 months imprisonment was imposed upon a 21 year old burglar who pleaded guilty in the Rotorua High Court (Kingi v New Zealand Police AP 44/99,

25 August 1999).   And I am not able to say that the Judge erred in principle in imposing the sentence of 10 months imprisonment.   He might have made it nine months, but 10 months is clearly within the range available to him.  If I was to allow this appeal, I would be simply tinkering with the term that the Judge imposed, and that is not the function of the Court.

[16]     Not having been persuaded that the sentence was manifestly excessive, it must follow that the appeal is dismissed.

[17]     I am told that the Appellant has surrendered to his bail and accordingly he must go into custody to commence serving the term of imprisonment but he is released on bail (on the previously existing terms), until he must surrender to that bail,  and  report  to  the  Wanganui  Police  Station  at  12.00noon  on  Monday,

11 February 2008 to commence serving the term of imprisonment.

“J W Gendall”

Solicitors:

Debbie Goodlet for Appellant

Crown Solicitor, Wanganui for Respondent