Chalmers v Police

[2017] NZHC 1434

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-15 [2017] NZHC 1434

BETWEEN

KANE ALLAN CHALMERS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 June 2017
Appearances:	T J McCullum for Appellant R W Donnelly for Respondent
Judgment:	26 June 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Summary of appeal

[1]      The appellant pleaded guilty to two counts of burglary.   He was sentenced to

12 months imprisonment in the District Court on 20 April 2017 and given leave to apply  for  a  substituted  sentence  of  home  detention.    He  appeals  against  the sentence on the basis that it was manifestly excessive.  There was and is little or no chance of his finding a suitable address for home detention, so that for this appeal he will serve out his sentence of imprisonment as there are no other viable sentences available, for reasons which follow.

Principles on appeal

[2]      Appeals against sentence are brought under s 244 of the Criminal Procedure

Act 2011 (“the Act”), and determined in accordance with s 250 of that Act.  This

Court may only allow an appeal against sentence if it is satisfied that there has been

CHALMERS v NEW ZEALAND POLICE [2017] NZHC 1434 [26 June 2017]

an error in the imposition of the sentence, and in that event, a different sentence should be imposed.1

[3]      If the sentence under appeal may be justified having regard to the sentencing principles, this Court will not substitute its own views.   Only if the sentence is “manifestly excessive” should the Court interfere with the exercise of the Judge’s discretion.   As Toogood J said (citing Ripia v R2) in Larkin v Ministry of Development:3

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[4]      In Tutakangahau v R,4 the Court of Appeal held that:5

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

District Court Sentencing

[5]      In early February 2016, the appellant visited a “semi-rural” property in Invercargill.  He stole a tractor radiator and battery, together valued at $550, and sold the steel to a scrap metal merchant.   The next week he returned and entered the unoccupied house.  He stole property valued at $3,500, including $2,000 in coins. The Judge referred to his “small history” of related offending, which included two convictions for theft of property under $500 in 2016 and a conviction for common assault.  The appellant’s homelessness at the time of the offending was unfortunate, as the home he lived in was lost in a fire.  The Judge sympathised, but it did not excuse his offending.

[6]      Overall, the Judge considered that the gravity of the appellant’s offending was   “substantial”,   and   warranted   an   adjusted   starting   point   of   16   months

imprisonment, which reflected aggravating factors.  The same property was burgled

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Ripia v R [2011] NZCA 101 at [15].

3      Larkin v Ministry of Development [2015] NZHC 680.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5 At [36].

twice, and the Judge said there was premeditation on the second occasion when the appellant returned to the property and broke into an unoccupied house.  The property was not treated as a dwelling house as it was unoccupied, so the offending was not in the nature of a “home invasion”.  There were no other aggravating factors. Some of the items not recovered had sentimental value.

[7]      The appellant was given credit for his early guilty pleas and a degree of understanding and acceptance of responsibility, which warranted a discount of four months.  Home detention was an appropriate sentence but a suitable address was not available. There had been attempts to find an address which resulted in delays to

sentencing.  A sentence of 12 months imprisonment was imposed,6 with leave given

to apply for a substituted sentence of home detention under s 80I of the Sentencing

Act 2002. There is still no suitable address available.

Grounds of appeal

[8]      The appellant’s primary ground of appeal is that the sentence was manifestly excessive because the Judge’s starting point of 16 months imprisonment was too high.

[9]      There is no tariff case for burglary. Counsel for the appellant, Ms McCallum, refers to R v Columbus, where a starting point of 12 months was held appropriate for breaking into a garage attached to a residential dwelling and stealing a mountain bike and various tools.7     Ms McCullum submits that the offending in the case on appeal is less serious, and warranted a starting point in the region of eight months, to which the 25 per cent discount for early guilty pleas would apply.

[10]     The appellant thinks that he was “unlucky” to be charged with two counts of burglary, as the first charge was more ‘correctly’ a theft charge and a representative charge for all offending might have been laid.  However, as two charges of burglary

were laid to which he pleaded guilty, that was the basis on which the appellant had to

6      With standard and special release conditions (those included in the pre-sentence report) to apply for six months from the sentence expiry date.

7      R v Columbus [2008] NZCA 192.

be sentenced.  His culpability was properly a matter to be reflected in the Judge’s

assessment of the facts.

[11]   The appellant refers to “additional background circumstances”, that the sentencing Judge was visiting Invercargill, and that the delay in sentencing was because “a sentence of community work and community detention was being considered”.   The appellant had identified three potential addresses, but these were unavailable through no fault of his own. The Judge was not bound by what the appellant  says  is  an  inference  that  community  detention  was  the  appropriate outcome. Community detention and community work were certainly potential outcomes,  but  the inquiry on  appeal  is  whether the  Judge’s  decision  to  impose

12 months imprisonment was wrong.

[12]     The Judge’s decision to grant leave to apply for substitution of sentence under s 80I was appropriate as he held home detention would be suitable, and preferable as a matter of principle and discretion.  I agree with this conclusion.

[13]     The respondent, through Mr Donnelly, submitted that the end sentence, with a  focus  on  the  starting  point,  was  not  manifestly  excessive.     He  refers  to Senior v Police,  which  discusses  aggravating  factors  for  this  type  of  offending.8

They include behaviour which makes the victim feel “targeted” (including repeated burglaries of the same property, theft of items of high monetary or sentimental value), and “sophisticated” planning and execution.  The aggravating factors here are present but mildly so.  The Victim Impact Statement by the house owner occupier shows how burglary and the loss of personal items can impact in a telling way even when the house is unoccupied.

[14]     The Court of Appeal in Arahanga v R said that “dwelling house burglaries at the relatively minor end of the scale” will often attract a starting point in the region of 18 to 30 months imprisonment.9   The Court was not creating bands of offending. The Judge here rightly proceeded on the basis that, even with the two charges, this

offending was within the bracket of “relatively minor” offending.  Mr Donnelly says

8      Senior v Police (2000) 18 CRNZ 340 at [19].

9      Arahanga v R [2012] NZCA 480 at [78].

it is analogous with cases where starting points in the region of 15 to 21 months were imposed on appeal.10

[15]     The  appellant  has  not  been  imprisoned  before,  although  there  is  no presumption  of  gradual  escalation  in  sentence.    The  starting  point  reached  was clearly within the range normally considered appropriate in cases of offending of this nature,   when   properly   construed   in   conjunction   with   relevant   authorities. Mr Donnelly says the end sentence of 12 months imprisonment was not manifestly excessive, as it was not outside the available range.

[16]     Mr Donnelly submits Arahanga provides a broad range of starting points within which the 16 months adopted in this case would fit. Ms McCullum cited the judgment of Panckhurst J in R v Cronin, where the burglary was of a motel, to steal a television for exchange by the defendant.11   It was in that sense premeditated, and targeted offending.  It was only the one offence but the offender had a poor criminal record, and the Judge obviously thought he was likely to have been motivated by his

drug habit.   The District Court Judge adopted a 12 months starting point which Panckhurst J regarded as stern.  Ms McCullum analogises the facts of that case and this appeal.   She submits the Judge adopted a 16 month adjusted starting point without explanation, other than to recognise the gravity of what he called the “premeditated burglary” on the second occasion, when the appellant returned  to break into the house.

Analysis

[17]     The starting point of 16 months might well be regarded as stern in terms of Cronin but Mr Donnelly submits it still lies within range.    I reach the same view, that this was a stern adjusted starting point, and thus the end sentence was stern after discounting for guilty pleas.   It was particularly stern in its effect as there was no

suitable address for home detention. The appellant has not had a suitable address

10     Iwikau v Police [2012] NZHC 2027, where 15 months starting point was upheld on a single charge of breaking into a sports club and stealing $2500; Sawtell v Police [2013] NZHC 364, where 18 months was upheld where the appellant broke into an unoccupied hotel and stole two computers; McCormick v  Police [2012] NZHC 309, where 21 months was upheld for the appellant breaking into his place of employment and stealing $2000 of items.

11     Cronin v Police [2012] NZHC 3498.

since the home he occupied was burnt out, and while he had the opportunity to look for a suitable address, none has been found over the course of some months.    The Department of Corrections’ advice to the Court disclosed this and noted that the appellant was hard to contact.

[18]     The Judge recognised that home detention was the appropriate sentence and therefore granted leave to apply for home detention, which it seems is nugatory. It appears that this is in part because the appellant does not have support systems, neither family or friends.   He is something of a lost soul, and his descent into repeated offending has essentially occurred over the 12 months before sentencing. His homelessness has led him to offend, including the burglaries, the subject of this appeal.

[19]     I do not consider a community based sentence is realistic.   The appellant completed 148 hours of community work, with 62 remaining.  The Court is required to impose the least restrictive outcome.12     Specifically, it is the least restrictive outcome  that  is  appropriate  in  the  circumstances  and  in  accordance  with  the hierarchy of sentences and orders set out in s 10A Sentencing Act 2002.  The Court must also take into account any particular circumstances of the offender that meant

either the sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.13   The Court must also take into account the offender’s personal background in imposing a sentence or other means of dealing with the offender, whether for partly or wholly rehabilitative purposes.   These provisions stand with s 10A Sentencing Act 2002 which affirms that prison is a measure of last resort.14

[20]     Section 10A of the Act sets out the hierarchy of sentences and orders, from the  least  restrictive  to  the  most  restrictive,  and  those  relevant  are  those  in s 10A(2)(c)-(f).

(c)       community-based sentences of community work and supervision:

12     Section 8(g) Sentencing Act 2002.

13     Section 8(h) Sentencing Act 2002.

14     R v Rawiri [2011] NZCA 244 at [18].

(d)      community-based sentences of intensive supervision and community detention:

(e)       sentence of home detention: (f)    sentence of imprisonment.

[21]     I  have  held  that  community  based  sentences  of  community  work  and supervision are not the right outcomes here because of the seriousness of the offending, and the defendant has substantially worked off a previous sentence of community work.  Supervision appears to serve no purpose, nor does a community based sentence of intensive supervision and community detention.  The appellant has no home.  Supervision of someone homeless would be impracticable to undertake. That means the sentence of home detention was appropriate but cannot be served.

[22]     The purposes and principles of sentencing include the imposition of the least restrictive sentence that is possible.  I can find no authority to fit this factual setting, where the Court recognises that home detention and possibly community detention, would be appropriate to fit the facts of the sentencing, and the individual circumstances of the offender, but where that is not available through his own unfortunate circumstances.  There is no suggestion that he was or is a drug user, or drank alcohol to excess, simply that he has effectively found himself on the street, living homeless, and getting by with petty offending and, in respect of these two matters, more serious offending particularly on the second occasion.

[23]     The question is whether the principle of the least restrictive sentence can and should have application in a case such as this, whereby if he had support he would not be imprisoned, as he would have had a community based sentence.  This was not a matter before the sentencing Judge as such, and is a point developed on appeal largely because of my concern about the differential in sentence between those who have means and support, and those who do not. That, in my view should be reflected in some way, and I have decided that the appeal should be allowed, in order to impose a lesser sentence of imprisonment, effectively as an element of discount which by orthodox principle should apply before the 25 per cent discount for guilty pleas. This adjustment fits more naturally in a calculation at the end of a discounting process, as a particular circumstance relevant to the overall sentence imposed.

[24]     Whichever way it is calculated, the appeal should be allowed and a sentence of nine months imprisonment substituted.     A good part of the sentence will be served as a result of the appellant being in custody since early April 2017.

[25]     This result does not fit easily with the appellate principle that the sentence under appeal must be shown to be wrong, because the appeal is allowed on the basis of matters brought to account on appeal, which were not put this way before the sentencing Judge.  I do not consider this results in a charter for other sentencings. It is  through  no  fault  of  his  own  that  the  appellant  has  ended  up  in  this  most unfortunate position, and his life was turned upside down by events over about a

12 month period. That will be a relatively unusual factual circumstance.

Conclusion

[26]     Although the Judge did not err in adopting the starting point of 16 months, the end result is manifestly excessive in light of the appellant’s personal circumstances.  The appeal is allowed and the sentence of 12 months imprisonment is replaced with nine months imprisonment.  The same standard and special release conditions apply, and the balance of community work is suspended.

………………………………………….

Nicholas Davidson J

Solicitors:

Southern Law, Invercargill

Preston Russell Law, Invercargill