Charlett v Police HC Dunedin CRI-2011-412-000013

[2011] NZHC 510

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-412-000013

SIMON SYDNEY CHARLETT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 May 2011

Counsel:         S A Saunderson-Warner for Appellant

L C Denton for Respondent

Judgment:      23 May 2011

JUDGMENT OF WHATA J

Solicitors:

Aspinall Joel, PO Box 1384, Dunedin for Appellant

Wilkinson Adams, PO Box 803, Dunedin 9054 for Respondent

SIMON CHARLETT V POLICE HC DUN CRI-2011-412-000013 23 May 2011

[1]      This is an appeal on a sentence in respect of one charge of burglary.

[2]      The background to the charges are usefully described by the sentencing Judge in the following terms:

[2]      The facts of the burglary relate to you both being in a carpark at the rear of Robbies Bar.  You both spied an open kitchen door.  You wandered through the door and found the cool room at the back of the bar where you took alcohol and left with various bottles of beer and wine valued at $64. You then proceeded to sit down not too far away and engage in a drinking binge.  You were found by the police shortly thereafter.  Some of the alcohol was  recovered  but  you  had  obviously drunk some  of  it,  and  whilst  the summary discloses that reparation is sought I am told, given that it only totals $21.50, that is not actively pursued today.  ...

[3]      The  nature  of  the  offending  was  therefore  both  unsophisticated  and opportunistic.

[4]      The offender was then sentenced to 12 months imprisonment on the basis of a

12 month starting point, an uplift for previous convictions and lack of remorse of four months, and then a discount of 25 percent for his guilty plea.

Grounds of appeal

[5]      The appellant lists two grounds of appeal as follows:

(a)     the starting point adopted by the learned Judge was too high given the nature of the burglary; and

(b)    the  uplift  in  sentence  for  the  appellant’s  lack  of  remorse  was

inappropriate.

Remorse

[6]      I can  deal  with  appeal  point  succinctly.     The  lack  of remorse is  not  an aggravating factor.[1]

[1] R v Lee CA2008/00, 14 September 2000 at [52]; and R v Rameka [2011] NZCA 75, at [163].

[7]      In those circumstances, the sentencing Judge proceeded on an erroneous basis and some adjustment to the uplift may be appropriate, if overall I find that the sentence is manifestly excessive.

Starting point

[8]      The appellant cited numerous cases to illustrate, it is said, that the starting point in the present sentence was excessive.[2]

[2] Gill v Police HC Wanganui CRI-2006-483-29, 21 December 2006, Clifford J, Musaad v Police HC Christchurch CRI-2010-409-000219, 15 December 2010, Panckhurst J, Taremoeroa v Police HC Rotorua CRI-2010-463-000053, 17 August 2010, Wylie J, Police v Mears DC Wanganui CRI-2009-083-001783, Judge PI Treston, Police v Holden DC Auckland CRI-2008-004-025126, 16 November 2009, Judge AA Sinclair, Police v Rapata DC Nelson CRI-2010-042-000464, 23 February 2010, Judge RJ Russel, Police v Martin DC Thames CRI-2009-019-002570, 3 June 2009, Judge JE Maze, Police v Frank DC Palmerston North CRI-2009-054-004434, 4 December 2009, Judge GM Lynch.

[9]      There is no need to traverse the facts in those cases.  I accept that in general, the present sentencing appears severe by comparison to the approach taken in those cases.   In particular, the starting point appears out of step with those cases and suggests that the equivalent and potentially more severe offending has attracted starting points in the order of six to nine months.[3]

[3] Refer specifically to Taremoeroa, Musaad, Holden, Mears and Martin.

[10]     I do not consider, however, that an apparent departure from the run of other sentences means that the sentence is necessarily excessive.  There is no tariff in this context, and one does not emerge by implication from the cases.

[11]     But on careful review, I consider that the starting point is excessive given the lack of sophistication, opportunism and the commercial context of the offending.  In this regard the following passage from Nguyen v R,[4] cited by the appellant provides helpful guidance in assessing the offender’s culpability:

[17]   In   burglary   cases,   these   include   the   degree   of   planning   and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.

[4] Nguyen v R CA110/01, 2 July 2001, Gault, Anderson and Randerson JJ.

[12]     Counsel for the Crown makes the salient point in relation to the allowance for recent conviction and recidivism, that the Court was under the misapprehension that there was only one previous conviction for burglary.   Counsel for the Crown has counted six burglary convictions in the District Court although, as noted by counsel, all are historical (1991, 1978, 1976 and 1974 x 3).

[13]     On the basis of that the Crown submits that, if anything, an uplift of four months imprisonment was lenient.

[14]     I do not consider, however, that reference to the historical offending justifies an uplift of four months and does not remedy the error in referring to a lack of remorse.

[15]     Nor am I convinced by the Crown’s submissions in seeking to distinguish

Gill and Musaad.

[16]     In the present case the offending was really at the lower end of the scale and due consideration must be given to the non-residential context.  Indeed, care must be taken to differentiate between offences in residential and non-residential locations. While all offending of this nature must be denounced, sentencing must deter to an appreciably greater extent invasion of the home.[5]

[5] Senior v Police (2000) 18 CRNZ 340, R v Rameka [1973] 2 NZLR 592 (CA), R v Columbus [2008] NZCA 112, Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010 at para [16] and R v Taueki [2005] 3 NZLR 372.

[17]     With  this  in  mind,  I  consider  that  the  starting  point  of  12  months  is excessive.[6]

Outcome

[6] Compare, for example, sentences for residential burglaries in Police v Rapata and Police v Holden.

[18]     Having identified an error of approach, and given my view that the sentence imposed is manifestly excessive by comparison to comparable or even worse offending,  I  propose  to  reduce  the  sentence  by  three  months.    I do  so  on  the

following basis:

(a)     a starting point of nine months;[7]

[7] This is to be compared to the approach taken by Wylie J in Taremoeroa, involving burglary at a motor camp and a starting point of nine months

(b)an uplift of three months to take into account previous convictions for burglary; and

(c)     a discount of 25 percent for a guilty plea.

[19]     Accordingly, the appeal is allowed, and sentence set at nine months.

Whata J