Cronin v Police

[2012] NZHC 3498

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2012-412-000060 [2012] NZHC 3498

NATHAN ROBERT CRONIN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 December 2012

Counsel:         S A Saunderson-Warner for Appellant

R Smith for Respondent

Judgment:      17 December 2012

JUDGMENT OF PANCKHURST J

[1]      Nathan Cronin appeals against an end sentence of nine months imprisonment imposed in relation to an offence of burglary and a breach of community work.

[2]      On 26 August the appellant entered a local motel.   He had recently stayed there and knew that there was an insecure window.   He also knew that the unit contained a new 32 inch television set.

[3]      The appellant, described by Ms Saunderson-Warner as cannabis dependant, had already approached a dealer who was prepared to provide an amount of cannabis in exchange for a TV.  No-one was in the unit at the time of the burglary.  The TV

was removed, and the planned barter occurred.

CRONIN V NEW ZEALAND POLICE HC DUN CRI 2012-412-000060 [17 December 2012]

[4]      The breach of community work arose following the imposition of a sentence of 170 hours in May of this year, in relation to a driving offence. When sentenced by Judge O’Driscoll in November, the appellant had 116 hours outstanding, meaning that he had only performed of the order of 60 hours, to that point.  The report on the appellant recommended intensive supervision.  The Judge, however, considered this inappropriate and dealt with the matter by way of a sentence of imprisonment.

[5]      The appellant is 24 years of age.  He has a significant previous history.  There is only one previous conviction for burglary committed in 2009, and which resulted in a community work sentence.  However, he had been a prolific offender in relation to stealing from cars, in relation to which he has a number of convictions, albeit, many of them committed over a short time span in 2009.  Otherwise, I note, he has only one drug conviction, but a number of convictions for breaches of court orders. It is perhaps a conviction list which is typical for someone with a drug problem, who is driven to acts of dishonesty in order to support a habit.

[6]      Judge O’Driscoll fixed a starting point of 12 months imprisonment in relation to the burglary, and two months imprisonment in relation to the breach of community work. However, he made the latter concurrent, not cumulative.

[7]      The Judge then said

This  being  your  first  sentence  of  imprisonment,  I  impose  standard  and special conditions of release.  The standard and special conditions of release will  be  until  six  months  after  the  sentence  expiry  date.    The  special conditions will be that you take any counselling or treatment or attend any courses or programmes directed to address alcohol and/or drug issues.

[8]      From  the  12  month  starting  point  for  the  burglary,  the  Judge  made  an allowance of three months for the early guilty plea to arrive at the end sentence of nine months imprisonment.  The basis of the appeal is effectively two-fold.  Firstly, that a 12 month starting point for this burglary and this offender was excessive, and secondly, that the Judge wrongly, did not give credit for remorse or rehabilitative efforts said to have been made by the appellant.

[9]      Ms Saunderson-Warner submitted that an appropriate starting point would have been nine months imprisonment, resulting in an end sentence of six months

imprisonment, after deduction of the three months for the early plea, and the other mitigating factors.

[10]     Mr Smith resisted both grounds of appeal.  He submitted that 12 months was within the available range for a burglary of this kind.  In relation to the three month allowance  made,  counsel  argued  that  this  was  not  a  case  marked  by  heartfelt remorse, nor could it be said that the rehabilitative efforts, weekly attendance at narcotic anonymous at the Salvation Army, warranted particular recognition.

[11]     Attention was also drawn to the circumstance that given that the offending included the breach of community work, the appellant was perhaps fortunate, that that separate offence did not incur a cumulative term of imprisonment.

[12]     I am not persuaded that the end sentence was outside the available range.  I do not overlook counsel’s submission that this was a burglary of an unoccupied motel unit, and that it is perhaps likely that the appellant was aware of that, given his knowledge of the particular premises.  Nonetheless, it was a calculated, and planned burglary, pre-arranged for the reasons that I have already canvassed.   Nor, am I persuaded that the Judge erred in relation to the allowance made for mitigating factors.  The plea was entered at a suitably early stage and although some increased allowance could have been given for the other factors, there is obvious merit in Mr Smith’s  point  that  this  was  a  sentence  fashioned  in  the  round  with  the  Judge conscious of the fact that he was not imposing any cumulative term, in relation to the unrelated breach of community work.   At most, it was a stern  sentence for an offender who had not previously received a sentence of imprisonment, but not one which it would be competent for this Court to disturb.

[13]     For these reasons, the appeal is dismissed.

Solicitors:

S Saunderson-Warner, Dunedin

Wilkinson Adams, Dunedin