Curtis v Police
[2019] NZHC 1623
•12 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000188
[2019] NZHC 1623
BETWEEN JOSHUA CURTIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 July 2019 Appearances:
P McNabb and G Vear for the Appellant
W Fotherby and B Rorrison for the Respondent
Judgment:
12 July 2019
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Friday, 12 July 2019 at 11:30 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Public Defence Service, Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland
CURTIS v NEW ZEALAND POLICE [2019] NZHC 1623 [12 July 2019]
[1] On 26 March 2019, Joshua Dean Curtis was sentenced on one charge of burglary to 20 months’ imprisonment by Judge Jelas in the Waitakere District Court.1 He now appeals against sentence on the basis that the sentence is manifestly excessive and not the least restrictive sentence appropriate in the circumstances.2
Summary of facts
[2] At about 1.45 am on 10 July 2018 the appellant and an unknown associate went to a residential property in Massey, Auckland. At the time, the occupants of the address were in the process of moving to the South Island and had a secured shipping container situated next to the garage on their property. The shipping container contained a significant amount of their possessions.
[3] The appellant and his associate entered the property by removing a padlock to the main gate. Once inside the property, the appellant and his associate used an unknown tool to damage a handle retainer on the container door allowing the handle to be used to enter the container. Once inside the container, the appellant and his associate forced open a gun safe and removed in excess of 700 rounds of ammunition as well as a hunting scope and two hunting knives. They then proceeded to search through the container and uplifted and took away multiple bottles of alcohol and a safe containing a large amount of jewellery. The stolen property had an estimated combined value of $42,000.
District Court sentence
[4] At the outset, Judge Jelas noted the fact that the burglary charge occurred during the currency of two sentences of intensive supervision to which the appellant had been sentenced. The Department of Corrections had applied to cancel the sentences of intensive supervision on the basis of an assessment that Mr Curtis was unlikely to comply with a community-based sentence.
[5] The Judge referred to the summary of facts and the victim impact statement. She also noted that the appellant’s explanation for the offending was that he needed
1 New Zealand Police v Curtis [2019] NZDC 5524.
2 Criminal Procedure Act 2011, s 250(2)(a).
some extra cash to finance his drug habit. The Judge then moved to consider the starting point for the offending. She took into account the fact that the appellant entered a residential address, albeit that he did not enter the house. The effect on the victims had been substantial and, although they had been compensated financially, there would have been a lot of stress and inconvenience in making an insurance claim. Further, the appellant committed the offence with an unknown associate. There was also some element of preparedness and a substantial amount of property was taken. While the Judge accepted that some distinction needed to be drawn between the appellant’s entry into the container and entry into a home, the distinction, in her view, was not great. She said it was more by chance than good fortune that the appellant had no contact with the victims during the course of the burglary. All in all, the Judge decided that the appropriate starting point was one of 20 months’ imprisonment.
[6] The Judge then determined that there should be an uplift for the appellant’s previous convictions of burglary and other dishonesty offending. The Judge, therefore, imposed an uplift of six months’ imprisonment, bringing the nominal starting point to one of two years and two month’s imprisonment. The only mitigating factor that the Judge could discern was the appellant’s guilty plea which was at the case review hearing. For that, the Judge determined that six months discount was warranted, bringing the end sentence to 20 months’ imprisonment.
[7] The Judge then said that she needed to consider what the least restrictive outcome was having regard to the relevant purposes and principles of sentencing. While she acknowledged that the appellant was working and that he had dependents, she felt that she could not impose a sentence of home detention. She was not all satisfied that, if given the opportunity of yet again serving a sentence in the community where rehabilitative services were made available to the appellant, that he would take up those opportunities. The Judge noted that the appellant had breached a previous sentence of home detention. Further outcomes included community work, which was also breached. Further, sentences of intensive supervision had been imposed to give the appellant the opportunity to treat the underlying causes or contributing factors of his offending, but to date the appellant had not completed those sentences. No rehabilitative steps had been taken by the appellant since the guilty plea was entered. The Judge determined that deterrence, denouncement and holding the appellant
accountable would not be met by a further home detention sentence. Therefore, the outcome on the charge of burglary was one of 20 months’ imprisonment with post- release conditions imposed for a period of six months. Any existing community based sentences of supervision were cancelled.
Approach on appeal
[8] In order to justify an appeal court reconsidering a sentence, the appellant must show an error:3 that is, application of incorrect principle, insufficient or excessive weight being given to a particular factor, or that the Judge was plainly wrong.4
[9] Where an error or errors are found to have occurred, the Courts’ assessment of their significance will inform its decision as to whether a different sentence should be imposed. The Court of Appeal noted that although s 250(2) of the Criminal Procedure Act makes no express reference to a “manifestly excessive” sentence, this concept remains ingrained in the Courts approach to sentence appeals.5
Appellant’s submissions
[10] The appellant submitted that the Judge erred in the present case by taking a starting point of 20 months’ imprisonment, which was disproportionate to the facts of the offending and was not consistent with similar offending committed in similar circumstances.6 As a result, the Judge imposed a sentence that was manifestly excessive in the circumstances.
[11] Counsel submitted that the Judge erred in effectively treating the appellant’s offending as a residential burglary. Despite the appellant’s offending being a break in of a non-residential building on a residential property, the starting point adopted by the Judge fell squarely within the range for residential burglaries as set out in Arahanga v R.7
3 Criminal Procedure Act 2011, s 250(2)(a).
4 Manikpersadh v R [2011] NZCA 452 at [10], citing James v R [2010] NZCA 206. See also
Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[36].
5 James v R at [33] and [35].
6 Sentencing Act 2002, s 8(e).
7 Arahanga v R [2012] NZCA 480 at [78].
[12] Counsel also relied on the cases of R v Columbus, Gray v Police and Chalmers v Police.8
[13] Counsel submitted that the present case was similar to Columbus, Gray and Chalmers, in that all cases involved access into a structure on a residential property housing personal property of the victims, but not access into an occupied home, limiting the extent of the victim’s invasion of privacy as well as the risk of confrontation. The appellant submitted that the appropriate starting point was therefore 15 months’ imprisonment, with a lower uplift for previous convictions of four month’s imprisonment required in order to ensure proportionality.
[14] The appellant accepted that the discount given for his plea was appropriate, but that in all the circumstances, the sentence of 20 months’ imprisonment was manifestly excessive. The appropriate sentence was instead one of 14 or 15 months’ imprisonment.
Respondent’s submissions
[15] The respondent submitted that the appellant must point to an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiated the sentencing decision of the Court below.9 Unless there was a material error in the sentence, for example, if it was manifestly excessive, wrong in principle, or incorrectly calculated by the Judge’s own arithmetic, the appellate Court will not intervene.10 So the focus is on whether the end sentence was within the available range, rather than the process by which it was reached.11 The ultimate issue was whether the result reflected the overall criminality of the offending and the offender.
[16] The respondent submitted that the starting point adopted was appropriate and responded to the circumstance of the offending. The appellant’s burglary involved forceful entry into a suburban address at night. The fact that he and his associate did
8 R v Columbus [2008] NZCA 192; Gray v Police [2018] NZHC 3245; and Chalmers v Police
[2017] NZHC 1434.
9 R v Shipton [2007] 2 NZLR 218 (CA).
10 Te Aho v R [2013] NZCA 47.
11 Tutakangahau v R, above n 4, at [36].
not enter the dwelling house on the property is of limited mitigation. Dwelling house burglaries attract certain starting points because they leave victims feeling vulnerable and because the offending carries a greater risk of confrontation with the victims.12 The difference in the present case from a burglary of a dwelling house is one of degree, and a small degree at that. The respondent submits that these factors elevate the offending beyond the lowest level cases; demonstrating offending markedly more serious than that in the cases relied on by the appellant.
[17] In addition, there are a number of aggravating features of the appellant’s offending. He committed a burglary with an associate. It took place at night, at approximately 1.45 am. It was targeted offending which involved a degree of preparation and the taking of high value items, including a large amount of ammunition and sentimental pieces of jewellery.
[18] The respondent submits that, in light of the cases of Shierney v Police13 and Ottter v Police,14 the end sentence of 20 months’ imprisonment imposed by the Judge was comfortably within range and appropriate. The appeal should be dismissed.
Discussion
[19] The primary issue on appeal is the appropriateness of the starting point of 20 months’ imprisonment adopted in respect of the burglary of a secured container on a residential property in suburban Auckland at night with an associate in which a substantial amount of property was taken, including ammunition, a hunting scope and hunting knives. It was deliberately targeted offending with the intention of getting cash to buy drugs.
[20] Appellant’s counsel sought to distinguish the cases of Shierney and Otter relied upon by the respondent. Meanwhile, counsel for the respondent says that the cases of Columbus, Gray and Chalmers relied upon by the appellant are of limited assistance because of the aggravating features of the appellant’s offending that is absent in those cases.
12 Arahanga v R, above n 7, at [78].
13 Shierney v New Zealand Police [2014] NZHC 2963.
14 Otter v New Zealand Police [2015] NZHC 2857.
[21] In all the circumstances, I cannot say that the Judge was in error in adopting a starting point of 20 months’ imprisonment. The Judge gave a careful and well- reasoned explanation. She said:
[11] While I accept that some distinction needs to be drawn between your entry into the container and entry into the home, the distinction in this case is, in my view, not great. While there was a reduced chance of your disturbing the occupants of the home during your early hours burglary nonetheless you took from them a significant amount of personal items which had strong sentimental value for them. Although you did not enter their house the effect has nonetheless been feelings of a significant invasion of privacy and loss of personal property. It is more by chance than good fortune that you had no contact with the victims during the course of your crime. I am sure I have no doubt that if they had heard noises they may have investigated nonetheless and there may well have been an encounter, but I accept that is speculation. I consider the appropriate starting point to be one of 20 months’ imprisonment.
[22] The burglary occurred on a residential property and the occupants’ privacy interests did not end at the front door of their house.15 There was also always a risk of confrontation with the occupants who, like all homeowners, would naturally challenge any stranger on their property. As the Court of Appeal noted in Arahanga:16
Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.
I therefore agree with the Judge that the distinction between entry into the container and entry into the house is not great.
[23] I also cannot say that the Judge was in error in uplifting the starting point of 20 months’ imprisonment by six months to reflect the appellant’s six previous convictions for burglary over a seven-year period and his other dishonesty offending, which included four receiving convictions.17 The uplift was, however, on the high side because the appellant’s last burglary conviction was in 2010 and he had only received sentences of imprisonment of 15 months on one charge and eight months on two other charges.18 However, the Judge did say that the uplift also reflected the fact that at the time the appellant was subject to a sentence of intensive supervision which
15 See James v R CA62/05, 4 July 2005 at [33].
16 Arahanga v R, above n 7, at [78].
17 R v Columbus, above n 8, at [16], citing Senior v Police (2000) 18 CRNZ 340 (HC). See also
Gorgus v R CA706/2015, 19 October 2016 at [4] and [10].
18 See R v Stevens [2009] NZCA 190; and Pilum v Police [2012] NZHC 1593.
was designed to help him with his drug dependency and that he was subject to a come- up-to-call-upon sentence.19
[24]A minor uplift to reflect these factors is permissible and warranted in this case.
[25] There is no quarrel with the discount (of approximately 23 per cent) given for the appellant’s guilty plea.
[26] In all the circumstances, the appeal is dismissed. I note that the appellant has subsequently pleaded guilty to the aggravated robbery of a Wendy’s Restaurant on 29 April 2018, two and a half months before the burglary and is due to be sentenced for this further offending on 23 August 2019. A cumulative sentence should be imposed after having regard to the totality principle.
Woolford J
19 See McCreath v R [2014] NZCA 142 at [9] and [31].
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