Dickerson v Police HC Wanganui CRI 2010-483-49

[2010] NZHC 1553

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-483-49

SHANE CLIVE JOHN DICKERSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 August 2010

Counsel:         D Goodlet for Appellant

L C Rowe for Respondent

Judgment:      1 September 2010

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr Dickerson  appeals  a  sentence  of  15.5 months’  imprisonment.     The sentence was made up in this way:

a)       14 months for one count of burglary of a dwelling, involving theft of goods to the value of $11,600.   Reparation of this amount was also ordered;

b)        no penalty for one count of failure to answer Court bail;

c)        six weeks cumulative for remission of unpaid fines.

SHANE CLIVE JOHN DICKERSON V NEW ZEALAND POLICE HC WANG CRI 2010-483-49 1 September

2010

[2]      The day prior to the burglary Mr Dickerson had assisted a friend move some of the friend’s personal belongings out of the house in question.  The following day Mr Dickerson returned to the property and forced open a window.   He removed a number of valuable electronic items, most of which were quickly disposed of.

[3]      The appellant is 25 years old.  He lives with his partner and their two young children.   He says he is a drug addict and he carried out the burglary to obtain money.

[4]      Mr Dickerson  has  a  series  of  previous  convictions  dating  back  to  2004. There are four assault convictions, possession of a firearm without a licence, disorderly behaviour, failure to answer bail, breach of community work (x2) and driving offences.  He has twice been sentenced to community detention and intensive supervision.  He had also accumulated traffic fines totalling more than $15,000.

[5]      Mr Dickerson pleaded not guilty to this offending and was bailed.   On the day of trial he failed to turn up, thereby wasting trial preparation and the time of the nine witnesses who had been summonsed.  Some had travelled from Taupo.  He was subsequently arrested, remanded in custody, and the next day pleaded guilty.

Appellant’s submissions

[6]      The cumulative sentence of six weeks is not challenged.

[7]      The  primary  challenge  is  to  a  14 month  sentence  for  a  first  burglary. Reference is made to Senior v Police[1]  where it is noted that imprisonment may be imposed for a first time burglar, but frequently it is not.  Reliance is then placed on a

[1] Senior v Police (2000) 18 CRNZ 340 (HC).

1995 case referred to in Senior, namely Tawa v Police[2]  where two burglaries and

[2] Tawa v Police HC Dunedin AP20/95, 17 March 1995.

numerous thefts from vehicles resulted in a 18 month sentence.  The total value of goods was $14,000.  Likewise a first time burglar, aged 19, for taking property worth

$9,000, received six months’ imprisonment in Pearse v Police[3].  Pearse was a first offender.

[3] Pearse v Police HC Hamilton CRI 2005-419-117, 13 October 2005.

[8]      By reference to these cases a sentence of six to nine months is sought.

[9]      Concerning home detention it is accepted that the original proffered address, his home, was unsuitable.   This was because of an on-going history of domestic disturbance between Mr Dickerson and his partner.   It seems that at sentencing a belated offer of his father’s address at Palmerston North was not accepted by the Judge who proceeded to sentence.

Respondent’s submissions

[10]     Reference is made to Snowden v Police[4] where Ellis J said a starting point of

18 months was within range for a forced entry into a private home where $11,000 worth of property was taken.  Other cases, submitted to be similar, are also cited.

[4] Snowden v Police HC Hamilton CRI 2010-419-52, 15 July 2010.

[11]     Of the facts of this case, reference is made to the planning, the breach of trust in that Mr Dickerson was originally on the premises as guest of his friend, the fact that it was forced entry of a dwelling, the value of the goods stolen and the fact that many of the goods were quickly disposed of.

Decision

[12]     It is often enough said that the key thing with a sentence appeal is the end sentence, not how it was arrived at.  The appellant focuses on 18–20 months as being too high for a starting point.  But there are two other figures:

a)       four to six  months (20%-30%) for a  guilty plea  entered  after the scheduled day for a defended hearing.  The hearing did not proceed because Mr Dickerson absconded;

b)no penalty for a breach of bail involving not only the usual disregard for Court orders inherent in such offending, but the particularly aggravating feature of wasting time of all the witnesses, including again the victims.  Whilst this might to some extent be ameliorated by the guilty plea, meaning the witnesses did not have to return a second time, it is still conduct which in my view would merit a separate penalty.

[13]     This was a serious burglary.   It was planned, it involved breaking into a private dwelling, and goods to a significant value were stolen.  I am less attracted to a breach of trust component.   The appellant took advantage of an opportunity inadvertently created by a friend, but the friend was not the owner of the property and no longer resided there.  I am not saying it is wrongly classified as a breach of trust, but rather I would not overly emphasise it in regards to what is anyway a serious burglary.

[14]     Looking at the various cases to which I have been referred, my assessment is that 18 months was an available starting point for burglary of a dwelling which took place  during  the  day  when  the  house  was  empty,  was  relatively  clean  (i.e.  no damage) and which saw electronic equipment taken rather than items of a more personal and sentimental nature.   The fact it was a dwelling, and the value of the goods taken means anything less than 15 months would be unusual.  The reality is that these are small margins, and I do not consider 18 months manifestly excessive as a starting point.

[15]     Ms Goodlet stresses that this was a first burglary and that Mr Dickerson has never before been to jail.  She referred me to a passage from the e-bail assessment where the prison reported on Mr Dickerson’s early days in custody.  It is apparent it was at that point a sobering experience to which he was struggling to adapt.

[16]     The factors to which Ms Goodlet refers operate primarily at the stage of assessing the appropriate type of sentence.   They could factor into whether imprisonment is the necessary response, and into whether an option such as home

detention  might  be  available.    Otherwise,  the  fact  this  is  Mr Dickerson’s  first burglary is rather more the absence of an aggravating feature.

[17]     For reasons noted earlier I am of the view that the end sentence of 14 months was  not  manifestly  excessive.    The  guilty  plea  discount  was  on  its  face  quite generous and is probably explained by the factors which Ms Goodlet has stressed.  It is otherwise difficult to see credit beyond 10% being appropriate.

[18]     The outcome of no penalty on the bail breach means that any culpability for that offending must be taken to be factored into the starting point, which in my view reinforces its availability.

[19]     As for home detention I agree fully with the Judge.  I would probably have said “no” simply on the basis of failing to turn up for the Court hearing.  It starts to make a mockery of the system if people act like that and then expect a community based sentence which is dependent on them complying with Court orders.  However, add to that conduct Mr Dickerson’s previous convictions for breach of bail and Court orders, and the fact that sentences of community detention and intensive supervision have already been tried, and in my view there was no real case to support a home detention sentence.

[20]     At the hearing I raised the issue of the reparation that had been ordered which totals $11,600.  It seems that at some point there had been a suggestion that family might pay $5,000 into Court in advance of sentencing but this proved beyond them.

[21]     There is no reparation report but the reality is:

a)        Mr Dickerson  owed  $15,000  in  fines  which  were  cancelled  and  a prison term substituted;

b)        he had been unemployed for a year prior to the offending;

c)        the pre-sentence report says he has no assets or savings;

d)       his wider family is described as an unlikely source;

e)        upon release he will have a young family of his own to support.

[22]     Subsequent to the hearing I have learned that Mr Dickerson had been making regular payments from his benefit towards the fines.  I do not know the quantum of the payments.  I observe that at sentencing no arrangements were made for how and when this reparation is to be paid.

[23]     In  my view  the  obligation  to  pay $11,600  is  unlikely to  be  met  in  the circumstances, and may be counter-productive to rehabilitation.  Having substituted prison for a large fine indebtedness, Mr Dickerson will be released to again face a substantial debt.  Realistically, if he were to pay the whole sum it would take many years unless his employment situation improves markedly.  I appreciate it may be a disappointment  to  the  victims,  but  there  are  really  no  short-term  prospects  of payment and it is preferable to clarify that now.  Accordingly I quash the reparation orders.

[24]     The appeal is otherwise dismissed.

Simon France J

Solicitors:

D Goodlet, Barrister & Solicitor, PO Box 875, Wanganui 4540
L C Rowe, Armstrong Barton, PO Box 441, Wanganui 4540