Dixon v Police

[2013] NZHC 1469

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-119 [2013] NZHC 1469

BETWEEN  PATRICK DIXON Appellant

ANDPOLICE Respondent

Hearing:                   17 June 2013

Appearances:           R E V Slade for Appellant

R J Y See for Respondent

Judgment:                18 June 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

18 June 2013 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Public Defence Service, Auckland

Crown Solicitor, Auckland

PATRICK DIXON v POLICE [2013] NZHC 1469 [18 June 2013]

[1]      The appellant, Mr Dixon, appeals against an effective sentence of two years and three months’ imprisonment that was imposed by Judge Collins in the District Court on two counts of burglary.

The facts

[2]      At  some  time  between  2.00  pm  on  Friday  3  February  and  3.00  pm  on Monday 6 February 2012, personal effects, including a passport,1  were stolen in a burglary committed at a property in Titirangi, Auckland.  The fingerprints uplifted at the scene were later found to belong to Mr Dixon.

[3]      On the afternoon of Wednesday 8 February 2012, the appellant, together with an associate, burgled another property in Titirangi.   The offenders attempted to jemmy open the front door of the property, but this was unsuccessful.   They then climbed to the second level of the house using an external staircase where they smashed the master bedroom window.  The master bedroom was “ransacked” and a pillowslip was filled with shirts, an iPod and electrical connectors. They then left the address, but for reasons unexplained the stolen property was left at the bottom of the driveway where it was found by the owner next day.   Once again, Mr Dixon’s fingerprints were uplifted from the scene.

The sentence in the District Court

[4]      Mr Dixon pleaded guilty in the Manukau District Court and was sentenced on

15 March  2013  by Judge  Collins.   After  referring  to  a  recent  Court  of Appeal decision2  the Judge noted that a sentencing starting point for one burglary of a residential property would be “somewhere between 18 months and two and a half years”. The Judge continued:

Taking that and being as generous as I can to you because I accept your counsel’s views today that you really do want to rehabilitate yourself, the point I get to taking into account that I have got guilty pleas for two burglaries, has to be at the top of the range for one, and that is two and a half

1      The caption summary gives no further details as to what was stolen or its value.

2      The case had been the subject of an exchange between the Judge and counsel, but not identified in the actual sentencing remarks.   This is not a criticism:   the names of the cases on which sentencing Judges rely will often be of no interest to the offender. It can be inferred that the case referred to was Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

years’ starting point for that.   I am obliged to uplift that where you have relevant previous convictions which have a, what is called “a connection” or they are connected in the same way to the matters that I have got to deal with, and you have six previous convictions for burglary so they clearly have a relevance or are connected.

[5]      In  respect  of  six  previous  burglary  convictions,  the  Judge  weighted  the sentence by six months.   From a three year prospective term so derived, he then reduced the sentence that would otherwise have been imposed by 15 percent (which he  rounded  out  to  six  months)  and  by  a  further  three  months  in  view  of  the appellant’s prospects for rehabilitation.  In the result, the sentence imposed was two years and three months, in respect of both charges.

The appeal

[6]      Counsel  for  the  appellant,  Mr  Slade,  contends  that  the  sentence  was manifestly excessive.   Mr Slade submitted that the lead burglary charge should be the offence committed on 8 February because it involved forced entry into a residential property, during the day-time, with an accomplice.   However, although there was a burglary, the items were left at the bottom of the driveway and recovered by the owner.  The second burglary did not involve forced entry and only a passport had been taken.   Mr Slade submitted that the burglaries were similar to those that

came before the Court in Blissett v Police3  in which there were two burglaries, and

the offending treated as the lead offence involved forced entry to a residence and the theft of property valued at $2,000.  The second offence involved the attempted entry into a residence, during which a window was broken.  The offender was cut by the broken glass and left the scene.

[7]      In  that  case  Duffy J  adopted  a  starting  point  for  the  lead  offence  of  17 months’ imprisonment,  applying  an  uplift  of  three  months  to  reflect  the  other offending.  Mr Slade submitted that in fact the offending in the present case was less serious than that involved in Blissett (by reference to the value of the property involved) and noted that Mr Blissett’s relevant criminal history was more significant

than that of Mr Dixon.  He also made reference to R v Povey4 in which the Court of

Appeal held that a two year starting point was justified in respect of a burglary that

3      Blissett v Police [2013] NZHC 156.

4      R v Povey [2009] NZCA 362.

involved  premeditation,  confrontation  with  the  victim,  two  offenders  and  the presence of a weapon.   Twenty-two previous convictions for burglary attracted an uplift of one year.  Mr Slade noted that no weapons were involved in the present case and that the burglaries had been committed during the day, consequentially minimising the risk of confrontation with the victims.

[8]      Mr Slade  argued  that  in  the  present  case,  a  starting  point  for  the  lead offending of between 16 to 20 months would be appropriate, together with an uplift of between three to four months to reflect the second charge.  There was no quarrel with the uplift of six months which the Judge applied in respect of the relevant previous convictions, nor with the 15 percent reduction to reflect the guilty plea and three months in respect of matters standing to Mr Dixon’s credit.   In the result, Mr Slade contended that a sentence of between 19 and 22 months would have been appropriate.

The respondent’s submissions

[9]      Ms See, for the respondent, submitted that the end sentence of two years and three months’ imprisonment was within the range open to the sentencing Judge. Reliance was placed on sentences imposed in the High Court in Wilson v R5  and

Snowden v Police.6    In the former, the High Court upheld a starting point of 20

months’ imprisonment  where  the  offender  had  climbed  through  a  window  in  a residence at night.  In Snowden, the High Court upheld a starting point of two years’ imprisonment for a burglary of a residential property where $10,800 had been stolen.

[10]     Ms See also referred to the Court of Appeal judgments in Rota v R7  and Waiwai v R.8   Mr Rota had burgled a residential property taking items worth $4,000 and causing damage to the back door of the property valued at $300.   All of the property was recovered.  The District Court Judge applied a starting point of two and

a half years’ imprisonment in part to reflect a perceived increase in burglary rates in

the area where the offending occurred. The Court of Appeal held that the appropriate

starting point was 20 months’ imprisonment.

5      Wilson v R [2012] NZHC 65.

6      Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.

7      Rota v R [2012] NZCA 49.

8      Waiwai v R [2012] NZCA 251.

[11]     In Waiwai the burglary involved multiple offenders breaking into a residence through the back door and taking items, including a television, iPod, speakers, a docking station, jewellery and clothing.  As was the case with Mr Rota, the District Court Judge had adopted a starting point of two and a half years and the Court of Appeal considered 20 months’ imprisonment would have been more appropriate.

[12]     Ms See argued that even if the starting point adopted in the present case were considered too high, the 15 percent reduction for a guilty plea entered on the day of the scheduled trial, together with the further discount of three months for rehabilitative prospects, were correspondingly generous.  The resulting sentence of two years and three months’ imprisonment was not excessive.

Evaluation

[13]     As the Court of Appeal said in Arahanga v R9 there is no sentencing tariff for burglary cases because the range of circumstances in which the offence arises is so varied. The Court further observed:10

Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

(footnotes omitted)

[14]     In the present case, the burglaries were of residences and consequently, that aggravating feature must be taken into account.  There is no suggestion, however, in the present case that the premises burgled were occupied and, unlike the circumstances referred to in Arahanga, the burglaries were not committed at night.11

The caption summary was vague in respect of the items stolen in the 6 February offending, and their value.  The goods that were taken on 8 February were recovered

soon afterwards.

9      Arahanga v R, above n 2, at [78].

10     Arahanga v R, above n 2, at [78].

11 That is clear in respect of 8 February offending; in respect of 6 February offending, it is plain from the caption summary that the police could not prove when the offending occurred other than between the hours referred to at [2] above.

[15]     In  Mita  v  R12   the  offender  was  charged,  amongst  other  things,  with  the burglary of two houses.  Property worth more than $5,000 was taken at one property; and at the second, an attempt was made to remove a television set, but property of only a minimal value was in fact taken.  The Court considered that a starting point of two years’ imprisonment for the burglary charges was too high and held that a starting point of no more than 18 months’ imprisonment would have been justified. That was in the context of a sentencing for a total of ten charges arising out of four separate incidents, including not only the burglary charges but also charges of demanding money with menaces, assault with a weapon, possession of an offensive weapon and assault.

[16]     In the present case, I consider that the starting point adopted was too high. In my opinion, a starting point of 18 months for the offending that took place on

8 February would have been more appropriate, with an increment of four months to reflect the second offence.   However, the uplift of only six months to reflect the substantial number of previous convictions was generous.  The Judge brought only the six previous burglary convictions into account, leaving out of consideration the balance of Mr Dixon’s 69 other convictions.  These included convictions for robbery, theft, unlawful presence in a building and unlawfully getting into a motor vehicle. They could justifiably have also been taken into account.  It can also be noted that Mr Dixon had been imprisoned for burglary in 2009 and as recently as 2012, and the present  offending  took  place  soon  after  the  expiry  of  parole.     In  all  the circumstances, an uplift greater than six months in respect of Mr Dixon’s past offending would have been justified.

[17]     Further,  I  consider  that  the  reduction  of  six  months  for  the  guilty  plea, combined with the further reduction of three months for Mr Dixon’s rehabilitative prospects was generous.  The guilty plea occurred on the morning of the scheduled trial date, and about one year after the charges were laid.  While some charges had been withdrawn, the guilty pleas were entered in the face of a strong prosecution

case, based on fingerprint evidence.

12     Mita v R [2012] NZCA 137.

[18]     As  to  rehabilitation,  it  appears  that  the  allowance  made  was  based  on assurances given through counsel that Mr Dixon had come to the realisation that he needed to stop offending and find employment.  A degree of scepticism about that may well have been appropriate given the appellant’s substantial criminal record, and the proximity in time of the previous burglary offending.

[19]     As has been said many times, the structure of a sentence is not the important issue.  What matters is the end result.  A sentence appeal cannot be advanced relying only on those aspects of the reasoning of the sentencing judge which may have been in error, without looking at the overall outcome.  While the starting point adopted here was in my opinion too high, the various allowances made righted the balance. While the resulting sentence could be described as stern, I consider that it was within the range available to the Judge and I would not characterise it as clearly excessive.

Result

[20]     The appeal is dismissed.