Fearn v The King

[2024] NZHC 3389

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2024-418-10

CRI-2024-418-11 [2024] NZHC 3389

BETWEEN

TIMOTHY ROBERT FEARN

Appellant

AND

THE KING

Respondent

Hearing:	13 November 2024
Appearances:	A M S Williams and K N Stitely for Appellant M W Fulton for Respondent
Judgment:	14 November 2024

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FEARN v R [2024] NZHC 3389 [14 November 2024]

Introduction

[1]    Timothy Fearn pleaded guilty to four charges of burglary (one representative),1 a charge of receiving,2 two charges of possessing a utensil,3 a charge of possessing a Class C controlled drug,4 a charge of supplying and offering to supply a Class A controlled drug (representative),5 and a charge of unlawfully possessing a firearm.6 On 4 September 2024 he was sentenced by Judge D J Orchard  to eight  years and  six months’ imprisonment.

[2]Mr Fearn appeals his sentence on the ground it is manifestly excessive.

Facts

[3]    The offending is set out in some detail in the sentencing decision.7 I record a summary here.

[4]    The first summary of facts relates to one charge of burglary in August/September 2021, one charge of receiving stolen property over $1,000 during the same period, and one charge of possessing a utensil. The burglary charge related to Mr Fearn breaking into a holiday home and taking items valued at approximately

$60,000. The receiving charge related to 10 battery cells for a rail crossing.

[5]    The second summary of facts relates to the remaining three burglary charges (in March 2023), one charge of possession of utensils, possession of a Class C controlled drug, and supplying and offering to supply a Class A controlled drug.

[6]    At the first property, items to the value of around $60,000 were taken. At the second, the total value of property stolen was around $15,000. And at the third property, no property was stolen but $1,000 of damage was caused. These burglaries

1      Crimes Act 1961, s 231. Maximum penalty: 10 years’ imprisonment.

2      Crimes Act 1961, s 246 and 247(a). Maximum penalty: seven years’ imprisonment.

3      Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty: one year’s imprisonment or a fine not exceeding $500.

4      Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: three months’ imprisonment or a fine not exceeding $500.

5      Misuse of Drugs Act 1975, s 6(1)(c) and (2). Maximum penalty: life imprisonment.

6      Arms Act 1983, s 45(1)(b). Maximum penalty: four years’ imprisonment or a fine not exceeding

$5,000.

7      R v Fearn [2024] NZDC 23923.

occurred while Mr Fearn was on bail for burglary. The supplying and offering to supply a Class A controlled drug related to a search of Mr Fearn’s phone where police identified 48 instances of Mr Fearn arranging to supply or offering to supply methamphetamine between October 2022 and April 2023. Twenty-one of these instances occurred while Mr Fearn was serving a sentence of home detention for Class A drug offending.

[7]    The third summary of facts relates to the firearms charge. Mr Fearn sent an image of a shortened .22 rifle with a modified grip and offering to trade this in exchange for an associate’s motorcycle and 0.5 grams of methamphetamine.

Sentencing decision

[8]    The Judge regarded the first burglary as being more serious than the offending described within the cases put forward by counsel for both the Crown and defence and adopted a starting point of three years’ imprisonment. For the latter three burglaries, the Judge adopted a starting point of five and a half years’ imprisonment. This was uplifted by six months to account for the offending occurring on bail. For the receiving charge, the Judge adopted a starting point of 18 months’ imprisonment. An 18-month starting point was also adopted for the firearm charge. A two-year starting point was adopted for the methamphetamine charge.

[9]    All starting points were accumulated, leading to a global starting point of    14 years’ imprisonment which the Judge reduced to 11 years’ imprisonment to take into account totality.

[10]   The Judge allowed a 10 per cent deduction to reflect Mr Fearn’s guilty pleas and a further 10 per cent for rehabilitative steps and addiction. This was rounded to a discount of two and a half years, making an end sentence of eight years and six months’ imprisonment.

Principles on appeal

[11]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against

sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal stated in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepting sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own view only if the sentence being applied is “manifestly excessive” and not justified by the relevant sentencing principles.10

Submissions

Appellant submissions

[12]   Ms Stitely for Mr Fearn submits the individual starting points for the burglary charges were too high and should have been between four and four and half years’ imprisonment. Ms Stitely submits the starting point for the receiving charge should have been no more than eight months.

[13]   Ms Stitely submits these errors in the starting points mean the overall sentence is manifestly excessive, despite the adjustment for totality made by the Judge.

Respondent submissions

[14]   Ms Lancaster, who did not appear in the District Court, filed extensive submissions for the Crown. She submitted that while the Judge adopted a higher starting point than what was suggested by the Crown at sentencing, the end sentence reached was within the appropriate range. Ms Lancaster invited this Court to review all components of the sentence, adopting a different approach to that proposed by the Crown at sentencing and different to that taken by the Judge. She submitted a sentence of eight years and nine months imprisonment sentence was available.

[15]   Ms Fulton appeared on appeal for the Crown. She adopted the submissions filed by Ms Lancaster and generally submitted the end sentence imposed was not manifestly excessive.

8      Criminal Procedure Act 2011, ss 250(2) and 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

10     Ripia v R [2011] NZCA 101 at [15].

Analysis

Starting points

[16]   The approach proposed by Crown counsel at sentencing was to fix a starting point for the burglary and receiving offending of four to four and a half years’ imprisonment and to then impose a cumulative starting point for the drug offending of around three years’ imprisonment and a further cumulative starting point of 18 months for the firearms offending. That equated to a global starting point of around nine years’ imprisonment before considering totality and personal aggravating and mitigating factors. Mr Williams supported that approach, proposing a four-year starting point for all dishonesty offending, two years for the drug offending and 16 months for the firearms offending, giving rise to a global starting point of around seven years and four months reduced to six years for totality.

[17]   The Judge did not adopt that approach in relation to the dishonesty offending, preferring to impose cumulative starting points for the first burglary, the three other burglaries, and the receiving, leading to a total starting point adopted for all dishonesty offending of 11 years’ imprisonment. This was nearly three times higher than that proposed by both counsel.

[18]   The Judge then  added two years  for the methamphetamine offending and   18 months for the firearms offending, leading to a global starting point of 14 years’ imprisonment. The Judge accepted that starting point was “too high” and reduced it to 11 years before applying a 20 per cent credit for the guilty pleas and rehabilitative measures.

[19]   On appeal, and absent explanation, Ms Lancaster contends for a different approach to that adopted either by the Crown in the District Court or by the Judge. On appeal the Crown submits the Court should distinguish between what counsel describes as the “lead burglary”, said to be the first of the three March 2023 burglaries, and the remaining three burglaries. Ms Lancaster contends the lead burglary should attract a starting point of four years’ imprisonment, the remaining three burglaries a cumulative four years’ imprisonment and a further 18 months for the receiving—a total of nine and half years for the dishonesty offending. From there, Ms Lancaster

contends for an 18-month uplift for the firearms offending and two and half years for the drug offending, giving rise to a global starting point of 13 and a half years’ imprisonment. Ms Lancaster then proposes a totality reduction to 10 years and a one-year uplift for offending on bail and sentence offset against the credit for personal mitigating factors as assessed by the Judge.

[20]   Ms Stitely maintains the position adopted by the defence in the District Court, albeit accepting that including the receiving, the dishonesty offending might attract a total starting point closer to five years’ imprisonment. She submits the global starting point should have been no more than eight years and eight months’ imprisonment reduced to six years and nine months having regard to totality applied at the same percentage deduction as applied by the Judge.

[21]   I am satisfied, notwithstanding the 18-month gap in offending, the connection between the burglaries, in terms of the property stolen, the type of properties targeted (being baches) and their common location, is such that the preferred approach is to fix a starting point for all four burglaries uplifted for the receiving offence.

[22]   The Court of Appeal in R v Nguyen observed the range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed.11 It is necessary for the Court to consider the combination of factors surrounding the offending and conduct, including:

(a)the degree of planning and sophistication;

(b)the nature of the premises entered;

(c)the kind and value of property stolen;

(d)any damage done; and

(e)the extent of the offending where multiple burglaries were involved.

11     R v Nguyen CA110/01, 2 July 2001 at [18].

[23]   The sentencing Judge did not refer to any authorities relied on by counsel.  Mr Williams and Ms Lancaster have helpfully referred me to several authorities, the most relevant of which I summarise here:

(a)Harrison v R:12 the appellant burgled four residential homes in the space of one month, taking property valued at $66,000, some of which had sentimental value. The Court of Appeal upheld the starting point of four years’ imprisonment.

(b)Lynn v R:13 the appellant was convicted on nine charges of burglary in relation to residential properties. The total value of the property was in excess of $40,000. The sentencing Judge adopted a starting point of four years’ imprisonment for the burglary charges, accounting for the appellant’s previous convictions for burglary.

(c)R v Nguyen:14 the appellant was convicted on 15 charges of burglary where property in excess of $400,000 (around $720,000 if adjusted for inflation) was stolen from commercial premises. The Court of Appeal considered a starting point of no higher than eight years for all the charges, including the conspiracy charge and his role in the organisation, would be appropriate.

(d)Cecil v R:15 the appellant was convicted on seven charges of burglary. The offending spanned eight months where the group would use converted motor vehicles to remove ATMs or safes from commercial properties, often damaging the surrounding property. The group obtained about $110,000 in cash or property and caused $356,000 of property damage. The Court of Appeal held  a  starting  point  of  eight years and six months’ imprisonment was not excessive.

12     Harrison v R [2011] NZCA 80.

13     Lynn v R [2020] NZCA 616.

14     R v Nguyen CA110/01, 2 July 2001.

15     Cecil v R [2013] NZCA 541.

[24]   I agree with the Judge that there are several aggravating factors that apply to Mr Fearn’s burglary offending. First, the offending involved a degree of planning, engaging repeated visits to the same rural community. That Mr Fearn was comfortable returning to the targeted properties indicates his knowledge that they were vacant, being holiday homes. The offending involved a high degree of premeditation. Secondly, in breaking into the properties, Mr Fearn caused damage, using an angle grinder to force entry to one property. Thirdly, the victim impact statements record the significant financial and emotional impact of the offending. The total value of property stolen was around $160,000. And fourthly, the offending involved multiple burglaries.

[25]   I consider Mr Fearn’s offending falls well short of the gravity in both Nguyen and Cecil. In Cecil, while the value of property stolen (adjusted for inflation) was similar, the amount of damage caused was significantly greater and there was significant coordination and planning in the offending. The appellant was involved in an organised criminal group with the object of burgling. In Nguyen, the offending involved a highly sophisticated “ring”, there were significantly more burglaries, and significantly more property was stolen. While there was an element of planning and sophistication to Mr Fearn’s offending—Mr Fearn was equipped with specialist tools to break in and carry out the burglaries and appears to have scoped out the area—I do not consider it was to the same extent as an offender who is involved in an organised group with the primary goal of burglary.

[26]   The four burglaries Mr Fearn committed are more on par with Harrison and Lynn. While the value of property taken in Lynn was less, there were more properties burgled and all were residential.  Ms  Lancaster  has  submitted  the  properties  in Mr Fearn’s case were residential dwellings which inherently aggravates the offending because of the heightened risk of confrontation with occupants.16 I however consider this factor is mitigated by the fact Mr Fearn was clearly targeting empty holiday baches and there was no realistic chance of running into the occupants.

16     Arahanga v R [2012] NZCA 480 at [78].

[27]   Standing back, I consider the starting point of eight years and six months’ imprisonment adopted by the sentencing Judge for the four burglaries (before the uplift for Mr Fearn’s offending on bail) was clearly out of range. So too is the nine and a half years proposed on appeal by the Crown. Ms Fulton was not able to refer to any authority for such a high starting point for similar dishonesty offending.

[28]   Having regard to the authorities and my assessment of the gravity of the dishonesty offending, I consider a starting point of around five years’ imprisonment is appropriate to reflect the extent of Mr Fearn’s offending, the harm caused, and the nature of the targeted premises. I agree an uplift is appropriate to reflect that the three 2023 burglaries were committed while Mr Fearn was subject to the conditions of bail, but that uplift is a personal aggravating factor to be applied at the second stage of sentencing.17

[29]   I also consider it is appropriate, as both the Crown and defence had proposed in the District Court, to include the receiving charge alongside the burglary offending and to assess a starting point for the dishonesty offending together. The receiving of the battery cells is a dishonesty offence, committed in the same time frame as the 2021 burglary and involving property very broadly of a similar nature to that targeted in the burglaries.

[30]   The starting point of 18 months adopted by the Judge and supported by the Crown is disproportionate to the offending. Ms Stitely has referred to Gendall J’s decision in Drake v New Zealand Police which summarises starting points for receiving charges.18 I observe starting points between 15- and 18-months’ imprisonment are generally reserved for offending where the value of the property is upwards of $5,000. Ms Lancaster submits a starting point of 18 months is nevertheless warranted in recognition of the public safety issue factor identified by the Judge—the batteries operate the railway crossing alarm signals for traffic. The battery cells had been stolen from a locked box at a rail crossing.

17     xxx

18     Drake v New Zealand Police [2015] NZHC 2252.

[31]   Ms Stitely submits this factor did not aggravate the offending because, as a receiver, Mr Fearn did not know the origins of the batteries. Ms Lancaster in response submits Mr Fearn has pleaded guilty to recklessly receiving stolen property, meaning he was reckless as to where the property has come from and the potential impact of its theft. She says he must bear the responsibility for his recklessness. The fact that he did not take steps to ascertain where the property had come from is the very essence of his culpability.

[32]   I am not persuaded by Ms Lancaster’s reasoning. The recklessness inherent in the charge of receiving applies to whether the property had previously been stolen. The recklessness does not pertain to the origins of the property. The aggravating factor identified by the Judge would certainly apply to the burglar, but I do not agree that it applies to a receiver absent evidence that the receiver not only knew that the batteries had previously been stolen but knew where they had been stolen from. Absent such evidence, the culpability attached to a charge of receiving will generally reflect the dollar value of the goods received. By way of example in Aurupa v Police,19 Duffy J held a starting point of six to eight months’ imprisonment would be appropriate for receiving a computer worth $2,000.

[33]   I consider the appropriate total starting point for all dishonesty offending to be five years and four months’ imprisonment.

Firearm and drug offending

[34]   Mr Fearn does not challenge the starting points adopted for the firearms offending (18 months’ imprisonment) or the methamphetamine offending (two years’ imprisonment). Ms Lancaster submits the methamphetamine starting point adopted by the Judge was low. I tend to agree. That is a factor properly considered when applying the totality principle.

[35]   This brings the global starting point to one of eight years and ten months’ imprisonment.

19     Aurupa v Police [2012] NZHC 2750.

Totality

[36]   The totality principle is enshrined in s 85 of the Sentencing Act 2002. In arriving at the appropriate sentence for several offences, a sentencing Judge must not only consider each offence individually, but also assess an offender’s overall culpability for their offending and determine what effective sentence is appropriate for the totality of the defendant’s conduct.20 An adjustment will be made where the end sentence is wholly out of proportion to the gravity of the overall offending.

[37]   The burglary offending was very serious with substantial property stolen. I do not disregard that Mr Fearn did not enter one of the properties (he entered a shed), and in relation to another property nothing was stolen. The drug offending was lower-level addict dealing, and while the combination of a sawn-off rifle and methamphetamine generally calls for a stern response, I accept there is a disconnect between those items in this case.  Standing back, I consider the global starting point of eight years and  ten months’ imprisonment is out of proportion to Mr Fearn’s overall offending.

[38]   There is no formula to be applied when assessing a totality deduction. The Judge applied a deduction of around 21 per cent. Ms Stitely proposes a similar deduction. She submits the dishonesty offending is clearly linked to Mr Fearn’s methamphetamine addiction. I have doubts as to the strength of that connection. For example, the targeting of solar panels later installed at a relation’s address suggests an alternative motivation.

[39]On my calculation Ms Lancasters’ proposed deduction equates to 26 per cent.

[40]   In my view an adjusted global starting point of seven years and six months’ imprisonment is appropriate to reflect the overall gravity of the offending. That equates to a totality deduction in the region of 15 per cent. I consider that deduction reflects that the Judge could have taken a higher starting point for the drug offending.

20     Rihari v R [2022] NZCA 437 at [34].

Personal mitigating factors

[41]   Mr Fearn does not contest the credits allowed for his guilty pleas and his rehabilitation and addiction which, rounded up equate to 22 per cent. That deduction must be off set against an uplift to reflect that Mr Fearn offended while on bail and while subject to sentence. I apply an uplift of six months or around six per cent. I consider an uplift at that level to be modest given Mr Fearn had relevant previous convictions and had offended while on sentence.

[42]   Applying a net deduction of 16 per cent brings the end sentence to one  of  six years and three months’ imprisonment.

Result

[43]The appeal is allowed.

[44]   The sentence of eight years and six months’ imprisonment is quashed and substituted with a total sentence of six years and three months’ imprisonment imposed as follows:

(a)On charges 1, 2, 5, 6 and 7 (four burglaries and one receiving), Mr Fearn is sentenced to three years and six months’ imprisonment.

(b)On charge 4 (offering to supply Class A controlled drug), the 18-month sentence of imprisonment imposed in the District Court is confirmed. That sentence is cumulative on the three-and-a-half-year sentence imposed on the burglary and receiving charges.

(c)I confirm that in respect of charges 3, 8 and 9 (possession of cannabis and utensils), Mr Fearn is convicted and discharged.

(d)On the charge of possession of a firearm (CRN0889), I confirm the sentence of 15 months’ imprisonment. That sentence is cumulative on all other charges.

...................................................

Eaton J

Solicitors:
Crown Solicitors, Greymouth

Counsel:
A M S Williams, Barrister, Christchurch