Fielding v The Queen
[2021] NZHC 2753
•14 October 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-441-22
[2021] NZHC 2753
BETWEEN GRAEME PRICE FIELDING
Appellant
AND
THE QUEEN
Respondent
Hearing: 12 October 2021 (by AVL) Appearances:
S Yee for Appellant
J Eng and H Cunningham for Respondent
Judgment:
14 October 2021
JUDGMENT OF ISAC J
Introduction
[1] Mr Fielding was sentenced to two years and eight months’ imprisonment on a charge of burglary. He now appeals that sentence.
The offending
[2] On the 27 April 2020, Mr Fielding was at home with his partner, who was also the co-offender. They lived in a block of four flats.
[3]The victim lived on her own in an adjacent flat.
[4] Mr Fielding and his partner saw the victim leave her home at approximately 8 pm. It appeared she was going away overnight.
FIELDING v R [2021] NZHC 2753 [14 October 2021]
[5] After she had left Mr Fielding gained entry to the victim’s flat through an insecure window. Once inside he searched every room. He pulled out all the drawers and emptied their contents onto the floor. He did the same with cupboards. Clothing and personal items were strewn across the floors throughout the flat.
[6] Mr Fielding’s partner remained outside and helped transport items of value into their flat, and assisted Mr Fielding to dispose of items later.
[7]The belongings stolen included cosmetics, medicines, cash (approximate
$1300), credit cards, passports, alcohol, presents, some clothing, and personal papers from throughout the home. The victim’s entire jewellery drawer was taken. It contained a large amount of jewellery and related items, including medals which had belonged to the victim’s grandfather. It included a valuable collection of rings inherited from the victim’s grandmother. Several pearl necklaces, crystals and pounamu pieces were also taken.
[8] Other items taken included a 42-inch television, two laptops, old cell phones, headphones and spare keys.
[9] The victim returned to her home on Tuesday 28 April. Mr Fielding approached her and tried to speak with her before she gained entry to her home. The summary of facts described his behaviour as “agitated, fidgeting and pacing”. Once she gained entry the victim discovered the burglary and called the Police.
[10] A limited number of items were recovered but not, it seems, any items of sentimental or financial value. The value of the property taken was at least $30,000. The victim was uninsured.
District Court judgment
[11] After outlining the relevant facts, the Judge noted Mr Fielding had a lengthy list of previous convictions including seven for burglary.1 He noted that, as far as the community is concerned, the one offence New Zealanders “really have just completely
1 R v Fielding [2021] NZDC 14887 at [11].
tried of” is having their homes broken into and coming home and seeing their homes not only trashed, but all items of value and of sentimental value have been taken.2 The Judge then referred to the Court of Appeal’s decision in Arahanga v R3 before noting that the normal range for a sentence involving burglary at a residential home is between 18 months and two and a half years’ imprisonment.4
[12] After noting that Mr Fielding’s counsel had urged a starting point of 21 months,5 in light of aggravating factors such as premeditation and what was described as a “particularly mean burglary”, the Court concluded that a starting point of two and a half years was appropriate.6
[13] Given Mr Fielding’s previous convictions, an uplift of six months for previous offending was appropriate, relying on Makene v R.7
[14] From an overall sentence of 36 months’ imprisonment, a ten per cent deduction on account of a late guilty plea was appropriate. Accordingly, a sentence of two years and eight months was imposed.8
This appeal
[15] On behalf of Mr Fielding, Mr Yee advances no less than six grounds of appeal. He submits:
(a)aggravating factors were double countered or wrongly taken into account;
(b)the starting point was too high;
2 At [14].
3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
4 R v Fielding, above n 1, at [15].
5 At [16].
6 At [19]. The Judge considered the burglary was “particularly mean” because “We live in a community. We have been through a pandemic where the Prime Minister urged people to all co- operate, to be a team of five million. Someone who burgles their neighbour is the antithesis of somebody who wants to live in a society which is a team of five million.”
7 Makene v R [2013] NZCA 178.
8 At [25].
(c)the uplift of six months was disproportionate;
(d)there was no discount applied for personal mitigating factors;
(e)there was a failure to have regard to the requirement to impose the least restrictive outcome in the circumstances; and
(f)no discount was provided to reflect the hardship the sentence of imprisonment will have on Mr Fielding’s mother, who was dependent on his care before his incarceration.
[16] Following sentencing Mr Fielding obtained a lengthy s 27 report setting out important information about Mr Fielding’s family background and drug addiction. The Crown did not oppose an application to adduce that material as fresh evidence on appeal. Given its importance to the disposition of the appeal I grant leave for its admission.
Approach on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.9 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 It is only appropriate for this Court to intervene and substitute its own view if the sentence being appealed is "manifestly excessive”.11
[18] The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.12
9 Criminal Procedure Act 2011, ss 250(2) and 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
11 Ripia v R [2011] NZCA 101 at [15].
12 At [15].
Discussion
[19] Three of the six grounds of appeal were the focus of argument. Two others — the starting point and uplift — can be dealt with briefly.
[20] The starting point adopted by the Judge was well within the available range. A starting point in excess of two and a half years’ imprisonment could not have been criticised.13 Arahanga v R noted that the range of starting points between 18 months and two years six months’ imprisonment was applicable to “dwelling house burglaries at the relatively minor end of the scale”. Mr Fielding’s offending was not at the minor end. In fact, there were at least two of the Nguyen factors present that suggest a starting point above two and a half years was warranted:14
(a)First, the nature and value of property taken. The victim lost irreplaceable family items such as her grandfather’s war medals and her grandmother’s rings. The impact of that loss on her is obvious. And in addition, the overall value of the items stolen was at least $30,000.
(b)Second, I agree with the Judge that this was a “particularly mean burglary”; the victim’s home was ransacked. While it does not appear that there was damage done to the dwelling itself, it is clear that Mr Fielding was completely indifferent to her expectations of privacy and safety within her own home. That has increased the harm to the victim.
[21] Turning to the appropriate uplift, given Mr Fielding’s extensive criminal history for dishonesty, including seven previous convictions for burglary, an uplift of 20 per cent of the starting point was not disproportionate. There is now something of a regular pattern to the burglaries he has committed since 2009. Previous sentences of
13 The cases cited by Mr Yee in support of a lower starting point are distinguishable from Mr Fielding’s offending. In Stridom v Police [2019] NZHC 354 (starting point of 24 months’ imprisonment) the value of the property taken was less, and Mr Stridom played a secondary role as the driver and lookout. In Bates v R [2016] NZCA 456 (18-month starting point) $15,000 worth of property was stolen and there was no premeditation. And in Tautari v Police [2018] NZHC 2483 (starting point of 24 months and an uplift of 12 months for previous offending) $23,000 worth of property was stolen, Mr Tautari was alone, and the “particularly mean” features of Mr Fielding’s offending were not present.
14 R v Nguyen CA110/01, 2 July 2001.
imprisonment have not deterred that conduct. Indeed, Mr Yee’s submission was that an uplift of four months on a starting point of 21 months was within range; implicitly accepting a 20 per cent uplift was appropriate. Given the higher starting point warranted in this case, and the uplift already acknowledged by the appellant, there is nothing in this ground.15
Reduction for personal mitigating factors?
[22] The real issue on appeal was the question of the appropriate discount to reflect Mr Fielding’s unfortunate upbringing.
[23] In support of this ground of appeal Mr Fielding presented a s 27 report prepared sometime after his sentencing. The Judge did not have the benefit of the report at the time he sentenced Mr Fielding.
[24] The report begins by noting that every year of Mr Fielding’s life “encapsulates social, cultural, or economic deficiency.” Generally, the report reveals a traumatic early childhood. Mr Fielding’s father was a violent alcoholic. As a child Mr Fielding was subjected to physical abuse. He recalls one incident when he was thrown against a wall.
[25] As a result of the violence he experienced at home he was placed in state care. And there he was subjected to further physical abuse.
[26] Mr Fielding was introduced to drugs at the age of 11 while in state care. He engaged in daily cannabis use, abusing Ritalin and then began injecting intravenous drugs such as morphine from the age of 16. Drug use and addiction has been the ongoing driver for his offending since that time. Mr Fielding uses it as a coping mechanism to deal with the trauma he experienced as a child. He started shoplifting
15 The Judge expressly followed Makene v R, above n 7, where a six-month uplift was imposed for six previous burglary convictions. See also Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at
[39] where the Court of Appeal said previous convictions “are relevant as an indicator of character and culpability, or because they show the need for a greater deterrent response, or as an indicator of risk of reoffending.”
from a young age to support his drug use and graduated from there to more serious forms of dishonesty offending, including burglary.
[27] Unsurprisingly Mr Fielding also struggled with school. He was diagnosed with ADHD.
[28] The abuse Mr Fielding suffered as a child set him on a collision course with the criminal justice system that continues to this day. I am satisfied it played a clear role in the current offending.
[29] None of that is to excuse Mr Fielding for what he did, or the impact of it on his victim. Instead, it is relevant when assessing the level of moral culpability as part of the sentencing exercise. As the High Court of Australia said in Bugmy v R, the fact an offender has been raised surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than someone whose early years were not marred in such a way.16 This in turn can impact on the operation of the purposes and principles of sentencing, such as holding the offender accountable, denunciation, general and specific deterrence community protection, and the need for rehabilitation.17
[30] And also relevant in my view are the steps Mr Fielding has taken to remove himself from the culture of drug use he was in, and to deal with his addiction. I was told, and accept, that he had managed to stay off drugs for at least five months before he was sentenced. The pre-sentence report writer also concluded that Mr Fielding “has shown motivation to stay away from drugs”.
[31] For the Crown, Mr Eng and Mr Cunningham recognised that some discount to reflect both deprivation and addiction was likely to be warranted at sentencing. But they submitted that any such discount would be less than the 15 per cent urged on the Court by the appellant, and in any case given the lenient starting point, any error of approach could not have resulted in a sentence that was manifestly excessive.
16 Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [40].
17 Poi v R [2020] NZCA 312 at [27].
[32] I disagree. Discounts to reflect deprivation and the role of addiction can surpass 15 per cent.18 The key in this case is to identify the appropriate level of discount that ought to have been provided.
[33] In my view, a discount to reflect the role of addiction and deprivation in Mr Fielding’s offending of 20 per cent is appropriate. That discount acknowledges the positive signs that Mr Fielding is now ready to tackle his addiction.
Remaining grounds of appeal
[34] There is nothing in the remaining grounds of appeal. The Judge did not double count aggravating factors, and I am not satisfied that considerations such as breach of trust influenced his calculation of the relevant starting point.
[35] Nor was there any error of approach in the application of s 8(g) of the Sentencing Act 2002 (the requirement to impose “the least restrictive outcome appropriate in the circumstances”). This ground overlooks the proviso. That is, a court must impose the least restrictive outcome “in accordance with the hierarchy of sentences and orders set out in s 10A”. The least restrictive outcome is not a reference to the sentence length. It is a reference to the sentence type.
[36] Finally, on the material before the Court it is clear that Mr Fielding’s mother was not dependent on his care before he moved to Nelson awaiting trial. I am far from satisfied that this ground warrants any discrete reduction in the sentence imposed.
Result
[37] The appeal is allowed, and the sentence quashed. In its place I impose a sentence of 26 months’ imprisonment calculated as follows:
(a)A starting point of 30 months (or two and a half years’ imprisonment);
18 See generally Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; Poi v R; above n 17, and most recently Waikato-Tuhega v R [2021] NZCA 503.
(b)A discount of 10 per cent, on account of Mr Fielding’s late guilty plea;
(c)A further discount from the starting point of 20 per cent to reflect deprivation and the role of addiction in the offending; and
(d)An uplift of six months to reflect personal aggravating factors.
Isac J
Solicitors:
Public Defence Service, Hastings for Appellant Crown Law, Wellington for Respondent
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