Fifield v Police

[2024] NZHC 1453

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-000006

[2024] NZHC 1453

BETWEEN

BRUCE PATRICK FIFIELD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 May 2024 (via VMR)

Counsel:

A L Chen for Appellant

G L Duncan for Respondent

Judgment:

5 June 2024

JUDGMENT OF LA HOOD J

Introduction

[1]    Mr Fifield appeals against a sentence of two years and seven months’ imprisonment imposed on two charges of burglary,1 one charge of receiving,2 two charges of driving while disqualified,3 one charge of carelessly using a vehicle,4 and one charge of failing to stop.5

[2]    I have concluded the appeal should be dismissed because the sentence was not manifestly excessive. Although the uplifts for the charges of receiving and driving

1      Police v Fifield [2024] NZDC 3362 [District Court decision]; Crimes Act 1961, ss 231(1)(a) and 66(2); maximum penalty of 10 years’ imprisonment.

2      Sections 246 and 247(a); maximum penalty of seven years’ imprisonment (property valued at over

$1,000).

3      Land Transport Act 1998, s 32(1)(a); maximum penalty of three months’ imprisonment or a $4,500 fine and mandatory disqualification for six months or more.

4      Section 37(1); maximum penalty $3,000 fine.

5      Sections 52A(1)(b), 52A(4) and 52A(6); maximum penalty of a $10,000 fine and mandatory disqualification of between one and two years.

FIFIELD v NEW ZEALAND POLICE [2024] NZHC 1453 [5 June 2024]

while disqualified were stern, the end sentence was within range as the starting point for the burglaries was lenient and the uplift for previous offending could have been greater.

What happened?

The offending

[3]    On 22 March 2023, Mr Fifield, aged 36, was stopped by police in a routine traffic stop. When police told him that his vehicle would be impounded because he was disqualified from driving, Mr Fifield drove away.

[4]    On 8 May 2023, Mr Fifield was a party to the burglary of several vehicles worth over $100,000. Three people, not including Mr Fifield, used an angle grinder to cut through the steel front gates of a motor vehicle dealership storage yard. They left after suspicions were raised but returned soon after and shifted the vehicles around to clear a path for the higher value vehicles to be taken off the premises.

[5]    At about noon, Mr Fifield was asked to assist towing vehicles from the yard. He drove into the dealership and connected a white Mitsubishi to the car he had arrived in. Mr Fifield sat in the driver’s seat of the Mitsubishi, steering it while his associate towed it out of the yard to a nearby address. He returned to the dealership with his associate and prepared to connect another car to his own, intending to tow it from the building. He was prevented from doing so by the victim, who blocked him and his associate from leaving in their car. Mr Fifield’s associate, who was driving, rammed the victim’s car so they could escape. After this was unsuccessful, they ran from the property on foot. Three vehicles in total were taken.

[6]    On 11 May 2023, Mr Fifield did not give way at a give way sign and hit another car, causing extensive damage. The driver of the other car did not sustain substantial injuries. At the time, Mr Fifield was disqualified from driving.

[7]On 24 May 2023, Mr Fifield received a trailer, valued between $5,000 and

$7,000, that had been stolen from the victim’s home address that day. The trailer had no number plate when it was found at Mr Fifield’s address on 6 June 2024.

[8]    Finally, by 24 December 2023 Mr Fifield was on electronically monitored bail (EM bail) to an address in Pahiatua. In the early morning, he tampered with electronic monitoring equipment to escape detection and travelled to the Pahiatua Waste Transfer Station in breach of his bail conditions. He entered the station whilst it was closed to the public, walked into the yard, scaled a pole and took a camera which was attached to it. He was captured in the act by the camera, which was programmed to send images to council staff.

The District Court judgment

[9]    The Judge first reviewed the facts of Mr Fifield’s offending before turning to discuss his background. 6 He noted Mr Fifield’s extensive criminal history,7 which includes convictions for dishonesty, assault, breaching court orders and sentences, arms offending and nine convictions for burglary between 2002 and 2020. The Judge considered a pre-sentence report and a cultural report, both of which examined the trauma that was present in Mr Fifield’s youth; particularly the exposure he had to drug and alcohol abuse. The Judge considered an updating pre-sentence report that revealed a possible address suitable for electronic monitoring and implied that such a sentencing outcome would not be suitable, given that the burglary on 24 December was committed while on EM bail to that address.

[10]   The Judge turned to assess the appropriate starting point.8 He reached a global starting point of three years and six months’ (42 months) imprisonment after adjusting down an initial starting point of four years and four months’ (52 months) imprisonment for totality.9 To reach the initial starting point of four years and four months’ imprisonment, the Judge treated the 8 May burglary as the lead charge and uplifted it to reflect the other charges. The initial starting point was made up of:

6      District Court decision, above n 1, at [1]–[12].

7      The Pre-Sentence Report notes “Mr Fifield has an extensive criminal history, totalling 93 convictions, extending from the Palmerston North Youth Court in 2002, to the matters current before the Court. His criminal history is made up of multiple convictions for violent offending, including possession of firearms, thefts and burglary convictions and non-compliance with sentence or court conditions. In total, Mr Fifield has 15 previous convictions for breaching sentence or release conditions. He is assessed as posing a medium to high risk of harm and a high likelihood of re-offending, further details are in the relevant section of this report.”

8 District Court decision, above n 1, at [14].

9 At [15].

(a)One year and ten months’ imprisonment for the 8 May burglary. The Judge saw this as appropriate given the sophisticated nature of the burglary, the value of the items taken and Mr Fifield’s role of “some importance”.

(b)One year’s imprisonment for the 24 December burglary.

(c)One year’s imprisonment for receiving the trailer.

(d)Six months’ imprisonment to reflect the charges of driving while disqualified.

(e)No increase for the additional traffic charges of driving carelessly or failing to stop.

[11]   The Judge increased the global starting point of 42 months’ imprisonment by 15 per cent to reflect Mr Fifield’s history of relevant convictions and the fact he committed the 24 December burglary whilst on EM bail.10

[12]   The Judge decreased the global  starting  point  by  20  per  cent  to  reflect Mr Fifield’s guilty pleas. He decreased it by 15 per cent to reflect how the exposure to drugs and alcohol and other trauma inflicted on him as he was growing up causatively contributed to his present offending.11 The Judge declined to give credit for remorse, saying that he saw “minimisation and denial” rather than remorse. He also declined to give credit for potential rehabilitation, saying that he struggled to see realistic chances of Mr Fifield rehabilitating given the contents of the pre-sentence report.12

[13]   After accounting for a final credit of two months to reflect the four and a half months Mr Fifield had spent on EM bail, the Judge reached a sentence of two years and seven months’ imprisonment. The Judge also disqualified Mr Fifield from driving for one year, reflecting three concurrent disqualifications for the driving charges.

10 At [16].

11 At [17].

12 At [18].

Arguments on appeal

[14]   Counsel for Mr Fifield, Mr Chen, submits that the sentence is manifestly excessive because the Judge erred in setting the starting point and uplift for the two burglary charges and in setting the uplift for all additional charges. Mr Chen submits that the Judge did not adequately provide for the totality of the offending and points to several cases that are said to demonstrate that other judges have taken a more lenient approach to multiple charges of burglary or in adjusting for totality where there are multiple charges.

[15]   The respondent submits that the appellant’s submissions do not acknowledge how the Judge used the totality principle to decrease the global starting point and that the overall sentence was well within range.

Approach to sentence appeals

[16]   A successful sentence appeal under s 250(2) of the Criminal Procedure Act 2011 requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.13 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.14 Rather, the appellant must show there is a material error before the court goes on to form its own view of the appropriate sentence.15 The court will not generally intervene unless a sentence is manifestly excessive,16 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.17

[17]   Thus, the issue for determination is whether there has been a material error that means the sentence was manifestly excessive.

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

14 At [30].

15 At [30].

16 At [35].

17     At [30]–[36].

Sentencing methodology

[18]   In reaching the final sentence, a court must first calculate a starting point incorporating any aggravating and mitigating factors of the offending, then make adjustments to that starting point for aggravating and mitigating factors personal to the offender.18 Where there are multiple offences the sentence must abide by the totality principle. This means the total period of imprisonment must not be wholly out of proportion to the gravity of the offending, but the court will not insist that the total sentence be reached in any particular way.19

Assessments of arguments and decisions

Did the Judge err in setting the starting point for the two burglaries?

[19]   Mr Chen submits that the combined starting point of two years and ten months’ imprisonment for the two burglaries was excessive, citing the cases of Jackson v Police20 and Stridom v Police,21 among others.22

[20]   In Jackson, a starting point of two years and six months’ imprisonment was taken for two charges of burglary and one charge each of breach of release conditions, failure to answer bail and possession of methamphetamine. In Stridom, a starting point of two years and eight months’ imprisonment was taken for two charges of burglary and one charge each of receiving, theft and unlawfully taking a motor vehicle.

[21]   Underpinning Mr Fifield’s claim that the starting point was too high is a submission that both burglaries demonstrate a relatively low level of culpability. For the 8 May burglary, Mr Chen points to the commercial nature of the premises,

18 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

19 Sentencing Act 2002, s 85; R v Barker CA57/01, 30 July 2001 at [10]. In Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 at [46], William Young J explained: “The overall sentence imposed must reflect the seriousness of that totality and this is so irrespective of whether the sentences are structured as concurrent or cumulative. So if concurrent sentences are imposed, the most serious offence receives the sentence appropriate for the totality of the offending. For cumulative sentences, it is the length of the sentences, when added together, which reflect that totality. Therefore, the practical effect of the totality principle is that the effective sentence of imprisonment will be the same irrespective of whether the sentences are structured cumulatively or concurrently.” [Footnotes omitted]

20     Jackson v Police [2019] NZHC 1123.

21     Stridom v Police [2019] NZHC 354.

22     Cooper v Police [2021] NZHC 2574 and Brooking v Police [2020] NZHC 1035.

Mr Fifield’s late involvement, his lower level of premeditation than other offenders and the fact he was only party to the offending.   For the 24 December burglary,    Mr Chen points to the low value of the items taken and Mr Fifield’s claimed intention of finding a spare display screen. Mr Chen submits that Mr Fifield acted opportunistically in relation to both burglaries.

[22]   I do not accept these submissions. In relation to the 8 May burglary, as the Crown submitted, the typical distinction between residential and commercial burglaries is not relevant given the dealership was a small family run business and involved a confrontation with the owner of the dealership and his son, an accepted aggravating factor.23 The reason burglary of a residence is seen as significantly aggravating is because it increases the risk of confrontation with occupiers.24 The burglary of a small business during the day similarly increases the risk of confrontation. Mr Fifield also cannot be said to have acted purely opportunistically given the preparation required in driving to the premises, reversing in to enable quick access to the vehicles there, attaching the Mitsubishi to his own car and getting into it to steer it as it was driven out of the dealership — all before returning to attempt the same again. Ultimately, Mr Fifield played an important role in what was a sophisticated and premeditated burglary involving high value property.

[23]   In relation to the 24 December burglary, Mr Fifield again cannot be said to have acted opportunistically given his intentional tampering with his electronic monitoring device. The claim that he was only intending to find a spare display screen does not decrease his culpability; if anything, it shows he had pre-formed an intention to unlawfully take something from the premises.

[24]   I do not consider Jackson assists Mr Fifield. In Jackson, there was a starting point of two years’ imprisonment for two charges of burglary resulting from one incident of taking items worth around $4,000 from a container at the back of a warehouse after breaking in with bolt-cutters. On appeal, Mander J felt compelled to reduce the final sentence by five months to achieve parity with his co-offender. However, Mander J also said that the starting point of two years’ imprisonment could

23     Arahanga v R [2012] NZCA 480, [2013] 1 NZRL 189 at [78].

24 At [78].

“be viewed as lenient” given the starting points for burglary offending of the type for which the appellant was sentenced would “likely attract a starting point in the region of two years and six months’ imprisonment”.

[25]   Mr Fifield’s offending is more serious than in Jackson. The charges of burglary are for two entirely separate incidents that occurred seven months apart. In relation to the 8 May burglary, the value of the items taken was significantly greater, there was a much higher risk of confrontation, there was in fact a confrontation resulting in damage to the owners’ vehicle, and the victim impact statement reveals the extent of the negative impact on the victims.

[26]   The Judge in this case adjusted for totality after reaching preliminary starting points for the balance of the charges. If that totality adjustment was a percentage applied to the burglary charges separately it would have been equivalent to a credit of roughly 20 per cent of two years and ten months, taking  the sentence down to     two years and three months’ imprisonment (27 months). When the starting point for the two burglaries is looked at through this lens, it was lenient given it is three months lower than the starting point Mander J considered appropriate for the less serious burglaries in Jackson.

[27]   Similarly, Stridom does not assist Mr Fifield. While the appellant in Stridom was involved from the beginning of the planning of those burglaries, the two burglaries were carried out five days apart, had a low risk of confrontation, lacked forced entry and involved property of significantly lower value.25 Regardless, the starting point taken here by the Judge is only three months greater than that taken in Stridom (when adjusted to reflect the Judge’s global reduction for totality). I therefore consider the adjusted starting point of 27 months’ imprisonment for the two burglaries was generous to Mr Fifield.

25     Stridom v Police, above n 21, at [28].

Did the Judge err in setting the uplift for the other charges?

[28]   Counsel for Mr Fifield submits that the Judge did not adequately account for the principle of totality. In particular:

(a)the Judge should have accounted for the receiving charge with a proportionate uplift, rather than adding the number of months the charge would have received were it the lead offence; and

(b)the Judge should not have added an uplift of six months for the two charges of driving while disqualified when the maximum penalty available in respect of each was three months’ imprisonment.

[29]   In respect of the proportionate uplift for the receiving, it is necessary to look at both the starting point of 12 months and the uplift of 9.6 months (following the global 20 per cent totality reduction).

[30]   In Andrews v Police,26 Brewer J noted there is no tariff case for receiving, but cases indicate a starting point of six months’ imprisonment has been imposed where the goods received are valued at around $2,000 and a starting point of 18 months (or higher) is appropriate where the value of the goods is $5,000 or more. While the value of the items is a significant factor, other relevant aggravating features include the number of burglaries from which the goods were received, the scale of the offending and the gap in time between the taking of the goods and their receipt. Other cases confirm that a close temporal connection between the taking of the goods and their receipt increases culpability on the basis it can indicate a higher level of knowledge or recklessness.27

[31]   I received information following the hearing of the appeal confirming the value of the trailer is estimated to be between $5,000 and $7,000. Mr Fifield received the trailer on same day it was taken in a burglary. He either received it with the numberplate removed or removed it himself. Mr Chen notes that he was charged with

26     Andrews v Police [2015] NZHC 2496 at [32].

27     See Whittaker v New Zealand Police [2017] NZHC 2747 at [17], discussing Ellis v R [2012] NZCA 513.

recklessly, rather than knowingly, receiving the trailer, but the timing of its receipt and the removal of the numberplate indicate a substantial level of recklessness. Given these factors, no issue can be taken with the 12-month starting point. However, I accept that a reduction of this starting point by only 2.4 months, to get to the resulting uplift of 9.6 months, was less generous than it might have been.

[32]   In respect of the two charges of driving while disqualified, the proportionate uplift was (after applying the global totality adjustment) 4.8 months’ imprisonment against a maximum penalty of six months’ imprisonment. While that may seem excessive on first blush, it reflects the aggravating features of absconding from the police during the first offence, and driving through a give way sign and extensively damaging another car during the second offence less than two months later.28

[33]   Mr Chen’s comparison with the uplifts in Brooking v Police is unhelpful.29 That case involved six charges of burglary and three of receiving. There was one residential burglary involving entry through an insecure door to a rural property at night and removal of a hot water cylinder, and five commercial burglaries involving forced entry to retail premises and the theft of more than $15,000 worth of goods. The receiving charges involved property totalling more than $40,000. Lang J considered a two-year starting point for the residential burglary was easily justified and the uplift of two years for the remaining charges was modest and more could have been justified.30 Therefore, the overall starting point of 48 months’ imprisonment could have been greater. This makes meaningful comparison with Brooking difficult. But  it does not demonstrate that an overall starting point of 37 months (adjusted for the 20 per cent global totality reduction) for the two burglaries and receiving in this case was manifestly excessive.

[34]   Finally, although there was no challenge on appeal to the other adjustments to the starting point, that does not mean I am required to ignore them. Mr Fifield has 93 previous convictions, and a long history of dishonesty offending, including nine previous convictions for burglary between 2002 and 2020. In these circumstances, the

28     The finable only charges of failing to stop and careless driving did not attract separate penalties other than the mandatory minimum disqualification on the failing to stop charge.

29     Brooking v New Zealand Police, above n 22.

30 At [20].

15 per cent uplift for Mr Fifield’s previous convictions and for committing the second burglary while on EM bail could have been greater.31

Conclusion

[35]   Although the adjusted uplifts for the receiving and driving while disqualified were stern, the starting point for the two burglaries was generous and the uplift for previous convictions could have been greater. Overall, therefore, the end sentence of two years and seven months’ imprisonment was not manifestly excessive. Accordingly, the appeal is dismissed.

La Hood J

Solicitors:

Public Defence Service, Wellington for Appellant Crown Solicitor, Palmerston North for Respondent

31 See for example, R v Columbus [2008] NZCA 192 at [14]–[20], where the Court of Appeal imposed an uplift of one year against a starting point of one year, six months’ imprisonment (66 per cent) for a significant history of burglary and dishonesty offending (89 previous convictions including 13 for burglary); and Hayward v Police [2014] NZHC 2286, where, at [11]– [14], a one year uplift (50 per cent) for a “very serious” criminal history was upheld even though the convictions for burglary were not recent. The rationale for such uplifts is explained in Adams on Criminal Law – Sentencing (looseleaf ed, Thomson Reuters) at [SA9.15(6)]: “Recidivist burglary is an exception; significantly higher uplifts for previous offending have frequently been upheld as appropriate: R v Columbus [2008] NZCA 192 at [14]–[15]. An 18-month uplift was upheld in Jones v R [2012] NZCA 273. A 12-month uplift was upheld in King v Police [2014] NZHC 2946; Hayward v Police [2014] NZHC 2286; and Moeroa v Police [2015] NZHC 2226. Indeed, previous dishonesty convictions, although aggravating personal circumstances, have often been treated as a component of the burglary starting point, on the basis that it is directly relevant to assessing the degree of the offender’s culpability for the present offence: R v Lowe CA62/05, 4 July 2005; Senior v Police (2000) 18 CRNZ 340 (HC) at [27]–[30]; Hayward at [14]. However, in this event it is important to avoid double-counting by taking into account previous convictions both in setting a high starting point and in applying a substantial uplift; this will amount to an error of law: Singh v R [2011] NZCA 139 at [15]; Putua v Police [2017] NZHC 103 at [21].”