French v Police
[2015] NZHC 2635
•27 October 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000088 [2015] NZHC 2635
BETWEEN SHANNON DEL FRENCH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 October 2015 Appearances:
R Wood and M G Dixon for Appellant
K B Bell for RespondentJudgment:
27 October 2015
JUDGMENT OF GENDALL J
Introduction
[1] On 14 August 2015 the appellant, Mr Shannon French was sentenced by His Honour Judge Garland in the Christchurch District Court on one charge of burglary1 and one charge of receiving (over $1000)2 to which he pleaded guilty.3
Judge Garland sentenced Mr French to two years and 11 months imprisonment. Mr French now appeals that sentence.
Background facts to the offending
[2] On 19 May 2015, Mr French, with an associate, entered the grounds of Christchurch Boys High School. They proceeded to climb over the gate to the students secure bike lock up. The appellant’s associate removed the victim’s mountain bike from the bike rack and wheeled it out of the school with the appellant.
Later that day the appellant and his associate went to Around Again Cycles in
1 Crimes Act 1961, s 231(1)(a).
2 Crimes Act 1961, ss 246 and 247(a).
3 Police v French [2015] NZDC 16162.
FRENCH v NEW ZEALAND POLICE [2015] NZHC 2635 [27 October 2015]
Christchurch where Mr French sold the mountain bike for $270. In explanation, Mr French claimed that his associate owed him $50. This offending resulted in the receiving charge.
[3] On 22 May 2015, between the hours of 10am and 12pm, Mr French entered a property on Remuera Avenue, Christchurch. He used a shovel to jemmy open a window. Having gained entry, he targeted and took 12 items of jewellery belonging to the victim, estimated to have a value of $1,340. In explanation, Mr French simply stated that he did not know how his fingerprints would have been found as he usually wears gloves. He sold the jewellery at a jewellers shop in Papanui. This offending resulted in the burglary charge.
District Court sentencing
[4] In the District Court, Judge Garland took the burglary as the lead charge. Having regard to the factors relating to the offending, His Honour took a starting point of two years’ imprisonment. This was then uplifted by nine months to reflect the receiving charge. Turning to consider personal aggravating and mitigating factors, the Judge had regard to Mr French’s extensive history of similar offending, as well as the fact that the most recent offending was committed while the appellant was on parole. An uplift of 12 months imprisonment was imposed before a
10 month discount was applied for an early guilty plea. This discount, on my calculation, amounted to 22 per cent.
[5] Judge Garland imposed a final end sentence of two years and 11 months’ imprisonment on the burglary charge and a concurrent nine month sentence on the receiving charge.
Submissions
[6] The appeal before me is advanced on the following grounds:
(a) the uplift of nine months imprisonment for the receiving charge was too high having regard to previous sentencing for offending committed in similar circumstances;
(b)the uplift for previous offences and offending on release conditions was disproportionately high;
(c) the amount of credit given for the guilty pleas and other mitigating factors was insufficient; and
(d) the end sentence was manifestly excessive.
[7] It is submitted that an end sentence in the vicinity of two years’ imprisonment
should have been imposed.
Discussion
[8] Mr French may appeal against the sentence imposed as of right.4 As the first appeal court,5 I must only allow the appeal if I am satisfied that:6
(a) For any reason, there is an error in the sentence imposed on conviction; and
(b) A different sentence should be imposed.
[9] In Tutakangahau v R, the Court of Appeal confirmed that the Criminal Procedure Act 2011 sentence appeal regime was not intended to signify a departure from the position under the previous Crimes Act 1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3), regimes.7
[10] Here, the appellant has proceeded on the basis that the sentence imposed was manifestly excessive and a different sentence should be imposed. For that reason, I will deal with this appeal by conducting my own sentencing exercise. If it can be said that the sentence imposed by Judge Garland falls within range, then it will be clear that the sentence was not manifestly excessive and another sentence is not to be
imposed.
4 Criminal Procedure Act 2011, s 244.
5 Section 247.
6 Section 250.
7 Tutakangahau v R [2014] NZCA 297, [2014] 3 NZLR 482.
Burglary offending
[11] Like Judge Garland, I consider that the burglary offending was the more serious of the charges here, so I take it as the lead offence. Counsel for the appellant correctly notes that there is no tariff case for burglary offending. This is symptomatic of the wide array of circumstances in which burglary offending can be committed.8 The Court of Appeal has therefore been unwilling to fix a tariff.
[12] In the past, sentencing courts have taken different approaches to sentencing for burglary. One previous approach was that found in the case of Senior v Police.9
Under the Senior approach the sentencing Judge would consider an offender’s prior dishonesty offending when fixing a starting point. Naturally, this resulted in higher starting points for offenders who had extensive criminal histories.
[13] A second approach, and the one which recently has found increased favour, is that adopted in R v Taueki.10 Recidivism is not taken into account when determining a starting point. Rather, it is dealt with as an aggravating factor personal to the offender. It is this latter approach that I adopt in this case.
[14] A starting point must therefore be set, having regard to the aggravating and mitigating factors of the offending and comparing it to similar offending of its type.
[15] The Court of Appeal in R v Nguyen identified six factors relevant to assessing the level of seriousness of a burglary:11
(a) the degree of planning and sophistication in the offending; (b) the nature of the premises entered;
(c) the kind and value of the property stolen;
(d) damage done;
8 R v Nguyen CA 110/01, 2 July 2001.
9 Senior v Police (2000) 18 CRNZ 340 (HC).
10 R v Taueki [2005] 3 NZLR 372 (CA).
11 R v Nguyen CA 110/01, 2 July 2001.
(e) the impact and potential impact upon occupants or owners of the property; and
(f) the extent of the offending where multiple burglaries are involved.
[16] One factor the courts have considered to be seriously aggravating relating to the nature of the premises entered is the situation when a burglary is of a dwelling house. In Arahanga v R, the Court of Appeal stated:12
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.
[17] Another factor which must be considered is the kind of property that was stolen. Here, Mr French clearly targeted jewellery. A real risk in taking items such as jewellery is that there is always a chance, as is the case here, that they will have sentimental value in addition to their monetary value. As to this, the victim in her victim impact statement said that:
It wasn’t the monetary value of the items taken that upset me it was the sentimental value. They were pieces that my mother had given me, my children had given me and other pieces I had been given through out my life.
…
I know I will probably never get those pieces of jewellery back and that is very upsetting.
[18] Although in the overall scheme of things, this is not a particularly serious aggravating feature in the present case, it is a consideration that should be taken into account. It is also relevant that the jewellery in question had an estimated combined value of $1,340. This is not a trivial amount.
[19] The victim in this case was a 73 year old woman. Again, she said in her victim impact statement that:
12 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] (footnotes omitted).
I couldn’t sleep for four nights after it happened. I felt terrified that they might come back and I still have those feelings. I’m scared they may try and intimidate me for reporting it to the police.
It was a horrible feeling knowing that someone had been through everything
I own. I’m worried they may come back and have a second attempt.
[20] The effect that the present offending had for the victim here no doubt goes some way to demonstrating why the courts consider burglary of a dwelling house to be significantly more serious than other burglaries. The vulnerability of the present victim also demonstrates why dwelling house burglaries are treated more seriously. Although an offender when entering an occupied dwelling does not know who they might confront when committing a burglary, in this case, it was a vulnerable
73 year old woman.
[21] The present offending, however, cannot be labelled as sophisticated. Entry to the building was gained using a shovel to jemmy open a window. Nor does it appear that much significant damage was done.
[22] Given all these factors, I consider that the offending itself falls at the “relatively minor” end of the scale for dwelling house burglaries. For that reason, I would adopt 20 months as an appropriate starting point for this offending.
[23] The next step in the process is to adjust the starting point to reflect the aggravating and mitigating factors personal to the offender. In this case, the most aggravating personal factors are Mr French’s recidivism as a burglar and his history of dishonesty offending. Mr French has 77 previous convictions for burglary alongside a further 27 dishonesty offences.
[24] Typically, burglary recidivism has been treated harshly by the Courts. In the past, the Court of Appeal has considered it appropriate to impose 12 month uplifts in cases where there have been on the one hand, 22 previous convictions for burglary13 and, on the other, 13 previous burglary convictions alongside 34 other property
related offences.14 Similarly, in a number of cases the High Court has imposed
13 R v Povey [2009] NZCA 362.
14 R v Columbus [2008] NZCA 192.
12 month uplifts for recidivist burglars.15 For that reason, in the present case in my view, a 12 months uplift for recidivism is within range as appropriate.
[25] There is also a further aggravating feature in that the offending took place within two weeks of Mr French being released from imprisonment while he was still subject to that other sentence. This is treated as a separate aggravating feature by the Sentencing Act 2002. A further two months uplift is warranted. This takes the adjusted starting point on the burglary charge to 34 months before adjusting with
discounts.16
[26] There will be discounts to apply for Mr French’s remorse and guilty plea. I
will deal with those, however, after addressing the receiving offending.
Receiving offending
[27] The receiving offending occurred three days prior to the burglary offending. There are two ways in which this offending could be approached on sentencing. As the receiving here was unrelated to the burglary offence, it could be treated as a distinct event and sentenced cumulatively. An adjustment would then be required to account for totality. Alternatively, a more global approach could be taken to the sentencing exercise where the receiving charge is sentenced concurrently but is taken as an uplift to the burglary offending. Either approach is appropriate and, as I see the position, it is likely to end up with a similar result. I have decided here to adopt the former approach noted above.
[28] Because the value of the property received exceeded $1,000, the offence is punishable by a term of imprisonment not exceeding seven years.17 In terms of the actual receiving offence, a person is guilty of receiving if they receive any stolen property knowing that the property had been stolen or they were reckless as to whether or not it had been stolen.18 Although the offence itself does not distinguish between actual knowledge or recklessness, it can be taken into account at sentencing.
Actual knowledge obviously increases the culpability of the offending.
15 Hotene v Police [2014] NZHC 2081; Hetariki v Police [2015] NZHC 2461.
16 Sentencing Act 2002, s 9(1)(c).
17 Crimes Act 1961, s 247(a).
18 Crimes Act 1961, s 246(1).
[29] In R v Lasike Asher J discussed sentencing ranges for receiving:
[64] There is no tariff case for receiving. In R v Bom (CA 209/96) 18
October 1996, a six-year term of imprisonment was upheld following guilty verdicts on four counts of receiving and one count of conspiracy to receive. It seems in that case that Mr Born was running an illicit supermarket for the clearance of stolen property. It was of a duration, scale and sophistication, far in excess of what is demonstrated in this case.
[65] Police v Som (CRI 2005-485-141, 4 November 2005, Ronald Young J) was more similar. There were 11 charges of receiving items totalling in the region of $30,000.00. There was $7,000.00 worth of property outstanding. Mr Som was a first offender having no relevant convictions, and had entered a guilty plea. An overall sentence of two years' imprisonment was assessed on appeal, with leave to apply for home detention declined. It was noted that the methodical nature of the receiving for commercial gain made it more serious. The burglar was stealing to the order of the receiver in that case. It was described as being in the moderately serious category. The starting point was fixed on appeal at three years and three months.
[66] It can be seen from these two cases that sentences of six years or more will result if the receiving is sophisticated and on a large scale, with property stolen to order. Starting points of three to four years may be appropriate where the receiving is at a lower level, where the receivers nevertheless have a close relationship with the burglars, and specific property is targeted, and the amounts received are in the $15,000 - $50,000 area.
[30] In Ellis v R the Court of Appeal considered that an 18 month starting point was appropriate where the offender had pleaded guilty to one charge of receiving goods valued at approximately $5,000.19 In that case, the Court of Appeal said:
[9] We are satisfied that the 18 month starting sentence was within the range available to the Judge although stern. The Judge was entitled to take into account that Mr Ellis had come into possession of the stolen goods very shortly after the burglary within hours if not minutes. This obviously suggested some connection between the burglar and the receiver. This inference is reinforced by Mr Ellis’s previous convictions for dishonesty. The value of the property taken was not minor but nor was it a major receiving. A start sentence, therefore, in the 12 to 18 month range was appropriate.
[31] Although the value of the goods in Ellis was higher than in the present case, an aspect which the Court of Appeal considered increased the seriousness of the offending was the close connection between the burglar and the receiver. In this case
there was not only a close connection, but Mr French was actually present at the time
19 Ellis v R [2012] NZCA 513.
the burglary occurred. Whether he and his co-offender parted company at any point is unclear, but that same day Mr Fisher took the bike to Around Again Cycles where he sold the bike. On the facts, it does appear that Mr French could also have been charged with burglary for this incident, or at the very least as a party. However, it is receiving that he was ultimately charged with.
[32] On that basis, a starting point of 14 months on the receiving charge, in my view, is appropriate here to reflect Mr French’s high level of culpability. No uplifts would be imposed for recidivism as it is adequately captured by the uplift on the burglary. On the basis of this end sentence for the receiving charge of 14 months, cumulatively, this takes the end sentence before discounts here to one of 48 months’ imprisonment.
Discounts
[33] Discounts now need to be applied for Mr French’s guilty plea and remorse. Often a full 25 per cent discount is seen as not being justified on the entry of a plea, even when made at an early point. This is because the strength of the prosecution case has to also be taken into account, along with the benefit to the system that a
guilty plea actually provides.20 However, in the present case I accept the argument
advanced by counsel for the appellant that Mr French was genuinely remorseful and did assist in recovering a few articles of the missing jewellery. Therefore, although the prosecution case here was a strong one, remorse in combination with the early guilty plea would justify a discount of 25 per cent. This amounts to a 12 month reduction of the total sentence to 36 months’ imprisonment or three years.
Totality
[34] Having taken the approach of sentencing the two offences cumulatively, I must step back and ask whether the total period of imprisonment is wholly out of proportion to the gravity of the overall offending.21 I believe that a 36 month sentence scarcely violates the principle of totality here. If anything by way of a
downward adjustment was required it would be in any event only something in the
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
21 Sentencing Act 2002, s 85.
order of two months, taking the total to 34 months or two years and ten months imprisonment.
Result
[35] Although this is one month lower than the final sentence that Judge Garland in the District Court arrived at, I do not believe it demonstrates that the sentence imposed was out of range. To adjust it, in my view, would only be tinkering.
[36] For that reason, the present appeal is dismissed.
...................................................
Gendall J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co, Christchurch
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