Grace v Police HC New Plymouth CRI-2011-443-048

[2011] NZHC 1986

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-048

JOSEPH REILY GRACE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2011

Counsel:         P Mooney for the Appellant

S Law for the Respondent

Judgment:      13 December 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr P Mooney, Mooney & Webb, Solicitors, New Plymouth

Ms S Law, C & M Legal, Office of the Crown Solicitor, New Plymouth

GRACE V NEW ZEALAND POLICE HC NWP CRI-2011-443-048 13 December 2011

[1]      On 19 August 2001 the appellant was sentenced to imprisonment for four and a half years for 11 burglaries and one offence of unlawfully taking a car.1   The Judge imposed a minimum period of imprisonment of two-thirds of that sentence; that is to say, the maximum under s 86 of the Sentencing Act.   The appeal is against the imposition of a minimum period of imprisonment.

The facts

[2]      The facts may conveniently be taken from the judgment:

[4]       You were stopped on 16 June.   You were stopped at a roadside checkpoint.  You were arrested then and there.  You subsequently took the police on a drive-by of multiple locations where properties were pointed out to you. At this stage you are not making comment.

[5]       Later  on  you  undertook  a  second  journey.    You  indicated  11 properties that you had burgled.   These properties were urban dwellings; seven in New Plymouth, three in Bell Block and one in Oakura.  In relation to two of those properties no burglary had been reported.

[6]       Chronologically in relation to the first burglary you went into a residential property.  The occupants were up and about.  You saw a wallet on the table. You were challenged by a dog and you left.

[7]       Later on you admitted going to the rear of a property and into an unlocked shed, searching through two freezers. You left taking nothing.

[8]       Thereafter  at  a  St Aubyn  Street  address  you  utilized  a  piece  of timber, around 1.00 pm during the day, to open a window. The burglar alarm sounded and you departed.

[9]       Thereafter you acknowledge climbing through insecure windows, house properties at Hine Street, Gover Street and Park View Drive, Bell Block.  You went through insecure doors at a George Street address and a Lantana Avenue address.   You took handbags, wallets, cellphones and a laptop computer.  There were people in those houses, some of them at the time, although they were occupied elsewhere.

[10]      There  were  confrontations.   At  1.00  am on  7  June  you,  having entered a Norman Street address, woke a sleeping woman.   She heard the creaking floorboards.  She had the fortitude to confront you, challenge you and you ran.  You had taken your footwear off.  You acknowledge that.  You stole a watch.   You were wearing that watch at the time.   You entered a second time before being disturbed.  Nothing was taken on the re-entry.

1 R v Grace DC New Plymouth, CRI-2011-043-001878, 19 August 2011.

[11]      In May of this year the occupants of a Pendarves Street address were entertaining.    You  entered  their  house  and  went  upstairs.    You  stole handbags, contents and jewellery.   You were then confronted by a child. Again, she had the fortitude to inform an adult.  You were pursued by two females.  You hid, you discarded everything but the cash and took off your top to alter your appearance.  You then went to the supermarket car park and got into a vehicle there parked. There were three teenage males therein. You gave clear and unequivocal instructions.   The occupants fearful, complied with your direction that you be transported elsewhere. You subsequently left the car.

[12]     Thereafter,  11  June,  you  are  disturbed,  confronted  by  a  female occupant at 9.00 pm at an Oakura address.  You had removed your footwear and entered via an insecure door.  She too confronted you.  You stole two handbags that were there in the dining room.  You ran from the house.  You acknowledge going to that address twice.

[13]      There are parts in this summary that are to your credit.   A senior police  officer  has  commented  that  you  were  ―obviously  forthright  and honest‖, prevailed on your girlfriend to retrieve two wedding rings from a receiver.   They had to be repurchased.   They have been returned to the rightful owner.

[14]      You have explained to the police your situation.  You had no money. You were unable to secure employment.  You were looking to deal with day to day commitments, particularly the rent.  You did not mince your words. You have not proffered any excuse at any time. The second to last paragraph in the detective sergeant’s summary reads:

―His honesty and self-incrimination is credit-worthy.   It obviously expedites what might otherwise have been a protracted and difficult exercise.

[15]     I record that in my time here I have never seen such commentary.  It is something that I believe ultimately can work to your credit.   However, before we get there, the total reparation figure required to reinstate your victims stands at $4,518.70.

[3]      These offences occurred between January and June 2011 broken by a period when the appellant was in prison, in March 2011, on charges of possession of an offensive weapon, domestic assault, wilful damage and common assault.  He came out of prison and resumed burgling.

[4]      The appellant was aged 33 when these offences were committed.   He has numerous previous convictions starting in the Youth Court when he was aged 14 years.    The  Judge  noted  that  the  appellant  has  a  total  of  103  convictions,  72 sentences of imprisonment, 38 convictions for burglary as an adult, excluding the present offending, and two convictions for entering property with intent.  In respect

of the previous convictions for burglary, the appellant was sentenced on 7 July 2005 for 33 burglaries.   He was sentenced to imprisonment for three years and eight months.

The judgment under appeal

[5]      The Judge referred to a range of matters relevant to fixing a starting point and then to aggravating and mitigating factors of a personal nature.   Generally it is unnecessary to discuss these because the end sentence of four and a half years imprisonment, and the process by which it was reached, is not challenged in any way on this appeal.

[6]      The full reasons directly referred to by the Judge for imposing a minimum period of imprisonment were as follows:

[36]      I do, however, need finally to address this issue of the minimum non-parole period.   I do intend to impose a minimum non-parole period. You have a horrendous list of previous convictions.  It does not seem, at least until you are able to establish otherwise, that you are learning.   While I accept you have your difficulties securing work and I do not doubt that you made some efforts initially it is not open to you to commit these offences continuously.    I  do  not  believe  I  have  seen  a  longer  list  of  burglary convictions and here you are but 33 years of age.

[37]     You were too, for a time, on release conditions.   You had been released from prison this year and on regaining your liberty you set about committing further offences.  For the moment I believe and I am of the view that a minimum non-parole period is necessary because otherwise in my judgement [sic] the normal period of imprisonment you would serve would be  insufficient  to  elevate  the  considerations  of  denunciation  of  your behavior, deterring you and others. Again the protection of the community is a  relevant  consideration.    I  thus  order  that  you  serve  two-thirds  of  the sentence I have imposed.

Discussion

[7]      The imposition of a minimum period of imprisonment is governed by s 86 of the Sentencing Act. This provides, so far as material:

86       Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1)      If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve  a  minimum  period  of  imprisonment  in  relation  to  that particular sentence.

(2)       The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a)      holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved: (c)     deterring the offender or other persons from committing the

same or a similar offence:

(d)      protecting the community from the offender.] (3)   Repealed.

(4)       A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a)      two-thirds of the full term of the sentence; or

(b)      10 years.

…

[8]      Section 86 was discussed by the Court of Appeal in Taueki2 at [53]-[55]. As the Court noted, a Judge must first decide whether there should be a minimum period of imprisonment for the sentence that will already have been assessed. This involves exercise of a discretion: see R v Hanna at [21].3

[9]      Mr Mooney, on behalf of the appellant, has not contended that there was error by the Judge in exercising his discretion by determining that there should be a minimum period of imprisonment.  That was a responsible acknowledgement.  I am satisfied  that  there  was  no  error  which  would  justify this  Court,  on  an  appeal, overturning the exercise of a discretion.  The Judge has applied the statutory criteria

and made an assessment based on the facts clearly established before him.   It is

2 R v Taueki [2005] 3 NZLR 372; (2005) 21 CRNZ 769 (CA).

3 R v Hanna CA201/04, 7 October 2004.

relevant to the next question – the length of the minimum period of imprisonment – that the facts relate in particular to the persistence of the offending of various types. The offending here might properly be described as relentless.  The ultimate question on appeal is whether this case justified imposition of the maximum of two-thirds of the full sentence.

[10]     Mr Mooney advanced two grounds for the submission that there was error. He submitted that the Judge failed to give any adequate weight, when assessing the length of the minimum period of imprisonment, to the appellant’s guilty plea and to the significant assistance provided by the appellant to Police.

[11]     I am not persuaded that these factors warrant an adjustment to the length of the minimum period as assessed by the Judge.  Firstly, both factors were taken into account in fixing the sentence; that is to say, the end sentence of four years and six months.  From a starting point of six and a half years imprisonment, which is not challenged, the Judge deducted six months for the appellant’s assistance to Police. There has been no argument that that was inadequate at that point.  The Judge then deducted a further 25% for the guilty plea.  At this point it may be said that these matters have sufficiently been taken into account already.

[12]     In addition, in R v Nguyen4 the Court of Appeal said, at [33]:

In determining whether an order should be made under s 86, the Court must focus on the four specified purposes in s 86(2). Both the principles in s 8 and the aggravating and mitigating factors in s 9 are applicable to the extent they are relevant to one or more of the four purposes: R v Walsh (2005) 21 CRNZ

946 at 951 (CA).   For example, a guilty plea and co-operation with the authorities are relevant  when  considering whether a  minimum period of

imprisonment under s 86 is necessary to satisfy the purposes of denunciation

and deterrence in relation to the offender personally, if the guilty plea and the co-operation demonstrate the offender’s insight into the nature and seriousness of his or her offending.

(emphasis added)

[13]     Further, in Jellyman v R5 the Court of Appeal said, at [11]:

While the Judge did not make an express allowance for mitigating factors when imposing the minimum term, he had undertaken that exercise as part of fixing the finite sentence. He made an appropriate allowance for Mr Jellyman’s pleas of guilty. But he was not satisfied that there were any other mitigating circumstances.

[14]     The  matters  that  Mr  Mooney  referred  to  might  have  been  brought  into account again in assessing the length of the minimum period of imprisonment, but the conclusion I reach is that there is no appealable error in this regard.

[15]     However, there are two matters which do raise a question as to whether the maximum should have been imposed.  Mr Mooney also referred to observations the Judge made, when discussing the gravity of the offending, to the effect that the Judge himself and the appellant’s then counsel had been victims of burglaries.  The Judge said:

[23]      Your counsel, Mr Hickling, addressed me at length.  It is interesting that of the four people who have spoken here in Court; the Crown Solicitor, your own counsel and myself, we are talking about you although you have not said anything.  Two of us have been the subject of burglaries.  I confirm what Mr Hickling says.  A sense of devastation.  The fact that someone has been in your room, in your house, walking amongst your personal effects, sometimes rifling drawers, sometimes scattering clothing.  It is devastating. The fact that items of significance are lost is something Mr Hickling still obviously feels and I can tell you too, Mr Grace, it is something that I too will never forget.

[16]     Mr Mooney submitted in this regard:

19.Unfortunately because there was a failure to distance the Learned District Court Judge’s own life experiences from the process the accused has been left with the impression that the personal experiences of both the sentencing Judge as well as his own counsel, have had an unjust influence upon the determination of the non- parole period.

[17]     I should make clear that Mr Mooney was not criticising the Judge in referring to this matter.  And nor am I.  As Mr Mooney also observed any sentencing Judge

―may have his or her own life experiences which may directly or indirectly have an

impact on the sentencing process‖.  I am confident that the personal matters referred

to by the Judge would not in fact have had an unjust influence.  But as Courts have many times observed, there is also a question of impression. A difficulty here is that the Judge did not articulate his reasons for imposing the maximum period as opposed to his reasons for deciding to exercise his initial discretion to impose some minimum period of imprisonment.

[18]     The other matter that has exercised me in assessing this question is that the appellant’s circumstances – all relevant circumstances – but especially his history of offending – do in my judgment fall well short of the worst cases.

[19]     In  Choi6   the  Court  of Appeal  said  that  there  is  no  presumption  against imposing the maximum period of imprisonment.  In fact, there is no presumption in respect of the length one way or the other; from the minimum up to the maximum. But  in  a  broad,  practical  sense,  it  may be  expected that  the  maximum  will  be reserved for the most serious cases – using that in its broadest sense in respect of all relevant factors – together with cases which get towards the most serious.  I do not intend to seek to define what is meant by ―the most serious‖ and it would be unwise to attempt to do so.

[20]     The two matters that I have referred to have led me, with some considerable hesitation, to conclude that the maximum period imposed by the Judge under s 86 was not justified in this case.

[21]     Mr  Mooney  submitted  that  if  I  was  persuaded  that  there  should  be  an adjustment to the minimum period of imprisonment that it should be between one- third, which applies in any event, and one-half.  Ms Law submitted that it should not be less than one-half.

[22]     I am quite satisfied that there should be a minimum period of imprisonment of one-half  of the total  nominal  sentence;  that  is  to  say,  a  minimum  period  of imprisonment of 27 months.

[23]     Accordingly, the appeal is allowed to the extent that the minimum period of imprisonment of two-thirds of the sentence imposed in the District Court is quashed and in substitution for that there will be a minimum period of imprisonment of one- half of the sentence; that is to say, 27 months.

[24]     In all other respects the sentence imposed in the District Court is unaltered.

Woodhouse J