Green v The King
[2024] NZHC 2146
•1 August 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2024-483-006 [2024] NZHC 2146
BETWEEN REIJHAN GREEN
Appellant
AND
THE KING
Respondent
Hearing: 31 July 2024 Appearances:
D M Goodlet for Appellant
C B Wilkinson-Smith and A R Kearney for Respondent
Judgment:
1 August 2024
JUDGMENT OF GRAU J
[Sentence appeal]
[1] Mr Green appeals against his sentence of two years’ and one month imprisonment imposed on 6 June 2024 on a number of charges.1 The sentencing followed a sentence indication on 2 May 2023 which Mr Green accepted.2 Mr Green takes no issue with the starting points adopted for the various charges, or to the uplift for his previous conviction history. However, he contends that the Judge should have applied a reduction of five per cent to reflect the remorse he expressed in a letter he provided to the Court at his sentencing. He also considers that he should have been afforded a greater reduction for personal mitigating factors of 15 per cent, as opposed to the 10 per cent reduction the Judge made.
[2] The respondent’s position is that the sentencing Court was correct to decline to reduce the sentence because of an expression of remorse and was correct to limit the
1 Police v Green [2024] NZDC 12992.
2 Police v Green DC Whanganui CRI 2023-083-000126, 2 May 2024 (Notes of Judge J Krebs on Sentencing Indication) [Sentencing Indication].
GREEN v R [2024] NZHC 2146 [1 August 2024]
reduction for personal factors to 10 per cent, given the need for accountability, denunciation and deterrence, and community protection to take priority in Mr Green’s sentencing.
The offending
[3] On 16 August 2022, Mr Green was sentenced to four months’ home detention on one charge of burglary.
[4] On 1 September 2022, Mr Green breached his home detention sentence by leaving his address without approval and without an acceptable explanation, having previously being warned for failing to comply. He breached home detention again on 21 November 2022 by failing to charge his GPS tracker adequately. When the signal was lost and a security guard visited his address, the guard was advised that Mr Green was not onsite. He did not have an approved absence and he could not be found.3
[5] On 24 December 2022, Mr Green entered a property that was unoccupied but fully locked. He searched the property and took items estimated to be valued at
$8,000.4
[6] Mr Green committed a second burglary between 25 December 2022 and 23 January 2023. Mr Green pried open the lounge window of an unoccupied home and removed the window stay, entered the property, searched the house, and took items valued at approximately $1,450.5
[7] On 25 January 2023, Mr Green was driving in Whanganui and was followed by a marked Police patrol vehicle. When his car entered a shopping centre carpark, the Police activated lights and sirens. Mr Green’s car was blocked by two other cars waiting at the carpark exit. He accelerated hard, clipped an unoccupied parked car, and pushed between the curb and a car that was in front of him, succeeding in pushing it sideways. After scraping along its side, he drove up onto a low garden wall with his car briefly on two wheels before making it onto the roadway and driving off at speed. He did not stop to check on the occupants of the damaged car. This incident resulted
3 Both charges pursuant to s 80S of the Sentencing Act 2002 (maximum penalty of one years’ imprisonment or $2,000 fine).
4 Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years’ imprisonment).
5 Crimes Act, s 231(1)(a) (maximum penalty of 10 years’ imprisonment).
in charges of failing to stop for Police,6 failing to stop and ascertain injury,7 and reckless driving.8
[8] When Mr Green was arrested, Police found a pill container with .06 grams of methamphetamine inside Mr Green’s pocket.9
Sentence indication
[9] The Judge took a starting point for the first burglary of 18 months, and the same for the second burglary, although for totality purposes he reduced that to an uplift of eight months. Accordingly, the starting point for the two burglaries was 26 months.10
[10] For the balance of the offending, which involved disregard for the conditions of home detention, the driving charges, and possession of methamphetamine, the combined uplift was a further four months, taking the sentence to a starting point of 30 months’ imprisonment.11
[11] Judge Krebs imposed an uplift of six months to reflect Mr Green’s previous convictions which he described as “significant in a number of areas of offending”.12 The Judge indicated that acceptance of the sentence indication would result in a guilty plea reduction of 20 per cent.13 His Honour indicated that other factors which might allow for further reduction were a matter for sentencing.14
The sentencing decision
[12] Judge Northwood, also adopted the 30-month starting point and six month uplift for previous convictions that Judge Krebs had indicated.15 The Judge noted that
6 Land Transport Act 1998, ss 52A and 114 (second offence) (maximum penalty of $10,000 fine, court must order disqualification for one to two years).
7 Land Transport Act, ss 22 and 35(1)(c) (maximum penalty of three months’ imprisonment or
$4,500 fine, court must order disqualification for six months or more).
8 Land Transport Act, ss 35(1)(a) (maximum penalty of three months’ imprisonment or $4,500 fine, court must order disqualification for six months or more).
9 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2) (maximum penalty of six months’ imprisonment or
$1,000 fine or both).
10 At [3]–[4].
11 At [5].
12 At [6].
13 At [7].
14 At [8].
15 Police v Green, above n 1, at [4]. Judge Northwood was prepared to sentence Mr Green on the basis he agreed with Judge Krebs ’sentence indication.
the PAC Report of 9 August 2023 referred to substance abuse as contributing to the offending.16 His Honour referred next to a cultural report which set out Mr Green’s personal background, including childhood abuse and neglect.17 Mr Green had reported becoming a burglar when he was living on the street, and that burglary had become habitual.18 The Judge also noted more promising matters including Mr Green’s long-term relationship with his partner, an approach to the Grace Foundation, and an Alcohol and Drug Report in which Mr Green expressed a motivation to change.19
[13] The Judge then referred to a letter of remorse Mr Green had provided, acknowledging it was well written and appeared to be sincere. He observed, however, that Mr Green had been in trouble on and off for many years and said he strongly suspected these sorts of things had been said before—if not in writing, then through a lawyer in Court.20 The Judge said it was now time for Mr Green to “stop writing letters, stop making promises and actually do something about it”.21 He declined to reduce the sentence for the expression of remorse.
[14] The Judge then said that rehabilitative prospects were hard to gauge. Some contact had been made to the Grace Foundation in Whanganui but the motivation and preparedness to work hard did not appear to be clear. He therefore declined to reduce the sentence on that account.22
[15] Some reduction was available for personal background factors, with the Judge being satisfied they contributed to the offending. But the Judge also noted that other purposes of sentencing needed to be considered alongside the assessment of personal circumstances, when the offending was serious, bearing the hallmarks of an experienced and calculated burglar.23
[16] The Judge said he needed to hold Mr Green accountable, attempt to deter him and others from offending, protect the community and denounce the conduct. He said
16 At [5].
17 At [6].
18 At [8].
19 At [7]–[9].
20 At [11].
21 At [12].
22 At [13].
23 At [14]–[15].
those matters blunted the discount he could give for personal factors to 10 per cent. Accordingly, reductions of 11 months were available, leading to an end point sentence of two years’ and one month imprisonment.24
[17] Judge Northwood concluded with the observation that, even had he arrived at two years’ imprisonment, electronic monitoring was not sufficiently developed in the PAC Report and would not be available. In any event, the report was dated.25
[18] Accordingly, the final sentence was 25 months’ imprisonment imposed on the two burglary charges (along with orders for reparation) and shorter concurrent sentences on the other charges.26
Approach on appeal
[19] Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.
[20] When considering whether a different sentence should be imposed, the court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.27 It must be shown that there has been an error made by the sentencing Judge.28 The court cannot “tinker” with a sentence imposed where that end sentence is nevertheless in range.29
Discussion
[21] As above, it is submitted that the letter provided by Mr Green should have resulted in a discount of five per cent for remorse, and the reduction for personal mitigating factors should have been 15 per cent.
24 At [16].
25 At [16].
26 At [17]–[20].
27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
28 Tutakangahau v R, above n 27, at [27].
29 R v Boyd (2004) 21 CRNZ 169 (CA) at [38].
[22] While some Judges may have afforded a small reduction for Mr Green’s letter of remorse at sentencing, I do not consider Judge Northwood was in error in declining to make any reduction. Mr Green’s criminal history consists of over 100 previous convictions. He has continuously offended for two decades, including a significant number of burglaries. I agree with the respondent that the Judge saying “it is time to stop writing letters” reflects a view that more than a letter presented on the day of sentencing was required by a person with Mr Green’s history of offending to demonstrate genuine remorse.30
[23] I also note the restorative justice memorandum dated 27 July 2023 where one victim indicated an interest in engaging in restorative justice but, at a pre-conference interview, Mr Green denied he committed the offence. That is completely at odds with a letter of remorse provided on the day of sentencing. Remorse is a question of fact and judgement, and the onus was on Mr Green to show it was genuine.31 The Judge cannot be criticised for being sceptical about Mr Green’s claims he was genuinely remorseful.
[24] Nor do I consider the sentencing Judge erred by making an insufficient allowance for personal factors. Decisions of the higher courts have made it clear that the influence of causative factors may well be reduced or displaced when offending is particularly serious, and other sentencing principles need to take priority.32 That is not double counting of aggravating factors. The seriousness of the offending itself was reflected in the starting points adopted for the burglaries. It was not those starting points, nor the uplift for Mr Green’s criminal history, that blunted the discount for personal factors.
[25] In this case, Mr Green’s addiction remains untreated. He was sentenced to home detention in August 2022, for a burglary charge, he did not comply with his sentence, and this further offending occurred soon after he had abandoned his home detention address and he could not be located.
[26] The PAC Report assessed Mr Green as at a high risk of reoffending and his convictions for firearms and violence-related offending made him a high risk of
30 See for example, R v Ngamo [2009] NZCA 512 at [9].
31 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
32 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94].
causing harm to others . I do not consider any error was made by the Judge in putting other sentencing principles to the forefront. A 10 percent reduction for personal factors was adequate.
[27] Finally, I note that the way in which Mr Green was sentenced resulted in a final sentence that was two months lower than it would have been had it been calculated using the Moses methodology.33 Mr Green benefitted from the Judge’s approach, when the end sentence should have been 27 months’ imprisonment. If the Judge had applied the reductions sought on this appeal, the end sentence, calculated in accordance with the Moses methodology, would have been 24 months’ imprisonment. Thus, it would amount to tinkering to interfere with the 25-month sentence that was imposed.
[28] I have found no error in the sentencing exercise and the appeal against sentence is dismissed.
Grau J
Solicitors:
Wilkinson Smith Lawyers, Whanganui for Respondent cc: D Goodlet, Whanganui for Appellant
33 Above n 31, at [46].
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