Hale v Police

[2012] NZHC 1708

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-34 [2012] NZHC 1708

JOSHUA JAMES HALE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 July 2012

Counsel:         J Galt for Appellant

J E Tarrant for Respondent

Judgment:      16 July 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

JOSHUA JAMES HALE V NEW ZEALAND POLICE HC HAM CRI-2012-419-34 [16 July 2012]

[1]      Mr Hale pleaded guilty in the District Court to four charges of burglary and one charge of breaching his sentence of supervision.[1]     On 12 April 2012, Judge Spiller sentenced him to an effective term of imprisonment of 12 months on the burglary charges.  The Judge did not impose an additional sentence in respect of the charge of breaching the terms of supervision.   Instead, the Judge cancelled that sentence.  In addition, the Judge made an order requiring Mr Hale to pay reparation

amounting to approximately $4,300.

[1] Police & Anor v Hale DC Thames CRI-2011-075-000858, 12 April 2012.

[2]      Mr Hale appeals against the sentence the Judge imposed.  He contends that it was manifestly excessive having regard to the circumstances of his offending and his personal circumstances.

Facts

[3]      The burglaries related to residential dwellings, all of which were situated in remote rural areas.  In all, Mr Hale and his associates took property during the four burglaries having a total value of approximately $20,000.  The offending occurred at a time when Mr Hale was subject to an existing sentence of supervision.

[4]      The victim impact statements reveal that some of Mr Hale’s victims were elderly, and the theft of their property has had particularly serious consequences for them.

The structure of the sentence

[5]      The Judge took an initial starting point on the most serious burglary charge of

12 months imprisonment.  He increased that by two months to reflect the balance of Mr Hale’s offending.  He identified previous convictions for burglary and theft as an aggravating factor, but balanced that against Mr Hale’s relative youth (20 years) and

the fact that he had entered guilty pleas at a reasonably early stage.  This led to the end sentence of 12 months imprisonment.

[6]      The Judge imposed concurrent sentences on each of the burglary charges of

12 months imprisonment and, as I have already indicated, cancelled the existing sentence of supervision.

Decision

[7]      I have concluded that it cannot possibly be said that the end sentence is manifestly excessive.  The burglary charges would have justified a sentence of 18 months imprisonment.   In reaching that  conclusion  I have had regard to recent judgments of the Court of Appeal in R v Waiwai, R v Mita and R v Jones.[2]   In each of those cases, the Court of Appeal identified 18 months imprisonment as being an appropriate starting point for multiple charges of burglary in relation to residential properties.

[2] R v Waiwai, [2012] NZCA 251, R v Mita [2012] NZCA 137 and R v Jones [2012] NZCA 273

[8]      In addition, the fact that Mr Hale has two recent convictions for burglary is an aggravating factor that needs to be taken into account.  On 19 July 2011, he was sentenced to 180 hours community work and nine months supervision on those charges.   He remained subject to that sentence of supervision at the time of the present offending. He also has a previous conviction for theft.

[9]      I would add an uplift of two months imprisonment to reflect the previous convictions, and a further uplift of two months to reflect the fact that the present offending occurred whilst Mr Hale was subject to the sentence of supervision.  This leads to an end starting point of 22 months imprisonment.

[10]     The Judge was prepared to give Mr Hale credit for his age.  That was perhaps generous given the fact that Mr Hale is now 20 years of age, and cannot realistically be viewed as a youthful offender.  If any allowance is to be made for that factor, it must be modest.  I would allow no more than two months to reflect Mr Hale’s age.

[11]     That leads to an end sentence of 20 months imprisonment before guilty pleas are taken into account.  I accept that full credit should be given for these, because they occurred at a relatively early stage.  In Hessell v R,[3] the Supreme Court made it clear, however, that a discount of no greater than 25 per cent can be applied in respect of guilty pleas.  Applying the maximum discount available, the end sentence would be one of 15 months imprisonment.

[3] Hessell v R [2010] NZSC 135

[12]     The only issue I need to determine is whether I should exercise my powers to increase  the  sentence  the  Judge  imposed  to  reflect  what  I  consider  to  be  an appropriate end sentence.  I have elected not to do that because of Mr Hale’s age, and the fact that he has accepted responsibility for the present offending.  He needs to know, however, that any future offending of this type is likely to lead to significantly greater terms of imprisonment being imposed upon him.

[13]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

J Galt, Hamilton