Hale v Police

[2012] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-19 [2012] NZHC 1243

BETWEEN  BENJAMIN HALE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 June 2012

Counsel:         G Walsh for Appellant

JE Tarrant for Respondent

Judgment:      5 June 2012

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL

Gerard Walsh (Hamilton) for Appellant

Almao Douch (Hamilton) for Respondent

HALE V POLICE HC HAM CRI-2012-419-19 [5 June 2012]

Introduction

[1]      Mr Hale appeals against a sentence of 25 months’ imprisonment imposed on

him by Judge AIM Tompkins in the District Court at Hamilton on 1 May 2012.[1]

That sentence was in respect of one count of burglary.  The appellant contends that the sentence was wrong in fact and in law, and was manifestly excessive.

Factual background

[1] The Judge also made a reparation order of $250 and an emotional harm payment of $1,000; but these are not in issue.

[2]      At  about  9:30  pm  on  5  July  2011,  the  appellant  and  an  (unidentified) associate broke into a house in suburban Hamilton, searched it and stole a television set.  Their means of entry was to break a window of the bedroom where the young daughter of the occupants normally slept.  Fortunately the house was empty.

[3]      The appellant was identified as one of the burglars because he left behind in the lounge of the house the butt of a roll-your-own cigarette.  DNA on the butt was linked to the appellant.

[4]      The appellant was arrested on 7 August 2011 and appeared in the District Court on 8 August 2011.  He entered a plea of not guilty.  He changed that plea to one of guilty on 13 March 2012 as a consequence of the confirmation of the forensic DNA analysis.

[5]      The victim impact statement records the quite profound effects on the young family who lived in the burgled house.   The family spent four months living at a nearby family member’s house because the mother and daughter did not feel safe. The young daughter, in particular, found it hard to sleep at night because every noise she heard reminded her that it was her window that was smashed and through her room that the appellant gained access to the house.  She would frequently go to her parents’ bed.  The family also suffered financial loss and the television set was never

recovered.  However, I am not concerned with the financial aspects of the case.

[6]      The appellant has a significant record of criminal offending, including four previous convictions for burglary or being found in a closed place.

Defence submissions

[7]      Mr Walsh for the appellant contends:

(a)       That the starting point for the burglary is too high;

(b)That there has been an effective double-counting in the construction of the sentence; and

(c)       The Judge took as aggravating factors matters which should have been treated as the absence of mitigating factors.

[8]      Having analysed the cases, Mr Walsh contends that the starting point for the appellant’s offending should have been in the 12-18 months range, and so should the final sentence.

Crown submissions

[9]      The Crown acknowledges that the starting point adopted by the District Court Judge of two years’ imprisonment was “stern” and that the way he structured the sentence could give rise to a criticism of double-counting.   However, the primary submission for the Crown is that the end result is not manifestly excessive.

The District Court Judge’s sentence

[10]     The  District  Court  Judge  considered,  first,  whether  the  appellant  could properly be sentenced such that he might remain within the community.   He concluded that because of his record of offending he could not.   The Judge then said:[2]

Given Mr Hale’s record, his assessed risk and his failure to abide by community sentences in the past, in my view a starting point on this burglary of a private house by night is two years’ imprisonment.   I add to that an uplift of three months to take account of Mr Hale’s previous criminal history and  his  lack  of  remorse  and  insight  and  his  refusal  to  identify  his  co- offender.

[2] Police v Hale DC Hamilton CRI-2011-019-5978, 1 May 2012, at [10].

[11]     The  District  Court  Judge  then  afforded  a  two  months  reduction  to  take account of the guilty plea.

Jurisdiction on appeal

[12]     The appellant has a general right of appeal against his sentence.  Essentially, I have to look at the final sentence which was imposed by the District Court Judge and decide whether it is one which is clearly excessive.  If I decide it is, then I may quash the sentence and substitute a sentence which I think ought to have been passed.

Discussion

[13]     In this case, the District Court Judge has gone about his sentencing in an unorthodox way.  He started with the issue of whether or not home detention would be appropriate because that is the sentence recommended by the author of the pre- sentence report.   Having rejected that option, the District Court Judge turned to assess the sentence of imprisonment.   As a matter of law, the assessment process should have been reversed.  The issue of home detention falls to be considered only after the sentencing Judge has decided that a short term of imprisonment would

otherwise be imposed.[3]

[3] Sentencing Act 2002, s 15A(1)(b).

[14]     Further,  the  District  Court  Judge  does  seem  to  have  included  in  the assessment of the starting point matters which go rather to personal aggravating factors or absence of mitigating factors.  In calculating the uplift of three months, the District  Court  Judge  has  taken  into  account  matters  that  rather  go  to  lack  of mitigating personal factors (lack of remorse and insight and refusal to identify co- offender).   In the choice of language he has used, there is obvious ground for the criticism of double-counting.

[15]     However, I accept that what is at issue here is whether the end point of

25 months’ imprisonment was clearly excessive.  I now examine that issue.  I do so by looking at the elements relevant to the sentence, being mindful that my task is not to re-sentence.

[16]     Both counsel refer to the decision of the Court of Appeal in R v Columbus.[4]

[4] R v Columbus [2008] NZCA 192.

That  case discusses  usefully the  approach  to  sentencing for burglary where the offender has previous convictions.   The Court noted a tendency in sentencing recidivist burglars to incorporate in the assessment of the starting point that factor.  It pointed out that the orthodox approach would be to assess the starting point by reference to the inherent culpability of the offending. That is what the Court then did in Columbus.  For an opportunistic, daylight burglary of a garage attached to a house from which a small amount of property was stolen, the Court felt that a starting point of no more than one year’s imprisonment could be justified.

[17]     Other cases cited to me by counsel, and discovered in my own research, adopt this approach and assess starting points having regard to the particular circumstances of the case.[5]   In this case I take as the relevant factors for assessing a starting point:

[5] Curry v R [2010] NZCA 491; R v Povey [2009] NZCA 362; Snowden v Police HC Hamilton CRI-2010-419-52,  15   July   2010;   Tumohe   v   Police   HC   Hamilton   CRI   2008-419-72, 13 November 2008; Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010; Tuwhangai v Police HC Hamilton CRI-2010-419-9, 5 May 2010; Tukaki v Police HC Hamilton CRI-2010-419-71,  24 November  2010;  Cooper  v  Police  HC  Dunedin  CRI-2010-412-21, 5 August 2010.

(a)       It was a burglary of a residence; (b)     There were two burglars;

(c)       It occurred at night;

(d)      A television worth $500 was stolen but not recovered;

(e)       The occupants were not at home but the burglary had a traumatising effect on them.

[19]     I now look at the aggravating factors personal to the appellant. These are:

(a)       His  relevant  previous  convictions.     In  1996  and  1997  he  was convicted in the Youth Court on charges of burglary.    In 2006 and

2007 he was convicted in the District Court of being unlawfully in a closed place;

(b)The current offence was committed while he was serving a sentence of intensive supervision.

[20]     Looking at these aggravating factors, and considering them in the context of the need to protect the community and to deter further offending, I would impose an uplift of six months’ imprisonment.

[21]     There  are  no  factors  personal  to  the  appellant  which  would  reduce  the sentence, which to this point would be 24 months.  The appellant has a number of other convictions which deny him the benefit of a good character.   He shows no remorse.  He has taken no steps which show that he might gain some insight into his offending.  It is said by Mr Walsh that a mitigating factor is that the appellant has the primary care of two  young boys.   Given the role model that that creates, I am tempted to treat that as an aggravating feature.

[22]     The only matter left to assess is the credit that might be given the appellant for his plea of guilty.   In the circumstances that would have to be minimal.   He certainly did not plead guilty at the earliest available opportunity and, with the discovery of his DNA on the cigarette butt in the lounge, his conviction was virtually a foregone conclusion.   Nevertheless, some credit should be given and, like the District Court Judge, I would allow two months. That comes to a little more than 8% of the sentence that would otherwise be imposed and would result in a final sentence of 22 months’ imprisonment.

[23]     Home detention is out of the question.   The appellant has a bad record of failing to comply with community based sentences.  He is assessed as having a high risk of re-offending (and given his record, I have to agree with that assessment).  He has previously served sentences of imprisonment.  The principles of deterrence and of protection of the community must prevail.

Decision

[24]     In assessing the sentence in this way, I come to within 12% of the sentence imposed by the District Court Judge.  The Court of Appeal has on many occasions cautioned appellate Judges against tinkering with the sentences of Judges in lower Courts.    However,  I  do  not  think  that  addressing  a  12%  difference  could  be considered tinkering.

[25]     The appeal is allowed.  The sentence of 25 months’ imprisonment is quashed

and a sentence of 22 months’ imprisonment is substituted.  The financial penalties

imposed by the District Court Judge are left unchanged.

Brewer J