Hancock v Police

[2014] NZHC 3030

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-36 [2014] NZHC 3030

BETWEEN

JONATHON ROSS HANCOCK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	19 November 2014
Appearances:	W H Henderson for the Appellant R D Smith for the Respondent
Judgment:	1 December 2014

JUDGMENT OF MALLON J

Introduction

[1]      Mr Hancock was convicted on three counts of burglary.1    He was sentenced in the District Court at Dunedin to two years and one month imprisonment.2    He appeals against that sentence on the ground that an eight month uplift given for his previous offending was manifestly excessive.

The offending

[2]      On 28 July 2014 Mr Hancock went to the premises of the Methodist Mission in Dunedin.  He gained entry through an open door and walked towards a kitchen area.   He took food items to the value of approximately $150.   He escaped via a window.

[3]      On 30 July 2014 Mr Hancock noticed that the garage door of a residential property in Dunedin was open.  He entered the garage and took several power tools,

1      Crimes Act 1961, s 231(1)(a) (maximum penalty of ten years imprisonment).

2      Police v Hancock DC Dunedin CRI-2014-012-225/8, 26 September 2014.

HANCOCK v NEW ZEALAND POLICE [2014] NZHC 3030 [1 December 2014]

two sets of golf clubs and accessories, an umbrella, a golf trundle, and wet weather clothing. The items were valued at approximately $5,900.  He also took three legs of lamb and ice cream, valued at approximately $110, from a freezer in the garage.

[4]      On 4 August 2014 Mr Hancock walked up the driveway of another residential property in Dunedin and unsuccessfully attempted to jemmy open a basement window.   He then went to a side door and smashed a glass pane at the bottom, causing approximately $100 worth of damage.  He entered the lounge and removed a

50 inch plasma television, remote, and laptop computer valued at approximately

$2,000.

[5]      Mr Hancock’s offending was discovered on 6 August 2014 when the police were called to his address on an unrelated matter.  The police noticed some of the property taken in the burglaries and a search was conducted by consent.  As a result some of the property from the 30 July 2014 burglary and all of the items from the 4

August 2014 burglary were recovered.

The offender

[6]      Mr Hancock is 27 years old.  He was out of work at the time of his offending and struggling financially on a joint benefit with his partner.   He told the pre- sentence report writer that he was depressed about the situation and that he had reverted back to offending.  Mr Hancock wrote letters to each of his three victims, and one to the Court.  In each of these letters he apologised for his actions.  He also asked the Court for a second chance by way of a community based sentence.   He said his partner was due to give birth in March, that prison has been a wakeup call for him, and he wanted to be there for his baby.

[7]      Mr Hancock has over 140 convictions, many of which were entered in the Youth Court.   His convictions include dishonesty offending (burglary, theft, and receiving property), violence offending (common assault and male assaults female), and breach of orders (breaches of community work and release conditions, and failure to answer District Court bail) and other matters.   He has previously been sentenced to several terms of imprisonment.

District Court sentencing decision

[8]      The Judge adopted an overall starting point of two years and two months imprisonment for the three burglaries.   An uplift of eight  months was  imposed because of Mr Hancock’s offending history.  This took the overall starting point to two years and 10 months imprisonment.  A discount of 25 per cent was then given for a guilty plea, leaving an end sentence of two years and one month imprisonment.

[9]      The sentence of two years and one month was imposed on the first burglary. On the second burglary, a concurrent sentence of one year imprisonment was imposed, and reparation of $761 was ordered to be paid by weekly instalments.  On the third burglary, a concurrent sentence of one year imprisonment was imposed.

The uplift

[10]     The  sole  ground  of  appeal  is  the  extent  of  the  uplift  imposed  for  Mr Hancock’s previous offending history.  In referring to that history the Judge said that Mr Hancock  had  13  previous  burglary  convictions.    Counsel  for  Mr  Hancock submits that this was incorrect because five of these were dealt with by the Youth Court.  Counsel acknowledges that Youth Court proceedings are not to be entirely disregarded in sentencing, but says that the Youth Court offending was some time ago when Mr Hancock was a young teenager.  Counsel also submits that the Judge did not acknowledge the break in Mr Hancock’s burglary offending with his last burglary being committed in 2008.  Counsel submits that the uplift of roughly 30 per cent of the starting point was excessive and that an uplift of 15 per cent would have been more appropriate

[11]     The respondent submits that having regard to the nature of Mr Hancock’s previous convictions, the frequency of his appearances before the Court, and his high likelihood of reoffending, the fact and extent of the uplift were justifiable.   The respondent  further  submits  that,  even  if  the  uplift  was  excessive,  it  is  the  end sentence that must be considered.  The respondent submits that the end sentence was well within the available range because the starting point was generous.

[12]     The respondent has provided examples where uplifts of a comparable or greater size and percentage have been upheld.3   That in and of itself does not mean that the uplift in this case was appropriate.   Nor is the uplift excessive merely because other examples can be found where uplifts of lesser size or proportion have been given for offenders with comparably poor histories.4     Comparisons are not easily made because uplifts are applied to greater or lesser starting points and there may be other personal aggravating features (such where the offending has occurred when the offender is subject to a sentence of supervision or was on bail or parole at the time of the offending5).  It is the end sentence that matters.

[13]     The appropriate level of uplift is determined by an assessment of the need for deterrence and other sentencing principles in the particular case.  A recidivist burglar should receive a sterner response than a first or occasional offender because of the particular need for individual deterrence and protection of the community.  An uplift is imposed to recognise this but must nevertheless maintain a reasonable relationship with the gravity of the offending.6

[14]     In the present case the gravity of the offending was assessed at two years and two  months  imprisonment.    A  first  or  occasional  offender  would  receive  that

sentence subject to any discount for mitigating factors.   A sterner response to the

3      R v Stevens [2009] NZCA 190 (one count of burglary and various possession charges; an uplift of 12 months or 67 per cent was imposed for previous offending and offending on intensive supervision on a starting point of 18 months); Jones v R [2012] NZCA 273 (three counts of burglary; an uplift of 18 months or 50 per cent was imposed for previous offending and persistent failure to meet drug conditions on a starting point of three years); Hotene v Police [2014] NZHC 2081 (two counts of burglary; an uplift of 12 months or 45 per cent was imposed for previous offending on a starting point of 27 months); R v Columbus [2008] NZCA 192 (one count of burglary and other theft and drug charges; an uplift of 12 months or 67 per cent was imposed for previous offending on a totality starting point of 18 months).

4      Wratt v Police [2012] NZHC 3137 (charges of burglary and theft; an uplift of two months or 29 per cent was imposed for previous offending on a starting point of seven months); Gunn v Police [2014] NZHC 356 (charges of perverting the course of justice, driving while disqualified, and breaching release conditions; an uplift of 20 per cent was substituted on appeal for previous

offending and offending while on bail awaiting sentence); R v Skipper [2011] NZCA 250 (two

counts of burglary; an uplift of six months or 11 per cent was imposed for previous offending and offending while on bail on a starting point of 54 months); McCreath v R [2014] NZCA 142 (charges of burglary and theft; an uplift of 12 months or 13 per cent was imposed for previous offending, offending on intensive supervision, and breaches of a protection order on a starting point of seven years and nine months); Lawson v R [2013] NZCA 369 (six counts of burglary; an uplift of 12 months or 22 per cent was imposed for previous offending and offending on intensive supervision on a starting point of 54 months).

5      Compare with Mr Hancock, who was subject to a sentence of community work for unrelated offending (an assault and wilful damage).

6      R v Simpson [2008] NZCA 467 at [15]; Blackmore v R [2014] NZCA 109 at [13].

offending was appropriate in relation to Mr Hancock because previous sentences had not deterred him.   In my view an uplift of up to six months  would have been appropriate.   In forming a view different from the District Court Judge, I do not place much weight on the fact that five of Mr Hancock’s burglaries were in the Youth Court.   Mr Hancock has a significant history of dishonesty offending quite apart from his burglaries.  Moreover, although the last burglary dates back to 2008, he has more recent convictions for receiving property.

[15]     Although I would have imposed no more than a six month uplift from the starting point adopted by the Judge, I am not able to say that the eight month uplift resulted in a manifestly excessive end sentence.  I consider that the Judge’s starting point was about right, but had he started another two or three months higher he would  not  have  been  completely  out  of  the  available  range.    A burglary  of  a residential property typically attracts a starting point of between 18 months to two

years and six months.7   In this case there were two residential burglaries (at the low

end of the scale) and the somewhat heartless burglary of the Methodist Mission’s

food.8

[16]     In the end I conclude that, while it would have been open to the Judge to sentence Mr Hancock to a few months less than he was, the end sentence was not outside the available range.  It was therefore not manifestly excessive.

Result

[17]     The appeal is dismissed.

Mallon J

7      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

8      Overall, this case is less serious than Jones v R, above n 3, and more comparable to, for example,

Hayward v Police [2014] NZHC 2286, and Hotene v Police, above n 3.