Hansen v Police
[2018] NZHC 361
•8 March 2018
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-425-000051
[2018] NZHC 361
BETWEEN JOHN EDWARD HANSEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 March 2018 Appearances:
RGR Eagles for Appellant M J Thomas for Respondent
Judgment:
8 March 2018
JUDGMENT OF GENDALL J
Introduction
[1] The appellant pleaded guilty to three counts of burglary and three counts of receiving stolen property and on 18 October 2017 he was sentenced in the District Court at Invercargill to two years and three months’ imprisonment.1 He now appeals that sentence, submitting that it was manifestly excessive.
Facts
[2] On 16 June 2017, the appellant was picked up in a car driven by his co- offender, Mr Woods. Mr Woods then drove to three different rural properties. At each, Mr Woods burgled tools from sheds on the properties while the appellant remained in the car. The appellant claimed not to have known in advance that is what Mr Woods
1 Police v Hansen [2017] NZDC 23884.
HANSEN v NEW ZEALAND POLICE [2018] NZHC 361 [8 March 2018]
intended but admitted that once he did know this, he effectively acted as a lookout. The burgled properties were all on sealed highways close to Tapanui. No-one was present when the items were taken.
[3] The appellant and Mr Woods then returned to the appellant’s house. Mr Woods deposited the stolen tools, and other tools he had stolen on earlier occasions, at the appellant’s property. When Police searched the property some days later, they found all the stolen items.
District Court decision
[4] In his decision in the District Court, Judge Hunt set out his understanding of the facts. Initially he thought that the three burglaries happened over two successive nights, but counsel corrected him. The Judge characterised the appellant throughout his judgment as having an active part in the offending. He noted the victim impact statements and the harm from these types of burglaries. He also noted the appellant’s extensive criminal history, although he acknowledged that the appellant had only one prior conviction for burglary.
[5] The Judge took a start point of 32 months’ imprisonment. He then applied an uplift of four months for the appellant’s prior record of dishonesty, the aggravating nature of burglary from isolated rural properties and the targeted theft of tools. He then gave a 25 per cent discount for the appellant’s prompt guilty plea. This resulted in a sentence of 27 months’ imprisonment, precluding home detention. The Judge ordered the appellant to pay $700 in reparation and cancelled the balance of the appellant’s existing sentence of community work.
[6] The co-offender, Mr Woods, was sentenced in the District Court at Invercargill on 10 August 2017 on a range of charges which included charges for the incidents here in question for which the defendant had pleaded guilty. His end sentence effectively was one of imprisonment of two years seven months on burglary charges, three months concurrent on receiving charges and one month concurrent on other charges.
Leave to appeal out of time
[7] The appellant acknowledges that this appeal is brought out of time. He explains that his current lawyer was not his lawyer at sentencing, who himself was only assigned just prior to the sentencing. He explains that there was a delay in his previous lawyer passing on files to Mr Eagle.
[8] The overriding consideration for the court in deciding whether to grant an extension of time is whether the interests of justice support an extension. Weight will also be given to the appeal’s merits.2 It can also be relevant that the respondent does not take issue with granting leave.3 The present respondent has not opposed the application for leave to appeal out of time.
[9]Leave to appeal out of time is granted in this case as no party is disadvantaged.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
Submissions
Appellant’s submissions
[11] The appellant submits that the sentence imposed was manifestly excessive, particularly given the sentence imposed on his co-offender. He says the Judge overstated the seriousness of the offending and the level of the appellant’s involvement in it. The starting point of 32 months is said to be too high in comparison to Mr Woods,
2 Mikus v R [2011] NZCA 298 at [26].
3 Tekira v Police [2014] NZHC 700.
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Ripia v R [2011] NZCA 101 at [15].
who was being sentenced for other burglaries as well. In light of other cases, counsel suggests that a lower starting point was appropriate.
[12] Counsel also criticises the extent of the uplift applied by the Judge. Mr Eagles submits that the properties in question here were not particularly isolated, that their rural nature does not make the offences more serious, and that the appellant did not target the theft of tools as he did not plan the burglaries. Furthermore, counsel notes that the appellant’s previous record for dishonesty was some time ago and that he could not be seen as a recidivist burglar. He questioned whether all this justified an uplift.
[13] Overall, Mr Eagles suggests the imprisonment starting point should have been perhaps in the range of 18 months to two years and, more likely, 18 months. He argues that the sentence of imprisonment imposed was too harsh given that the appellant accepted responsibility, was remorseful and had limited culpability. And, therefore, home detention too should have been considered.
Respondent’s submissions
[14] Before me, Ms Thomas for the respondent, said the respondent accepts that the Judge’s starting point on the burglary charges does not meet the principle of parity, given Mr Woods’ sentence. She suggested that a starting point of two years is appropriate here. This provides a sufficient contrast with Mr Woods’ sentence. This, she said, could then be uplifted by two months for the receiving charges.
[15] Ms Thomas then went on to argue that the Judge’s four-month uplift was available to him given the appellant’s extensive criminal history. And she maintained that there was no error in the discounts awarded by Judge Hunt.
[16] Finally, before me, Ms Thomas, for the respondent, noted that it would not oppose a decision by this Court to grant the appellant leave to apply for home detention, if applicable.
Analysis
The starting point
[17] The Judge, as I have noted, took a starting point of 32 months’ imprisonment for the totality of the offending. I agree with the concession appropriately made by Ms Thomas, for the respondent, outlined above, that this was clearly in breach of the principle of parity. The appellant’s co-offender, Mr Woods, was assessed on the basis of a starting point of 33 months’ imprisonment overall, despite being sentenced for three other burglaries and taking the lead role in the burglaries involving the appellant. And, I consider that generally the starting point here was high even irrespective of the co-offender’s sentence.
[18] As I noted at [14] above, the respondent suggests a starting point of two years is appropriate here. I agree. Counsel for the appellant did suggest a possible starting point at about the 18 month mark but, in my view, two years better reflects the totality of the appellant’s offending.
[19] On all of this, in Bowan v Police, the appellant was sentenced on three charges of burglary and one of receiving.6 Mr Bowman and his co-offender entered three residential properties, stealing property worth over $2,000 from two of them. The sentencing Judge imposed a three-year start point. However, on appeal, the Court found that a starting point of two years was appropriate, particularly in light of the 30 month start point given to the appellant’s co-offender.
[20] Mr Bowman’s offending was arguably more serious than the appellant’s here, as he actually entered the properties while the appellant only remained in the car, albeit as some form of lookout. Mr Bowman’s burglaries also involved entering domestic homes, rather than stealing items from farm sheds. But, with the appellant’s additional receiving charges in mind here, a similar starting point of two years, in my view, is appropriate.
6 Bowan v Police [2017] NZHC 884.
[21] I repeat that the Judge erred by not taking Mr Woods’ sentence into account which meant that his 32-month starting point was manifestly excessive. In light of Mr Woods’ sentence and Bowman v Police, I confirm that a starting point of two years’ imprisonment for the totality of the offending adequately meets the sentencing principles of denunciation and deterrence, whilst sufficiently contrasting with the starting point imposed on Mr Woods. There is no need to apply a further uplift for the receiving charges.
Uplift and discount
[22] Judge Hunt in the District Court then gave an uplift of four months for what he described as the appellant’s prior record of dishonesty, the aggravating nature of stealing from rural properties and their isolated nature, and the targeted theft of tools.
[23] I find this uplift to be excessive. In my judgment, the nature of the properties being rural and somewhat isolated is not a particularly aggravating feature and is adequately recognised in the starting point. Nor, given that it appears the appellant was not involved in the planning of the burglaries, is an uplift for the targeted theft of tools appropriate here.
[24] The appellant does have an extensive criminal record however. This includes one burglary charge and many other dishonesty offences. It has been some time, however, since he offended in that way. I consider that an uplift of two months is sufficient to recognise his poor record given that he is not a recidivist burglar.
[25] The only discount awarded by the Judge was 25 per cent for his guilty plea. The appellant does not suggest any further award was necessary. I agree that is appropriate in this case.
[26] From the start point of 24 months, with the uplift of two months for the appellant’s poor criminal record, this brings the figure to 26 months. The 25 per cent guilty plea discount then applied and rounded up leads to a discount of seven months, resulting in an end sentence of 19 months’ imprisonment.
Home detention
[27] As the appropriate sentence is less than two years, the Court must consider whether home detention should be imposed instead of imprisonment. The respondent does not oppose home detention.
[28] As a general comment at this point, I consider that home detention may well be appropriate in this case and leave to apply will follow. While the appellant has a large criminal record, there has been little offending in recent years. Such a sentence also takes into account his more passive role in the burglaries, which tends to demonstrate he is of less risk to the public. A sentence of home detention could adequately meet the principles of denunciation and deterrence here. The appellant, of course, will need a suitable address.
Reparation
[29] The respondent suggests also that the reparation ordered by Judge Hunt in the District Court was too high. Seven hundred dollars was the total loss caused by the burglaries so the amount should have been halved between the appellant and his co- offender. I agree. I will order accordingly.
Incorrect charge
[30] In addition, the respondent acknowledges that two of the receiving charges here relate to the same offending. One was meant to have been withdrawn but it seems it was not. The Crown consents to the matter proceeding by way of a conviction appeal on that charge and the Court setting aside the conviction.
Result
[31] This appeal succeeds. The sentence of two years and three month’s imprisonment on all the charges is quashed. In its place, the appellant is now sentenced to 19 months’ imprisonment. Leave to apply for home detention is granted.
[32]The order for reparation of $700 is quashed and replaced with an order to pay
$350 reparation.
[33] As I note at [30] above, with the Crown’s consent, the conviction on the one receiving charge in question which has been duplicated is now set aside.
...................................................
Gendall J
Solicitors:
Eagles Eagles & Redpath
Preston Russell Law, Invercargill
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