Heywood v Police

[2013] NZHC 2506

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-000019

[2013] NZHC 2506

BETWEEN

JERIMIE CHARLES HEYWOOD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

25 September 2013

Appearances:

A Malik for Appellant

K Laurenson for Respondent

Judgment:

25 September 2013

(ORAL) JUDGMENT OF ANDREWS J

Solicitors/Counsel:

Public Defence Service, Napier (A Malik) Elvidge & Partners, Napier (K Laurenson)

HEYWOOD v NEW ZEALAND POLICE [2013] NZHC 2506 [25 September 2013]

Introduction

[1] Mr Heywood has appealed against a sentence of 14 months imprisonment, imposed by Judge R L Watson in the District Court at Napier on 12 July 2013, after he pleaded guilty to one charge of burglary.[1] The appeal was laid on two grounds: first, that the Judge double-counted the factor of abuse of trust, and secondly, that the Judge failed to give proper consideration to the totality principle in imposing the sentence cumulatively upon an existing sentence of imprisonment.

Preliminary issue

[1] Police v Heywood DC Hastings CRI-2013-020-490, 12 July 2013.

[2]    Mr Heywood’s appeal was filed on 16 August 2013. As he was sentenced on 12 July 2013, the last day for filing an appeal was 10 August 2013, being 28 days after the sentence was imposed. It was noted in written submissions filed by Ms McLean on behalf of Mr Heywood that the reason for the delay in filing was that the due date for filing had been incorrectly noted. Leave to file the appeal was not opposed by Ms Laurenson on behalf of the Crown and in the circumstances, leave is given for the appeal to be filed late.

Background facts

[3] Mr Heywood committed the burglary on the night of 6/7 February 2013. The property he entered is owned by a “best mate” of Mr Heywood’s father, who is in fact Mr Heywood’s godfather. Mr Heywood knew the victim was going to be away at the time, and targeted the property. He forced his way in by breaking a window, and removed a television set, speakers, and laptop. The total value of property taken was $5,000. The victim did not have insurance for the contents of the property. The victim had previously helped Mr Heywood financially, by providing him with work, and by financial assistance. He had also given Mr Heywood general support, including having visited him when he was serving earlier terms of imprisonment.

[4] Mr Heywood has  an extensive criminal history, of about 76  convictions dating back to 2004. These were for offences of dishonesty, violence, breaching Court orders, and failing to comply with sentences.  They include two convictions

for burglary, in February 2009, in respect of which Mr Heywood was sentenced to concurrent terms of  12 months imprisonment. I understand that was the term imposed after an appeal.

[5] On 14 February 2013, Mr Heywood  was  sentenced  to  14  months imprisonment on charges of driving while disqualified, driving while suspended (he was at the time subject to an indefinite disqualification) and driving with excess alcohol (two charges), careless use of a motor vehicle, breach of a protection order, male assaults female, and breach of parole conditions.[2]

District Court sentencing

[2] Police v Heywood DC Hastings CRI-2013-020-243, 14 February 2013.

[6] In setting a starting point of 15 months imprisonment for the burglary, the Judge noted the sentencing purposes of denunciation and deterrence. He considered that aggravating features of Mr Heywood’s offending were the planning involved, knowing the victim would be away, and knowing where items were stored in the house (in particular the laptop, which was hidden), the forcible entry, and the impact on the victim. The Judge also noted a very clear breach of trust (given the relationship between Mr Heywood and the victim, and the assistance the victim had previously given him), and the fact that Mr Heywood committed the burglary when he was on bail for other offending.

[7] The Judge then applied an uplift of four months to take account of Mr Heywood’s previous burglary convictions, and for the “huge breach of trust” that had left Mr Heywood’s supporter, friend, and godfather severely out of pocket.

[8] The Judge then allowed a discount of  approximately  25  per  cent  (five months) for Mr Heywood’s guilty plea, to arrive at an adjusted sentence of 14 months imprisonment. His Honour then referred to the sentence Mr Heywood was serving (that is, the sentence imposed in February), and directed that the burglary sentence was to be cumulative on the earlier sentence.

Was there a double counting?

[9] I noted earlier that in written submissions filed for Mr  Heywood,  Ms McLean’s first submission was that the Judge had double-counted the factor of a breach of trust. In his submissions today on behalf of Mr Heywood, Mr Malik did not pursue that matter. This is principally on the grounds that the uplift applied would appear to have been justified in any event.

The totality principle - submissions

[10] Mr Malik did stress the issue of consideration of the totality principle. No issue was taken with the burglary sentence being cumulative upon the earlier sentence, or indeed the starting point adopted for the burglary sentence. However, Mr Malik submitted that the two sentences of 14 months, resulting in an overall sentence of 28 months, were wholly out of proportion to the gravity of Mr Heywood’s overall offending. I add here that it was noted in Ms McLean’s written submissions that the longest term of imprisonment that had previously been imposed on Mr Heywood was 15 months, imposed in March 2012.

[11] Mr Malik submitted that the Judge’s apparent wish to ensure that  Mr Heywood received a sentence which enabled him to undertake rehabilitative and other treatment programmes, which might well not be available if he were to be serving a shorter sentence, did not necessarily follow. He submitted that when, and indeed whether, any serving prisoner is given the opportunity to engage in such programmes is a matter of speculation. He submitted that a longer sentence does not necessarily mean that a prisoner will get the help that is needed. He also submitted that if, in fact, Mr Heywood were to be sentenced to a shorter term of imprisonment with special conditions imposed requiring assessment for and engagement in programmes imposed as a special condition, there might well be more likelihood of Mr Heywood receiving the treatment he needs.

[12] In the end, Mr Malik submitted that the issue as to treatment programmes should probably be set aside in considering this appeal and that the appeal should be considered  solely  on  the  basis  of  whether,  overall,  a  sentence  of  28  months

imprisonment is wholly out of proportion to the gravity of Mr Heywood’s overall offending.

[13] For the Crown, Ms Laurenson submitted that a cumulative sentence of 28 months imprisonment was not wholly out of proportion. Ms Laurenson submitted that if Mr Heywood had been sentenced on the burglary charge at the same time as he was sentenced on the offending which led to the 14 months term imposed in February 2013, the end sentence would very likely have been about the same. She referred me to the judgment in Tawhiri v Police in which this Court upheld a sentence of two years three months imprisonment imposed for an offender convicted on one charge of burglary, together with charges of unlawfully taking a bicycle,

escaping from custody, and driving while disqualified.[3]    I note that this case was

referred to simply as support for the proposition that on sentencing for a burglary offence together with a number of less serious offences, there might easily be a sentence in the vicinity of that imposed on Mr Heywood, if all sentences were imposed on the same day.

[3] Tawhiri v Police [2013] NZHC 1320.

[14] Ms Laurenson also submitted that the starting point adopted for the burglary sentence of 15 months imprisonment was generous. In this respect she referred to the comment of the Court of Appeal in Arahanga v R, to the effect that “dwelling

house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to  two years and six months imprisonment.”[4]

[4] Arahanga v R [2012] NZCA 480, at [78]

[15] In his reply submission, Mr Malik suggested that had Mr Heywood been sentenced on the burglary charge at the same time as he was sentenced on the other charges, it is likely that the burglary charge would have been taken as the lead offence, and that uplifts would have been applied in respect of the other offending, and that a sentence of 28 months imprisonment would not necessarily have been the result.

Discussion

[16] In the end, on this appeal I consider it is appropriate to look only at s 85(2) of the Sentencing Act 2002, which sets out the totality principle. I do not consider it particularly helpful to look at what might have been the case had Mr Heywood been sentenced on all offending on the same day.

[17] The question under s 85(2) is simply whether  the  total  period  of imprisonment imposed is wholly out of proportion to the gravity of Mr Heywood’s overall offending. When that exercise is undertaken, in Mr Heywood’s case, I am not able to conclude that a sentence of 28 months is wholly out of proportion to the gravity of the overall offending.

[18] The “February” offending comprised a variety of charges of drink driving, careless use, and driving while suspended or disqualified, together with an assault charge and breaches of a protection order and parole conditions. As an aside, I note that in the course of her sentencing on those charges, Judge McIntosh applied a significant discount for totality (from 24 to 18 months) before arriving at the 14 months sentence.[5]

[5] Above n 2, at [9].

[19] The “July” offending involved the burglary of a dwelling house involving a serious breach of trust, and offending for which Mr Heywood had previously received a sentence of imprisonment. On that sentencing the Judge started with a starting point which, in terms of the Arahanga decision, can only be described as generous.

[20] Overall, that is, over both the “February” and “July” offending, the offending was serious and, in my view, well justified an overall sentence of 28 months imprisonment. Accordingly, I conclude that the sentence of 14 months imprisonment imposed in July was within the range available to the Judge and that there is no reason to interfere with it.

Result

[21]     The appeal against sentence is dismissed.

Andrews J