Higgan v Police

[2021] NZHC 188

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-454-23

[2021] NZHC 188

DAMIAN RICHARD HIGGAN

v

NEW ZEALAND POLICE

Hearing:

16 February 2021

Appearances:

T E Hesketh for the Appellant

A M Barham for the Respondent

Judgment:

17 February 2021

JUDGMENT OF COOKE J

[1]    Mr Higgan appeals a sentence of 22 months’ imprisonment following the entry of guilty pleas on the following charges:1

(a)Breach of Protection Order;2

(b)Burglary;3

(c)Receiving.4

1      New Zealand Police v Higgan [2020] NZDC 24642.

2      Family Violence Act 2018, ss 90(b) and 112(1)(a).

3      Crimes Act 1961, s 231(1)(a).

4      Crimes Act 1961, ss 246 and 247(a).

HIGGAN v NEW ZEALAND POLICE [2021] NZHC 188 [17 February 2021]

The offending

[2]    The breach of protection order offence occurred on 16 July 2020. Mr Higgan and the victim had previously been in a relationship for 16 years and have one child together. Mr Higgan arrived at the victim’s address and approached the back door adjacent to the kitchen. When the door was open he remarked to a witness “it’s funny I can have a protection order against people, I can still walk in”. The victim heard his voice, came down the hallway and told him to go away. He left the house, got into a vehicle and drove away. This was his second conviction for breach of the protection order. In the month before this offence he had been sentenced to nine months’ supervision and two months’ community detention for the previous breach.

[3]    Between 31 August and 13 October Mr Higgan then received a stolen motor vehicle valued at $5,000. He attempted to disguise its identity by changing the registration plates and the VIN number. The ignition barrel was missing and when he was spoken to he confirmed it was stolen.

[4]    On 21 September he then entered a property. He drove into its driveway when looking for a place to steal items. He walked to the back of the property and opened an unlocked back door of the house. The door had access to a garage. He entered the garage and opened a large chest freezer and stole a large amount of frozen food. He also stole a tent and camping items. A witness arrived at the address and challenged him when he was leaving.

The grounds of appeal

[5]    In imposing the sentence the burglary charge was adopted as the lead offence and a starting point of 18 months was adopted. An uplift of six months was imposed for the breach of protection order, and a further six month uplift was imposed for the receiving charge. Discounts of seven months for a guilty plea and one and a half months for remorse were given. A further uplift of one month was added in connection with the remission of fines. This made the total end sentence twenty-two months imprisonment.

[6]    The appeal is brought pursuant to ss 244 and 250 of the Criminal Procedure Act 2011. The appellant submits that under s 250(2) there was an error by the sentencing Judge in the sentence imposed on conviction and that a different sentence should be imposed instead. The ultimate question is whether the sentence imposed was manifestly excessive.5 The appellant argues that the overall sentence was excessive given the gravity of the offending, and in particular the cumulative uplifts were not justified, or that there should have been an adjustment for totality.

Assessment

[7]    It is important to be clear about the sentencing approach adopted by the District Court Judge. It is apparent from the appellant’s formal criminal record, and the warrants for detention signed by the Judge, that the sentence for each of the charges was imposed concurrently and not cumulatively. The warrants record that for each of the charges of burglary, receiving, and breach of a protection order, a sentence of 21 months was imposed. One month was then added cumulatively in relation to the unpaid fines. The sentencing notes do not make it clear that the sentences were imposed on each of the charges in that way, but the formal record makes that apparent.

[8]    The focus of the appeal is ultimately the totality principle referred to in s 85 of the Sentencing Act 2002.6 Where there are multiple offences, the individual sentences must reflect the seriousness of each offence.7 If cumulative sentences of imprisonment are imposed, then they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.8

[9]    As Mr Hesketh accepted there can be no criticism of the 18 month starting point for the burglary charge, which was taken as the lead charge. It involved entry to somebody’s home and taking a large amount of food from a freezer as well as camping items. Based on comparable authorities, a starting point of around 18 months for that offending was justified.9

5      Tutakangahau v R [2014] 3 NZLR 482 (CA).

6      Sentencing Act 2002, s 85.

7      Sentencing Act 2002, s 85(1).

8      Sentencing Act 2002, s 85(2).

9      See, for example, Andrews v Police [2015] NZHC 2496 at [32].

[10]   The approach the District Court Judge adopted was to then uplift the starting point by six months for the receiving charge. The receiving stolen property charge involved a car valued at $5,000, with the appellant taking steps to disguise its stolen status. That also appears to be in range given similar cases. In Drake v Police it was held  that  a starting point  of 15 months  imprisonment for receiving a vehicle worth

$11,000 was within the available range.10   In Williams v Police the appellant received

a vehicle worth $3000 which had valuable tools inside it, and he also removed the registration label and the vehicle number plates. On appeal the starting point of 18 months was reduced to 9 months.11 Given that the offences here occurred over the same period, and accordingly as a single course of dishonesty offending, the approach adopted by uplifting the starting point by six months was appropriate.

[11]   The breach of protection order offending is not related offending. For that reason an appropriate sentencing approach might have been to sentence for that offending and order it be served cumulatively in accordance with s 84 of the Sentencing Act, subject to the totality principle in s 85. Mr Hesketh suggested that a starting point for a non-violent breach of a protection order could begin at around four months given previous cases.12 I accept that a 21 month term of imprisonment for this charge alone would not be justified, but that sentence was only imposed as a consequence of the District Court Judge’s approach to deal with these offences on a concurrent basis.

[12]   As has been emphasised in a number of decisions the sentence for the offence of breaching a protection order very much depends on the circumstances.13 Here the fact that the breach occurred in the month following his conviction and sentence for a previous protection order is relevant. The comment Mr Higgan made was to the effect that he was able to breach the order no matter what the Court had done. That warranted a firm response. Uplifting the starting point by six months — equivalent to a six month cumulative sentence — was an available sentencing option.

10     Drake v Police [2015] NZHC 2252 at [23], cited in Whittaker v Police [2017] NZHC 2747 at [20].

11     Williams v Police [2015] NZHC 3285 at [5], cited in Whittaker v Police [2017] NZHC 2747 at [19].

12     Prince v New Zealand Police [2019] NZHC 1742 at [14]; Thompson v Police [2020] NZHC 20 at [20].

13     See Whiu v New Zealand Police [2020] NZHC 298 at [16].

[13]   Mr Hesketh also challenged the one month uplift imposed in relation to the unpaid fines. This was an independent exercise under s 88 of the Summary Proceedings Act 1957 and given the total fines of $2,000 it was an available approach.

[14]   The appellant’s best point is that adopting an uplift of six months for each of the additional offences was unduly harsh, and in light of the totality principle the sentence was manifestly excessive.

[15]   I accept that the end sentence can be seen as at the higher end for this group of offences. But on the other hand both the burglary and receiving offences were significant, and there were also aggravating features of the breach of protection order offence. They Judge was also dealing with an overall series of offences committed by the appellant. They occurred over the same period — the breach of the protection order occurred in July, the stolen motor vehicle was received from the end of August, and the burglary took place in September. The offending was interrelated to that extent, and the uplifts can be considered in that context.

[16]   I accept that the approach the Judge adopted, and the overall sentence arrived at, was open, and the end sentence is not manifestly excessive. The appeal is dismissed.

Cooke J

Solicitors:

Tim Hesketh Law, Palmerston North for the Appellant BV+A, Palmerston North for the Respondent