Hindmarsh v Police

[2019] NZHC 160

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-338

[2019] NZHC 160

BETWEEN

TROY WAAKA HINDMARSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

5 February 2019

Counsel:

N Bond for Appellant

C D Piho for Respondent

Judgment:

15 February 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 15 February 2019 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Public Defence Service (Auckland) for Appellant Kayes Fletcher Walker (Manukau) for Respondent

HINDMARSH v POLICE [2019] NZHC 160 [15 February 2019]

Introduction

[1]    Mr Hindmarsh appeals a sentence of three years and seven months’ imprisonment  imposed  on  him  by  Judge  JC  Moses  on  19 September   2018.1  Mr Hindmarsh bases his appeal on the ground the end sentence is manifestly excessive.

[2]    The appeal is brought under Part 6 of the Criminal Procedure Act 2011 as a first appeal against sentence. In order to succeed, Mr Hindmarsh must satisfy me there is an error in the sentence such that a different sentence should be imposed. This test will be satisfied if the sentence of three years and seven months’ imprisonment is manifestly excessive.

Background

[3]    Mr Hindmarsh was for sentence on 23 charges relating to a number of different incidents. Crown counsel provided me with a succinct summary of the offending which I adopt and reproduce:

Charge

Offending summary

Unlawfully takes motor vehicle (ULTMV), reckless driving, failing to stop, failing to stop (aggravated), driving under the influence of a drug, possession of cannabis

On 17 May 2017, the appellant offered to help a stranger park their vehicle. Once in control of the vehicle, he drove away. When pursued by police, he refused to stop, crossed the centre line onto oncoming traffic, and exceeded the speed limit (reaching speeds up to 150km). He was arrested after colliding into an unoccupied stationary police vehicle and power pole (causing over $20,000 in damage), and found to be in possession of cannabis. He was later found to be under the

influence of drugs. The victim’s $18,000 car was uninsured.

Theft (x2) and possession of methamphetamine pipe

On 12 September 2017, the appellant stole property worth

$19.34 from Pak n Save Sylvia Park and as a result was trespassed from Sylvia Park Mall. Around 30 minutes later he returned to Smart Sushi Sylvia Park and stole further property worth $9.50. The appellant was arrested by Police and found

with a glass pipe on him.

Theft

On 27 September 2017, the appellant stole a Narva light worth

$153 from Repco.

Burglary x3 and theft

On 3 November 2017m at around 5.45 pm, the appellant entered Farmers New Lynn and took property worth $789.93. He was stopped outside by security staff.

On 2 December 2017, at around 5.00 pm, the appellant entered a residential house and broke into two locked rooms inside,

taking numerous items. On 4 December 2017, he returned to

1      Police v Hindmarsh [2018] NZDC 19952.

the same house and entered it through the rear door where he took further items.

On 5 December 2017, at around 2.00 pm, the appellant entered the same residential house for a third time, and searched the same two rooms he had previously broken into. He was

confronted by a trade’s person, who was working within the
house, and left the address following a verbal altercation.

The estimated value of stolen items from the burglaries was

$2,000, and included property described by the victim as irreplaceable (including family heirlooms).

Burglary x2, ULTMV, failing to stop and dangerous driving

On 31 March 2018, at around 6.35 am, the appellant entered a residential home through an open window. The victim was inside. The appellant took property worth $1,500. The victim woke to see the appellant leaving.

Between 6 am and 7 am on 31 March 2018, while the two victims were asleep inside their home, the appellant entered another address and took property worth around $1,000 (including a laptop, cigarettes, and a purse containing bank

cards, a driver’s licence and car keys). With the stolen car keys,

he took a Ford car parked outside.

Shortly afterwards, Police located the appellant in the stolen Ford car, and signalled for him to stop. He refused to do so. He sped excessively, resulting in the pursuit being abandoned. The Police Air Support Unit, however, later directed staff on the ground to apprehend the appellant. The stolen items were

recovered, except for the laptop and a packet of cigarettes from the second burglary.

Failure to answer DC

bail x4

On 10 August 2017, 28 September 2017, 31 October 2017

and 29 March 2018 the appellant failed to appear in Court.

[4]    I note at this point Mr Hindmarsh, a mature man aged 32 and 33 years when the offending took place, has a considerable list of relevant previous convictions. Again, Crown counsel provided a convenient summary which I now set out:

(a)Shoplifting (February 2017);

(b)Aggravated robbery (October 2011);

(c)Aggravated robbery x2 (September 2011);

(d)Burglary (September 2011);

(e)Aggravated robbery x2 (September 2011);

(f)Possession of instruments for burglary (July 2011);

(g)Burglary (May 2011);

(h)Robbery – armed with offensive weapon x3 (June 2009 – Australia);

(i)Robbery – in company (June 2009 – Australia);

(j)Robbery – armed with offensive weapon (October 2004 – Australia);

(k)Shoplifting (September 2003 – Australia);

(l)Receiving x2 (May 2003 – Australia);

(m)Shoplifting (March 2003 – Australia);

(n)Larceny x6 (December 2002 – Australia);

(o)Shoplifting x3 (December 2002 – Australia);

(p)Takes and drives conveyance (May 2002 – Australia);

(q)Steal motor vehicle (May 2002 – Australia);

(r)Shoplifting (May 2002 – Australia); and

(s)Larceny (May 2002 – Australia).

[5]    Mr Hindmarsh was sentenced to four years and six months’ imprisonment on 18 May 2012 on five charges of aggravated robbery and one charge of burglary.

The District Court sentence

[6]Judge Moses structured his sentence in the following way:

(a)The lead charges were identified as the offending which took place on 31 March 2018, particularly the burglaries. A global starting point of two-and-a-half years’ imprisonment was calculated.

(b)For all the other offending, an uplift of two-and-a-half years was calculated.

(c)An uplift of 10 percent (six months) was imposed to take account of Mr Hindmarsh’s relevant record of previous criminal offending.

(d)The Judge recognised that much of Mr Hindmarsh’s criminal offending was rooted in his drug and alcohol consumption, compounded by his difficult personal history. Mr Hindmarsh had taken steps to address his alcohol and drugs problem while in prison.   The Judge allowed a     15 percent reduction for this.

(e)The Judge commented that pleas of guilty to the offending had been entered at different times for the various charges, but overall allowed a 20 percent discount.

(f)Finally, the Judge, who had received a letter from Mr Hindmarsh referring to remorse and to his progress in prison in becoming literate, allowed a further two months’ reduction for remorse.

The appeal

[7]    The gravamen of the appeal is that Judge Moses adopted an excessive starting point in respect of the lead burglary offending and this resulted in the sentence imposed being manifestly excessive. Mr Bond, in his written submissions, stated:

No issue is taken with the uplift for Mr Hindmarsh’s criminal history, or with any of the discounts applied.

[8]    In Mr Bond’s submission, Judge Moses should have taken all five burglaries as the lead offences and adopted a starting point of approximately three years’ imprisonment. All the  other  charges  would  warrant  an  uplift  of  12 months’  to 18 months’ imprisonment, reducing the overall starting point to between four years’ and four years six months’ imprisonment. Applying the other uplifts and discounts adopted by Judge Moses, the end sentence should have been between two years     10 months’ and three years two months’ imprisonment.

Analysis

[9]    The difficulty for Mr Hindmarsh, as I pointed out to Mr Bond, is that he cannot just “bank” the favourable parts of the Judge’s decision and attack only the unfavourable part of the decision. It is the end result of three years seven months’ imprisonment which must be shown to be manifestly excessive for the Judge to have been in error.

[10]   Putting aside the way in which the Judge structured the sentencing, the overall starting point for all the offending was five years’ imprisonment. In my view, even properly taking into account totality, that was a light starting point:

(a)The most serious charges can be grouped in three parts. Within each part there is multiple offending;

(b)The criminality in respect of each part must be assessed taking into account all the linked offending in each part. It is not a matter of picking a lead charge and then considering it in isolation from the linked offending.

(c)Although totality is the final analysis, the three parts were separate and could be dealt with cumulatively.

[11]   The first part is the offending which occurred on 17 May 2017. On that occasion, Mr Hindmarsh unlawfully took a vehicle and then, while under the influence of drugs, drove in a way which was manifestly dangerous to the public and to the Police. He was arrested after he crashed the car causing over $20,000 in damage. His victim’s car was uninsured. A starting point of at least 18 months’ imprisonment could have been assessed.

[12]   The second part is the burglaries of the residential house which was being renovated at the time. Mr Hindmarsh burgled that property on 2, 4 and 5 December 2017, stealing property valued at $2,000 including – much to the distress of the victim

– irreplaceable family heirlooms. During the last burglary, there was a confrontation with a person working within the house. For these determined and repeated burglaries of a residential dwelling, a standalone starting point of two years’ to three years’ imprisonment would be available.

[13]   The third part of the serious offending is that which occurred on 31 March 2018. There were two burglaries of residential homes which were occupied at the time. The victims were asleep in their homes. $1,500 worth of property was taken from the first house and around $1,000 from the second house. But, the property taken from the second house included car keys which Mr Hindmarsh used to take the victim’s car. There was then another Police pursuit. Mr Hindmarsh again drove dangerously at high speed, causing the Police to abandon the pursuit. I consider a starting point of around three years’ imprisonment was available for this offending.

[14]   The remainder of the offending was small-scale theft and would have to be given weight when totality was considered but, in the scheme of things, would not result in a distinct uplift. However, it is relevant because Mr Hindmarsh committed all the offences after 17 May 2017 while he was on bail. In addition to that, on four occasions Mr Hindmarsh failed to answer his bail.

[15]   I will not attempt to calculate the range available to Judge Moses in setting the starting point. I am satisfied that by any calculation the Judge’s starting point of five years’ imprisonment was at the lowest end of the range.

[16]   I consider also that the uplift of 10 percent (six months) to take account of  Mr Hindmarsh’s criminal record was light. I accept Mr Bond’s submission that the purpose of an uplift to take account of previous criminal offending is not to re-penalise the offender. Its purpose is to recognise that despite receiving repeated sentences for relevant offending the offender has not been deterred in his offending. The uplift is to increase the deterrence.

[17]   As Mr Piho  for  the  Crown  submits,  with  the  sort  of  criminal  history  Mr Hindmarsh possesses, an uplift far greater than 10 percent might be expected. Even taking into account totality, an uplift in the range of 20 percent to 25 percent would be unexceptional.

[18]   Further, most of the offending occurred while Mr Hindmarsh was on bail. In fact, over the 10 months or so period of offending, Mr Hindmarsh was repeatedly granted bail and repeatedly went on to commit further offences. This factor justified a discrete uplift but was not mentioned by the Judge.

[19]   I accept Mr Bond’s submission that in relation to the reductions for personal circumstances and for the entry of pleas of guilty, Judge Moses was best placed to assess the reductions to be given and I will not comment on them other than to observe they appear generous.

Decision

[20]   It follows that the appeal against sentence must fail. The end sentence was not manifestly excessive; it was lenient.

[21]The appeal is dismissed.

Brewer J