Horne v Police

[2021] NZHC 2623

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000114

[2021] NZHC 2623

BETWEEN

ZANE BRYSON PETER HORNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 September 2021
Appearances:	P M Faletanoai-Evalu and J M Grainger for Appellant S J Mallett for Respondent
Judgment:	4 October 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 4 October 2021 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

HORNE v NEW ZEALAND POLICE [2021] NZHC 2623 [4 October 2021]

Introduction

[1]    The appellant, Zane Horne, was sentenced by Judge Couch to 25 months’ imprisonment in relation to one charge of burglary.1 He appeals that sentence on the ground it was manifestly excessive.

Background

[2]    On 4 January 2020, Mr Horne went to an address in Addington. The victim was not at home at the time. Mr Horne smashed a bedroom window and gained entry to the house. He took a number of items including a laptop and a hard drive, the total value being more than $1,000. Before leaving the property, Mr Horne cut the CCTV cords at the front door.

District Court decision

[3]    Judge Couch was both the trial Judge and the sentencing Judge. Based on his findings at trial he identified a number of aggravating factors including: the burglary was of the victim’s home and involved the unlawful presence in a dwelling house; the premises were secured and Mr Horne gained entry by breaking into a window; and the burglary occurred in the early evening when there was a significant risk of encountering the occupant.

[4]    The Judge also found there was an “irresistible inference” that Mr Horne chose the victim’s home to burgle as he had previously been a guest there, some 10 days earlier over the Christmas period. It follows, the burglary was premeditated and, to a degree, involved a breach of the victim’s trust. A number of items were taken during the burglary and have not been recovered. Further, the effect on the victim has been serious and the burglary has continued to affect her for a long time.

[5]    The Judge adopted a starting point of two years’ imprisonment. A five per cent uplift was applied to reflect Mr Horne’s significant  criminal  history,  including  eight convictions for dishonesty offending. The Judge found there were no mitigating

1      Police v Horne [2021] NZDC 14222.

factors that justified a reduction in  sentence.  This  resulted in  an end sentence of  25 months’ imprisonment.

Principles on appeal

[6]    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.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 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.4

Submissions

Appellant’s submissions

[7]    Mr Faletanoai-Evalu, for Mr Horne, submits the starting point adopted by the District Court Judge was too high. No issue is taken with the uplift of one month for previous offending. In Mr Faletanoai-Evalu’s submission, the excessive starting point meant that an electronically monitored sentence could not be considered, which would have been the least restrictive outcome.

[8]    It is submitted low level complexity burglaries involving a breach of trust attract   a   starting    point    of    approximately    18    months’    imprisonment.    Mr Faletanoai-Evalu refers to Paul v Police,5 Gibb v R,6 Zimmerman v Police,7 Mackie v Police8 and French v Police.9

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ripia v R [2011] NZCA 101 at [15].

5      Paul v Police [2015] NZHC 2583 at [28].

6      Gibb v R [2017] NZCA 532.

7      Zimmerman v Police [2014] NZHC 3233.

8      Mackie v Police [2012] NZHC 1654.

9      French v Police [2015] NZHC 2635.

[9]    Mr Faletanoai-Evalu submits a starting point of 18 months would allow an alternative to a sentence to be imposed. This approach would be consistent with s 16 Sentencing Act 2002 which provides that the Court must have regard to the desirability of keeping offenders in the community as long as it is aligned with the safety of the community.

[10]   Mr Faletanoai-Evalu submits a sentence of home detention is a real alternative to imprisonment, carrying in considerable measure the principles of deterrence and denunciation. Mr Horne has never been sentenced to an electronically monitored sentence and therefore his ability to comply has never been tested.

[11]   In the alternative, Mr Faletanoai-Evalu submits a combination of intensive supervision and community detention is open to the Court. The pre-sentence report refers to Mr Horne as having a lack of insight into his offending and no motivation to address his drug use. However, in Mr Faletanoai-Evalu’s submission, the absence of such factors should not serve as a barrier to a supervisory sentence.10

Respondent’s submissions

[12]   Mr Mallett, for the respondent, submits the starting point adopted by the District Court was within range. In support of this he refers to Ivar v Police,11 Nelson v Police,12 Johnstone v Police13 and Harraway v Police.14 Even if this Court considers the starting point was too high, it is submitted the lenient uplift for previous convictions means the end sentence was not manifestly excessive.

[13]   In the event this Court finds the end sentence was manifestly excessive and a sentence of less than two years’ imprisonment ought to be imposed, Mr Mallett submits home detention is not appropriate in this case.

[14]   Mr Mallett refers to the pre-sentence report which states Mr Horne denies his offending and, therefore, demonstrates no remorse or insight into his offending-related

10     Referring to Ranford v Police [2021] NZHC 132 at [24].

11     Ivar v Police [2021] NZHC 493.

12     Nelson v Police [2012] NZHC 2266.

13     Johnstone v Police [2012] NZHC 551.

14     Harraway v Police [2018] NZHC 761.

behaviours.     It is noted the pre-sentence report assessed the likelihood of non-compliance as high.

[15]   The respondent’s position is the purposes and principles of sentencing would not be met by a sentence less than imprisonment. Further, it is noted Mr Horne does not appear to have a home detention address.

Analysis

[16]   There is no tariff or guideline judgment for burglary because of the variety of circumstances in which the offence may be committed.15 A burglary of a dwelling house is a significant aggravating factor,16 as this gives rise to a heightened risk of confrontation with the occupants.17 In Arahanga v R the Court of Appeal suggested that “[d]welling 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.”18

[17]   While that statement alone suggests the starting point was clearly within range, the following cases offer some guidance on sentencing for burglaries of this nature:

(a)In Gibb v R the Court of Appeal upheld a starting point of 18 months’ imprisonment for a burglary charge that involved the defendant entering his former partner’s address and stealing valuable items.19 However, the Court noted a starting point of “at least 18 months” was warranted on that charge.

(b)In Mackie v Police a starting point of 18 months’ imprisonment was imposed on appeal in place of a sentence of 24 months.20 There, the defendant smashed a glass panel at the rear entrance to a dwelling house and took items valued at $1,500 including personal documents relating

15     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

16     Sentencing Act 20002, s 9(1)(b).

17     Arahanga v R, above n 15, at [78].

18     At [78] (footnotes omitted).

19     Gibb v R, above n 6.

20     Mackie v Police, above n 8.

to the victim. While Mr Horne places particular reliance on this case, Woolford J accepted that there were no aggravating features of the offending. Furthermore, the items were subsequently returned to the victim with the defendant’s assistance.

(c)In French v Police a starting point of 20 months’ imprisonment was applied on appeal for a charge of burglary.21 The defendant had entered a residential dwelling and stolen $1,340 worth of jewellery that had sentimental value to the owner.

(d)In Ivar v Police, a starting point of 20 months’ imprisonment was not disturbed on appeal for offending that involved entry into a residential address and stealing a PlayStation, games and a security camera.22

(e)In Nelson v Police the defendant entered a residential dwelling, took electronics and jewellery valued at $800, when the occupiers of the house were not home.23 On appeal, a starting point of 21 months' imprisonment was adopted.

(f)In Johnstone v Police the defendant entered into a dwelling house and took property that was of significant financial and sentimental value.24 There was limited damage to the house or premeditation. The starting point of 24 months’ imprisonment was upheld on appeal.

(g)In Kopara v Police, Mander J on appeal adopted a starting point “in the mid-range of the scale” identified in Arahanga (two years and three months’ imprisonment) for a burglary of a dwelling place when the defendant knew there would be no risk of confrontation with the occupants, but (as in this case), he had been a guest in the house a short

21     French v Police, above n 9.

22     Ivar v Police, above n 11.

23     Nelson v Police, above n 12.

24     Johnstone v Police, above n 13.

time before and where the items taken were valued at more than

$6,000.25

[18]   The aggravating factors of Mr Horne’s offending are that it involved entry into a dwelling house in the early evening when there was an increased risk of encountering the occupant; the offending was premeditated and  it involved a breach of trust as  Mr Horne had been invited to the home as a guest on a previous occasion. The laptop which was taken contained photos and videos of the victim’s daughter when she was younger which are of significant sentimental value. When items of sentimental value are taken and lost, that is an aggravating feature, just as is the loss of items of significant financial value. Furthermore, the impact on the victim is an aggravating factor. Since the burglary she has been seeing a counsellor, requires medication to assist with sleep, and has a fear of leaving the house.

[19]   Having considered the cases referred to above, and, more importantly, the range given in Arahanga, along with the aggravating factors of Mr Horne’s offending, I consider the starting point was within the available range.

[20]   Appropriately, Mr Horne does not challenge the uplift of one months’ imprisonment to reflect his significant criminal history which involves 38 convictions including eight convictions for dishonesty related offending, albeit most of those convictions are of some vintage. The lenient uplift confirms my view the end sentence is within range, and I do not need to consider the issue of whether there should be a sentence of home detention.

Conclusion

[21]The appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch Raymond Donnelly & Co., Christchurch

25     Kopara v Police [2014] NZHC 2222.