Houghton v Police
[2012] NZHC 1357
•15 June 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2012-470-000020 [2012] NZHC 1357
BETWEEN PETER WILLIAM HOUGHTON Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 15 June 2012
Appearances: A C Balme for Appellant
N Belton for Respondent
Judgment: 15 June 2012
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Tauranga
Copy to: Tony Balme Law, Tauranga
HOUGHTON V NEW ZEALAND POLICE HC TAU CRI-2012-470-000020 [15 June 2012]
Introduction
[1] Mr Houghton pleaded guilty to one charge of robbery and one charge of cultivating cannabis. Judge Moran sentenced him to two and a half years’ imprisonment. Mr Houghton appeals against that sentence as manifestly excessive.
Background
[2] On 17 January this year at about 8.30 in the morning Mr Houghton entered a pharmacy in the Bureta Shopping Centre. He was wearing a mask to disguise his identity. There was only one pharmacy attendant. Mr Houghton approached her and lifted a sign to tell her what he wanted. It was written in black marker pen on cardboard. The signed stated: “Don’t hit the alarm” and “put all your benzos, opiates and liquid sleepers in the bag”. Mr Houghton approached the assistant, opened the bag and she, fearing for her safety, did what he wanted and put two bottles of Diazepam and two to four bottles of Hypam into the bag. Mr Houghton closed the bag and walked out. He was, however, seen leaving the premises and running to his car which was identified.
[3] At 6.15 p.m. the same day the police executed a search warrant at Mr Houghton’s home. There they found demand notes and, in his wallet, a note to a doctor stating if that he did not get a change in his prescription, his brain was returning to past cycles and he could rob a chemist or worse. The car identified as having been used in the course of the robbery was also at Mr Houghton’s premises. At the rear of the address the police found a piece of a mask that it was believed had been worn. The mask had fallen to one side of a drum where a fire had been started.
[4] In the course of the search of Mr Houghton’s home the police also located a small cannabis growing set-up. This included lights, a fan, a temperature timer and three cannabis plants. One plant was approximately 80 centimetres high while the other two were seedlings. There was about a gram of loose cannabis plant material.
Mr Houghton initially denied any involvement in the robbery but entered guilty pleas to both charges on his fourth appearance.
The District Court sentence
[5] In sentencing Mr Houghton Judge Moran took a starting point of three years’ imprisonment for the robbery. He then applied a full 25 per cent credit for the guilty plea incorporating the remorse that Mr Houghton had expressed. That reduced the starting sentence to two years three months’ imprisonment for that charge.
[6] In relation to the charge of cultivating cannabis the Judge took a starting point of four months’ imprisonment and reduced that, again by 25 per cent, for the guilty plea. The Judge imposed the sentence for the cannabis cultivation cumulatively leading to an end sentence of two and a half years. The Judge then considered from a totality point of view whether the offending justified a sentence of two and a half years’ imprisonment and concluded that it did. The end sentence remained at two years six months.
The appeal
[7] The appellant does not take issue with the starting point of three years for the robbery but Mr Balme submitted the Judge gave no credit for the relevant mitigating factors of remorse and the steps the appellant had taken towards rehabilitation.
[8] Mr Balme noted that the appellant had undertaken a three month residential placement with Breakthrough Ministries, had been working with his doctor and receiving treatment to address his long term drug addiction and had shown his motivation to change by cutting ties with former associates and friends.
[9] Mr Balme also noted the pre-sentence report was positive and referred to the steps Mr Houghton had taken to address his addiction and also that his remorse was genuine and the offer he had made to attend a Restorative Justice meeting with the victim.
[10] Mr Balme submitted a reduction from the starting point of six months’ imprisonment was appropriate for the appellant’s significant attempts at rehabilitation and his remorse. That would have led to a starting point of one year nine months’ imprisonment for the robbery when taken with the discount for the guilty plea. The appellant does not challenge the cumulative period of three months imposed for the cannabis offending so that on Mr Balme’s analysis, the appropriate end sentence would have been two years leading to the possibility of home detention for the appellant.
[11] This appeal is essentially directed at that point. It seeks to have the Court arrive at a sentence of two years that could support home detention. Mr Balme submitted that if the end sentence was two years or less then home detention was appropriate in this case. He submitted that the particularly relevant factors supporting home detention were:
(a) the appellant’s commitment to address his drug addiction;
(b)the support the appellant would enjoy at the proposed address from his immediate family; and
(c) the appellant’s placement with Breakthrough Ministries.
The Police position
[12] For the Police Mr Belton submitted that taken overall the sentence could not be regarded as manifestly excessive and should be left undisturbed. He submitted in light of R v Mako[1] and in R v McGregor[2] the Judge could and perhaps should have taken a start point of three and a half to four years for the sentence instead of the three years in this case.
[1] R v Mako [2000] 2 NZLR 170.
[2] R v McGregor [2007] NZCA 365.
[13] Mr Belton also submitted that the credit for the guilty plea at 25 per cent given the strength of the case was in all the circumstances generous.
[14] The Judge was aware of the relevant mitigating factors. It is clear that the Judge was aware of Mr Balme’s submissions in relation to remorse and the appellant’s steps towards rehabilitation. The Judge expressly said in his sentencing notes:
[11] ... You have expressed remorse, which I accept is genuine. You have offered to participate in a restorative justice initiative by meeting your victim; she does not want that but, at least, it is to your credit that you have offered. That, too, is a measure of your remorse but I do not see, frankly, any room for remorse to be weighed in the balance on the credit side to any greater extent than the guilty plea.
And later:
[15] ... I would give you full credit of 25 percent for the guilty plea that you have entered which includes and incorporates, naturally, the remorse that you have expressed.
[15] The Judge was also aware of the steps the appellant had taken towards rehabilitation. He said:
[12] Since this offending you have propelled yourself into some significant rehabilitative steps, notably your involvement with the Breakthrough 2000 Trust. I have read very positive reports about your participation in that programme and the fact that you now have a spiritual conversion that you say has turned your life around.
[16] I accept that it appears the Judge does not appear to have separately provided a reduction for the appellant’s attempts at rehabilitation, but it seems he did intend to include a credit or allowance for remorse in the 25 per cent allowed for the guilty plea.
[17] Despite Mr Balme’s submissions, in my judgment, the Judge’s failure to provide a separate reduction for those personal mitigating factors is not material to the outcome of this case. In Hessell v R[3] the Supreme Court made it clear that the credit for a guilty plea must reflect all the circumstances in which the plea is entered,
including whether it is early or late but also including the strength of the prosecution
appellant has to accept the prosecution case against him was a strong one. A 25 per cent reduction for the guilty plea alone could not be sustained. The Judge must have factored in a discount for remorse to that 25 per cent reduction. Indeed he expressly referred to remorse as part of that reduction.
[3] Hessell v R [2011] 1 NZLR 135.
[18] Despite Mr Balme’s submission, on my review of the authorities and the circumstances of this case, I am satisfied that an end sentence in the range arrived at by the District Court could have been arrived at in a number of principled ways. The Judge would have been entitled to expressly apply a discount for the steps of rehabilitation and remorse of say three to four months from the starting point of three years and then apply a discount to the resulting starting point of between 15 and 20 per cent for the guilty plea alone, which would still have led to a sentence for the robbery of between two years two months and two years three months or in that range. As noted the sentence for the cannabis charge is not challenged. It could not be given the appellant’s previous convictions. The end result would still be a sentence of in the range of two years, four or five months to two years six months.
[19] The matter can be tested another way. There is, in my view, force in the submission for the Police that, in light of R v McGregor, where the Court of Appeal took a starting point of four years for a robbery in very similar circumstances to the present, the starting point of three years in this case could be regarded as lenient. If the Judge had applied a starting point of even three and a half years, which was well within the range available to him, then, even accepting Mr Balme’s submission for the appellant the Judge should have applied a reduction from the starting point of six months before applying the discount for the guilty plea of nine months the end sentence for the robbery would still have been two years three months’ imprisonment, which when taken with the three months for the cannabis offending leads to the end sentence of two years six months.
[20] In the circumstances I am unable to accept the submission for the appellant that the ultimate sentence imposed of two years six months’ imprisonment was manifestly excessive. The issue of home detention does not arise.
Venning J
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