Howlett v Police

[2018] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-000017

[2018] NZHC 1850

BETWEEN

MICHAEL PHILLIP NIMARATA HOWLETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 July 2018 (via AVL at Wellington)
Counsel:	W R Hawkins for Appellant F E Cleary for Respondent
Judgment:	24 July 2018

JUDGMENT OF COLLINS J

Introduction

[1]    This judgment explains why I am dismissing Mr Howlett’s appeal against a sentence of one year and 10 months’ imprisonment imposed upon him on 1 May 2018 by Judge Adeane in the District Court at Napier.1 That sentence was for a series of charges:

(1)two charges of burglary;2

(2)one charge of possession of a methamphetamine pipe;3

1      Police v Howlett [2018] NZDC 8564.

2      Crimes Act 1961, s 231(1)(a); maximum penalty 10 years’ imprisonment.

3      Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year’s imprisonment.

HOWLETT v NEW ZEALAND POLICE [2018] NZHC 1850 [24 July 2018]

(3)one charge of receiving stolen property;4

(4)two charges of theft (under $500);5

(5)one charge of unlawfully taking a vehicle;6

(6)one charge of failure to answer court bail;7

(7)one charge of failure to answer police bail;8 and

(8)one charge of failure to report for community service.9

[2]    Mr Howlett appeals his sentence on the grounds that Judge Adeane failed to give adequate discount for personal circumstances, and failed to properly consider home detention. As a result, the end sentence is said to be manifestly excessive.

[3]    The appeal is brought out of time. Mr Hawkins, counsel for Mr Howlett, explains that he was instructed outside the 28-day period, and was not counsel for  Mr Howlett before the District Court. The Crown accepts that no prejudice arises from the appeal being heard out of time. I therefore grant Mr Howlett’s application for leave to appeal out of time.

Background

[4]    On 29 August 2017, Mr Howlett hired a Toyota Camry from Eurocar Rentals at Napier Airport. He failed to return the vehicle on its return date of 7 September 2018 and Eurocar was unable to make contact with Mr Howlett. Mr Howlett was stopped by police driving the vehicle in Hastings, and was arrested. The vehicle was worth $35,000.

4      Crimes Act 1961, ss 246 and 247; maximum penalty three months’ imprisonment.

5      Sections 219 and 223(d); maximum penalty three months’ imprisonment.

6      Section 226(1); maximum penalty seven years’ imprisonment.

7      Bail Act 2000, s 38(a); maximum penalty one year’s imprisonment.

8      Section 38(a); maximum penalty three months’ imprisonment.

9      Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment.

[5]    On 6 October 2017, Mr Howlett stole a backpack and clothing worth $150 from The Warehouse, Napier. He placed the items in the backpack, which he also took from the store, while in a changing room and then left the store without attempting to pay for them. The stolen items were not recovered.

[6]    On 22 December 2017, Mr Howlett stole a pair of $170 shoes from Rebel Sport, Hastings. He put the shoes on in place of his own and left the store without attempting to pay. The shoes were recovered.

[7]    At about 4.00 am on 5 February 2018, Mr Howlett arrived at a Napier backpackers in a motor vehicle with three associates. He entered the building through a door at the rear of the premises. Mr Howlett took two pairs of shoes, some clothing and a motor bike  helmet.  He  also  attempted,  but  failed,  to  take  a  motorbike. Mr Howlett was recorded on CCTV. The stolen items, worth approximately $700, were not recovered.

[8]    At about 3.40 am on 21 February 2018, Mr Howlett and an associate arrived at an address in Onekawa, near Napier, in a motor vehicle. The pair spoke to the occupants of the property, who had come out to see what they were doing. Mr Howlett claimed to be looking for someone at one of the properties that shared a driveway with the property in question. The occupants accepted this explanation and directed the pair towards the rear of their property. Mr Howlett then entered their property and took an air compressor, water blaster and tool box from the shed. Police were called and Mr Howlett was located in his vehicle, with the stolen property.

[9]    When police searched the vehicle, they located a methamphetamine pipe and empty point bags. Mr Howlett admitted they belonged to him. Police also found personal documents in a folder, an Adidas backpack and passports. These items had been reported stolen in a residential burglary in Hastings on 12 February 2018.

[10]   All the above offending occurred while Mr Howlett was subject to release conditions for his previous period of imprisonment, ending 16 May 2017.

Mr Howlett

[11]   Mr Howlett is 29 years old. Prior to sentencing, he was unemployed and receiving a benefit. He has 71 previous convictions, including 24 convictions for dishonesty offending and 27 convictions involving breaches of bail, community sentences, release conditions and other court imposed conditions. The PAC report describes Mr Howlett’s behaviour as impulsive, with little regard for the consequences of his actions. The report writer assesses his likelihood of reoffending as high because of the frequency of his previous offending and his attitude towards that offending. Mr Howlett has anti-social influences in his life, however, his grandparents, with whom he resided prior to sentencing, are a positive influence. Mr Howlett’s grandparents also care for two of his five children, aged one and four. Mr Howlett was assessed as being at a high-risk of using amphetamine type stimulants. The report writer recommended home detention, despite assessing Mr Howlett’s ability to comply with a community-based sentence as low.

District Court decision

[12]   Judge Adeane adopted a starting point of 18 months’ imprisonment for the two burglary charges, with an uplift of six months for the unlawfully taking a vehicle charge and a further uplift of four months for the remainder of the offending.10 This resulted in a total of 28 months’ imprisonment. Judge Adeane gave a discount of 25 per cent for Mr Howlett’s guilty plea, resulting in an end sentence of 21 months’ imprisonment.

[13]   Judge Adeane cancelled the balance of Mr Howlett’s community work, and cancelled his outstanding fines. A one month cumulative sentence was imposed for the cancelled fines.   This resulted in an effective end sentence of one year and       10 months’ imprisonment.

10     Judge Adeane convicted and discharged Mr Howlett on the failure to answer bail charges, so it is likely these did not factor into the four-month uplift.

[14]Judge Adeane declined to grant home detention for the following reasons:

(1)Mr Howlett is a recidivist dishonesty offender, with multiple previous convictions.

(2)Mr Howlett shows little inclination to change his ways.

(3)Mr Howlett has numerous convictions for non-compliance with court orders and sentences.

(4)Mr Howlett’s offending is, if anything, escalating. Judge Adeane suspected that this might be because Mr Howlett was falling further into the grips of methamphetamine addiction.

(5)The Probation Service assessed Mr Howlett’s risk of reoffending as high.

(6)Mr Howlett’s known non-compliance with court orders would make home detention inappropriate, and it would be unacceptable in the eyes of the public to deal with a recidivist burglar in the way his counsel advocated.

Appellate principles

[15]   Section 250 of the Criminal Procedure Act 2011 provides that an appeal against sentence is to be allowed if:

(1)for any reason, there is an error in the sentence imposed on conviction; and

(2)a different sentence should be imposed.

[16]   Whether the end sentence is “manifestly excessive” continues to be an important guide to finding an error.11 If the end sentence is within range, then the

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

appellate court will not change it, even if the lower court made an error in the steps taken when reaching the end sentence.

Discount for personal circumstances

Submissions for Mr Howlett

[17]   Mr Hawkins submitted that a discount of two months was warranted for remorse. Mr Howlett filed a letter with the Court and there were also letters in support from his grand uncle and his grandmother. These letters are said to highlight Mr Howlett’s rehabilitative potential. Mr Howlett was also willing to partake in restorative justice.

[18]   Mr Hawkins took no issue with the 28-month starting point adopted  by Judge Adeane.

Submissions for the Crown

[19]   Ms Cleary, who appeared for the Crown, submitted that Judge Adeane was entitled not to give any discount for remorse. She said Mr Howlett has not demonstrated remorse and that, given his long history of dishonesty offending, it would be natural for the Court to be wary of any remorse expressed by Mr Howlett.

[20]   Ms Cleary also submitted that the ultimate question is whether the end sentence was manifestly excessive, regardless of the method used to reach that sentence. She said the end sentence was within range and that Judge Adeane adopted the end sentence proposed by defence counsel in the court below. That sentence is only one month different from the end sentence Mr Hawkins submitted would be appropriate on appeal, which Ms Cleary respectfully said would be the epitome of tinkering if I were to alter the sentence by such a minor degree.

Analysis

[21]   In his letter to the Court, Mr Howlett apologies to his victims, saying that he has put himself in their shoes and has realised the effect one stupid decision can have. He also acknowledges the role his methamphetamine addiction has played in his

offending. He refers to the fact that he is now a father to five children, and that he does not wish to miss out on their lives. He talks about working with his probation officer to address his addictions and offending.

[22]   I agree with Ms Cleary that it was open to Judge Adeane not to grant a discount for remorse. There is nothing in the letters that compels the granting of a discount for remorse. The majority of Mr Howlett’s letter focuses on his own circumstances rather than on the victims, and Mr Howlett has not demonstrated genuine remorse other than with a few words. Given his history of dishonesty, some scepticism of the genuineness of his remorse is  warranted.  Further,  it  might  just  be  inelegant  phrasing,  but  Mr Howlett only refers to “the victim” and “one stupid decision” in his letter, suggesting he is only apologising for one particular offence rather than all of his offending.

[23]   I also agree that the end sentence was within range. No issue is taken with the starting point for the burglary charges or the uplifts for the other offending. Given the large number of relevant previous convictions, a further uplift would have been available for previous convictions, but none was made. In that case, even if an uplift was warranted for remorse, the end sentence would still be within range.

[24]   Accordingly, Mr Howlett has failed to demonstrate that his sentence was manifestly excessive on this ground, and so his first ground of appeal fails.

Home detention

Submissions for Mr Howlett

[25]   Mr Hawkins submitted that Judge Adeane failed to give measured consideration to home detention by focusing solely on one sentencing principle to the exclusion of others. He submitted that the PAC report was favourable to Mr Howlett and recommended home detention at his grandmother’s address. Mr Hawkins submitted that home detention would be suitable because Mr Howlett had expressed remorse and his grandmother was a “pro-social” influence. Mr Hawkins also emphasised that Mr Howlett had employment prospects.

[26]   Mr Hawkins submitted that Judge  Adeane  was  wrong  to  conclude  that  Mr Howlett’s previous non-compliance ruled out home detention. He referred to the report writer’s observation that Mr Howlett would have a moderate ability to comply with home detention

[27]   Mr Hawkins submitted that Judge Adeane focused too heavily on the need to denounce12 and deter13 the conduct in question, as opposed to the need to rehabilitate Mr Howlett14 and to impose the least restrictive outcome available.15 Mr Hawkins referred to two Court of Appeal cases that have emphasised that sentencing Judges will err in law if they only take into account deterrence to the exclusion of rehabilitation.16 Mr Hawkins relied for this submission on Judge Adeane’s remark that home detention would be unacceptable “in the eyes of the public”.17

Submissions for the Crown

[28]   Ms Cleary submitted that Judge Adeane did not err in declining to impose a sentence of home detention. The reasons largely mirror those referred to by Judge Adeane. Additionally, Ms Cleary emphasised that Mr Howlett had only just been released from prison in May 2017 and was subject to release conditions and bail for all the relevant charges, yet continued to commit 14 separate offences arising on different occasions within a period of approximately nine months.18 Ms Cleary submitted that Mr Howlett appears to remain undeterred despite serving a nine-month sentence of imprisonment.

[29]   Ms Cleary noted that defence counsel before Judge Adeane recognised that the issue of home detention was “finely balanced”. Ms Cleary submitted that while home detention does have a deterrent effect, such a sentence would be inadequate for     Mr Howlett who has demonstrated an inability to comply with Court imposed

12     Sentencing Act 2002, 7(1)(e).

13     Section 7(1)(f).

14     Section 7(1)(h).

15     Section 8(g).

16     Fairbrother v R [2013] NZCA 340 at [29]-[30]; and Manikpersadh v R [2011] NZCA 452 at [8].

17     Police v Howlett, above n 1, at [5].

18 Mr Howlett’s criminal history shows that he was convicted of four additional offences prior to the 10 that form part of the current sentencing, all of which arose after he was released from prison in May 2017.

conditions and continued to offend in a recidivist manner despite a previous sentence of imprisonment.

Analysis

[30]   It is clearly an error of law for a sentencing Judge to only consider deterrence to the exclusion of rehabilitation. However, it is not obvious that Judge Adeane made this error. Mr Hawkins emphasises one aspect of Judge Adeane’s decision, where he referred to the views of the public. Judge Adeane also referred to Mr Howlett’s patterns of behaviour and his ability to comply with a sentence of home detention. It is clear that Judge Adeane believed that Mr Howlett would be unable to comply with a sentence of home detention, and so such a sentence would not suitable for his rehabilitation.

[31]   The fact that Judge Adeane made an off-hand remark about the views of the public does not detract from this conclusion. Nor was such a remark inappropriate per se; denunciation of the offender’s conduct is a legitimate sentencing principle19 and is largely dependent on the views of the public. In Fairbrother v R, the Court of Appeal also emphasised that short term sentences should not be commuted to home detention in every case, and that it would equally be an error of law for a sentencing Judge to only consider the principle of rehabilitation.20 Judge Adeane should not be criticised for legitimately raising the principle of denunciation.

[32]   The conclusion that home detention would not be suitable for Mr Howlett’s rehabilitation was clearly open to Judge Adeane on the facts. Mr Howlett is a recidivist offender, he has demonstrated resistance to rehabilitation from previous sentences, and he has a long-standing pattern of failing to comply with Court orders, including community-based sentences.

[33]   The PAC report does not in my view support a sentence of home detention. That report identifies Mr Howlett at a high-risk of reoffending, and he has a low ability to comply with community-based sentences. The report writer goes on to note that

19     Sentencing Act 2002, s 7(1)(e).

20     Fairbrother v R, above n 16, at [30].

Mr Howlett completed counselling with a Department of Corrections psychologist as part of his release conditions from his previous prison sentence. The writer regarded this as evidence that Mr Howlett can comply when motivated and then made the leap that his ability to comply with home detention should be assessed as moderate. I agree with Ms Cleary that this conclusion is speculative, and contrary to the rest of the report and to Mr Howlett’s pattern of behaviour, which spans nearly 10 years. The fact that Mr Howlett complied on one occasion is not sufficient to displace such a long-standing pattern of behaviour.

[34]   Even if home detention were open on the facts, it was a “finely balanced” issue and Judge Adeane had the discretion to decide whether it was appropriate in the circumstances. That decision was not in error, and cannot be disturbed on appeal.

Result

[35]The appeal is therefore dismissed.

D B Collins J

Solicitors:

Bramwell Bate Lawyers, Hastings for Appellant Crown Solicitor, Napier