Hunter v Police

[2012] NZHC 3196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-329 [2012] NZHC 3196

BETWEEN  JASON WAYNE HUNTER Appellant

ANDTHE POLICE Respondent

Hearing:         20 November 2012

Appearances: I M Stewart for appellant

J Pridgeon for the respondent

Judgment:      29 November 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 12 pm on Thursday 29 November 2012

Solicitors:

Public Defender Northern, [email protected]

Crown Solicitor Auckland  [email protected]

HUNTER V POLICE HC AK CRI 2012-404-329 [29 November 2012]

[1]     Mr Hunter appeals against a sentence of two years and four months imprisonment imposed upon him in the Papakura District Court on 7 September

2012 on three charges of receiving, one of attempted burglary, one of breach of home detention, and one of theft.  He argues that the sentence is manifestly excessive.  It is necessary to set  out  the relevant  offending and  procedural  background  in  some detail.

Background

[2]      On 3 July 2012, the appellant, having pleaded guilty, appeared before Judge McAuslan in the Papakura District Court for sentence on three charges of receiving, and one of attempted burglary.1    He was sentenced to nine months home detention. Rather than obeying the home detention condition requiring him to go directly to his home detention address, Mr Hunter went from the District Court to the Farmers Store in Papakura, where he stole two pairs of underpants.   He was charged with theft of the underpants and with breach of his home detention condition.  Bail was opposed.   The Probation Service applied to cancel the home detention sentence imposed by Judge McAuslan and to substitute a more appropriate sentence.2

[3]      Mr Hunter pleaded guilty to the fresh charges of breach of home detention condition and theft.   On 7 September 2012, Judge Andree Wiltens cancelled the sentence of home detention and imposed a sentence of 28 months imprisonment on all of the outstanding charges, that is, one charge of attempted burglary, three of

receiving, one of breach of the home detention condition, and one of theft.3

The burglary and receiving charges

[4]      Each  of  the  three  charges  of  receiving  was  connected  with  commercial burglaries committed in Auckland between June and August 2011.  On the night of

19 June 2011, the premises of Ocean Hunter, a retail diving store, were burgled.  The

1 Police v Hunter DC Papakura CRI-2011-055-2653, 3 July 2012.

2 Sentencing Act 2002, s 80F(1)(a).

3 Police v Hunter DC Papakura CRI-2011-055-2653, 7 September 2012,

offenders stole diving equipment including wet suits, dive masks and snorkels from a shipping container next to the building.  Some of this property was recovered at the appellant’s address.   The total value of the diving gear and fishing material taken from Ocean Hunter was $3,845.  At the time of the sentencing hearings, the District Court was mistakenly told that the value of the stolen property was about $37,000.

[5]      On the night of 14 July 2011, the premises of Supercheap Auto in Takanini were burgled.  The offenders stole approximately 10 Blackridge air compressors, a Blackridge generator and various auto tools from three shipping containers next to the store’s building.  The District Court was told that the value of the stolen items was $4,700.   It now emerges that the total value was $1,200.  Again, some of the property was found at Mr Hunter’s address.

[6]      On the night of 14 August 2011, the premises of Pet Pac were burgled.  Pet Pac is a pet food store in Takanini.  The offenders stole dog food thought initially to be valued at $612.50 but now agreed to be valued at $504.41.  Again, some of the property was found at Mr Hunter’s address.

[7]      Finally, on the afternoon of 14 August 2011, Mr Hunter drove his vehicle to the premises of an automotive mechanic’s garage in Papakura.  He approached the side of an enclosed yard secured by a fence and locked gate.  He cut the lock to the gate and entered the yard.  Upon forcing open a garage roller door at the rear of the building, the alarm activated and Mr Hunter left the property.

Judge McAuslan’s decision

[8]      The  Judge  noted  that  the  appellant  had  an  extensive  list  of  previous convictions, including a number for breach of home detention conditions which had attracted a sentence of six months imprisonment in January 2009.

[9]      The pre-sentence report writer opposed home detention because a previous sentence of that kind imposed in 2008 was considered to have been an abject failure by reason of the appellant’s persistent disregard of the home detention conditions.

[10]     Nevertheless, the Judge considered that, because a significant period had elapsed since the appellant’s last dishonesty offences, it was appropriate that he be sentenced to home detention rather than imprisonment.   Accordingly, he was sentenced to home detention for nine months, together with 200 hours community work.

Judge Andree Wiltens’ decision

[11]     When Mr Hunter was resentenced, Judge Andree Wiltens noted the value of the goods stolen in the three burglaries, remarking that some of the stolen goods from each burglary were found at the appellant’s home.  Of course, it is now known that the amounts from which the learned Judge worked were significantly overstated. The Judge observed that Judge McAuslan had not identified a starting point, but he considered that she must have started at “ …something like a global sentence for the

offending of two years six months”.4   He also considered that Judge McAuslan must

have allowed a discount for remorse, as well as the prompt guilty plea.

[12]     Judge  Andree  Wiltens  seems  to  have  believed  that  because  he  was resentencing the appellant, he was obliged to work from the same notional starting point as was adopted by Judge McAuslan.  He said:5

As far as I can see she must have started at something like two years six months imprisonment for the offending, but because I have to resentence you for that that is my starting point.

[13]     From the starting point of two years six months imprisonment, he allowed a discount of eight months imprisonment for a prompt guilty plea, but nothing additional for remorse. The sentence of community work was cancelled.

[14]     On  the  separate  charge  of  breach  of  home  detention,  which  the  Judge regarded as particularly blatant, he imposed a cumulative sentence of six months imprisonment.   The charge of theft of the underpants attracted a sentence of one months  imprisonment,  concurrent  with  the  six  months  sentence  for  the  home

detention condition breach.

4 At [5].

5 At [6].

[15]     Ms Stewart submits that:

(a)      Judge Andree Wiltens wrongly assumed that he was bound to adopt the same starting point as Judge McAuslan.  The resentencing Judge must start afresh;

(b)      In any event, Judge Andree Wiltens miscalculated Judge McAuslan’s

starting point;

(c)      The starting point of two years six months imprisonment was too high;

(d)The  respondent’s  concession  in  this  Court  that  the  value  of  the property stolen in the burglaries that led to the receiving charges was about $5,000 and not $42,000, significantly reduces the appellant’s overall culpability;

(e)      The cumulative sentence of six months imposed for the breach of the home detention condition was too high, although Ms Stewart accepts that a cumulative sentence was appropriate.

The respondent’s submissions

[16]     For the respondent, Ms Pridgeon accepts that the substantial reduction in the value of the stolen goods justifies a fresh look at the calculation of the starting point, and accordingly it may warrant the imposition of a more lenient sentence on the receiving  and  attempted  burglary  charges.    However,  she  maintains  that  Judge Andree Wiltens was well entitled to impose a six months cumulative sentence for breach of the home detention condition.

[17]     It is well settled that where resentencing occurs in circumstances such as these, the resentencing Judge must approach his or her task afresh.  In no sense is the Judge bound by the approach adopted by the earlier Judge.6    Judge Andree Wiltens ought not have considered himself to have been bound in any way by what Judge McAuslan had done.

[18]     Be that as it may, the essential question is whether the starting point of two years six months imprisonment adopted by Judge Andree Wiltens was available. That starting point may be tested by what Judge McAuslan herself appears to have done.  It is customary to double the sentence of home detention in order to derive an equivalent term of imprisonment, although I accept that the exercise can never be entirely arithmetical.   That would produce a notional equivalent sentence of 18 months imprisonment.  Allowing for a 25% discount for the guilty plea, that would produce a notional starting point of two years imprisonment.

[19]     Judge Andree Wiltens appears to have calculated a notional starting point of two years six months imprisonment by factoring in an assumed allowance by Judge McAuslan for remorse.   But there is nothing in her sentencing remarks to suggest that remorse was a significant factor in the outcome.   I consider that she must be taken to have had in mind a notional starting point of no more than two years imprisonment.

[20]     In assessing culpability for receiving, a number of factors are usually taken into account.  They include the value of the goods, the duration of the offending, the number of charges, the existence of a commercial element and the closeness of the relationship between the burglar and the receiver.7

[21]     Close attention is often paid to the value of the goods stolen.  Ms Pridgeon refers to three cases by way of comparison.   The first is R v Lasike.8    There, the

6 Stopforth v Department of Corrections HC Palmerston North CRI-2009-454-44, 17 December 2009 at [8].

7 See Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].

8 R v Lasike HC Auckland CRI-2004-44-7103, 7 September 2006.

offender pleaded guilty to 13 charges of receiving.  He had stored items stolen from commercial premises at a storage unit in his name and at his home.  The offending took place over a period of months and involved property worth $15-20,000.  All items were recovered and Mr Lasike offered reparation for any outstanding losses. A starting point of two years six months imprisonment was adopted.

[22]     In R v Makiri, the offender pleaded guilty to seven charges, three of which were for receiving.9    About $7000 worth of property was involved. A global starting point of 18 to 24 months imprisonment was adopted.

[23]     In R v Unwin, the offender pleaded guilty to eight counts of receiving.  The total value of the received items was $34,000.10   A starting point of two years nine months imprisonment was adopted on the receiving charges.

[24]     The value of the property in Makiri was similar to this case.   Lasike and Unwin were more serious in that the total value of the property was significantly higher.

[25]     Ms  Pridgeon  also  helpfully  referred  to  the  judgment  of  Priestley  J  in Vansilfhout v Police.11     There, a single charge of receiving involving electronic equipment worth $4,000, and clothing valued at $500, was thought to justify a starting point of around 18 to 21 months.12

[26]     In identifying an appropriate starting point, it is of course necessary to bear in mind the fact that the appellant faced a charge of attempted burglary in addition to the three receiving charges.   But the attempted burglary did not progress far and nothing was taken.   I do not regard it as adding significantly to the appellant’s

overall culpability.

9 R v Makiri HC Auckland CRI-2007-404-048, 16 July 2007.

10 R v Unwin HC Auckland CRI-2004-044-24795, 5 May 2006
11 Vansilfhout v Police HC Rotorua CRI-2006-470-2, 7 March 2006.

12 At [13].

[27]     In my view, the starting point of two years six months imprisonment chosen by Judge Andree Wiltens was too high.  An appropriate starting point is 18 months imprisonment.

[28]     I turn now to the question of the six months cumulative sentence imposed on the appellant in respect of the breach of the home detention condition, together with the concurrent one month term for theft.

[29]     Ms Stewart does not challenge the imposition of a cumulative term.  Rather, she says that the six month period is too long and that it ought to have been no more than three or four months.  I disagree.  I accept Ms Pridgeon’s submission that the breach of the home detention condition in this instance was brazen and blatant.  In leaving the Court, going straight to the Farmers store, and stealing two pairs of underpants, Mr Hunter was not only in breach of a condition imposed on him in Court moments before, he was in effect thumbing his nose at the judicial system.  He has  a history of breaching home detention  conditions,  and  indeed  has  served  a substantial term of imprisonment for doing so.

[30]     Judge Andree Wiltens was well entitled to impose a condign sentence.  The Judge made no reference to a discount for the guilty plea.   I infer that he worked from a notional starting point of eight months imprisonment, which I consider to have been available in the circumstances.

Result

[31]     The appeal is allowed.   The sentence of 28 months imprisonment imposed upon the appellant is quashed.  I substitute a sentence of 19 months imprisonment, calculated by taking a starting point of 18 months imprisonment on the receiving and attempted burglary charges, adding a cumulative sentence of eight months imprisonment on the breach of home detention condition charge , and then deducting a discount of a little over 25% for the appellant’s early guilty pleas.

The concurrent sentence of one months imprisonment for theft remains undisturbed.

C J Allan J