Ireland v Police

[2013] NZHC 318

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000452 [2013] NZHC 318

BETWEEN  GEORGE IRELAND Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 February 2013

Appearances: J R Smith for Appellant

I S Auld for Respondent

Judgment:      25 February 2013

ORAL JUDGMENT OF VENNING

Solicitors:           Crown Solicitor, Auckland

Dyer Whitechurch Lawyers, Auckland

Copy to:            J Smith, Barrister, Auckland

GEORGE IRELAND V NEW ZEALAND POLICE HC AK CRI-2012-404-000452 [25 February 2013]

[1]      On 12 December 2012, having pleaded guilty to five charges of burglary, three of unlawfully taking a motor car, two of breaching bail and one of assault of male on female, the appellant was sentenced by Judge Treston in the District Court at Auckland to 18 months’ imprisonment.  The appellant appeals against that sentence. The appeal is advanced on the basis that the sentence was manifestly excessive for

two principal reasons:

first, that the Judge was misled by the contents of the probation report.

Home  detention  was  the  appropriate  sentence,  even  though  it  was  not supported by the report.  Related to that issue the Judge placed undue weight

on the appellant’s previous convictions;  and

second, that the sentence lacked parity with a sentence imposed on a co-

offender.

[2]      The offending the appellant was sentenced on was summarised by Judge

Treston as follows:

(a)       7 January 2012, assault on a female (that is the appellant’s partner),

who supports the appellant now; (b)      24 January 2012, breach of bail; (c)      3 February 2012, breach of bail;

(d)2 March 2012, burglary, the appellant smashed his way into a house and took a laptop;

(e)       6 March 2012, unlawfully taking a motorcar;

(f)       18 March 2012, unlawfully taking a motorcar by smashing a window; (g)     5 April 2012, a burglary with others, smashing a front door off its

hinges. A laptop was taken.

(h)5 April 2012, a separate address, jemmying a sliding door, taking two laptops and a video camera;

(i)7 April  2012,  unlawfully  taking  a  motorcar  by  popping  the  front window;

(j)8 April  2012,  burglary,  smashing  the  door  with  a  crowbar.    The appellant waited outside on that occasion;

(k)      8 April 2012, a further and separate charge of burglary

[3]      The maximum sentence for burglary is 10 years.  The Judge, having recited the  brief  summary of  offending  above  and  noting  the  maximum  sentence,  also referred to the appellant’s previous convictions in the District Court for unlawful taking and interfering with a vehicle and also the 11 burglaries and 10 unlawfully taking or getting into a motor vehicle, which were noted in the Youth Court.

[4]      The  Judge  then  considered  the  appellant’s  personal  circumstances  and counsel’s request for a further home detention or community detention report.  The Judge declined to adjourn the matter for further reports and concluded imprisonment was the least restrictive outcome available to the Court.  The Judge took a starting point of two years’ imprisonment to reflect the totality of the offending.   He then imposed a sentence of 18 months for the burglary offending with 15 months on the unlawfully taking motor vehicles, eight months in relation to the assault, four months in relation to the first breach of bail and six months in relation to the second breach.

[5]      All sentences were concurrent. The end result was 18 months’ imprisonment.

[6]      The appellant lodged an appeal against the sentence and was admitted to bail on 26 December 2012.

[7]      As noted the appellant advances the appeal on the basis the sentence was manifestly excessive having regard to factors the Judge took into account in reliance on the probation report, particularly to reject the submission for home detention, and secondly, the lack of parity with the co-offender’s sentence.

[8]      In support of the appeal Ms Smith noted that at the request of a previous Judge, a probation report had been prepared in October.  That October report was more  favourable  to  the  appellant  than  the  report  prepared  in  December  which appears  to  have  been  the  report  relied  on  by  Judge  Treston  in  sentencing  the appellant.  Ms Smith criticised the December probation report and suggested that it was unduly negative in relation to the appellant and failed to take into account a number of relevant factors in his favour.

[9]      Further,  Ms  Smith  noted  the  obligations  of  the  Probation  Service  when directed to prepare a pre-sentence report under s 26 of the Act.  She submitted that by effectively declining to prepare such an aspect of the report, the report had failed to comply with those requirements.

[10]     Ms Smith submitted that the December report was apparently a cut and paste exercise in relation to the October report but omitted some of the more favourable comments in the October report.

[11]     The particular matters she referred to were:

first the failure to mention the fact the appellant was in employment;

second,  that  the  report  writer’s  assessment  that  the  appellant’s  ability  to

comply with community based sentences was assessed as low;  and

third, that while noting that the appellant had indicated some remorse, it then rejected it and suggested it may not be genuine due to his criminal history of recidivist offending without giving any detail of the remorse indicated, which

had been provided in the previous report.

[12]     Although  those  were  the  matters  counsel  highlighted  she  was  generally critical of the December probation report and the impact it may have had on the sentencing exercise.

[13]     Ms Smith noted that the report failed to record that the appellant had not been in trouble for approximately three years (more correctly just under two and a half years) and that he had taken a number of steps to address his offending, including stabilising his relationship with his partner and obtaining employment.

[14]     I accept that there are aspects of the December report that can fairly be criticised, however, the issue for this Court on an appeal is whether the effect of whatever deficiencies there may be in that report, are such as to have led to an error on the part of the Judge in imposing the sentence he imposed.

[15]     The starting point on an appeal such as the present is that the appellant must satisfy this Court that there is an error which vitiates the lower Courts or District Court’s sentencing discretion.   It must be an error of principle, and particularly, where, as in this case, the Court is required to carry out an evaluative exercise as to whether imprisonment or home detention or a community sentence was the appropriate end result.

[16]     In relation to that I note that Ms Smith properly accepted that given the number of burglaries and other offending the starting point of two years’ imprisonment could not be criticised in the present case.  That must be correct.  It is sufficient to refer to a recent Court of Appeal decision of Arahunga v R where the Court, although dealing with quite different facts, noted in the course of an appeal

against sentence in relation to burglary offending:[1]

[78]     This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling 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.

[1] Arahanga v R [2013] 1 NZLR 189 at [78].

[17]     So the issue for this Court is whether it can be said the failings in relation to the December pre-sentence report are such as to have led Judge Treston into error in rejecting home detention or community detention as an otherwise appropriate sentence.

[18]     In  relation  to  that  issue  I  note  generally  that  Judge  Treston  is  a  very experienced District Court Judge.   I also note that he was aware of relevant considerations,  particularly  that  he  was  required  to  adopt  the  least  restrictive outcome.  He expressly referred to that principle, and then gave, after considering submissions, the following reasons for rejecting a community based sentence:[2]

[2] NZ Police v Ireland DC Auckland CRI-2012-004-000185, 12 December 2012 at [17]-[18].

[17]     I consider but reject the prospect or possibilities of a community- based sentence such as an electronically monitored one.   First of all, as a matter of general principle (although it has been proved to be slightly wrong in your case) there is at the moment an inappropriate address with the victim because she was the one against whom you demonstrated that violence back in January 2012.   There is the prospect of obtaining another address or regularising it, but in general I consider that that is just one factor among others.

[18]      Secondly,  I consider that an  electronically monitored sentence is inappropriate and inadequate in these circumstances because of the number and scale and repetition of the serious charges to which I have referred, and also the remarks in the probation officer’s report, which I take on board, that such a sentence, as an electronically monitored one, would be inappropriate in your case because of the nature of the offending.  I must also reject that prospect, although I clearly consider it, because of the previous matters to which I have referred.  Burglary was not unknown to you in your youth (11 convictions which is a significant amount), and I certainly do not sentence you for what you might have done in the past.   But I must hold you accountable for what you are responsible for and have admitted now.  So I consider but reject the prospect of anything other than imprisonment which, in my view today, is the least restrictive result.

[19]     On my review  of the Judge’s notes, he was well aware that the address of the appellant’s  partner  was  being  proposed  as  the  address  for  home  community detention.  While the probation officer rejected the address on that basis alone it is apparent from the above notes and also from earlier paragraphs in his decision that he was aware that address might have been available to the appellant and that the appellant’s relationship with the complainant, his partner, had changed.  At [4] for instance of his decision the Judge referred to the Probation Service opposing the appellant serving a sentence of home detention at the address of the victim, but the Judge went on to say that “although it is accepted that you have been living there under the terms of bail” and later at [6] he referred to the fact that “there is no real suitable address, although clearly it has been proved to be suitable in the last little while on 24 hour curfew”.

[20]     Next, the Judge referred to the number, scale and repetition of the serious charges the appellant was before the Court for sentence on.  I take the Judge to have been referring to the requirement to take account of the need to hold the appellant accountable and to denounce and deter offending of this nature, quite proper considerations under ss 7 and 8 of the Act.

[21]     Next, while the Judge referred to the probation officer’s remarks that home detention  would  be  inappropriate  he  went  on  to  say  that  he  also  rejected  that prospect, (i.e. the prospect of an electronically monitored sentence) although he clearly had considered it because of the previous matters to which he had referred. Those previous matters to which he had referred were the factors raised by way of mitigation on behalf of the appellant, including but not limited to the appellant’s age, the support of his partner, pleas of guilty and expressions of remorse.

[22]     In taking account of those factors and his reasons for rejecting the submission for home detention or community detention, the Judge did not fall into error.

[23]     While I accept the probation report did not mention employment it is clear the Judge was aware of that factor.  The Judge referred expressly to the submissions addressed to him regarding the appellant’s employment.

[24]     Next, while the pre-sentence report did assess the appellant as having a low ability to comply with a sentence of home detention the Judge was well aware of the reasons advanced for that.  They were apparent from the pre-sentence report, namely the breaches of bail and previous offending

[25]     Finally,  in  relation  to  the  pre-sentence  report’s  rejection  of  the  remorse expressed by the appellant I do not, as I read the Judge’s sentencing notes, consider he took those comments in the December 2012 report to be of any particular weight because when he referred to matters of mitigation the Judge identified the appellant’s expressions of remorse as mitigating factors.

[26]     The appellant fails to show that the Judge fell into error in relation to or arising out of the contents of the pre-sentence report.

[27]     There is the related issue of the Judge’s reliance on the appellant’s prior convictions and his appearances in the Youth Court.  That issue is also relevant to the parity argument, a matter to which I now turn.

[28]     One of the appellant’s co-offenders, Mr Leapepe, was sentenced by Judge Dawson in August 2012 to six months’ community detention together with 100 hours of community work and 12 months intensive supervision.

[29]     Ms Smith submitted that Mr Leapepe was of a similar age to the appellant. Ms Smith also submitted that the circumstances of the appellant’s involvement in the offending and the appellant’s record were not distinguishable from Mr Leapepe and certainly not to the extent where one has ended with community detention and the other with imprisonment.

[30]     Judge Treston was apparently not aware of Mr Leapepe’s sentence when sentencing the appellant as he made no reference to it and it would have been a relevant factor.

[31]     The principles in relation to the issue of parity on sentence appeals have been considered in a number of cases:  R v Rameka;[3]   R v Lawson;[4] and R v Morris.[5]

[3] R v Rameka [1973] 2 NZLR 592 (CA)

[4] R v Lawson [1982] 2 NZLR 219.

[5] R v Morris [1991] 3 NZLR 641; (1991) 7 CRNZ 26 (CA).

[32]     I note in particular that as the Court of Appeal observed in Lawson:[6]

the test is objective; not subjective. It is not merely whether the offender thinks  that  he  has  been  unfairly  treated  but  whether  there  is  a  real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would  think  that  something  had  gone  wrong  with  the  administration  of justice.

[6] R v Lawson, above n 4 at 223.

[33]     I have to say that, with respect to Judge Dawson, having read the sentencing notes in relation to Mr Leapepe, it is not clear to this Court how the Judge arrived at an end sentence of six months community detention as the appropriate sentence in

that case.

[34]     The difficulty is that the Judge did not identify his starting point for the offending.   As noted, an appropriate starting point for the offending in this case would have been in the region of at least two years’ imprisonment, the starting point taken by Judge Treston.   Just how, even taking account of mitigating factors that there may have been for Mr Leapepe, the Judge was then led to an end sentence of six months community detention is not clear on the face of the sentencing decision.

[35]     Despite Ms Smith’s submission, there is some distinction in terms of the extent of the offending in that the appellant faced five burglary charges as opposed to four by Mr Leapepe and three of interfering with motor vehicles or getting into them as opposed to one by Mr Leapepe.  There is also an additional breach charge.   In relation to previous offending the appellant had 11 previous burglary matters and 10 unlawful or interfering with motor vehicles in the Youth Court and two convictions in the District Court as opposed to six burglaries and one unlawful on the part of Mr Leapepe, although I note Ms Smith’s submission that Mr Leapepe was subject to a sentence at the time of this offending, which would have been an aggravating matter for him.

[36]     In terms of personal circumstances it is difficult to see a particular difference between the two although Mr Leapepe appears to have been in a position to make reparation because he was directed to make reparation.  In the case of the appellant Judge Treston rejected reparation as a possibility noting the substantial amount of outstanding fines by the appellant.

[37]     The last distinguishing factor between the two is that the pre-sentence report for Mr Leapepe identified him as at a moderate risk of reoffending whereas the appellant is identified as at a high risk of reoffending in both reports.   Ms Smith suggested that the October pre-sentence report may not have categorised him as a high risk of reoffending if they had been aware of his change in personal circumstances but, with respect, that is to a degree speculative.

[38]     I am left in the position then that Judge Treston was not aware of a relevant consideration, namely Mr Leapepe’s sentence.

[39]     Section 121(3)(b) of the Summary Proceeding Act 1957 applies, namely that there are facts, relating to the matter, which were not before the Court, which may have been relevant to the appellant’s sentencing exercise.  This Court is authorised by s 121(3) to impose whatever sentence might have been appropriate had those factors been before the District Court.

[40]     For the reasons I have expressed above, whilst Mr Leapepe’s sentence was a relevant consideration, and was unknown to Judge Treston, I consider the sentence imposed on Mr Leapepe to be unduly lenient.  Even if Judge Treston had been aware of it, it would not have warranted  a change in the approach to the  extent  that imprisonment as the sentence for this offender, (given his offending and personal circumstances) would have been inappropriate.

[41]     However, I accept that given the difference in sentencing some adjustment to the end sentence is required.  To reflect the apparent imbalance but so as not to lead an impartial and fair minded observer to consider that something had gone wrong by the imposition of a further unduly lenient sentence, the present appeal against sentence  is  allowed.    The  sentences  imposed  are  quashed.    In  their  place  the appellant is sentenced to imprisonment for 12 months on the burglary charges, nine months on the unlawful taking, six months on the assault and three months on each of the breach matters, all to be served concurrently.

[42]     I record that were it not for the Leapepe sentencing I would have dismissed the appeal in its entirety.  However, to address the imbalance created by the Leapepe sentence the appeal has been allowed to that limited extent.

[43]     The  appellant  is  to  surrender  to  the Auckland  Central  Police  Station  at

9.00 am tomorrow.

Venning J