Ivar v Police
[2021] NZHC 493
•12 March 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000009
[2021] NZHC 493
BETWEEN LANCE IVAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 March 2021 Appearances:
A M S Williams for Appellant P N M Brown for Respondent
Judgment:
12 March 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 12 March 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Introduction
[1] The appellant, Mr Ivar, pleaded guilty to a charge of burglary, four charges of theft (one of which is a representative charge), a charge of breach of a sentence of supervision, a charge of possession of a pipe for methamphetamine use, three charges of breaching District Court bail, one charge of breaching police bail and a charge of trespass.1 He was sentenced to 30 months’ imprisonment.2
1 Police v Ivar [2021] NZDC 428.
2 At [27]-[28].
IVAR v NEW ZEALAND POLICE [2021] NZHC 493 [12 March 2021]
[2] Mr Ivar appeals his sentence on the grounds there was excessive uplift for charges beyond the lead offence, the principle of totality was not considered, the uplift to reflect Mr Ivar’s previous convictions was too high, and the Judge failed to give credit to Mr Ivar for his personal circumstances and personal mitigating factors.
Facts
[3] On 3 November 2019 Mr Ivar entered The Warehouse at Richmond. He removed a bottle of perfume valued at $79 and hid it down his pants. Mr Ivar then went to the clothing section and removed a pack of two singlets valued at $14 and a pack of three pairs of underwear valued at $30. He removed the packaging from these items and hid them down his pants. Mr Ivar attempted to walk out through the entrance, avoiding the checkout area, without making any effort to pay for the items. He was challenged by a member of staff and gave the perfume back. When challenged on the other items he ran from the store.
[4] Between 3.30 pm and 6 pm on Friday 8 November 2019 Mr Ivar went to a residential address in Motueka. The people at the address were known to him. While the victims were out Mr Ivar entered the house by breaking a laundry window. He took a PlayStation 4, some PlayStation games and a security camera before leaving the address.
[5] On 12 December 2019 Mr Ivar went to the Pak ‘n Save premises in Northlands Mall in Christchurch. He selected two trays of porterhouse steak, valued at $51.94, placed them in the front of his pants and walked out of the store without paying for them. Mr Ivar was trespassed from Northlands Pak’nSave that day.
[6] On 8 March 2020 Mr Ivar was arrested in regard to the matters detailed above. While being searched, a pipe used to smoke methamphetamine fell to the ground and broke.
[7] On 9 August 2020 Mr Ivar went back to the Pak’nSave Northlands he was trespassed from and remained inside for some 10 minutes. He took two cans of energy drink valued at $3.59 and hid them in his jacket pocket. Mr Ivar then went to the
checkout to pay for another item, but his card was declined. He left the store without paying for the energy drinks.
[8] On Tuesday 21 August 2020 Mr Ivar and a co-offender walked along Rountree Street and removed numerous pieces of mail from various mailboxes. They then walked along Hanrahan Street and later Newnham Street, where they continued to open mailboxes and take mail. Mr Ivar and his co-offender were located in the area by police in possession of all the mail they had taken. Mr Ivar initially told the police it was his mail but then changed his explanation to say he was carrying the mail for his co-offender.
[9] Mr Ivar was sentenced to nine months’ supervision on 7 October 2019 following conviction on charges of breaching community work, failing to answer District Court bail and two charges of driving whilst disqualified (third or subsequent). On 9 January he failed to report as instructed and has not reported since. Mr Ivar then failed to report on four further occasions. The District Court Judge was told numerous texts and telephone calls were made to Mr Ivar in this period to encourage him to report. On 11 October 2019 Mr Ivar was referred to a short motivational programme to address his difficulties with reporting and compliance with offending related special conditions. He was initially seen by a programme staff member on 14 November 2019, but was exited on 12 December 2019 due to non-attendance. No explanation was given for Mr Ivar’s failure to attend. His sentence was due to expire on 6 July 2020.
District Court decision
[10] Judge Garland considered Mr Ivar’s criminal history, his reported acknowledgement of addiction problems (although Mr Ivar was also said to take minimal ownership for this behaviour), the screening test that indicated a high level of risk for methamphetamine use and the probation officer’s statement that Mr Ivar demonstrated little remorse for his dishonesty offending. In relation to the burglary of a residential address, the Judge noted Mr Ivar’s explanation that he decided to burgle the house because he was angry with the neighbours and people visiting them.
[11] The Judge noted the probation officer’s statement that Mr Ivar’s compliance in the community is poor, having amassed a total of 21 convictions for non-compliance. He also owed over $15,000 in fines and enforcement costs. The Judge also had regard to the probation officer’s comments which said Mr Ivar shows pre-sentence motivation but based on his compliance history, his ability to comply with sentence conditions was assessed as low.
[12] The Judge considered submissions on the length of time since Mr Ivar’s last dishonesty convictions and the fact his last burglary offending was in 2011. Mr Ivar’s engagement in He Waka Tapu for rehabilitative intervention and the plan in place to assist him after potential release was also considered, as was his reported acceptance that his offending was driven by alcohol, drug use and an unstructured lifestyle.
[13] Judge Garland identified the lead offence as burglary. He considered the authority of R v Nguyen3 and the statement in Arahanga v R4 suggesting that dwelling house burglaries usually attract a starting point of 18 month’s to 2 years and 6 months’ imprisonment. The Judge considered Mr Ivar’s motivation of revenge or spite an aggravating factor and inferred emotional harm on the part of the victims. The starting point adopted for the burglary offence was 20 months’ imprisonment.
[14] For the charges of theft and trespass the Judge applied an uplift of six months’ imprisonment. For the four charges of failing to answer bail and one of breaching a sentence of supervision an uplift of four months’ imprisonment was applied. The charge of possession of a pipe for methamphetamine use was found to attract a starting point of one month imprisonment but was dealt with concurrently rather than being added cumulatively. Overall the starting point was one of 30 months’ imprisonment.
[15] Lastly, the Judge considered Mr Ivar’s past convictions warranted an uplift of six months’ imprisonment. He found the guilty pleas Mr Ivar entered warranted a reduction of six months’ imprisonment.
3 R v Nguyen CA 110/01, 2 July 2001.
4 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
Principles on appeal
[16] 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.5 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”.6 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.7
Submissions
Appellant’s submissions
[17] Mr Williams, for Mr Ivar, accepts the starting point adopted by Judge Garland in respect of the charge of burglary but submits the uplift for the charges of theft, trespass, failing to answer bail and breach of supervision were too high. He submits the Judge erred by not considering the principle of totality and not adjusting the global starting point to reflect this principle.
[18] In relation to the uplift for aggravating factors personal to the offender, Mr Williams submits the uplift to reflect Mr Ivar’s previous convictions was excessive.
[19] Conversely, Mr Williams submits the Judge erred by failing to give credit for Mr Ivar’s personal circumstances and personal mitigating factors. In the pre-sentence report Mr Ivar indicated he is willing and motivated to attend intervention for drug use and has engaged in He Waka Tapu, an organisation that provides drug and alcohol rehabilitative services. Staff from He Waka Tapu were present at Mr Ivar’s sentencing and had worked with Mr Ivar to create a plan for him if he was released from custody.
5 Criminal Procedure Act 2011, ss 250(2) and 250(3).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
7 Ripia v R [2011] NZCA 101 at [15].
He also notes the discussion in Zhang v R regarding the discount of up to 30% that may logically arise from diminished culpability related to addiction.8
[20] Overall, Mr Williams submits the appropriate end sentence was in range for an electronically monitored sentence. Although Mr Ivar did not have an address available for the purpose of electronic monitoring at the time of sentencing, leave to apply for home detention would have been appropriate in this case.
Respondent’s submissions
[21] Ms Brown, for the respondent, submits the uplift applied by Judge Garland in relation to Mr Ivar’s theft and trespass charges was appropriate. In support of this she referred to the cases of Mckenzie v Police,9 McMurtrie v Police10 and Garrett v Police,11 where sentences of six months were imposed on theft charges. Ms Brown compared these cases to the present offending, arguing the present offending is more serious than these authorities. She notes two of the thefts were against the same victim, notwithstanding a trespass order being in effect. Each theft involved a high degree of pre-meditation. She also notes the theft of mail was a representative charge and involved a “spree of thefts” rather than opportunistic offending. In respect of the uplift for failure to answer bail and breach of intensive supervision, Ms Brown submits there is a repeated pattern of failure to answer District Court bail and Mr Ivar’s engagement with the sentence of intensive supervision was virtually non-existent.
[22] On the issue of totality, Ms Brown accepts the Judge did not explicitly consider this but submits the end sentence is not wholly out of proportion with the gravity of the overall offending. She notes the offending occurred while Mr Ivar was on bail, involved the serious charge of burglary and that Mr Ivar has a history of dishonesty offending. Ms Brown notes the credit of about 17 pert cent (6 months) that was given to Mr Ivar for his guilty plea at a relatively late stage and Ms Brown submits this level of credit is generous.
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].
9 McKenzie v Police [2015] NZHC 2742.
10 McMurtrie v Police [2015] NZHC 1031.
11 Garrett v Police [2019] NZHC 1411.
[23] Ms Brown submits the uplift of six months for previous offending was within range. Mr Ivar has six previous conviction for burglary. Although the last burglary convictions were in 2011, she notes Mr Ivar also had two convictions in 2018 for obtaining by deception.
[24] Ms Brown submits the Judge was correct not to apply any credit for personal mitigating factors. She references the Judge’s assessment of Mr Ivar’s pre-sentence report and concludes from this that no credit is appropriate on account of remorse for that offending. Ms Brown submits no discount for Mr Ivar’s admitted addiction to methamphetamine should be given as Mr Ivar reported this use began in January 2020, which was prior to much of the offending, so the requisite nexus between this addiction and this offending is not established.
[25] Accordingly, Ms Brown submits the end sentence was within the range available to the District Court.
Analysis
[26] The District Court Judge was correct in considering the burglary as the lead charge and the starting point of 20 months’ imprisonment in relation to this charge was well within range having regard to Arahanga v R.12 Indeed, Mr Williams does not challenge this component of the sentence.
[27] The District Court Judge imposed an uplift of six months for the charges of theft and trespass having regard to the aggravating features of that offending. On the four charges of failing to answer bail and the breach of a sentence supervision the Judge applied a four-month uplift, noting the sentence of supervision was “virtually not performed at all”.13 This makes a total of 10 months’ uplift for a multiplicity of charges beyond the lead offence. I do not see this as excessive. These charges included quite separate and potentially serious offending, especially in regard to the theft of mail from multiple victims.
12 Arahanga v R, above 4, at [78].
13 Police v Ivar, above n 1, at [24].
[28] The overall starting point is therefore 30 months. It would be open to make some allowance for totality and it is accepted the District Court Judge made no explicit reference to this. He did however impose a concurrent sentence on one charge which demonstrated he was alive to the overall length of sentence imposed. The critical issue though is whether an overall starting point of two years and six months is within range, for the offending involved. Given the combination of the lead offence being the burglary of a residential home and the number of other dishonesty offences committed on separate occasions, I consider it is.
[29] The Judge then considered the aggravating and mitigating factors personal to Mr Ivar. He noted Mr Ivar has an extensive past history that includes 16 convictions for dishonesty offending and six previous convictions for failing to answer District Court bail. The District Court Judge considered a six month uplift was appropriate for this. The Judge then allowed a six month discount (almost 20 per cent) for Mr Ivar’s guilty pleas to all of the charges that were entered “very late”.14 Even if the six months added to the sentence was at the high end, this was balanced by a lenient approach to the discount for the guilty pleas and does not lead to a manifestly excessive sentence.
[30] A further discount was sought for Mr Ivar’s drug addiction issues relying on the following statement from the Court of Appeal’s decision in Zhang.15
… addiction may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending. There is we acknowledge a degree of arbitrariness in that figure, and it can be indicative only. It is not to be regarded as an absolute upper limit. In some cases, a sentencing judge may well have grounds to conclude that there is no material difference between the mitigating impact of the addiction presented and a serious mental health disorder. In such a case a greater discount could not be condemned as unduly lenient, although clear reasons ought to be given for that course being taken.
[31] The probation officer identified drug use as an offending related factor and a screening test indicated Mr Ivar had a high level of risk for methamphetamine use. However, Mr Ivar stated he started using methamphetamine in January 2020. The burglary charge and one charge of theft occurred before this and the motive Mr Ivar gave for the burglary charge was unrelated to addiction. The remaining charges all
14 Police v Ivar, above n 1, at [28].
15 Zhang v R, above n 8, at [149].
took place during or after January 2020. However, there is no evidence directly linking that offending to the methamphetamine use. They are not crimes carried out for the purpose of supporting an addiction. Rather, they are a continuation of the crimes he has been committing throughout his adult life, involving crimes against property, and disobedience and disregard of court orders. In my view, there is no basis for a discount to apply for this factor.
[32] I accept the conclusion in the pre-sentence report that Mr Ivar displayed little remorse for his dishonesty offending. No discount is available for this.
[33] Overall, I consider the sentence was within range and reflected the principles of deterrence and denunciation in respect of a recidivist offender who showed no real remorse and only superficial commitment to change.
Conclusion
[34]The appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
S M H McManus, Barrister, Christchurch
3
7
1