Jackson v Police
[2019] NZHC 1123
•22 May 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-35
[2019] NZHC 1123
BETWEEN OWEN ANTHONY JACKSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 May 2019 Appearances:
AND Garrett for Appellant K Courteney for Respondent
Judgment:
22 May 2019
JUDGMENT OF MANDER J
Introduction
[1] In June last year, Judge Couch sentenced the appellant, Owen Jackson, to 25 months’ imprisonment on two charges of burglary, a charge of breaching release conditions, a charge of failure to answer bail and of possessing methamphetamine. Mr Jackson appeals his sentence alleging it was manifestly excessive when compared with the sentence imposed on his co-defendant for the lead offence of burglary.
Facts
[2] In the early hours of 17 September 2017 Mr Jackson and an associate, Rockie Riley, drove to the Whakatu Industrial Park (the Park) in Hastings. They entered the Park in a van towing a trailer. Mr Jackson drove the van to the key card scanner and entered a PIN which opened the gates.
JACKSON v NEW ZEALAND POLICE [2019] NZHC 1123 [22 May 2019]
[3] Mr Jackson drove the van to the back of a warehouse and stopped at one of the containers situated there. The two men used bolt-cutters to gain access to the container by cutting through a padlock. They took several boxes of almond and coconut milk, boxes of milk and juice and in excess of 160 bottles of protein drinks. They also located and took three motor vehicle shrouds from metal bins behind the warehouse valued at $1,000 each.
[4] Mr Jackson and Mr Riley then continued driving around the Park and stopped outside the back of another building. They took 306 bottles of water before driving away.
[5] Between 12 October and 2 November 2017 Mr Jackson failed without reasonable excuse to report to his probation officer as required under his conditions of release. In December 2017, he failed to attend court at the District Court at Hastings in breach of his bail.
[6] On 3 April 2018 Mr Jackson was a passenger in a vehicle stopped by police. It was discovered that Mr Jackson had two active warrants for his arrest. A search of the vehicle revealed 0.2 g of methamphetamine inside a backpack. Mr Jackson admitted to police that the methamphetamine was his and was for his own consumption.
District Court decision
[7] Judge Couch considered Mr Jackson had a “significant relevant [criminal] history”. In particular, the Judge noted he had three previous convictions for burglary, the most recent being from 2015, and also noted two previous “serious theft” convictions. Also highlighted by the Judge were Mr Jackson’s previous breaches of release conditions and community-based sentences and two previous failures to answer bail, although these were more than 10 years old.
[8] The Judge took the two burglary charges as the lead offences. This offending was described as serious, and it was noted that it involved a very high degree of premeditation owing to the prior obtaining of the PIN and the fact that the men had brought a pair of bolt-cutters with them. The Judge said the pair had stolen a
substantial amount of goods from two locations and that it appeared Mr Jackson had no ability to pay reparation in the foreseeable future. On the burglary charges, Judge Couch adopted a starting point of two years’ imprisonment.
[9] Judge Couch considered the breach of release conditions and the failure to answer bail charges also amounted to serious offending. It was observed that Mr Jackson had only been apprehended by chance, after being at large for some four months, and that it was clear he had no intention of meeting his responsibilities to appear in court and comply with his release conditions. A six month uplift was imposed to mark those offences and his possession of methamphetamine.
[10] The Judge imposed a further uplift of four months for the fact the offending occurred whilst Mr Jackson was subject to release conditions and for his relevant previous convictions. From a starting point of two years and ten months’ imprisonment, Judge Couch extended a nine month credit for Mr Jackson’s “prompt” guilty plea (approximately a 26.5% discount). This resulted in the end sentence of two years and one month’s imprisonment.
Principles on appeal
[11] An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 An appeal Court will not intervene where the sentence is within the range available to the sentencing Judge.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence is “manifestly excessive” and cannot be justified upon application of the relevant sentencing principles.3
The appeal
[12] Mr Garrett, who appeared on behalf of Mr Jackson, acknowledged that, standing alone, the sentence was within the range available to the Judge. That is borne
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
out by a number of cases cited by the Crown in its written submissions.4 The starting point adopted by Judge Couch of two years’ imprisonment for two commercial burglaries when the offender is acting with another, where there is a high degree of premeditation, and high value items are stolen, was unremarkable. Similarly, the uplift of six months for the other offences committed by Mr Jackson was entirely orthodox. A further uplift of four months in recognition of the appellant’s personal aggravating features is also unimpeachable.
[13] The sole ground put forward on behalf of Mr Jackson is the inconsistent approach taken in respect of the appellant with the sentence imposed upon his co- offender, Mr Riley; the lack of parity.
[14] In February 2018, Mr Riley was sentenced by Judge Adeane in the Hastings District Court. The sentencing remarks are brief and can be set out in full:
[1] Mr Riley appears for sentence on three charges of burglary, commercial burglaries involving him hanging around with the Old Firm, a bunch of professional burglars, knocking off commercial properties for various items including discarded confectionery, bottled water, scrap metal, et cetera.
[2] There is also a charge in a very different category, of breaching a protection order by psychologically abusing his partner. Mr Riley has been doing that for some time because she is trying to make good of the relationship, but Mr Riley keeps getting into bad habits.
[3] Now, you and I have been doing business for 25 years Mr Riley, as you will recall, and I think your wife is telling you exactly what my wife is telling me, time to chuck it in. You should think about it, because if you come back for anymore burglaries I am afraid you are going to be in trouble.
[4] On these matters you are sentenced to 12 months intensive supervision. You are sentenced to three months of community detention. That applies to all the charges. As far as the protection order matter is concerned, you should bear in mind that despite your fondness for your old burgling mates, your wife is probably the only true friend you have got. Thank you, that is all for today.
[15] For no discernible reason, one burglar has received a sentence of some two years’ imprisonment, the other a community-based sentence of 12 months’ intensive supervision and three months’ community detention notwithstanding both having
4 Gauge v R [2014] NZCA 140; Moses v Police HC Whangarei CRI-2011-488-6, 24 March 2011;
Rapira v Police [2015] NZHC 699.
significant criminal histories.5 Why has that occurred? The answer is not discernible from Judge Adeane’s sentencing remarks, and, unfortunately, a dearth of information is available relating to the material provided to the Hastings Court notwithstanding the efforts by Mr Garrett and the Crown to locate further material.
[16] Mr Jackson did face the additional charges of breaching his bail and release conditions and possessing methamphetamine. On the other hand, Mr Riley was for sentence for breaching a protection order as a result of psychologically abusing his partner and appears to have also been for sentence on a further charge of burglary involving the theft of scrap metal from another commercial property. Those additional charges do not provide a reason for the disparate sentences.
The question of parity
[17] Section 8(e) of the Sentencing Act 2002 requires a sentencing Court to take into account the general desirability of consistency when dealing with similar offenders committing similar offences in similar circumstances. The need to recognise this principle is particularly acute when dealing with co-offenders. The Court of Appeal observed in R v K:6
Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender's culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
[18] It has been said that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly. For that reason, disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate.7 The test as to whether an appellate Court should interfere with a sentence which is otherwise appropriate on the
5 Mr Riley has a long criminal history dating back to July 1994. Prior to his appearance before Judge Adeane, he had some 87 previous convictions, including for theft, burglary, drugs, breaches of bail and various sentences for robbery and other offending. Since being sentenced in February 2018, he has been convicted for breaching a protection order and male assaults female.
6 R v K (2003) 20 CRNZ 62 (CA) at [20].
7 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
grounds of parity is well-established. It is whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something has gone wrong with the administration of justice.8
Decision
[19] While it is difficult to glean much from the brief remarks of Judge Adeane, it is apparent that the sentencing Judge’s approach to Mr Riley was extremely lenient, with the Court wishing to provide that offender with the opportunity of repairing his relationship with his wife.
[20] A lenient or merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.9 Nor does the fact that one co-offender received a prison sentence and another home detention or a community-based sentence by itself mean that the sentence should be considered so disparate as to require intervention on appeal.10 The test for intervention by an appellate Court is not whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice. Having acknowledged those caveats, I consider that the approaches taken by the two sentencing Judges cannot, upon an objective analysis, be reconciled. The independent observer would consider that something has gone wrong with the administration of justice in the absence of any appreciable justification for the disparity in the sentences imposed.
[21] It should be immediately acknowledged, as Mr Garrett did, that based upon the information available to Judge Couch, his approach to the sentencing of Mr Jackson cannot be faulted and was entirely appropriate on the material available to him. He was not informed of the earlier sentence imposed in Hastings some 15 months earlier. I consider that had the Christchurch sentencing Court been made aware of the sentence imposed on the co-offender, it would have considered itself obliged to calibrate the appellant’s sentence to ensure adherence with the principle of consistency in
8 At 223.
9 Macfarlane v R [2012] NZCA 317 at [24].
10 R v Autagavaia [1985] 1 NZLR 398 (CA) at 401.
sentencing. The imposition of two such grossly disparate sentences in the absence of any discernible differences in the offenders’ personal circumstances or prospects of rehabilitation cannot stand. It is therefore necessary to make an adjustment to the length of Mr Jackson’s sentence.
[22] Judge Adeane provided no details in his sentencing remarks of how he approached the sentencing exercise to arrive at Mr Riley’s final sentence of supervision and community detention. While there is no guideline judgment for burglary, the starting points for burglary offending of the type for which the two offenders were for sentence would likely attract a starting point in the region of two years and six months’ imprisonment or thereabouts. The two year starting point taken by Judge Couch could, in that light, be viewed as lenient, and the full credit provided to Mr Jackson for his guilty pleas (approximately a 26.5 per cent discount) was generous. Set against his wilful breaches over a lengthy period of time, a condign response to that aspect of Mr Jackson’s offending was appropriate.
[23] Taking all these matters into consideration, I consider the end sentence imposed on Mr Jackson of 25 months’ imprisonment is required to be reduced by five months in order that the disparity is ameliorated. The sentence of 20 months is the product of reducing the starting point for the burglaries to one of 18 months’ imprisonment and adopting the balance of Judge Couch’s sentencing, namely the uplifts for the other offending and Mr Jackson’s criminal history, and then applying the same credit for his guilty pleas.
Result
[24] The appeal is allowed. Mr Jackson’s sentence of 25 months’ imprisonment is quashed and substituted with a term of imprisonment of 20 months.
Solicitors:
Anthony Garrett Barrister, Christchurch Raymond Donnelly & Co, Christchurch
3
5
0