Joel v Police HC Auckland CRI 2010-404-62

[2010] NZHC 688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000062

BETWEEN  JOSHUA JOEL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 May 2010

Appearances: D Reece for Appellant

N Speir for Crown

Judgment:      10 May 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            D Reece, Auckland

JOEL V NEW ZEALAND POLICE HC AK CRI-2010-404-000062  10 May 2010

[1]      This is an appeal against a sentence of two years two months’ imprisonment imposed on the appellant by Judge Andrée Wiltens in the District Court at Manukau in February this year.  The appellant has been on bail since sentence was imposed and pending the outcome of this appeal.  He is a young man.  He was aged 17 at the time of the offending and is currently in year 13 at secondary school.

Background

[2]      The offending occurred in July 2009.   At about 4.30 in the morning he entered an address in Rosebank Road through an unlocked rear door, found a set of car keys and, using those car keys, took a car which was at the property.  After a short distance the car broke down.  The appellant then returned to the same address, again entering through the rear door.   He then went through various rooms in the house and took a number of items, including a Playstation console, DVD player, some movies and Playstation games.   He put them on the back seat of a BMW vehicle at the property and removed the car stereo from the vehicle’s console.  The appellant then went back into the house and into the bedroom of a woman living at the property, turned on the bedroom light, searched through the wardrobe and found her purse in a closet.  At that time the victim awoke.  She was sleeping with her five year old daughter.  By this stage the appellant had a knife in his hand.  He had picked it up at the property.  He pointed it towards her saying “where’s the fucken keys”. The victim got out of the bed and said she would get the keys but told him the car didn’t work.  The appellant then tried to leave the property through the front door which  was  locked  so  went  out  through  the  back  door.    A  short  time  later  the appellant was located by the police.

[3]      When spoken to the appellant admitted the facts and pleaded guilty at an early stage after disclosure.

[4]      In arriving at the end sentence of two years two months the Judge took a start point of four years for all the offending, which included, apart from the aggravated burglary, burglary (the first incident), and charges of unlawfully taking a motor vehicle and unlawful interfering with a motor vehicle.   The Judge then took into account the appellant’s age, reduced the start point by nine months for that and for his personal circumstances and then reduced the term by a further one third to take into account the early guilty pleas.   That left the end sentence of two years two months’ imprisonment.   The Judge noted it was just over two years so that home detention and any other community based sentence could not be considered.   It is apparent that the Judge was troubled by the sentence.  He stated that he had thought long and hard about the appropriate sentence but was satisfied that term imposed was the  least  restrictive  outcome  appropriate  for  the  offending.    In  addition  to  the sentence of imprisonment the Judge directed reparation in the sum of $786.70.

Appellant’s submissions

[5]      In support of the appeal against sentence Mr Reece submitted that, having regard to the Court of Appeal decisions of R v Lee[1] and R v Kaukau[2], the start point of four years was too high.   He submitted that the Judge had failed to take into account the youth of the appellant and its impact on the appellant’s actions.  He also noted the impact on the appellant of a sentence of imprisonment.  He referred to the observations of the Court of Appeal in the case of R v Mahoni[3] that

Further, an allowance would be made more readily in a case having features encouraging leniency, for example where the event could fairly be described as a youthful indiscretion, something plainly resulting from immaturity;  or an impulsive action immediately regretted;  ...

[1] R v Lee CA242/01, 26 February 2002.

[2] R v Kaukau [2007] NZCA 66

[3] R v Mahoni (1998)15 CRNZ 428 (CA) at 437.

[6]      In the circumstances Mr Reece urged upon the Court that an end sentence of less than two years was the appropriate sentence in this case.  Such a sentence would

have enabled the Court to impose a sentence of home detention, which was the sentence recommended by the probation officer in this case.

Respondent’s submissions

[7]      Mr Speir submitted that the discount or allowance for youth and the personal circumstances of the appellant were generous and that, having regard to the authorities, a start point of four years was open to the Judge so that the end sentence of two years two months could not be described as manifestly excessive.

[8]      Mr Speir made the point that the offending had had a serious impact on the victims, in particular the woman confronted by the appellant in the early hours of the morning with a knife.   She no longer feels safe in her home and was looking for somewhere else to live.  She made the point that they did not have much, had worked hard for what they did have, and that the family had been tremendously affected by their personal possessions being taken by the appellant in the way he did.

Decision

[9]      This was a difficult sentencing exercise for the District Court Judge and it is a difficult case for this Court on appeal.   The  maximum sentence for  aggravated burglary is 14 years’ imprisonment.  The Court of Appeal confirmed in Kaukau that the considerations discussed in R v Mako[4] relating to aggravated robbery may also be applied, by analogy, to aggravated burglary: R v Watson.[5]

[4] R v Mako [2002] 2 NZLR 170 (CA).

[5] R v Watson CA224/03, 24 October 2003.

[10]     In  Kaukau  the  Court  of  Appeal  was  concerned  with  an  appeal  against sentence  for  aggravated  burglary,  aggravated  injury,  10  burglaries,  three  of unlawfully taking a motor vehicle, one of possession of cannabis and a charge of driving while forbidden.   The aggravated burglary was taken as the lead sentence with the sentencing Judge taking a start point of five years.  After taking account of mitigating factors the end result was four years’ imprisonment.

[11]     In Kaukau the Court made the point that the start point of five years for the aggravated burglary, while at the top end of the range for the aggravated burglary alone in that case, it had to also bear the totality of the offending, namely the other, or other 10 burglaries and three of taking a motor vehicle.

[12]     In Kaukau the appellant had sought to enter a property.  He had a knife with him at the time, which by inference he had taken to the property.  When noticed by the householder he ran away and was subsequently caught.   There was no confrontation between the appellant Kaukau and the victim in the home.

[13]     The Court allowed the appeal, accepting that in all the circumstances of the case the four years was manifestly excessive.  It imposed a sentence in substitution of three years four months.

[14]     In Lee Mr Lee entered a property to burgle it.  He used a screwdriver to break in.   When challenged by the householder he advanced on them while holding the screwdriver in a threatening manner, swearing and saying “What are you going to do about it?” The householder then fled.

[15]     In that case the appellant was a first time burglar.   The Court of Appeal considered that the end sentence of three and a half years’ imprisonment was too high, quashed that sentence and imposed a sentence of two and a half years.

[16]     In Lee the Court discussed a previous decision of the Court of Appeal in R v Povey[6].  In Povey a four year sentence was imposed.  The burglar in that case had taken a knife to the scene and had 13 previous burglary convictions.

[6] R v Povey CA205/87, 20 November 1987.

[17]     Each case of course must turn on its own facts.  Mr Speir submitted for the Crown that Lee was perhaps the closest in analysis and was in some ways factually comparable.

[18]     It is a matter of concern that the appellant in this case had armed himself with a knife when he returned and was in the victim’s bedroom.   However, apart from

demanding the keys, the summary does not suggest that the appellant did anything more than by way of confrontation or threat to the victim.  Further, when she got out of bed and said that while she would get the keys the car didn’t work, the appellant immediately tried to leave the property and get away.  He threw away the knife in the driveway.   This was a particularly unsophisticated burglary.   On the second occasion  he  returned  to  the  bedroom  where  the  victim  was  and  woke  her  by switching on the light and then searching through her wardrobe.

[19]     In the circumstances of the offending the Judge was quite right to take the aggravated burglary as the lead offence.    However, having regard to the circumstances and totality of the offending in this case, compared with the circumstances and totality of the offending considered by the Court in Kaukau the threat posed by the 30 year old offender Mr Lee in Lee’s case (includes the use of a lookout in that case) and also having regard to the case of Povey I am left with the conclusion that the start point of four years in this case was too high for the appellant’s offending on the night in question.

[20]     In my judgment the appropriate start point, even taking account of the totality of the offending, was a term of three years six months.  No challenge is taken to the Judge’s assessment of nine months as the appropriate discount for the appellant’s personal circumstances, including youth.

[21]     Applying the reduction of nine months would lead to a term of 33 months’ imprisonment before the deduction for the guilty plea which at a third is accepted as appropriate.  That leads to an end sentence of 22 months.  That then does engage the issue of whether home detention combined with another sentence might be appropriate in this case.

[22]     In relation to that I refer to the following passage from the Court of Appeal in

Mako[7] where the following comments about youth are particularly appropriate:

[7] At [66].

where the offender is a youth who is in relevant respects a first offender and appears genuinely motivated to reform, there may be benefit both to the offender and society in a significantly reduced sentence. Whether this is so

in a particular case requires a realistic assessment which gives proper weight to the fact that aggravated robbery even when committed by an immature offender, remains serious violent offending.

[23]     I also note the support the appellant has of his family and confirmation that the reparation ordered of $786.70 can be paid forthwith.   I also note that the experienced probation officer  recommended a sentence of  community work and home detention.

[24]     In the circumstances, on the basis that reparation will be paid in full, I am satisfied that the appropriate sentence in this case is home detention combined with a sentence of community work.  The community and society will be better served by such a sentence, which in my judgment is the least restrictive appropriate in this case.

Result

[25]     The appeal is allowed.  The sentence of two years two months’ imprisonment is quashed.  In its place is substituted a sentence of home detention for a period of 11 months.  The appellant is also, in addition, to serve a community work sentence of

100 hours’ community work and is to undergo any other counselling or programmes or treatment as directed by the probation officer.

[26]     As the appellant is on bail I direct that he is to travel directly to the address at which he is to serve the home detention, 4/113 Avenue Road, Otahuhu.  There he is to await the arrival of the supervising officer and security officer, and is to remain there for the duration of the sentence except as may be specifically approved by the probation officer or as may be required to attend to community work as directed by

the probation officer.

Venning J