Johnstone v Police
[2012] NZHC 551
•22 February 2012
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2011-416-000029 [2012] NZHC 551
DAVID JOHNSTONE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 December 2011
Counsel: D D Rishworth for the Appellant
C R Walker for the Crown
Judgment: 22 February 2012
RESERVED JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 22 February 2012 at 9:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Rishworth Wall & Mathieson, DX LP78512, Gisborne. Crown Solicitor, Gisborne.
JOHNSTONE V POLICE HC GIS CRI-2011-416-000029 [22 February 2012]
Introduction
[1] In the District Court at Gisborne on 11 August 2011, the appellant was sentenced on the following charges:1
(a) A burglary committed on 19 May 2011;
(b)Driving with excess blood or breath alcohol (drink-driving) for a third or subsequent time on 4 June 2011;
(c) Dangerous driving on 4 June 2011;
(d) Breach of parole conditions on 4 June 2011; (e) A burglary on 7 June 2011; and
(f) Drink-driving on 8 June 2011.
[2] He received a sentence of five years’ imprisonment, with a minimum non- parole period of two years and six months on the two charges of burglary, and concurrent sentences of three and four months’ imprisonment for the drink-driving. He was disqualified from driving for the drink-driving and the dangerous driving offences and convicted and discharged on the breach of parole conditions. He now appeals against the sentence of five years’ imprisonment for burglary. He does not appeal against the other sentences.
District Court Decision
[3] The District Court Judge, His Honour Judge Wade adopted the burglary of
19 May 2011 as the lead offence for the purposes of sentencing. He described how the burglary was undertaken and noted the nature and value of the property taken
before referring to the impact on the homeowner.
1 Police v Johnstone DC Gisborne CRI-2011-416-029, 11 August 2011.
[4] The Judge noted the appellant’s age (26 years old) and his lengthy record of previous convictions, including some 26 convictions for burglary and a previous sentence of four years imprisonment for burglary. The Judge said that the normal range within which sentencing for such burglaries would fall for a first offender would be a term of imprisonment of 15 to 18 months. However the Judge considered the maximum penalty for burglary (10 years’ imprisonment) and the appellant’s previous offending warranted a starting point of six years. With the appellant’s guilty plea taken into account the final sentence was one of five years’ imprisonment.
[5] The protection of the public required, in the Judge’s view, a minimum period
of imprisonment of half the sentence.
Submissions
For the appellant
[6] Mr Rishworth, who appeared for the appellant, focused his submissions on three points:
(a) That the starting point for the offending was too high and did not
correctly represent the appellant’s culpability;
(b)That the end sentence of five years imprisonment was manifestly excessive; and
(c) That the imposition of a minimum period of imprisonment was not warranted.
[7] Mr Rishworth accepted that the Judge had included an uplift for previous convictions in his starting point but maintained that the maximum available starting point for the circumstances of the offending was two years’ imprisonment, meaning that the Judge imposed an uplift of around four years for previous convictions.
[8] While accepting the guilty plea discount, Mr Rishworth sought additional recognition for the appellant’s remorse. Ultimately, his submissions sought a final sentence of around two years imprisonment. Finally, Mr Rishworth submitted that, having regard to the Sentencing Act and case law, the Judge erred in imposing a minimum period of imprisonment.
For the respondent
[9] Mr Walker, appearing for the respondent, did not support the Judge’s approach in its entirety but maintained that the final sentence and the imposition of a minimum period of imprisonment were ultimately correct and that the appeal should be dismissed. While Mr Walker accepted that a conventional starting point would have been around two years’ imprisonment, he submitted that the second burglary should attract an uplift of 12 months and submitted that a considerable uplift, outside the normal range, for previous convictions was supported in appellate authority; he put this at two years. Lastly, considering the drink-driving offences, he sought a further uplift of 12 months to arrive at the same point that the District Court Judge had come to.
The appeal
[10] The provisions governing this appeal are to be found in Part 4 of the
Summary Proceedings Act 1957. Section 121 provides relevantly that:
(3) In the case of an appeal against sentence, the High Court may—
(a) Confirm the sentence; or
(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court
thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) Quash any invalid part of the sentence that is severable from the residue; or
(iii) Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
[11] This appeal is founded principally on the ground that the sentence imposed was manifestly excessive though the appellant has also pointed to possible errors in principle and in the application of the Sentencing Act.
Discussion
Approach
[12] The modern approach to sentencing has been enunciated on multiple occasions by the Court of Appeal. Most recently in R v Clifford2 the Court summarised it as follows:
Adapting the guidance given in R v Taueki, in light of this Court’s judgment in Hessell (CA) and the correction of that judgment in the Supreme Court’s judgment in Hessell (SC), the appropriate staged approach to sentencing is:
(a) Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.
(b) Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”, that is remorse for which it is appropriate to give credit separately from any discount given for a guilty plea.
(c) Step three: a discount for a guilty plea if the offender has pleaded guilty. This should take into account the factors mentioned in the Supreme Court’s judgment in Hessell (SC) but should not exceed the maximum level of 25 percent prescribed by the Supreme Court in that judgment.
2 [2011] NZCA 360, [2012] 1 NZLR 23; leave to appeal refused in Clifford v R [2011] NZSC 125.
[13] The circumstances of individual cases and the requirements of legislation may mean that other steps are necessary to arrive at a final sentence including the consideration of concurrent or cumulative sentences for other offending, preventive detention, a minimum period of imprisonment, home detention and forfeiture. Nonetheless this represents the core of the courts’ approach to sentencing.
[14] It is, however, clear that merely deviating from the approach outlined above or arriving at a sentence in a particular way is not a sufficient ground for allowing an appeal provided the final sentence reached can be shown to be appropriate to the offending.3
Starting point
[15] I also adopt the burglary of 19 May 2011 as the lead offence. The key features of that offence viewed in isolation were the invasion of a dwelling-house, the significant financial and sentimental value of the property taken including the risk of data loss from the computers which should not be ignored. There was, however, limited damage to the house and little indication of pre-meditation. The considerable emotional impact on the victim was also before the court and should not be discounted.
[16] There is no particular tariff case for burglary offending although the High Court and Court of Appeal have commented on sentencing policy for burglary on a number of occasions. The decision of a Full High Court in Senior v Police4 was frequently cited as a guide to sentencing for burglary cases. However it has now been suggested that, at the very least, the sentencing approach adopted in Senior is incompatible with modern sentencing practice. As the Court of Appeal remarked in R v Columbus:5
[13] We agree that it is not the function of a divisional Court to resolve apparent inconsistencies in approaches to starting points between burglary and other offending. Nevertheless, we may be able to offer some guidance in this difficult area. As a Full Court of this Court has emphasised, the starting
3 R v Xie [2007] 2 NZLR 240 (CA) at [15] – [17]; and Skipper v R [2011] NZCA 250 at [28].
4 (2000) 18 CRNZ 340.
5 [2008] NZCA 192.
point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3 NZLR 372 at [42]-[44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served by this approach.
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]-[30] (HC).
[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[17] Mr Walker did not seek to support the Judge’s incorporation of previous offending into the setting of a starting point and both counsel were agreed that a starting point in the region of two years imprisonment would be appropriate for the offence taken in isolation.
[18] Looking at the cases cited by counsel in their submissions to the District Court6 and a number of others,7 I agree that on the facts a starting point of two years imprisonment would have been appropriate.
[19] There are however a number of matters relevant to the appellant that may have the effect of increasing the sentence from this starting point. They are his
previous convictions and his offending whilst on parole.
6 Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010; R v Shedden HC Auckland
CRI-2010-404-34, 22 June 2010; R v Kiikoro HC Whangarei CRI-2010-488-024, 6 October
2010; and Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010.
7 Guest v Police HC Whangarei CRI 2010-488-0063, 24 March 2011; R v Columbus; and R v
Lowe CA62/05, 4 July 2005.
Aggravating and mitigating factors: previous convictions
[20] In most cases an offender’s previous convictions, if recent and relevant, may command an uplift on the starting point that the Court would otherwise adopt. Such uplifts are common but in most cases are of relatively restricted scope. The aim of this exercise is not to punish the offender once again for previous offending but to impose a degree of prevention and deterrence:8
The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.
[21] Increases in sentence for this have usually been held to a limited range by decisions of the Courts. However, in this appeal Mr Walker has argued for the respondent that the judgments in Senior and Columbus condone a different rule in cases of burglary and that the Court in such cases is empowered to impose uplifts for previous convictions that are outside the range that would normally be acceptable. He noted that the uplift in Columbus for previous convictions equated to 66 percent of the starting point and pointed to other decisions where uplifts equating to 50 to 66
percent of the starting point were applied.9 Mr Walker also cited the Court of
Appeal’s judgment in Skipper v R where the Court rejected an uplift of six months for a criminal history that included 7 burglaries and indicated that up to 18 months could have been added to the starting point.10 Mr Walker submitted that an uplift of two years would be appropriate in the appellant’s case. Mr Rishworth by contrast
submitted that a maximum uplift of one year was all that was available in this case.
8 R v Casey [1931] NZLR 594 (CA) at 597.
9 R v Povey [2009] NZCA 362; and R v Stevens [2009] NZCA 190.
10 Skipper v R [2011] NZCA 250 at [27].
[22] While this question is unlikely to be adequately resolved in the High Court in the context of this appeal, the following may be noted:
(a) The Court’s task, as ever, is to impose a sentence appropriate to the
offending and the circumstances of the offender;11
(b)The sentence must primarily reflect the gravity of offending for which the offender is being sentenced;12
(c) The offender’s previous convictions are relevant13 and are aspects of deterrence and the protection of the community;14
(d) The setting of a starting point should reflect the circumstances of the
offending divorced from the offender’s personality and history;15 and
(e) Care should be taken in aggravating sentences for previous convictions in order to avoid the notion of double punishment.16
[23] Mr Walker’s submission is an interesting one but the difficulty with it is the rationale for adopting a different approach to burglary cases. In the context of this case, I decline to approach the issue of an uplift for previous convictions in a manner which may seek to distinguish burglary from other offences. What is evident from the cases is that, while no strict rule can be laid down for the effect that previous convictions may have on a starting point, uplifts of up to one year are relatively common. In more serious cases somewhere between one year and 18 months will be permissible. Cases involving an uplift of two years, as suggested by Mr Walker, will likely only be reserved for really serious offending or an extremely comprehensive criminal history which indicates danger to the community or the complete and persistent disregard for the criminal law. In this case I consider that the appellant’s
criminal history justifies imposing an uplift of one year on the initial starting point of
11 R v Taueki and R v Clifford.
12 Sentencing Act 2002, s 8(a).
13 Sentencing Act 2002, s 9(1)(j).
14 Sentencing Act 2002, s 7(1)(f), 7(g).
15 R v Taueki and R v Clifford.
16 R v Casey, R v Ward [1976] 1 NZLR 588 (CA) and R v Columbus.
two years imprisonment. This reflects, in my view, the appellant’s moderately
serious previous offending and his age.
Aggravating and mitigating factors: offending whilst on parole
[24] The Judge records that the appellant was released on parole shortly prior to the offending and commented upon the speed with which it appeared that the appellant had reoffended. Counsel for the appellant has informed the Court that the appellant was in fact released in June 2010 and so had spent almost a year on parole without any problem. He was recalled to prison as a result of the offending.
[25] The relevance of offending in breach of parole conditions is confirmed by the Sentencing Act.17 The Court of Appeal has recently commented on the approach to be taken in assessing breaches of parole conditions where recall is in issue:18
[14] Mr Gwilliam accepted that as a result of s 9 of the Sentencing Act
2002, the appellant’s previous convictions and the fact that he offended
while on parole were aggravating factors. However, he submitted that they had been adequately taken account of because, as a result of offending while on parole, the appellant was recalled to serve out his previous sentence. To impose an uplift in the sentence for the present offending would be to impose double punishment on the appellant.
[15] This Court has acknowledged that there is a risk of double punishment in such circumstances, for example in R v Paul. However, that does not mean that no account should be taken in subsequent sentencing of the fact that the further offending was committed while on parole. In the present case, the Judge reduced the uplift from 18 to 12 months to reflect the fact that the appellant had been recalled to serve out his earlier sentence as a result of the present offending. As Ms Inwood noted, this was an equivalent allowance to that made by this Court in similar circumstances in R v Repia.
[16] We consider that Miller J made a sufficient allowance, although we accept that some judges may have allowed a little more. We do not accept that a “one for one” reduction was required, that is, a reduction of 14 months to reflect the time actually spent on recall.
[26] Judge Wade did not directly attribute any part of the sentence to the
appellant’s breach of parole conditions and was of the opinion that to impose an uplift might constitute double counting. The sentence imposed was concurrent on
17 Sentencing Act 2002, s 9(1)(c).
18 Vernon v R [2010] NZCA 308.
the sentence to which the appellant had been recalled. The appellant spent two months in prison prior to sentence. In those circumstances, I do not think that a further uplift is required.
Related offences
[27] Besides the lead offence, the appellant was also for sentence on another charge of burglary as well as two charges of drink-driving, one of dangerous driving and a beach of parole conditions.
[28] Some recognition of these additional offences was necessary. Mr Walker submitted that the 7 June 2011 burglary warranted an increase of 12 months imprisonment as did the driving convictions taken together.
[29] The second burglary if considered as discrete offending would, having regard to the aggravating factors mentioned above, attract a sentence in the region of 12 to
15 months imprisonment. I consider that while it was a residential burglary, there was minimal loss, very minimal premeditation and little damage to the premises as well. A term of 15 months imprisonment would be appropriate
[30] The drink-driving offending, which are Mr Johnstone’s third and fourth convictions for such offences, is punishable by a maximum sentence of two years imprisonment.19 The case of Clotworthy v Police20 provides useful guidance in sentencing for drink-driving matters (at [20]). In brief:
(a) Mr Johnstone’s previous convictions were in 2002 and 2004;
(b)On the 4 June 2011 charge the breath reading was one of 974 micrograms (more than twice the legal limit);21
(c) On the 8 June 2011 charge the blood reading was 152 milligrams
(significantly over the legal limit);22
19 Land Transport Act 1998, s 56(4).
20 Clotworthy v Police (2003) 20 CRNZ 439; see also R v McQuillan CA 129/04, 12 August 2004 at [20] - [22].
21 Land Transport Act 1998, s 56(1).
(d) The offences were in close succession;
(e) The evidence as to the state of Mr Johnstone’s driving suggests some risk to him and a small amount of danger to another vehicle in one incident; and
(f) Mr Johnstone does not appear to have been disqualified at the time.
[31] The Judge imposed a sentence of three months imprisonment on the first drink-driving offence and four months imprisonment on the second. No issue was taken with these sentences or the sentences imposed in respect of the dangerous driving (disqualification) and breach of parole conditions (conviction and discharge).
[32] The imposition of such sentences cumulatively on top of the three years imprisonment indicated above for the lead sentence of burglary would lead to an indicative sentence of four years and 10 months’ imprisonment. However I am of the opinion that on the facts of the case, such a sentence would risk breaching the principle of totality for two reasons. First, the burglary offences are proximate in time and might form part of a connected series,23 as also might the drink-driving offences. Secondly an indicative sentence of this length is likely to be out of proportion to the overall gravity of the offending.24 I would make the sentence on the lead burglary charge one of four years and four months’ imprisonment and impose concurrent sentences at the above levels in respect of each of the other charges.
Mitigating factors
[33] Mr Rishworth has strongly submitted that the Court should consider
Mr Johnstone’s remorse in respect of this offending and puts particular emphasis on
a letter handed to the Court and the pre-sentence report prepared for the sentencing.
22 Land Transport Act 1998, s 56(2).
23 Sentencing Act 2002, s 84.
24 Sentencing Act 2002, s 85(2).
[34] The Supreme Court in Hessell v R has confirmed that separate recognition may be made for an offender’s remorse in addition to the credit they receive for their guilty plea.25 However, the Court also noted that such independent indications of remorse would need to be of a special or extraordinary nature in order to attract a separate reduction in sentence.26
[35] While the appellant’s letter appears to be a genuine gesture it does not appear to me to be a particularly strong expression of remorse. In addition, the matters raised in the report are ones which are best addressed through treatment rather than by recognition at sentence.
Guilty plea
[36] The important mitigating factor in the appellant’s case is his plea of guilty which came at a reasonably early opportunity. In the composition of the original sentence, a reduction of one year for the appellant’s guilty plea equated to a discount of around a sixth of the indicative sentence. The appellant entered the guilty pleas five weeks after first being arrested and charged. A discount of a one year should also be imposed on the reduced sentence and therefore I take 12 months from the figure of four years four months. The final determinate sentence I would have imposed is therefore three years and four months’ imprisonment. This leads me to the view that, the Judge’s starting point and final sentence were both excessive. I would allow the appeal and reduce the sentence for the burglary to three years and four months’ imprisonment with the other sentences to be served concurrently.
Minimum period of imprisonment
[37] The appellant also appealed against the imposition of a minimum period of imprisonment. The District Court Judge felt this was a necessary means by which to
protect the community.27
25 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
26 Hessell v R at [72].
27 Police v Johnstone at [16].
[38] A minimum period of imprisonment may be imposed under s 86 Sentencing Act 2002 where the normal period that the offender would serve before becoming eligible for parole is insufficient for:
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence: or
(d) protecting the community from the offender.
[39] The Court of Appeal in R v Taueki28 outlined the general approach to be taken when considering a minimum period of imprisonment under s 86:
[53] ... The Sentencing Act contemplates a two-stage process, involving the setting of the nominal (maximum) sentence as the first stage, and undertaking the exercise required by s 86 (where it is applicable) as the second stage (Brown at para [35]).
[54] That second stage itself requires a sentencing Judge to address two questions. The first is whether a minimum period of imprisonment should be imposed. If that question is answered affirmatively, it is then necessary to address the second question – how long should the minimum period be?
[40] The Court of Appeal in Taueki made it clear that the s 86 purposes are of primary relevance in deciding whether to impose a minimum period of imprisonment but that the normal considerations of sentencing to be found in ss 7-9 do still apply:
[55] ... As this Court recently noted in R v Walsh (CA 281/04, 19 May
2005) at para [25], the four factors referred to in s 86(2) are matters which correspond with four of the purposes of sentencing set out in s 7(1) (s
7(1)(a), (e), (f) and (g)). The question before the Court is whether serving
one-third of the nominal sentence is insufficient for all or any of those four purposes. The Court must focus on those purposes when determining whether to impose a minimum period of imprisonment. The principles in s 8 and the aggravating and mitigating factors in s 9 are applicable only to the extent that they are relevant to those four purposes. For example, as the Court noted in Walsh at paras [26] – [28], a guilty plea may be relevant to the deterrence purpose (if the plea demonstrates insight into the offending) but may have little relevance to the community protection purpose.
28 [2005] 3 NZLR 372.
[41] The imposition of a minimum period of imprisonment for the offence of burglary, even where the offender is a recidivist, does not seem common. In none of the cases cited by counsel does a minimum period of imprisonment appear to have been imposed.
[42] It is clear that although the appellant has the potential to be an ongoing problem for the community, the burglary offending is not of the most serious type and contains no elements of violence. The drink-driving offending is dangerous but perhaps not to the degree that an active focus on community protection is called for. In addition there are some positive signs in that the appellant appears to have been more frank about some of the causes of his offending and has demonstrated some insight. The deterrence purpose found in s 86 has also been taken into account in my decision to impose a significant uplift for the appellant’s previous offending.
[43] I consider that the Judge was in error when he imposed a minimum period of imprisonment on the appellant as he did not consider features of the case under ss 7-9 which suggested a minimum period of imprisonment would not be necessary to fulfil the s 86 purposes.
Result
[44] The appeal is allowed. The sentence of five years imprisonment imposed on two charges of burglary is quashed. In its place a sentence of three years and four months’ imprisonment is imposed. In addition, the minimum period of imprisonment of 50 percent imposed in the Court below is quashed.
……………………………….
Woolford J
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