Kelly v Police
[2017] NZHC 2689
•2 November 2017
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2017-443-29 [2017] NZHC 2689
BETWEEN RIKKI HOANI KELLY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 31 October 2017 Counsel:
R T Wilson for Appellant
J E Bourke for CrownJudgment:
2 November 2017
JUDGMENT OF WILLIAMS J
[1] The appellant Rikki Hoani Kelly pleaded guilty to four burglary charges and one charge of theft from a car. The first occurred at 3.45am on 21 May this year.
Mr Kelly entered the unlocked premises of a local high school dormitory. There was no-one there at the time – the students were apparently elsewhere on the school grounds. He then stole items from five “pods” including a laptop, earphones, clothing, toiletries, a wallet and some shoes valued together at $4,715. All but $1,420 in value was recovered with the co-operation of the appellant.
[2] The next night Mr Kelly opened an unlocked roller door at commercial premises and stole promotional confectionary.
[3] The night after that at 10.45pm, Mr Kelly broke into other commercial premises stealing a hard drive and a USB stick. And a month later, on 26 June at
10.30am, he walked into a staff changing room at the Novotel Hotel in New Plymouth
KELLY v NEW ZEALAND POLICE [2017] NZHC 2689 [2 November 2017]
and took a sports bag containing clothes and car keys. He then used the car keys to gain entry to a car in the car park stealing two lighters and a torch.
[4] Mr Kelly is 27 years old, single and has no offending history. He is homeless and has suffered significant mental illness a matter to which I will return later.
[5] Mr Kelly appeals against his sentence.
District Court sentencing
[6] In the District Court at New Plymouth, Judge Barkle took the lead offence of the five offences as the dormitory burglary. He applied the leading decision in this area of Arahanga v R1 which adopted a descriptive rather than tariff range of between
18 and 30 months for residential burglaries. Aggravating features in the view of
Judge Barkle were:
(a) The hostel was home to young people and Arahanga therefore applied by close analogy.
(b) There was an ever-present risk of confrontation.
(c) The victim impact statements showed that the effects of the burglary on the students were significant.
(d) The value of the property was also relatively significant.
(e) Mr Kelly remained in the dormitory for at least 50 minutes collecting items for removal indicating a certain deliberateness and planning.
[7] Judge Barkle adopted a starting point of two years; six months above the floor in the Arahanga range. He then uplifted that starting point to take account of the other three burglaries and the theft from the car. He took the view that each of the three burglaries justified an 18 month starting point but on a totality basis he only uplifted
the starting point by another 12 months, leaving an overall starting point of three years.
1 Arahanga v R (2012) 26 CRNZ 63; [2012] 1 NZLR 189.
[8] The Judge then identified three personal mitigating factors:
(a) Good character – Mr Kelly had no previous convictions of any kind but this was to be balanced against the fact that there were five charges to be considered in his first sentencing.
(b)Mental health – the s 38 report provided by psychiatrist Dr Street indicated that Mr Kelly had significant mental health issues at the time of his offending: a major depressive disorder and generalised anxiety disorder leading to self-harm.
(c) Remorse – Mr Kelly demonstrated genuine remorse for his actions.
[9] Judge Barkle considered that an overall discount of 33 per cent or 12 months was appropriate for these matters reducing the sentence to two years prior to guilty plea.
[10] It was common ground that the full 25 per cent reduction for early guilty plea applied. This reduced the starting point by six months to an end sentence of
18 months. The Judge then made a reparation order in relation to the value of the dormitory items that had not been recovered, together with a $20 order in relation to the items taken from the car.
[11] Finally, leave was given to apply for home detention.
Sentencing appeals
[12] The basic principles in relation to sentencing appeals formed common ground between counsel. Sentencing decisions are exercises of discretion. Manifest excessiveness is required before a sentence may be overturned. It is not enough if I just have a different view of the final result. In plain terms this means sentence is not to be set aside unless an error of principle is identified such that the sentence imposed
is outside the range of available sentences for the offending and the offender in accordance with relevant sentencing principles.
Appellant’s submissions
[13] Mr Wilson argued with considerable force that the effect of the shift from the Senior v Police2 approach to burglary sentences to the now orthodox R v Taueki3 methodology had led routinely to a much longer sentences for first time offenders than had been the case. In Senior, a distinction was made in setting an appropriate starting point between first time burglars, recidivists and spree burglars. That Court accepted that it may well not be appropriate to imprison first time burglars.
[14] To compensate for this perhaps unintentional effect on sentence length, it was submitted by Mr Wilson that the Court should contemplate significant discounts at the Taueki stage 2 point to rebalance the imbalance that had developed over time in sentencing practice for burglary.
[15] Mr Wilson then argued that the school was not a residence and therefore the Arahanga range did not apply. He further argued that the victim impact statement given by the dormitory supervisor, Mr Cleaver, should not have been accepted by the Court because he was not a person identified by the terms of s 17AB of the Victims’ Rights Act 2002. It was argued he had not himself suffered injury or loss of property as required by the Act and in any event the statement had not been signed. His statement should not have been taken without leave of the Judge. No leave was granted.
[16] Mr Wilson argued that the source from which the Judge found as an aggravating factor that Mr Kelly had remained in the dormitory for 50 minutes, was the victim impact statement, and it was not open to the Judge to rely on that aspect of Mr Cleaver’s statement to the detriment of Mr Kelly. The defence did not accept it.
[17] Finally, Mr Wilson argued that significant property had been recovered from the burglary and this had not been recognised in the setting of the starting point.
Mr Wilson submitted that the starting point should have been 12 to 18 months.
2 Senior v Police (2000) 18 CRNZ 340.
3 R v Taueki [2005] 3 NZLR 372.
[18] In relation to the uplift for the remaining burglaries and the theft ex-car,
Mr Wilson submitted the suggested starting points for each of them was far too high. Items taken were of limited value, there was no forced entry and none of the same expectations of security and privacy that applied to private dwellings. Overall
Mr Wilson submitted on a totality basis that the uplift for these charges should have been no more than five to seven months.
[19] As to personal circumstances, Mr Wilson submitted that Judge Barkle should have halved the starting point by reference to the fact that these were Mr Kelly’s first offences and for police co-operation including the fact that Mr Kelly was only charged with the first commercial burglary because he voluntarily confessed to it; and his willingness to undergo restorative justice. In addition, the significant mental health issues he faced over this period should have led to an overall reduction for all personal factors of 70 per cent.
[20] This, Mr Wilson submitted, would have produced an end sentence of five to seven and a half months from a starting point of 17 to 25 months,
[21] On this basis, Mr Wilson submitted a community-based sentence involving intensive supervision should have been imposed.
Crown submissions
[22] For the Crown Mr Bourke, submitted that Mr Cleaver was indeed a victim in accordance with the Act as he was resident in his own right at the dormitory and so affected by the unlawful entry.
[23] Mr Bourke submitted the starting point of two years for the hostel burglary was within range. The dormitory was a residence in similar terms to the hotel referred to by Clifford J in Chard v Police.4 Further, although the burglary was unsophisticated there was a moderate degree of planning including a “systematic search” in accordance
with the summary of facts. In addition, the amount stolen was significant and the
4 Chard v Police HC Palmerston North CRI 2007-454-44, 25 October 2007.
effect on the dormitory residence was considerable. There was, as identified in
Arahanga a particular risk of confrontation in a boys’ hostel with multiple residents.
[24] As to the uplift, counsel accepted that the reference to starting points of
18 months for the three additional burglaries was a little high. The exception was the Novotel which (based on the Chard case) could have attracted a starting point of between 15 and 18 months. Overall, there were five offences committed over five weeks including, in counsel submissions, two residential-style burglaries. On that basis, a three years’ starting point would be stern but in range.
[25] As to discounts for personal circumstances, the 33 per cent discount was, in counsel’s submission generous. It was true, Mr Bourke submitted, that the lack of previous offences, mental health issues and remorse were all very relevant but it was to be remembered that this was something of a burglary spree, and in any event leave was granted to apply for home detention if it was wanted.
[26] Overall, Mr Bourke submitted the sentence was probably a little stern but well within range.
Analysis
Starting point
[27] Although there is no tariff decision with respect to burglaries, Arahanga is widely regarded as the leading authority in relation to the appropriate starting point range for residential burglaries. And while the decision casts the range as descriptive of a sentencing trend rather than a prescription, the Court of Appeal suggested a range for residential burglaries of between 18 and 30 months. This range was described in the following terms:
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.
[28] Meanwhile, the Court of Appeal in R v Nguyen identified six relevant factors in assessing the seriousness of any burglary:5
(a) the degree of planning and sophistication in the offending;
(b) the nature of the premises entered;
(c) the kind and value of the property stolen;
(d) damage done;
(e) the impact and potential impact upon occupants or owners of the property; and
(f) the extent of the offending where multiple burglaries are involved.
[29] Taueki6 methodology post-dates the Senior decision referred to by Mr Wilson. It excludes personal factors at the first stage inquiry including offending history.
[30] Here, in my view, the aggravating factors are that, in relation to the lead offence:
(a) The dormitory is residential in nature. Arahanga applies. I see no merit in the argument that there is a distinction between ordinary residences and the communal residence at a school. There is an argument to say that in fact burglary at a school where there are multiple potentially vulnerable residents, is somewhat worse.
(b)There was, as referred to in Arahanga, a real risk of confrontation with residents in this situation early in the morning but that risk should not be overstated. There was no-one in the dormitory at the time and there is every reason in logic to infer that it was the absence of inhabitants
that caused Mr Kelly to venture in.
5 R v Nguyen CA110/01, 2 July 2001.
6 Above n 3.
(c) The impact on the boys whose property was taken was significant. This is referred to in the victim impact statement. Mr Wilson may be technically correct that Mr Cleaver, the drafter of the victim impact statement, did not himself suffer loss or injury, but the boys under his care did. He was in loco parentis. If leave had been sought in accordance with the Victims’ Rights Act to put the statement in on behalf of the boys through Mr Cleaver, it would undoubtedly have been granted.
(d) The value of that which was lost was significant – over $4,000.
[31] The Judge’s finding, as an aggravating factor, that Mr Kelly had been in the dormitory for more than 50 minutes can only have been sourced to the victim impact statement of Mr Cleaver. It was not permissible to take that into account. It had to be proved in the ordinary way or agreed between the parties in accordance with the requirements of s 24(1) and (2).
[32] In any event, in my view, Judge Barkle somewhat overstated the degree of aggravation in this particular case by reference to the level of planning and the risk of confrontation. This did not appear to be a planned burglary. It had the hallmarks (alongside all of the other charges) of an opportunistic intrusion. Some degree of planning was obviously required to be there in the quiet hours but this must not be overstated. Similarly, with respect to the risk of confrontation, there is good reason to believe, on the summary of facts, that Mr Kelly entered the dormitory and began taking items when he found there was no-one there. There is, as Glazebrook J said in Arahanga, always some risk of confrontation, but again that must not be overstated when the actual facts and circumstances of offending are being analysed. And finally, as I have said, there was no proper evidential basis for the aggravating finding that Mr Kelly remained in the dormitory for nearly an hour.
[33] All of this means, in my view, the facts of the offending in this case belong at the very bottom of the Arahanga range. I consider that correct starting point for the dormitory burglary was 18 months not two years.
[34] As to the uplift, I consider that a 12 month uplift was too high for what were essentially three very low level burglaries of commercial premises and a minor theft from a car. I do not agree with the Crown that the Novotel burglary was akin to a residence as per the Chard decision. That case related to burglary from a private room. Mr Kelly’s offending was different. It was taking akin to taking from a staff room at a commercial or industrial site. While invasive in its own right, it is not as invasive as a residential intrusion. The Crown generally accepted this.
[35] In my view, an uplift of eight months was all that could be justified.
[36] This meant that a starting point of 26 months was appropriate as opposed to the 36 months adopted.
[37] As to discounts for previous good character, mental health and remorse, there is every reason to suggest the discount could have been more generous than the 33 per cent actually given – 50 or even 60 per cent could well have been available. The clinical evidence was Mr Kelly was unwell at the time and engaging in self harm. And, plainly, this offending was genuinely out of character. But the one-third discount given was in range even if at the bottom of the range. I am not prepared to say to adopt it amounted to an error of principle. I am not minded to disturb it. An overall discount of nine months is therefore applicable leaving a sentence prior to guilty plea of 17 months.
[38] It was common ground that the guilty plea came at an early stage and was entitled to the full 25 per cent discount or five months.
[39] That leaves an end sentence of 12 months’ imprisonment.
[40] The appeal is allowed. The District Court sentence is quashed and a sentence of 12 months’ imprisonment substituted.
[41] I would have converted the sentence to one of home detention but Mr Kelly has declined this opportunity. There are courses and opportunities for farm training in prison that he wants to participate in. That of course is his choice.
Williams J
Solicitors:
Crown Solicitor, New Plymouth
R T Wilson, Barrister, New Plymouth