King v Police

[2014] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-004-000288 [2014] NZHC 2946

BETWEEN

SHANNON KING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	24 November 2014
Appearances:	H F Brown and C B Wilkinson-Smith for Appellant L M MIlls for Respondent
Judgment:	24 November 2014

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

KING v NEW ZEALAND POLICE [2014] NZHC 2946 [24 November 2014]

Introduction

[1]      Mr  King  was  sentenced  by  Judge  Lovell-Smith  in  the  District  Court  at Manukau  on  31  July  2014  to  a  total  term  of  three  years  and  six  months’ imprisonment, after he pleaded guilty to two charges of burglary.1   He now appeals against the sentence.

Background facts

[2]      The background facts are uncontested, and described in detail in the Judge’s sentencing notes.  At about 10:30 pm on 9 November, at Clarks Beach, Mr King entered a residence through a closed but unlocked back door.  The next morning, the home owner found a bag on the kitchen table that contained a laptop from within the address, a wallet from a vehicle that had been parked at the address, and a medicines container inside it.  Shoes, which did not belong to any of the occupants, were also found at the back door.

[3]      At around 12:30 am on 10 November, another address in Clarks Beach was the subject of a burglary.  In this case, the victim noticed a person, (later identified as Mr King), standing at the end of her bed.   She thought that the person was her husband and she called out.   Mr King exited the room via a ranchslider, and the victim realised it was not her husband.  Her husband then attempted to find Mr King, but could not find him.

[4]      No items were taken from either address and no property was damaged.

District Court sentencing

[5]      The Judge considered the pre-sentence report and noted that Mr King has 45 convictions for burglary.   Her Honour noted that Mr King had received both community-based sentences and custodial sentences for his prior offending, and had clearly   not   been   deterred   from   reoffending.      The   Judge   noted   that   the

recommendation of the pre-sentence report was for a sentence of imprisonment.

1      New Zealand Police v King DC Manukau CRI-2014-057-000016, 31 July 2014 at [2] – [4].

[6]      After  considering  the  submissions  of  counsel,  the  Judge  recognised  that Mr King had been employed since 2012.  A letter to the Court from his employer was very positive, describing Mr King as an enthusiastic and committed employee (amongst other things).  The employer had wanted to be present, but was not able to attend the sentencing.   The Judge also considered it significant that Mr King had been   attending   the   Huakina   Development   Trust   for   an   anger   management programme.  A full report was provided by the Trust, and the Judge considered it significant that a representative of the Trust was present at the sentencing.

[7]      The Judge then considered the purposes and principles of the Sentencing Act

2002 before considering the case of R v Southon as being particularly relevant.2   In that case, the Court of Appeal noted that the seriousness of burglary is not to be underrated.   The Court referred to the nature and risks of intrusion into private dwellings, such as implications for privacy and their potential for grave offences against the person. The Court viewed Mr Southon as a habitual burglar and therefore placed emphasis on deterrence and community protection.

[8]      The Judge considered the aggravating features of Mr King’s offending to be his previous convictions and the fact that the burglaries were of dwelling houses, during  night  hours.    Her  Honour  considered  that  the  burglaries  fell  fairly  and squarely within the comments made by the Court of Appeal in R v Southon.

[9]      Her Honour took a starting point of six years’ imprisonment, which factored in Mr King’s prior offending.    She then gave a discount of around 22 per cent for Mr King’s efforts at rehabilitation and employment, before giving the maximum guilty plea discount.  This resulted in a final sentence of three years and six months’ imprisonment.

Submissions and discussion

[10]     The parties have provided very similar submissions.  Counsel agree that the starting point was well outside of the range available.  Ms Brown (for Mr King) also took issue with the methodology adopted by the sentencing Judge, as placing too

much emphasis on previous convictions for dishonesty – in effect, punishing an

2      R v Southon (2003) 20 CRNZ 104 (CA).

offender twice.     She submitted that the settled sentencing approach, as per R v Taueki,3 should be the method of sentencing used in this case.  The respondent took no issue with this.

[11]     The primary issue in this appeal is as to the appropriate starting point.   In Arahanga v R4     the sentencing Judge adopted a starting point of four years imprisonment, where the offender, armed with a knife, broke into an unoccupied bach with a co-offender, and stole several items, such as a DVD player, a television and a stereo.  They broke into another bach, where there were sleeping occupants. They stole electrical items, and after stashing the items and returning for more, an occupant woke up and the police were alerted.   The starting point was upheld on appeal. The Court noted that dwelling house burglaries at the relatively minor end of

the scale tend to attract a starting point of between 18 months and two years and six

months’ imprisonment.

[12]     In Skipper v R,5 the Court of Appeal upheld a starting point of four years and six months’ imprisonment on the offender’s conviction on one count of burglary and one count of aggravated burglary. Mr Skipper and a co-offender entered a residential property at 6:10 am while the occupants were home. They stole various items, including bedding and a backpack. The co-offender then knocked on the door of an adjoining flat and struck the occupant on the head with a wooden baton. The offenders took several valuable items were taken from the flat. The two men were still removing items when a police patrol car passed by. Most of the property was recovered.

[13]     In Keen v R,6  the Court of Appeal upheld a starting point of two years six months imprisonment.  The offender went to a motel and walked from unit to unit trying doors.  She gained access to one, waking the occupant, and took his wallet. A few weeks later, she did the same thing and entered a unit, sat on the occupant’s bed, and took the occupant’s wallet when he asked her to leave.  She entered another unit

and stole a laptop. She returned to the motel for a third time but was unsuccessful in

3      R v Taueki [2005] 3 NZLR 372, confirmed in R v Clifford [2011] NZCA 360 at [57]-[60].

4      Arahanga v R [2012] NZCA 480

5      Skipper v R [2011] NZCA 250.

6      Keen v R [2014] NZCA 299.

gaining access to the units.  The Court of Appeal found that the sentencing Judge was entitled to regard the motel premises as akin to residential property.

[14]     Counsel for Mr King and for the respondent agreed that the starting point in this case should be between two years six months and three years six months.  Mr Mills accepted that it should be at the lower end of that range.

[15]     I consider that Mr King’s culpability is closest to that of the offender in Keen. Clearly, Mr King’s offending was far less serious than the offenders in Arahanga and Skipper.   Based on these cases and the circumstances of Mr King’s offending, I consider that two years and six months’ imprisonment is an appropriate starting point

[16]     Counsel agreed that an uplift of 12 months to reflect Mr King’s criminal record (including, by their count, 45 burglaries) is appropriate.   The most recent convictions for burglary occurred in 2008 and 2005.   The majority of the prior burglary convictions occurred in the early 1990s.  Aside from Mr King’s burglary convictions, he has 14 other relevant convictions, including convictions for unlawfully  taking  a  motor  vehicle,  theft,  unlawfully  in  an  enclosed  yard,  and receiving property.

[17]     I accept that an uplift of 12 months is appropriate.  That brings Mr King’s sentence to three years and six months’ imprisonment.

[18]     I do not propose to interfere with the discounts the sentencing Judge gave

Mr King, and neither party has taken issue with the discounts.  A discount of around

22 per cent is given for Mr King’s personal circumstances, and a further discount of

25 per cent is given for the early guilty plea.  That leads to an end sentence of two

years’ imprisonment.

[19]     The  appeal  is  allowed.    The  sentence  of  three  years  and  six  months’

imprisonment is quashed and a sentence of two years’ imprisonment is substituted.

Andrews  J