Kushell v Police
[2012] NZHC 2574
•4 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000223 [2012] NZHC 2574
BETWEEN BERTHA WIWANA KUSHELL Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 10 September 2012
Appearances: J W Mackey for Appellant
S S McMullan for Respondent
Judgment: 4 October 2012
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 4 October 2012 at 3:30 pm
pursuant to R 11.5 of the High Court Rules.
Registrar / Deputy Registrar
Date………………………..
Solicitors: Meredith Connell, P O Box 2213, Auckland 1141
Fax: (09) 336-7629 – K Snelgar
Counsel: J W Mackey, P O Box 15522, New Lynn, Waitakere 0640
Fax: (09) 828-4156
KUSHELL V NZ POLICE HC AK CRI-2012-404-000223 [4 October 2012]
Introduction
[1] The appellant, Bertha Kushell, appeals the sentence of three years imprisonment imposed by Judge Gibson in the District Court at Waitakere on one charge of burglary pursuant to s 231(1)(a) of the Crimes Act 1961. Ms Kushell was on parole at the time of the offending, having served 18 months of a four-and-a-half year term of imprisonment for multiple dishonesty offences. Following her arrest she was recalled to serve the rest of that sentence.
[2] Judge Gibson took a starting point of two years’ imprisonment and uplifted that by one year on account of Ms Kushell’s previous convictions and a further six months for offending while on parole. The Judge then gave a 20 per cent discount for Ms Kushell’s guilty plea. The end sentence of three years’ imprisonment was to be served cumulatively upon the previous sentence, which Ms Kushell was still serving as a result of being recalled.
[3] Ms Kushell’s ground of appeal is that the sentence is manifestly excessive as a result of various errors by the sentencing Judge which may be summarised as follows:
(a) The starting point was too high;
(b) The uplift of one years’ imprisonment for previous convictions was
excessive and amounted to double punishment;
(c) The uplift of six months’ imprisonment for offending on parole was
excessive and amounted to double punishment;
(d)The Judge failed to take into account the fact that Ms Kushell had been recalled to serve the remainder of her sentence, leading to a sentence that was out of proportion to the gravity of the overall offending;
(e) Ms Kushell should have been allowed the full 25 per cent discount for her guilty plea; and
(f) There are arithmetical errors in the Judge’s calculations and the end sentence should have been 33-and-a-half months rather than 36 months.
Was the starting point too high?
[4] Because of the range of circumstances in which burglary is committed there is no tariff case for this offence. However, the Court of Appeal has identified the relevant factors in assessing culpability in R v Nguyen:1
… the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.
[5] The offending in this case occurred in the middle of the day on 16 February
2012. The 88-year-old complainant was in the garden of her unit in a retirement village in Henderson. The appellant entered the unit without being seen. She took the complainant’s cheque book, credit cards, bank cards and $400 cash and left by climbing out a window.
[6] In sentencing Judge Gibson described the burglary as “particularly reprehensible” because it involved a burglary in a retirement village and a unit occupied by an 88-year-old woman.2 The burglary has had a trumatic effect on the complainant. The Judge took a starting point of two years imprisonment. Mr Mackey, for Ms Kushell, submitted that this was excessive and contended for a starting point in the region of 18 months as the benchmark for unlawful entry into a dwelling place where a moderate amount of property has been taken. In particular, he pointed out that the offending involved only one person and occurred during the
day. He relied on the decision in Hale v Police in which Brewer J considered that a starting point of 18 months imprisonment was appropriate for a burglary of a residence at night by two burglars when the home was unoccupied and the value of
the property taken was about $500.3
1 R v Nguyen CA110/01, 2 July 2001 at [17].
2 Police v Kushell DC Waitakere CRI-2012-090-003454, 10 July 2012 at [2].
3 Hale v Police [2012] NZHC 1243.
[7] Mr Mackey submitted that, in comparison to Hale, Ms Kushell’s offending was less serious because it involved only one person and occurred in the day time. He submitted that the proper starting point should be between 12 and 15 months. Mr McMullan, for the Police, submitted that the starting point was not excessive and relied on Guest v Police, in which a starting point of two-and-a-half years’ imprisonment was taken for a day-time burglary by two burglars obtaining access
through subterfuge.4
[8] As is commonly the position, the present offending has elements that are not directly reflected in either of the cases counsel rely on. It is true that this was a day- time burglary committed by one person. On the other hand, the occupant was just in the garden of her unit and could have returned inside at any time. Further, this was a unit situated in a retirement village where any prospective offender would have known that the occupant was an elderly person. Although stern, two years was within the range available to the Judge as a reflection of this offending.
Uplift for previous convictions
[9] The Judge increased the starting point by one year to take account of Ms Kushell’s 65 previous convictions and 42 Youth Court notations.5 Mr Mackey submitted that this increase was excessive and held an element of double punishment.
[10] In sentencing on burglary charges uplifting for previous convictions requires a careful balance to ensure that issues of deterrence are addressed while avoiding punishment for earlier offending.6 Given Ms Kushell’s extensive history and uplifts made in comparable cases7 the uplift taken by the Judge in this case was not excessive and would not (subject to the question regarding recall) risk punishing the
appellant twice over for earlier offending.
4 Guest v Police HC Gisborne CRI-2010-488-63, 24 March 2011.
5 Youth Court notations may be taken into account on sentencing: Geros v R [2011] NZCA 122 at
[16].
6 Rautahi v R [2011] NZCA 351 at [28].
7 Cooper v Police [2012] NZHC 1699 at [16]; Guest v Police HC Gisborne CRI-2010-488-63, 24
March 2011; Barakat v Police [2012] NZHC 1671 at [32] – [34].
Uplift for offending while on parole
[11] At the time of this offence Ms Kushell was on parole. She had been sentenced to four-and-a-half years’ imprisonment in August 2009 on 13 charges of burglary, 13 of using a document to obtain a pecuniary advantage and four of attempting to use a document to obtain a pecuniary advantage. These offences had been committed over a period of three to four months at a time when Ms Kushell was also on parole for other offending.
[12] The Judge further increased the starting point by six months for the fact that the offending occurred while Ms Kushell was on parole. Leaving aside the question of recall which I consider next, this uplift cannot be regarded as excessive.
The effect of recall from parole
[13] Mr Mackey submitted that both the uplifts amounted to double counting because of the Ms Kushell’s recall to serve the balance of her previous sentences and, as a result, the sentence was crushing.
[14] The Judge made no allowance for the fact that Ms Kushell had been recalled and referred to it only obliquely:
[10] Counsel for the defendant urges on me a concurrent sentence with the sentence that the defendant is currently serving, but I am not prepared to impose that. This was distinctly different in time and was also an offence committed on parole, although that is not the matter that persuades me to make the cumulative sentence, simply that it is distinct in time from the other sentences. Accordingly, she is sentenced to three years imprisonment, that to be cumulative on existing sentences of imprisonment.
[15] A recall to prison for breach of parole relates to the earlier offending and when a person offends while on parole and is recalled there is, generally, no element of double punishment in imposing a cumulative sentence for the subsequent offending, as the Court of Appeal explained in R v Graham:8
[21] A grant of parole amounts, as observed by Randerson J in Hart,9 to a licence during good behaviour. There is no right to release on parole. A grant of parole is a conditional release from custody, subject to a liability of
8 R v Graham CA293/05 14 December 2005 per William Young, Baragwanath and Potter JJ.
9 Hart v Parole Board [1999] 3 NZLR 97 (HC).
recall if the conditions of release are not observed. If an order for recall is made, then parole ceases, and the offender will be required to serve the balance of the sentence (subject to the right to apply for parole again after the parole eligibility date). Thus, if a paroled prisoner offends while on parole and is recalled, the impact is on the term of imprisonment imposed for the original offending.
[22] The new offending will, of course, expose the offender to penalty and must receive a sentence which is appropriate in terms of the Sentencing Act.
[23] There can be no question of the offender being punished twice for the same offending. That the later offending may trigger consequences under both the Parole Act and the Sentencing Act is entirely consistent with the legislative policy of the two statutes which were part of the same legislative passage.
[16] The Court of Appeal has acknowledged that this approach can result in unfairness because pre-sentence detention does not include time spent while on recall from parole so that time is not taken into account for administrative purposes.10 This was regarded as unfair and warranting an allowance in R v Paul11 and Vernon v R.12 In Paul the Court reduced the two year uplift for offending on parole and previous convictions by five months to take account of the fact that the
prisoner had been recalled to serve five months remaining on a previous sentence. The total uplift was therefore one year and seven months. In Vernon the prisoner was recalled to serve a remaining 14 months and the time spent on recall was recognised by the sentencing Judge by imposing an uplift of 12 months rather than the 18 months that would otherwise have been imposed. That was approved on appeal.
[17] Nonetheless, the Court of Appeal has also made it clear that the risk of double punishment does not mean that no account should be taken in subsequent sentencing of the fact that the further offending was committed while on parole.13 In Vernon the Court observed that:
[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. Previous convictions and the
10 Section 91(6) of the Parole Act 2006, the successor to s 81 of the Criminal Justice Act 1985.
11 R v Paul CA409/05, 26 April 2006 per O’Regan, John Hansen and Harrison JJ.
12 Vernon v R [2010] NZCA 308 at [16].13 Vernon v R, above n 11, at [15]; Waterworth v R [2012] NZCA 58 at [44].
commission of offences while on parole are, as a matter of stature, aggravating features in subsequent sentencing.
[18] In this case the Judge should have expressly considered whether the uplift would result in unfairness, given Ms Kushell’s recall from parole. However, I do not consider that his failure to do so resulted in unfairness. Ms Kushell was recalled on
23 May 2012 and sentenced on 10 July 2012. The time she spent in custody that cannot be taken into account as pre-sentence detention was minimal and would not justify a reduction.
[19] Nor does any prospective time served as a result of the recall lead to
unfairness. On Mr Mackey’s calculation Ms Kushell’s release date will be February
2014 on the earlier charges so (leaving aside the issue of parole) she will spend two years 11 months on recall before serving the cumulative sentence imposed in respect of the current offending. However, Mr McMullan pointed out that because of the effect of s 75(1) of the Parole Act 2002, Ms Kushell is not actually disadvantaged by the imposition of the subsequent cumulative sentence. The effect of s 75(1) is that the 2012 sentence attaches to the 2009 sentence for the purposes of parole, forming a single notional sentence and resulting in Ms Kushell’s eligibility for parole after one- third of the full seven-and-a-half year period. Further, the Parole Board is empowered to and has adopted a policy regarding parole following the making of a
final recall order under which the Board may:14
(1) Give the offender an indication as to when the offender will next be considered for parole. Such an indication may be at a date earlier (but not later) than the period of 12 months referred to above.
(2) State that in its opinion parole would be unlikely to be considered again within the 12 month period.
In default of the above the offender will be considered for parole as soon as practicable after three months from the date of the final recall order.
Discount for guilty plea
[20] Although Ms Kushell pleaded guilty at the first reasonable opportunity the
Judge did not give the full 25 per cent discount but a 20 per cent discount because:15
14 Section 109.
15 At [9].
… I do not believe this would have been a particularly difficult matter for the police to have to have to proved, had that occurred in the event of a not guilty plea and that is the reason I do not give the full 25 per cent discount.
[21] The time at which a guilty plea is entered is not the only relevant factor in fixing an appropriate discount.16 The strength of the prosecution case is one fact that may be taken into account, resulting in a lower discount.17 Whilst another judge may have allowed the full 25 per cent discount the circumstances of the offending, the propensity evidence available to the Police in its prosecution provided adequate
support for the Judge’s assessment. This is a matter on which I am not prepared to interfere.
Arithmetical errors
[22] The final ground of appeal is that there was an arithmetical error in the Judge’s analysis. The starting point of two years plus the one year uplift for previous offending and the six months uplift for offending while on parole would result in a sentence of 42 months. A reduction of 20 per cent for the guilty plea would reduce that by eight months to two years and ten months. The Crown accepts this error but maintains that it does not justify interfering with the sentence, relying on the Court
of Appeal’s statement in S v R:18
[43] We accept that there is undoubtedly a calculation error made by the Judge. However, as this Court has previously observed, the issue is not how a sentence is constructed but whether the sentence imposed is manifestly excessive.
[23] The Crown maintains its submission in relation to earlier grounds of appeal that the end sentence was not manifestly excessive and the end sentence of three years imposed by the Judge should stand, notwithstanding the apparent error in reaching that figure. I accept this and reiterate that the sentence ultimately imposed
was not manifestly excessive notwithstanding the apparent error.
16 Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 at [70].
17 See, for example, R v Smith HC Christchurch CRI-2010-009-101435, 4 November 2011; White v Ministry of Social Development HC Gisborne CRI-2011-416-0028, 4 November 2011; R v Tonga HC Auckland CRI-2010-092-20311, 10 June 2011.
18 S v R [2011] NZCA 178 at [43].
Result
[24] The appeal is dismissed.
P Courtney J
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