Laine v Police
[2021] NZHC 1231
•28 May 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000110
[2021] NZHC 1231
BETWEEN CJ MACDONALD LAINE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 May 2021 Appearances:
HN Kim for Appellant CE Best for Respondent
Judgment:
28 May 2021
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 28 May 2021 at 3.30pm
Registrar/Deputy Registrar
Date……………………..
Solicitors: Kayes Fletcher Walker, Auckland To: H Kim, Auckland
LAINE v NZ POLICE [2021] NZHC 1231 [28 May 2021]
Introduction
[1] On 4 February 2021, Judge Wharepouri sentenced Mr Laine to 25 months’ imprisonment on two charges each of burglary1 and driving while suspended,2 and one charge each of the theft of property worth over $1,000,3 possession of cannabis,4 possession of methamphetamine5 and failing to appear.6
[2] Mr Laine now appeals (out of time) saying the sentence was manifestly excessive. In particular, he says an end point within the short-term sentence range should have resulted, and a sentence of home detention then imposed. The appeal is opposed, the Crown saying there is no error in Judge Wharepouri’s sentence.
Extension of Time
[3] Mr Laine was sentenced on 4 February 2021 but did not file his notice of appeal until 9 March 2021; so, three working days out of time.7 Ms Kim, counsel for Mr Laine, states that the delay was a result of Mr Laine’s transfer between prisons, postal delays and her inability to see him during a COVID-19 lockdown. The Crown, accepting this explanation, does not oppose an extension of time being granted. I accept that an extension ought to be granted and do so.
Background
Offending
[4] The charges for which Mr Laine was sentenced relate to four unconnected episodes in 2019 and 2020.
1 Crimes Act 1961, s 231(1)(a). Maximum penalty ten years’ imprisonment.
2 Land Transport Act 1998, ss 32(1)(c) and 32(3). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
3 Crimes Act 1961, ss 219 and 223(b). Maximum penalty seven years’ imprisonment.
4 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2). Maximum penalty three months’ imprisonment or a fine not exceeding $500.
5 Sections 7(1)(a) and 7(2). Maximum penalty six months’ imprisonment or a fine not exceeding
$1,000.
6 Bail Act 2000, s 38. Maximum penalty one year’s imprisonment or fine not exceeding $1,000.
7 See Criminal Procedure Act 2011, s 231(2).
[5] The first two incidents, chronologically speaking, occurred in June 2019. On 5 May 2019, Mr Laine had his driver’s licence suspended for a period of three months, having accrued an excess of demerit points. That period of suspension was accordingly to expire on 4 August 2019. However, on 1 June 2019, so only a few weeks after his licence had been suspended, Mr Laine was stopped by Police while driving on a road in Wellsford, thereby contravening his suspension. When the vehicle was searched, the Police found two zip lock bags containing a total of 2.36 grams of methamphetamine in a satchel belonging to Mr Laine.
[6] A few weeks later, on the afternoon of 24 June 2019 – so, while on bail for the offending on 1 June, and still within the period of his drivers’ licence being suspended
– Mr Laine and a co-offender went to a residential property on Redoubt Road, Manukau. Mr Laine was again driving. His co-offender scaled a two metre wire fence that surrounded portions of the rear of the property, while Mr Laine broke through a wooden section of the fence. The co-offenders went up to the house, forcing open the alarm box and breaking the alarm before jemmying open the garage door. They then searched the entire house, taking a variety of electronic devices, jewellery, passports and other valuables valued at around $7,500.
[7] That evening, Mr Laine and his co-offender were stopped by Police on Great South Road, Otahuhu. The Police located 0.53 grams of cannabis and 1.38 grams of methamphetamine in the vehicle (though the charge against Mr Laine in relation to the methamphetamine was later withdrawn). The Police also located the property stolen earlier in the day, finding the burglary victim’s driver’s licence among the stolen items. CCTV footage from a neighbour’s address also clearly identified Mr Laine and his co- offender as they went to and from the house.
[8] At some point between the night of 3 October 2020 and mid-afternoon of 4 October 2020 – so, again while on bail for his earlier offending – Mr Laine went to a street in Silverdale.8 He went up to a trailer (valued at $2,300) parked outside one of the addresses on that street, removed a clamp and a chain that had been used to
8 Although the precise timing of the burglary is not known, the charge subsequently laid against Mr Laine was “Burgles (Other Property) ($500-$5000) by day” (emphasis added).
immobilise the trailer, and attached it to his car.9 Having stolen the trailer, Mr Laine drove less than a hundred metres to a nearby house and entered the dwelling through a broken window. Using an internal access, he entered the large commercial garage attached to the house, inside of which were two motorcycles with a value of $47,000. He cut the roller door chain, opened it, loaded the bikes onto the stolen trailer and drove away. The fact that Mr Laine stole the trailer first suggests he was aware of the presence of the motorbikes in the garage of the nearby property.
[9] The final charge, of failing to appear, relates to events on 10 June 2020, when Mr Laine failed to attend at the District Court for the purpose of a sentencing indication, having been remanded to appear on that date.
Criminal and bail history
[10] By the time that Mr Laine appeared before Judge Wharepouri for sentencing on 4 February 2021, he had been on bail for approximately 17 months. As well as committing the offences noted above while on bail, he had also breached his curfew on two occasions, in January 2020 and September 2020.
[11] On the date that he appeared for sentencing before the Judge, Mr Laine, who is 34 years of age, had appeared before the New Zealand courts for sentence on two previous occasions.
[12] The first was on 22 January 2019, when he was fined $850 for speeding on 2 February 2018, his first recorded offence.
[13] The second was on 11 April 2019, when he was sentenced to concurrent sentences of one year’s imprisonment on six charges of using a document for pecuniary advantage, two of receiving stolen property and one each of the theft of under $500 in property, driving while suspended, possessing an offensive weapon and failing to appear. All of these offences had been committed by Mr Laine during July and August 2018. I interpolate to note that it appears from Mr Laine’s Criminal and Traffic History Report that at (or shortly after) his sentencing on 11 April 2019, he was
9 This gives rise to the separate charge of theft of property.
released on the basis of time served, given the first of the offences for which he was sentenced by Judge Wharepouri was committed less than two months later, on 1 June 2019. Mr Laine was also on special release conditions at that time, though I do not have visibility of what they were.
[14] Turning back to Mr Laine’s criminal offending history, while that is fairly limited in this jurisdiction, Mr Laine, who is originally from Australia, has a more extensive criminal history in that country, committed over the period 2005 to 2012.10 This information was available at his sentencing and taken into account by the Judge.
[15] Mr Laine’s convictions in Australia include rather more serious offences of having “carnal knowledge of children under 16 years” and doing “acts intended to main/disfigure/disable” and assault “occasioning bodily harm”. These are of a quite different type to the index offending, however, and occurred in 2012, 2008 and 2006.
[16] Of (somewhat) more relevance to the index offending, Mr Laine had also been sentenced for “entering premises and commit[ing] indictable offence by break[ing and entering]” (2008), carrying a weapon in a public place (2004), multiple charges of possessing and supplying “dangerous drugs” (2008), wilful damage (2004), public nuisance (2012), failing to comply with reporting obligations (2012) and breach of bail conditions (2005). Across all these offences, Mr Laine was sentenced to imprisonment on ten occasions (though some sentences were suspended for two years), the longest such sentence being in 2012 when he was sentenced to two years six months’ imprisonment for what would in New Zealand be aggravated assault or injuring with intent to injure.
Personal circumstances
[17] When interviewed by a probation officer for the purposes of the pre-sentence report, Mr Laine accepted responsibility for his most recent offending. He said that he was angry with himself because of his offending, felt he had failed in his efforts to be a positive role model for his children, and said he was motivated to rehabilitate and stop offending. That notwithstanding, the report writer assessed him as having a low
10 Mr Laine entered the adult courts in 2006.
ability to comply with any electronically monitored sentence, given his offending occurred while on bail and his Australian criminal history.
[18] Mr Laine stated to the report writer that the offending occurred during a period when he was separated from his wife, having discovered she had been unfaithful to him, resulting in his leaving work and spending two months living on his own, feeling “lost”. He identified that he had become subject to negative peer influences during this period.
[19] Mr Laine also told the report writer that before arriving in New Zealand, he was working as a chef in Melbourne and had owned his own restaurant. He said he was happy and had a good lifestyle. When he arrived here, he began working as a security guard and apparently worked long hours, which he thought contributed to the breakdown of his marriage. The report writer noted from the Department of Corrections’ records, and the interview with Mr Laine, that Mr Laine appeared to have issues with compulsive behaviour; involving drugs and possibly gambling.
[20] The report writer recommended that Mr Laine be given the opportunity to address the aspects of his lifestyle related to his offending – poor impulse control, criminal associates, drugs, and gambling – through rehabilitation programmes in the context of a sentence of intensive supervision.
District Court sentencing
[21] Judge Wharepouri began by setting out the factual matters noted above, including also (the Crown accepts on appeal, erroneously) the circumstances of the methamphetamine located on 24 June 2019 in respect of which the charge had been discontinued before sentencing.11 Referring to Mr Laine’s personal history, the Judge described him as “someone with some potential who has an established work history”, who has limited family in New Zealand except for an aunt, whom Mr Laine’s counsel
11 New Zealand Police v Laine [2021] NZDC 1889 at [1]-[5]. While the Judge did refer to the methamphetamine found in Mr Laine’s car on 24 June 2019, when the charge relating to the methamphetamine had been withdrawn prior to sentencing, the Judge correctly noted that Mr Laine appeared for sentence on only one charge of possession of methamphetamine (that is, that methamphetamine located in Mr Laine’s car on 1 June 2019). It is accordingly not clear whether the Judge’s reference to the methamphetamine found on 24 June 2019 in fact carried through into his actual sentence.
Ms Kim had said had made her address available for home detention (which had not, at the time sentence was passed, been confirmed).12
[22] The Judge noted also Mr Laine’s remorse, evinced by a letter of remorse that had been tendered, which he accepted as sincere; and a certificate indicating that Mr Laine had successfully held a position of trust and responsibility in the prison while on remand.13 The Judge accepted that these matters were to Mr Laine’s credit.
[23] The Judge then alluded to the need for him to have regard to the principles and purposes of sentencing,14 choosing to referring in particular to the purposes of deterrence, denunciation and holding Mr Laine accountable for the harm caused, but also to the need to achieve consistency in sentencing outcomes and to impose the least restrictive sentence appropriate in the circumstances.
[24] Against that background, the Judge noted the pre-sentence report writer’s recommendation that the appropriate sentence in Mr Laine’s case was intensive supervision. As the Judge put it, “Ms Kim … accepts that that recommendation is woefully inadequate given the offending which is before this court, and I make it clear that I have no intention of following that recommendation.”15 Instead, the Judge, taking the burglaries as the lead offences, adopted a global starting point of 27 months’ imprisonment. As to his reasons for adopting this starting point, the Judge said:16
[11] […] When looking at the facts of the burglary carried out [on 24 June 2019] it is clear that it was aggravated by the fact that the property targeted was a residential one, two offenders were involved, forced entry took place and a significant amount of property was stolen. While there are no tariff cases for burglary, the Court of Appeal has said in Arahanga that burglaries of dwelling houses can attract sentences with a starting point of anywhere in the range of 18 months to two years and six month’s imprisonment. The bottom end of that range is reserved for relatively minor burglaries.
[12] I note that the burglary that was committed by you on 24 June alone is one that I would have treated as deserving a starting point of two years’ imprisonment. That is because of the aggravating features of that burglary which I have previously referred to […] But here, of course, you are charged with two burglaries. The second burglary is one that also could not be
12 At [8].
13 At [10].
14 At [6], referring (implicitly) to Sentencing Act 2002, ss 7-8.
15 At [9].
16 Citations omitted.
described as relatively minor, because of the value of the property taken and the fact that it involved a residential address. In setting a starting point for both burglaries, I must also take into account the totality principle. Therefore, for two burglaries, my view is that a starting point of 27 months’ imprisonment is appropriate. […]
[25] To this, the Judge added uplifts of ten months: six months in respect of the other charges for sentence, two months for the offending having been committed while on bail, and an additional uplift of two months in respect of Mr Laine’s previous dishonesty offending. This produced an overall starting point of 37 months’ imprisonment.17
[26] From this, the Judge allowed a guilty plea discount of nine months, intended to equate to the maximum available guilty plea discount of 25 per cent, and a further discount of three months (so, about eight percent), in respect of “limited remorse … future potential and what you have done since being taken into custody in a modest way”, noting that the discount “may have been more had you been able to do any counselling aimed at actual rehabilitation while in custody.”18 This produced an overall discount of 12 months (about 32 per cent), resulting in an end sentence of 25 months’ imprisonment.
[27] The Judge then imposed that sentence in respect of the two lead charges of burglary, convictions and discharges on the drugs and failure to appear charges, and concurrent sentences of one month’s imprisonment on the remaining charges.19
[28] In an addendum, the Judge noted that, just after sentence was passed, Ms Kim received a text message from Mr Laine’s aunt confirming the availability of her address for a sentence of home detention. On that basis, Ms Kim had asked the Judge “to recalibrate my discounting for the mitigating circumstances so as to place Mr Laine in a position where he was eligible for home detention.” The Judge declined to do so, and, so as to emphasise his assessment, noted that:20
[…] even if I had reached a point where the imprisonment sentence was 24 months or less, I would not have sentenced the defendant to home detention
17 At [12].
18 At [13].
19 At [15].
20 At [16].
[…] The offending here in my view is sufficiently serious that no sentence of less than imprisonment would have satisfied the sentencing purposes of denunciation and deterrence while holding Mr Laine accountable for the harm done.
Approach on appeal
[29] Mr Laine’s appeal against sentence is brought pursuant to s 244 of the Criminal Procedure Act 2011 (the Act). Pursuant to s 250 of the Act, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed.21 Otherwise, the appeal must be dismissed.22
The appeal – Submissions and analysis
[30] Ms Kim, who also appears for Mr Laine on appeal, submits that the Judge erred in numerous respects, the cumulative effect of which was to produce a manifestly excessive sentence. The grounds of appeal can be grouped under four headings.
Starting point adopted on lead burglary charges was too high
[31] First, counsel submits that the Judge erred in regarding Arahanga as a tariff case for burglary offending, when there is in fact no guideline case for burglary sentencing. The appropriate starting point, she submits by reference to what she says are two comparable cases of burglary, MacDonald and Simon,23 was less than 24 months’ imprisonment, having regard to the comparatively low gravity of the offending. That assessment is supportable, she says, by reference to the offenders having been unarmed, there having been no aspect of violence, limited risk of confrontation between the offenders and the occupants, mostly all of the items stolen having been recovered and Mr Laine’s lack of previous convictions for burglary.
[32] In terms of the authorities referred to by Ms Kim, in Arahanga, the Court of Appeal observed that that Court has not set a tariff for burglary because of the
21 Criminal Procedure Act 2011, s 250(2).
22 Section 250(3).
23 MacDonald v Police [2020] NZHC 3217; Simon v Police [2020] NZHC 2430, in which end sentences of 23 months’ imprisonment resulted.
extremely varied range of circumstances in which burglary can take place.24 Having regard to general trends in sentencing, however, the Court identified burglaries of domestic residences as particularly serious “due to the heightened risk of confrontation with the occupants”, with “relatively minor” such burglaries attracting starting points of between 18 months and two years and six months’ imprisonment.25
[33] As to MacDonald, it is not clear from the appeal judgment what the facts were which had given rise to the offending for which Mr MacDonald had been sentenced. Nor is it clear from the decision how the “end starting point of 30 months’ imprisonment” was arrived at by the District Court Judge. The decision accordingly does not provide significant assistance in this case.
[34] In Simon, Mr Simon was sentenced on two charges of burglary, and charges of possessing methamphetamine and cannabis and utensils, and breaching the conditions of home detention. At night, he entered a residential property while disguised, taking
$14,000 in household items and tapware. He returned the following evening, breaking through the front door, and taking tools and other items valued at $1,300. It is unclear if the property was recovered. In the District Court, a starting point of 2 years’ imprisonment on the first burglary, uplifted by 18 months for the second burglary, had been adopted. On appeal, Davison J considered the starting point adopted for the first burglary to be at the upper end of the available range, having regard to Arahanga, but considered the uplift on the second charge excessive. Substituting a starting point of 18 months on the first burglary, which he considered more appropriate, and adding an uplift of 9 months on the latter burglary, the Judge substituted a starting point of 27 months’ imprisonment in respect of both the burglary charges. Ms Kim suggests that Mr Laine’s offending was less serious than that in Simon, and accordingly justifies the lower starting point she advocates for.
[35] For the respondent, Ms Best submits that the Judge did not erroneously rely on Arahanga as a tarrif case, and that even if the Judge did consider himself bound by Arahanga, the guidance offered by that authority, as applied the Judge to the facts of this case, produced a starting point that was well within range. In this respect, Ms Best
24 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
25 At [78].
identifies the aggravating features of the offending as being the residential nature of both premises, the fact that in the first burglary there were two offenders, the damage occasioned to the properties, that over $50,000 in property was taken – even if much of that was recovered. As to the authorities to which Ms Kim refers, Ms Best submits MacDonald is of limited assistance (for the reasons noted earlier), and Simon demonstrates that the starting point adopted was within range, as do other burglary sentencings, such as Johnstone, Wilkinson, Banks, and Henriksen.26
[36] In Johnstone, Mr Johnstone was sentenced for two burglaries, driving with excess blood alcohol on two occasions, and one charge each of dangerous driving and breach of parole. The lead charge, Woolford J agreed on appeal, was a burglary involving “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”, but with little evidence of premeditation and limited damage being done to the house. The starting point adopted in the District Court of two years’ imprisonment was, Woolford J considered, within range.
[37] In Wilkinson, Mr Wilkinson was sentenced on a charge of burglary, together with other charges. There had been four burglaries in the one community in quick succession. Mr Wilkinson was convicted of receiving the property stolen on three of these occasions and of the burglary itself on the fourth. During that burglary, Mr Wilkinson took jewellery and cash valued at about $14,000, having ransacked every room in the house, also taking a late model luxury vehicle at the address. On appeal, Brown J identified the aggravating features of the burglary as being the fact a domestic residence was targeted, the presence of two offenders and the high level of loss caused, but appears implicitly to have accepted the fact that the occupants were not home mitigated the gravity of the offending home (because the offender had first made sure to establish they were not at home). By reference to Arahanga and other authorities, and these aggravating and mitigating factors, Brown J considered the starting point of two years adopted in the District Court as being appropriate.
26 Johnstone v Police [2012] NZHC 551; Wilkinson v Police [2016] NZHC 1845; Banks v Police
[2020] NZHC 859; and Henriksen v Police [2015] NZHC 2572.
[38] In Banks, the lead charges were three burglaries. All were private homes. The first two burglaries took place at night, which disclosed a real risk of confronting the occupants. The total value of property stolen was $12,000, together with a vehicle stolen from outside a suburban home. On one of the three occasions, Mr Banks had forced his way into an occupied dwelling. He was on bail on at least one of the occasions. On appeal, Dunningham J, referring to Arahanga for guidance, and other sentencing decisions for comparison, considered that the starting point of two years eight months’ imprisonment adopted on these charges by the District Court Judge was appropriate.
[39] In Henriksen, Mr Henriksen went to a farm and approached one of the occupants asking if she had any scrap metal he could take away. She told him he could take a length of chain. Mr Henriksen took the chain, but also two trailers valued at
$1,600. On appeal, Lang J upheld the starting point adopted by the District Court Judge on a burglary charge of twelve months’ imprisonment.
Starting point – discussion
[40] As noted by the Court of Appeal in Arahanga, and by counsel, there is no tariff case for burglary. However, the guidance provided in Arahanga has been consistently applied in subsequent cases of the burglary of residential premises, as emerges from the authorities referred to in counsel’s submissions and as summarised above. The aggravating features of burglary offending engaged in cases of this type are also consistently described in accordance with those noted in Arahanga.27
[41] In considering the starting point adopted by the Judge in this case for both burglaries, namely two years and three months’ imprisonment, I have had regard to those authorities referred to by counsel for Mr Laine and the respondent. I have also considered a number of other sentencings for burglary offending, particularly where there are two burglaries involved, namely Dawson v New Zealand Police,28 Shierney
27 See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [77]-[79].
28 Dawson v New Zealand Police [2020] NZHC 2296; two burglaries of the same property, a starting point of two years and six months’ imprisonment adopted in the District Court and upheld on appeal.
v Police,29 Cook v New Zealand Police,30 Tuala v New Zealand Police,31 McFall v New Zealand Police,32 Marsh v R33 and Cleghorn v New Zealand Police.34
[42] Having considered the various authorities, I consider a starting point of 27 months, or two years and three months’ imprisonment, was within the range available to the Judge and was not manifestly excessive. In saying this, I have regard to what I consider to be the aggravating features in this case, being the presence of two offenders in the first burglary, significant force used to gain entry into the properties with resulting damage, both properties being residential in nature (though accepting that the offending took place during the day), what appears to have been the targeted nature of the second burglary, and property of significant value having been taken.
Were the uplift for other offending excessive
[43] Ms Kim submits that the uplift of six months imposed in respect of the remaining charges was excessive, noting that except for the theft charge, these were all minor charges that, if sentenced on a standalone basis, would have resulted in a fine or community-based sentence only. Also, Ms Kim submits, the theft charge related to part of the same sequence of events as the second burglary, and ought therefore to have been dealt with as part of the three month uplift imposed in respect of that burglary. Finally under this heading, Ms Kim submits the Judge also erroneously considered the
29 Shierney v Police [2014] NZHC 2963; two burglaries of the same address, including the theft of three rifles. Starting point adopted of three years and six months’ imprisonment, not subject to adverse comment on appeal.
30 Cook v New Zealand Police [2019] NZHC 2327; a starting of two years’ imprisonment for a single burglary involving items valued at approximately $5,500 upheld on appeal.
31 Tuala v New Zealand Police [2013] NZHC 2370; a single burglary for which a starting point of three years had been adopted in the District Court, reduced to approximately two years’ imprisonment on appeal.
32 McFall v New Zealand Police [2015] NZHC 2095; two burglaries of residential properties in quick succession, with a starting point of two years and six months’ imprisonment adopted in the District Court, reduced to one year nine months on appeal.
33 Marsh v R [2010] NZCA 445; a case of three burglaries and an attempted burglary of houses in Napier and Gisborne, where a starting point in respect of the first burglary of three years and six months’ imprisonment adopted in the District Court was held to be correct (primarily by reference to considerations of parity between co-offenders).
34 Cleghorn v New Zealand Police [2018] NZHC 2553; a case of a single burglary of a residential property involving goods worth approximately $10,000 in value, including sentimental items, in which the District Court had adopted a starting point of three years’ imprisonment. On appeal, the High Court concluded that a starting point of no more than two years’ imprisonment was warranted.
methamphetamine located on 24 June 2019 when that charge had been withdrawn. Looking at the totality of the behaviour,35 Ms Kim says, the uplift was excessive.
[44]Ms Best submits that, even accepting the Judge erred in having regard to the
1.38 grams of methamphetamine located on 24 June 2019, the uplift imposed in respect of the remaining charges cannot be said to be excessive, having regard to the overall criminality of that offending, and is consistent with the uplifts adopted in the comparable cases of Henriksen and Duxfield.36
[45] I am not persuaded the uplift for the remaining offending was excessive. I note that the Judge referred, in the factual section of his judgment, to the 1.38 grams of methamphetamine found during the 24 June 2019 offending. But as noted earlier, the Judge correctly noted that only one offence of possession of methamphetamine was before the Court for sentencing.
[46] Further, I accept the respondent’s submission that, had the theft charge been sentenced on a standalone basis, a starting point of around 12 months’ imprisonment could have been imposed. On this basis, while I consider that the total uplift of six months’ imprisonment for the remaining charges to have been at the upper end of the available range, having regard to considerations of totality, I do not consider it to be manifestly excessive in the sense warranting intervention on appeal.
Uplifts for previous offending and offending on bail were excessive
[47] Ms Kim submits that the additional uplifts imposed for Mr Laine’s previous convictions (two months) and offending while on bail (two months) were also both excessive. While acknowledging Mr Laine’s criminal history in Australia and New Zealand, including for dishonesty offending, he is, counsel submits, a first time burglar whose previous convictions for dishonesty are all apparently minor.
[48] Also, Ms Kim submits, the fact that Mr Laine had spent a considerable period on restrictive bail conditions ought to have received some recognition at sentencing,
35 Counsel referring to R v Bradley [1979] 2 NZLR 262 (CA) at 263.
36 Counsel referring to Henriksen v Police [2015] NZHC 2572, Duxfield v Police [2015] NZHC 3018.
if only in the form of tempering or negating the uplift for offending while on bail or previous offending.
[49] Ms Best submits the uplifts adopted were appropriate and the Judge did not err in this respect, saying the previous conviction for burglary in Australia, together with Mr Laine’s previous New Zealand dishonesty offences, disclose an ongoing pattern of dishonesty offending by Mr Laine from which he has not been deterred by his previous sentences. Similar points are made in respect to the need for additional deterrence in terms of the uplifts adopted for Mr Laine’s having offended while on bail.
[50] Again, I am not persuaded that the Judge erred. There is a discernible pattern in Mr Laine’s prior offending, particularly his earlier dishonesty and property related offending in New Zealand. He also has a number of relevant earlier instances of offending in Australia, though I acknowledge that some are now quite historical. The uplift of two months was not in my view excessive.
[51] Nor in my view was the uplift for all of the index offending occurring while on bail. I do not consider the fact Mr Laine was on bail for a relatively lengthy period of time to mitigate this factor. The length of time has unfortunately led to a greater number of offences being committed during that time. It is also of concern that the index offending commenced almost immediately after Mr Laine was released from his earlier custodial sentence (and when he was subject to special conditions), reinforcing the need for additional deterrence in the form of an uplift.
The end sentence – is it manifestly excessive?
[52] Ultimately, irrespective of how the Judge arrived at his end sentence, I must stand back and consider whether the overall sentence was manifestly excessive.
[53] In my view it was not. While in some aspects a (very) slightly lower starting could have been adopted on the burglary charges, or a (very) slightly lower uplift adopted, it could also be said that the Judge’s discount for remorse of around eight percent in addition to the full 25 percent discount for Mr Laine’s guilty pleas was somewhat generous.
[54] Considering the totality of the offending, an end sentence of 25 months’ imprisonment was not in my view manifestly excessive. A one or two month reduction to this would in my view be “tinkering”. That is to say, in terms of s 250 of the Act, I am not satisfied a different sentence ought to have been imposed.
Should home detention have been imposed?
[55] For completeness, I record that even if I had allowed the appeal and substituted the sentence of imprisonment for one slightly lower, I would not have converted that sentence to one of home detention.
[56] In my view, the unfortunate pattern emerging in Mr Laine’s offending, including while on bail and shortly after serving an earlier sentence of imprisonment, was appropriately marked by a custodial sentence. In this context, the principles of personal deterrence, the promotion of accountability and community protection are particularly engaged.
Result and concluding comments
[57]The appeal against sentence is dismissed.
[58] Mr Laine has expressed his disappointment in his offending. He wants to be a better role model for his children. As the Judge noted, Mr Laine has potential to become a contributing member of the community.
[59] Now is the time and opportunity for Mr Laine to draw a hard line under his offending. He will no doubt wish to take whatever opportunities are available to him while serving his sentence to continue to secure the trust of those around him, and to engage in any relevant rehabilitative programmes that are made available to him.
Fitzgerald J
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