Laughland v Police HC Auckland CRI-2011-404-61
[2011] NZHC 1044
•28 June 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-61
BETWEEN STEWART NORTON LAUGHLAND Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 27 June 2011
Appearances: A Comeskey for the Appellant
N Wilde for the Respondent
Judgment: 28 June 2011
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 28 June 2011 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Counsel: A P Comesky, PO Box 4304, Auckland 1140
LAUGHLAND V POLICE HC AK CRI-2011-404-61 28 June 2011
[1] Mr Laughland pleaded guilty to one charge of burglary pursuant to s 231(1)(a) of the Crimes Act 1961, which has a maximum penalty of 10 years imprisonment. On 21 January 2011, Judge Gibson sentenced Mr Laughland in the Auckland District Court to 20 months imprisonment.
[2] Reparation had been agreed upon at a restorative justice conference and an order for reparation of $5,000 was made by Judge Gibson, to be paid at a rate of $20 a week, to commence on Mr Laughland’s release from jail.
[3] Mr Laughland now appeals against the sentence of imprisonment.
Facts
[4] On the evening of 5 June 2010, Mr Laughland went to an apartment in Auckland City. The occupant, Mr Wood, had invited several friends to his house for drinks. One of them was accompanied by Mr Laughland who did not know Mr Wood. Later Mr Wood, Mr Laughland and others went to a number of bars and clubs in the City.
[5] At around 4 am, Mr Laughland left the group and returned to Mr Wood’s apartment. He entered his bedroom and took an Apple MacBook laptop computer and a Louis Vuitton bag, which had a combined value of $5,000. CCTV footage showed Mr Laughlan leaving with the stolen items.
[6] When spoken to by police, Mr Laughland admitted the facts and said he sold the items to an Asian couple at the back of the building for $100. The property remains unrecovered.
[7] The burglary had a particular and significant cost to Mr Wood. The laptop was brand new, having been purchased by his parents the week before the burglary, as well as new software on it for Mr Wood to use in an accountancy course he was enrolled to start the week after. Following the burglary the lease company refused to pay out on insurance, deeming Mr Wood to be a third party because the laptop had been purchased by his parents. He was ultimately unable to attend his course
because he did not have a computer. As well, the burglary was particularly upsetting for Mr Wood because Mr Laughland had earlier been welcomed as a guest at his home.
[8] Mr Laughland entered a guilty plea on 19 July 2010. It appears he has an alcohol problem. He said that he had returned to Mr Wood’s apartment intoxicated and had intended to stay the night there. However he “spotted the gear”, took the items and immediately sold it.
[9] Mr Laughland has 36 previous convictions, including 24 for dishonesty offences namely theft, burglary, vehicular theft, shoplifting and theft as servant. He has nine previous convictions specifically for burglary the most recent of which was in 2005. For that he received a sentence of 18 months imprisonment. Following his release in 2007, he committed a further offence of theft of property (under $500) for which he was ordered to come up for sentence if called upon.
[10] The probation officer considered that Mr Laughland was remorseful for his offending, stating that upon release from prison in 2007 he had made a conscious effort to stop offending. Mr Laughland described this latest turn of events as a “setback” and said that he felt extremely disappointed in himself. He expressed willingness to pay reparation although by the time he came up for sentence before Judge Gibson he had not made any payments. A fines query revealed that he owed
$7,233.71, which he was repaying weekly.
[11] Mr Laughland is assessed at moderate to high risk of reoffending based on his conviction history. A sentence of community work, reparation and supervision with special conditions was recommended. No suitable home detention address was available.
Sentencing in the District Court
[12] After summarising the facts, the District Court Judge noted Mr Laughland’s extensive history of dishonesty but also referred to his attempts to change his life and his recent obtaining of employment. He described the crime against Mr Wood as
opportunistic, but said that it was one that involved a considerable breach of trust, because Mr Laughland had taken the opportunity to eye up items which could be stolen during the time he had been a guest in Mr Wood’s home.
[13] Judge Gibson then referred to the relevant authorities. He stated that the community is entitled to be protected from recidivist burglars, and that having regard to Mr Laughland’s previous convictions (including in particular his most recent sentence of 18 months imprisonment) the appropriate starting point was two years imprisonment. That starting point was discounted by four months (just under 17 per cent) for the guilty plea, resulting in a final sentence of 20 months imprisonment.
The law
[14] Section 121(3)(b) of the Summary Proceedings Act 1957 governs appeals against sentence. It remains the case that an appellate Court will not interfere unless the sentence is manifestly excessive or wrong in principle. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached: R v MacCulloch.1
[15] The decision in Senior v Police2 set out three classes of burglaries (first time, recidivist, and spree burglars). In the case of recidivist burglars such as Mr Laughland, the Court in Senior said that the length of the sentence will depend on the number of previous convictions, the number of offences for which the offender appears for sentence, and the presence of aggravating and mitigating factors. A significant factor is the protection of the public.
[16] In R v Southon,3 however, the Court of Appeal stated that Senior should only be seen as a helpful analysis rather than a definitive sentencing range for recidivist burglars. And in R v Columbus,4 the Court observed that previous dishonesty
convictions are often treated as components of the burglary starting point although
1 R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].
2 Senior v Police (2000) 18 CRNZ 340 (HC).
3 R v Southon (2003) 20 CRNZ 104 (CA) at [13].4 R v Columbus [2008] NZCA 192.
they are more properly to be regarded as aggravating factors pertaining to the offender.5 The Court warned against the risk of undue emphasis on past dishonesty convictions, which could lead to a sentence that punished primarily previous offending.6 It also said that:
…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…. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[17] The preferable approach is to apply Taueki and determine the starting point by taking into account features of the offending only.7
[18] In Southon it was held that an opportunistic burglary of a residential property in the afternoon justified no more than a starting point of 1 years’ imprisonment. An uplift of 6 months was given for offences committed while on bail and shortly after the burglary (theftone 1 year was given for his 89 previous convictions, 13 of which were for burglary. A final sentence of one year 10 months imprisonment was substituted in that case.
[19] In terms of comparable cases I also note the decision in Paul v Police8 where there was a guilty plea to one charge of burglary and one charge of theft involving breaking into a vehicle and one month later breaking into a dwellinghouse during the day. The prisoner had 46 previous convictions, 19 for dishonesty offences and five of which were for burglary. The starting point was two years imprisonment (which was considered stern but not manifestly excessive on appeal) which was uplifted by six months for theft. The end sentence was 20 months imprisonment, which was
upheld on appeal.
5 At [14].
6 At [15].
7 See Guest v Police HC Whangarei CRI-2010-488-63, 24 March 2011 at [16] per White J; Kiikoro v
Police HC Whangarei CRI-2010-488-24, 6 October 2010 at [19] per Andrews J.
8 Paul v Police HC Auckland CRI-2010-416-1, 4 February 2010.
Submissions
[20] Mr Comesky did not take issue with the 24 month starting point adopted by Judge Gibson. The focus of Mr Comesky’s submissions was on the discount which should be given to Mr Laughland for mitigating factors. As I have noted he submitted in particular that Judge Gibson failed to take specific and separate account of Mr Laughland’s efforts at rehabilitation or of the reparation order made, as required by s 10 of the Sentencing Act. He said taken together with the early guilty plea and Mr Laughland’s remorse a 33 per cent discount was warranted.
[21] Ms Wilde for the Police submitted that even if a 33 per cent discount may have been warranted, Judge Gibson’s starting point was at least arguably too low. On the authority of cases such as Moses v Police and Tawharu v Police9 she submitted that anywhere between 30 and 36 months would have been within range. On that analysis the end point arrived at by Judge Gibson could not be said to be outside the available range.
Analysis
[22] To adopt the Taueki methodology, I consider that, having regard to the breach of trust that was involved, a starting point of between one year three months and one year six months imprisonment would be appropriate in Mr Laughland’s case. I do not think it would be fair to regard him as a recidivist in the sense of being a professional burglar. However the breach of trust would justify a slightly higher starting point than the one year in Columbus, which involved an opportunistic burglary of a residential property during the afternoon.
[23] I consider that an uplift of 9-12 months might be appropriate for Mr Laughland’s nine previous burglary convictions. Although numerous, they are not, perhaps, comparatively so (Mr Moses had 26 previous burglary convictions,
Mr Tawharu had 20). On this analysis a starting point of between two and two and a
9 Moses v Police HC Whangarei CRI 2011-488-000006, 24 March 2011; Tawharu v Police HC Palmerston North CRI 2004-454-01, 6 April 2005.
half years imprisonment would be appropriate. The starting point adopted by
Judge Gibson is therefore at the lowest end of that range.
[24] In terms of mitigating factors I accept that the 17 per cent discount for Mr Laughland’s guilty plea and remorse is somewhat on the low side.10 That said, however, the strength of the Police case (the unequivocal CCTV footage) is plainly relevant to the size of that discount and I certainly do not consider that a full 33 per cent would be warranted in that respect.
[25] The question that has exercised me the most relates to the question of reparation. It was a matter that Judge Gibson was required by s 10 to take into account but it is unclear whether he did so. More importantly, perhaps, it was unclear to me how he did so, given that the order made by the learned District Court Judge does not come into effect until Mr Laughland’s release from prison.
[26] On the one hand I must assume that the judge believed that Mr Laughland’s offer of reparation was “genuine and capable of fulfilment”11 (as otherwise he would not presumably have made the order). On the other the fact that Mr Laughland had previously failed to make any payments must give rise to a question mark, at least insofar as his capability is concerned.
[27] For these reasons I tend to accept Ms Wilde’s submission that Judge Gibson essentially regards the issue of reparation as neutral. It seems to me that was a position he was entitled to take, provided he turned his mind to the issue. Although s 10(1) requires a sentencing Court to take any offer of amends into account, the words in s 10(2) (“In deciding whether ... any matter referred to in subsection (1) should be taken into account ....”) suggests that such an offer may ultimately be given no weight.
[28] For myself, I accept that Mr Laughland’s remorse and offer of reparation
were genuine, although I have reservations about his ability to carry it into effect,
10 At the time of Mr Laughland’s guilty plea the Supreme Court decision in Hessell had not yet been delivered. It was therefore accepted by counsel that it was the Court of Appeal’s decision in that applied in this case.
11 Section 10(2)(a).
notwithstanding Judge Gibson’s order in that regard. On that basis I consider that the weight to be accorded to the reparation order is very limited.
[29] In the end, and in all the circumstances of Mr Laughland’s case, I consider that an appropriate discount for the four mitigating factors identified by Mr Comesky would be between 20 and 25 percent. While that is higher than the discount afforded to Mr Laughland by Judge Gibson it does not lead to the conclusion that the appeal must be allowed. An application of the highest (25 per cent) discount to the lowest (24 month) starting point gives an end sentence of 18 months imprisonment. An application of the lowest (20 percent) discount to the highest (30 month) starting point gives an end sentence of 24 months. The 20 month sentence imposed by Judge Gibson is well within the resulting range and cannot therefore be said to be “manifestly excessive”.
[30] The appeal is dismissed accordingly.
Rebecca Ellis J
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