Lee v Police

[2019] NZHC 1172

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-097

[2019] NZHC 1172

BETWEEN

PETER HARVEY LEE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 May 2019

Appearances:

J I C Schlebusch for the Appellant

L J Fraser and T L Tuiburelevu for the Respondent

Judgment:

27 May 2019

ORAL JUDGMENT OF PALMER J

Solicitors:           Crown Solicitor, Auckland Counsel:  J Schlebusch, Whangaparoa

LEE v POLICE [2019] NZHC 1172 [27 May 2019]

What happened?

[1]    On 18 March 2018, Mr Peter Lee entered his partner’s house, where he resides, carrying a knife and they argued about the use of her cellphone. He threw the knife in the wall. She went to a separate bedroom. He smashed the front door. The next day, they argued over their relationship. Mr Lee threw a plate and cup at the wall, smashing them. She locked herself in the bedroom. He kicked the door down and dragged her to the floor by her ponytail saying “this is what it’s like to get abused”. She received bruises and lost a large chunk of hair. She signalled to a neighbour to call the Police.

[2]    One evening in early June 2018, Mr Lee forced entry into a Habitat for Humanity store in Panmure, Auckland. He smashed glass cabinets causing damage of around $800 and took jewellery of an unknown value. In July 2018, he stole a vehicle in Highland Park. He was arrested on 19 July 2018, while driving it in Auckland. He was granted Police bail but failed to attend when required. That may have been because, around that time, he was burgling three baches, belonging to his former neighbours at Waihi Beach. He caused around $1,500 in damage to one bach and took electrical goods and other household items from the other two, valued for reparation purposes at around $20,000. An owner spotted him in the kitchen of one bach before he ran away.

[3]    Mr Lee pleaded guilty to four charges of burglary, of the three baches and the Habitat for Humanity store, male assaults female, wilful damage of the bedroom door, unlawfully getting into a motor vehicle and breach of bail. In January 2019, in the Auckland District Court, Judge B A Gibson noted he would be justified in sentencing Mr Lee cumulatively for the family violence offending (which counsel today both acknowledge) but he later stated that, “of course” the sentences would be concurrent.1 He fixed a starting point of four years’ imprisonment, for the burglaries, breach of bail and motor vehicle offences.2 He uplifted the starting point by six months for the male assaults female and wilful damage offences on a totality basis although, standing on their own, he would have looked at a nine to 10 month starting point for those offences.

1      New Zealand Police v Lee [2019] NZDC 209 at [2] and [12].

2 At [8]. An addendum added by the judge on the afternoon of the sentencing suggested the starting point was for all charges other than male assaults female, but that is contradicted by the logic of the Judge’s sentencing remarks.

He imposed an additional uplift of three months for offending while on bail. He gave discounts of four months for Mr Lee’s remorse expressed in letters he wrote to his burglary victims and to the Court; three months for his general background which includes drug addiction and a serious brain injury; and two months for self-referral to a drug treatment course. He gave a 20 per cent discount for Mr Lee’s guilty plea. At sentencing, the Judge wrongly calculated the resulting end sentence to be two years and five months’ imprisonment. Later that afternoon, he corrected the overall sentence to be three years and two months’ imprisonment. Mr Lee appeals his sentence.

Law

[4]    Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied there is a material error in the sentence and a different sentence should be imposed. Otherwise it must be dismissed. My focus is on whether the end sentence  is within the available range.

[5]    In Arahanga v R, the Court of Appeal gave some general guidance on sentencing for burglary.3 Burglary of a domestic residence is a significant aggravating factor, due to the heightened risk of confrontation with occupants. Relatively minor- scale burglary of domestic residences tends to attract a starting point of one and a half to two and a half years’ imprisonment. Aggravating factors include where more than one house is burgled, there is more than one burglar or high value items are taken. In Jones v R, the Court of Appeal upheld a starting point of three years’ imprisonment for three burglaries from residential properties to the value of $36,000.4 In Makene v R, the Court upheld a starting point of three and a half years’ imprisonment for eight burglaries of residential properties amounting to $33,400 of property and involving forced entry.5 It also upheld a starting point of three and half years’ imprisonment in Swinburne v R, involving day-time burglaries of four residential properties of property worth $13,531.6

3      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

4      Jones v R [2012] NZCA 273 at [15].

5      Makene v R [2013] NZCA 178 at [14].

6      Swinburne v R [2010] NZCA 568 at [15].

Submissions

[6]    Mr Schlebusch, for Mr Lee, submits the starting point was too high and, having regard to relevant authorities, it should have been three and a half years’ imprisonment at most, relying on Swinburne, because of the absence of aggravating factors. He submits the other elements of the sentencing are more or less appropriate. He cites other sentences where the starting point was three and a half years but involved more burglaries, more offenders or property of a greater value.7

[7]    Ms Tuiburelevu, for the Crown, acknowledges a starting point of three years and six to nine months’ imprisonment would have been appropriate for the four burglary charges alone. But she submits the four-year starting point was appropriate because it reflected the breach of bail and unlawfully getting into a motor vehicle as well as the four burglaries. She points to the aggravating factors of: considerable damage to one bach and the Habitat for Humanity store which was charitable in nature; items of significant value being taken from the baches; one of the owners of the baches being present; and the offences being committed on bail. She submits the uplifts were open to the Judge, an uplift for previous relevant criminal offending was open to the judge but not imposed and the family violence offending would have justified a cumulative sentence. She submits the overall sentence was not manifestly excessive.

Should the sentence be overturned?

[8]    I consider the four-year starting point was too high, even including the breach of bail and motor vehicle charge as well as the four burglaries. Three years and six months’ imprisonment would have been a reasonable starting point for the four burglaries, taking into account the aggravating factors to which the Crown points, except the offending while on bail which is better dealt with by a separate uplift of three months, as it was. A three-month uplift for the breach of bail and motor vehicle charge would have been justified. It follows I consider there was an error in setting the starting point three months too high. Applying the Judge’s discounts of four months for remorse, three months for background and two months for self-referral would yield an overall sentence of 39 months for the burglary, bail and motor vehicle

7      Makene v R, above n 5; Haimona v Police [2018] NZHC 472; Singh v Police [2016] NZHC 1739.

charges, which, with a 20 per cent discount, amounts to 31 months or two years and seven months’ imprisonment.

[9]    But, as the Judge said, the family violence charges could have been imposed cumulatively on those charges, as they were different in nature and time. I consider not doing so was also an error. A starting point of 10 months, or 43 weeks, with proportionate discounts of one month for remorse, three weeks for background and two weeks for rehabilitation would result in a separate sentence of 34 weeks or six months and one week after the 20 per cent discount. Imposed cumulatively, that would be an overall sentence of imprisonment of three years, one month and one week. I do not consider a discount for totality is justified in these circumstances.

[10]   I consider the sentence imposed, of three years and two months, was not manifestly excessive. It was within the range available to the Judge. While there were errors in the sentencing, I do not consider a different sentence should be imposed. I dismiss the appeal.

Palmer J