Lester v The the King

[2022] NZHC 2945

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-20

[2022] NZHC 2945

BETWEEN

REGAN JAMES LESTER

Appellant

AND

THE KING

Respondent

CRI-2022-412-21

BETWEEN

REGAN JAMES LESTER
Appellant

AND

THE KING

Respondent

Hearing:	8 November 2022 (by way of AVL)
Appearances:	M J Scally for Appellant R D Smith for Respondent
Judgment:	9 November 2022

JUDGMENT OF EATON J

This judgment was delivered by me on 9 November 2022 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

LESTER v R [2022] NZHC 2945 [9 November 2022]

Introduction

[1]    Following a sentence indication, Regan Lester pleaded guilty to a charge of burglary.1 While awaiting sentence on that charge he committed further offences of unlawfully interfering with motor vehicles,2 burglary,3 careless driving,4 and driving while  disqualified.5    Following  his  guilty  pleas  to  those  additional  charges,  on 2 February 2022 he was sentenced in the District Court at Dunedin by Judge Turner to two years and two months’ imprisonment.6

[2]    Mr Lester appeals this sentence. He says that the uplifts for offending while on sentence and on bail were too high. He also applied to admit a cultural report into evidence. He contends that the end sentence should have been in the range in which home detention could have been imposed.

Appeal out of time

[3]Mr Lester was sentenced on 2 February 2022.

[4]His appeal is undated. It was filed well out of time, on 2 June 2022.

[5]    Ms Scally, who was not acting for Mr Lester at sentencing, is unable to explain the late filing of the appeal.   It seems most likely that, following the sentencing,    Mr Lester lost contact with his counsel and did not seek advice as to an appeal.

[6]    Mr Smith, for the prosecution, takes no issue with leave being granted to appeal out of time. Accordingly, and not without some reluctance, I will grant leave.

1      Crimes Act 1961, s 231(1)(a) – maximum penalty of 10 years’ imprisonment.

2      Crimes Act, s 226(2) – maximum penalty of two years’ imprisonment.

3      Crimes Act, s 231(1)(a) – maximum penalty of 10 years’ imprisonment.

4      Land Transport Act 1998, ss 8 and 37(1) – maximum penalty of a fine of $3,000 and disqualification from holding or obtaining a driver’s licence for such period as the court thinks fit.

5      Land Transport Act, ss 5(1)(c), 32(1)(a) and 32(3) – maximum penalty of three months’ imprisonment or a fine of $4,500, and disqualification from holding or obtaining a driver’s licence for at least six months.

6      R v Lester [2022] NZDC 1647.

Facts

[7]    Between 31 December 2020 and 5 January 2021, Mr Lester entered the victim’s property on Norwood Street, North Dunedin. Wearing gloves, he forced open a secure window to the office of the house. He climbed in the window and searched the house, opening drawers and moving items around. Mr Lester stole a vase from a table in the hallway, a television from the lounge, and a laptop and lamp from the office.

[8]    While inside the address, he smoked a cigarette and dropped the butt on the floor of the lounge. His cigarette left a burn mark in the carpet hallway. Mr Lester smashed the glass to the French doors of the garage on the other side of the property and entered and searched the garage and art studio for items to steal. Then, while leaving the address, he dropped a laptop charger on the driveway. When Mr Lester was located and arrested, he denied committing the burglary, said he puts his cigarette butts in his clothes pockets and that he had his clothes stolen by an associate — therefore, he said the cigarette butt must have been in his stolen clothes and fallen out. Those are the facts of the first burglary.

[9]    At around 1.35 am on 15 December 2021, Mr Lester was walking westwards along Macandrew Road near Reid Road in South Dunedin. He approached three different parked vehicles and attempted to open each of them by trying their door handles. In explanation Mr Lester said he touched the silver vehicle as it was on sale and he was curious about it. This offending gave rise to the charge of unlawfully interfering with motor vehicles.

[10]   At about 4.20 pm on 18 December 2021, Mr Lester was being driven in his vehicle by an associate on Union Street West, Dunedin. Mr Lester had been disqualified from driving on 20 May 2020 for a period of one year and eight months. His associate parked outside the victim’s address. Mr Lester exited the vehicle, entered the dwelling and took numerous items. He attempted to enter a locked bedroom but was unsuccessful and damaged the door frame and lock in the process.

[11]   The victim and her partner, the second victim, arrived at the address and observed Mr Lester carrying a television from the address to the street. When

confronted by the second victim, Mr Lester put the television in the boot of his vehicle and got into the driver’s seat. These events gave rise to a charge of burglary.

[12]   Mr Lester then reversed quickly, crashing into the second victim’s vehicle parked nearby. He scraped down the side of the vehicle and continued reversing rapidly. He then reversed across the road and crashed into the vehicle of the third victim, a local resident, causing significant damage to the door panel. Mr Lester drove away from the scene. The second victim chased the vehicle on foot. After a short time, Mr Lester stopped the vehicle and he and his associate fled the scene. He ran through nearby properties to Cosy Dell Road, where he paid a passing motorist to take him to a Brockville address. He was later located at this address and arrested. This offending gave rise to charges of operating a vehicle carelessly and driving while disqualified.

[13]   In explanation, Mr Lester stated he had not entered the dwelling and had only picked up the items of property from the street at the request of his associate. He admitted to crashing into the second and third victims’ vehicles, saying he panicked.

Procedural background

[14]   On 23 February 2021 Mr Lester pleaded not guilty to the first burglary charge and elected trial by jury. He was remanded on bail with conditions including a night- time curfew. On 8 November 2021, shortly before his jury trial was to commence, Mr Lester appeared before Judge Turner seeking a sentence indication.

[15]   In giving that indication, the Judge characterised the burglary as moderately serious. He observed the starting points for burglaries of residential properties where a small amount of property is taken range between 18 and 30 months’ imprisonment. Having regard to the damage caused, and the nature and estimated value of the items taken, he indicated a starting point of 24 months’ imprisonment.

[16]   The Judge considered the fact the offending occurred while Mr Lester was on release conditions necessitated an uplift of three months. The Judge indicated he would allow a discount of 15 per cent for a guilty plea and that it was likely further

credits would be available to account for Mr Lester’s mental health issues. A further credit to reflect any reparation payment was flagged.

[17]   The Judge calculated that the end point would be under two years’ imprisonment and indicated that, subject to a favourable pre-sentence report, he would impose a sentence of home detention.

[18]   Mr Lester promptly accepted the sentence indication and pleaded guilty to the first burglary. He was convicted and remanded on bail to 2 February 2022.

[19]    About five weeks later, on 15 and 18 December 2021, Mr Lester committed the further offences. On 20 December 2021 he was arrested and remanded in custody. On 13 January 2022 he pleaded guilty to the further charges and was remanded in custody for sentence.

District Court decision

[20]On 2 February 2022, Mr Lester was sentenced on all charges by Judge Turner.

[21]   The Judge adopted the indicated starting point of 24 months’ imprisonment for the first burglary. He observed that the second burglary involved a residential property, damage in effecting entry, and a confrontation with the victim who suffered harm as detailed in the victim impact statement. To account for the second burglary and the driving offending, the Judge uplifted the indicated starting point by six months, noting a significant aggravating factor of the driving while disqualified offending was that it was committed to avoid apprehension following the commission of an offence. This resulted in an overall starting point of 30 months.

[22]   The Judge then imposed the indicated uplift of three months to reflect that  Mr Lester committed the first burglary while subject to release conditions. He imposed a further uplift of three months for the fact the second tranche of offending occurred after Mr Lester had been released from electronic monitoring7 and was on

7      The reference to electronic monitoring was in error. Mr Lester was on ordinary bail.

bail awaiting sentence on the first burglary, which was described as a “seriously aggravating factor”. Combined, these uplifts amounted to six months (or 20 per cent).

[23]   The Judge referred to the  15  per  cent  discount  previously  indicated  for Mr Lester’s guilty plea to the first burglary and determined that he was entitled to a 25 per cent discount for his guilty pleas to the additional charges. That discount was characterised as generous as the Judge considered the evidence to be overwhelming. Adopting the “pragmatic approach” suggested by Mr Lester’s counsel, the Judge fixed an overall guilty plea deduction of 20 per cent.

[24]    An additional credit of 10 per cent was allowed for the link the Judge considered existed between Mr Lester’s personal background and his offending and for his willingness to attend a restorative justice conference. The Judge referred to the pre-sentence report which referred to head injuries Mr Lester suffered as a young person and to a diagnosis of attention deficit hyperactivity disorder (ADHD), which tended to result in impulsiveness and Mr Lester’s disposition to please others. He noted a suggestion Mr Lester carried out the burglaries on the instructions of others to pay for his methamphetamine use.

[25]   Applying these adjustments led to a sentence of 27 months’ imprisonment. The Judge then allowed a further discount of one month to reflect the time Mr Lester spent on EM bail.8

[26]   Mr Lester was sentenced to 26 months’ imprisonment. Orders were made for reparation in the sum of $500 and emotional harm reparation in the sum of $500, to be paid at $20 a week commencing four weeks after his release.

[27]   On the charge of driving while disqualified, Mr Lester was disqualified from holding or obtaining a driver’s licence for two years commencing from the sentence date of 2 February 2022.

8      See above n 7.

Principles on appeal

[28]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 (CPA) and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.9 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10 The focus is on whether the sentence imposed is within range rather than the process by which it was reached.11

Submissions

Appellant’s submissions

[29]   Counsel for Mr Lester, Ms Scally, submitted the sentence was manifestly excessive on the following grounds:

(a)the uplifts totalling six months’ imprisonment (20 per cent) for offending whilst on release conditions, on sentence and on bail were higher than warranted and only a 10 per cent uplift was justified; and

(b)fresh evidence, in the form of a cultural report dated 12 October 2022, has become available that provides important additional background to Mr Lester’s offending that warrants an additional five per cent discount for personal circumstances; and

(c)if the cultural report is not admitted as fresh evidence, the 10 per cent allowance for personal factors was nevertheless too low.

[30]   Ms Scally contended for an end sentence of 21 months’ imprisonment. She abandoned the submission that the sentence should be commuted to one of home

9      Criminal Procedure Act 2011, ss 250(2) and 250(3).

10     Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

11     Islam v R [2020] NZCA 140 at [32], citing D (CA197/2014) v R [2014] NZCA 373 at [18]; and

Tutakangahau v R, above n 10, at [36].

detention to be served at the address of Mr Lester’s parents. That concession was appropriate given Mr Lester has already served eleven months of his sentence having been remanded in custody in December 2021.

Respondent’s submissions

[31]   For the Crown, Mr Smith submitted the sentence imposed was not manifestly excessive.

[32]   Mr Smith submitted the 20 per cent uplift was within the available range. He highlighted that Mr Lester was not only on bail for the first burglary when he committed the second burglary, but was also awaiting sentence for that first offence, which he in turn had committed while subject to release conditions for a prior dishonesty matter (amongst others). He notes that Mr Lester offended on two different dates whilst on bail awaiting sentence.

[33]Mr Smith submitted the present case sits between those of Skipper v R and

Thomas v R in terms of the uplifts required for offending on bail for similar matters.12

[34]   As regards the s 27 report, Mr Smith contended it lacks cogency and ought not be admitted on appeal and in any event does not provide any sufficiently fresh information that would warrant credit in excess of the 10 per cent provided. He referred to authority recognising that such reports should not be submitted for the first time on appeal and that, if it appeared the report would make a difference to sentencing, the proper course may be to remit the matter to the District Court. The primary submission was that background matters as to Mr Lester’s head injury, ADHD and methamphetamine use were already before the Judge at sentencing and no causative link is evident between the further matters raised in the cultural report and Mr Lester’s offending to materially add to the information contained in the pre- sentence report. Mr Smith argued that, in the absence of independent persuasive evidence to affirm what is otherwise mere self-reporting as to the other matters raised (that is, the finding of a dead body as a child and experiences on a camp), the cogency of the report is diminished and it is not in the interests of justice to admit it on appeal.

12     Skipper v R [2011] NZCA 250; and Thomas v R [2020] NZCA 257.

Analysis

[35]   No issue is taken on appeal with the starting point of 30 months’ imprisonment for the two sets of offending.

[36]   The offending involved two burglaries of domestic residences where in both incidents Mr Lester caused damage to property and emotional harm to the victims. The victims speak of the sense of violation and stress caused. In the first  burglary, Mr Lester stole items of financial and sentimental value, and in the second confronted the occupants as they arrived home and proceeded to cause damage to two cars by driving carelessly and while disqualified. In Arahanga v R, the Court of Appeal identified that burglary of a domestic residence is a significant aggravating factor, due to the heightened risk of confrontation with occupants, and would attract a starting point in the range of 18 months’ to two and a half years’ imprisonment at the relatively minor end of the scale.13

[37]   Mr Smith says the uplift of six months for the further offending was merciful. That submission has merit. A starting point of 30 months’ imprisonment was lenient.

Uplift too high?

[38]   The Sentencing Act 2002 requires the Court to take into account that an offence was committed while the offender was on bail, or still subject to a sentence.14 The appropriate level of uplift will be determined by the facts of the case. Was a 20 per cent uplift justified?

[39]   The fact Mr Lester was on release conditions when he offended, although not a mandatory factor for consideration under s 9 of the Sentencing Act, is properly regarded as an aggravating factor because it demonstrates the failure of both deterrence and supervision.15 Similarly, the uplift for offending subject to bail pending sentence is applied to reflect the aggravating factor of the offender’s disregard for court processes and orders.16

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

14     Sentencing Act 2002, s 9(1)(c).

15     Robertson v R [2016] NZCA 99 at [79].

16     Clunie v R [2013] NZCA 110 at [22].

[40]   Mr Smith refers to R v Skipper. In that case, the appellant pleaded guilty to two charges of burglary. The Court of Appeal considered an uplift of around six months on a starting point of four and a half years’ imprisonment (11 per cent) to be too light to reflect the appellant’s prior convictions and offending while on bail.17 The appellant had seven previous convictions for burglary, the most recent of which had occurred two months before the instant offending. At the time of the offending, he was also on bail for three dishonesty offences (burglary, theft and unlawfully taking a motor vehicle). In dismissing the appeal, the Court found these were significant aggravating factors which would have justified an uplift of 18 months (33 per cent).

[41]   In White v Police, the appellant pleaded guilty to three breaches of a protection order, as well as charges of receiving property and unlawfully getting into a motor vehicle.18 The Judge considered the combined seven-month (19 per cent) uplift to a 36-month starting point applied for the fact of offending while on a sentence of intensive supervision for family violence (three months) and while on bail or in custody and in breach of a condition not to contact the victim (four months) was “a little high”. However, the sentence was not disturbed on appeal as the Judge considered an additional uplift for the appellant’s previous convictions for family violence would have been warranted.

[42]   In Thomas v R, the appellant had been sentenced to 14 months’ imprisonment for attempting to pervert the course of justice.19 The Court of Appeal held that a four- month uplift (22 per cent) to the 18-month starting point could not be justified for the appellant’s previous convictions and the fact he offended on parole. There was a weak correlation between the previous convictions and the index offending and the uplift was disproportionate to the original sentences imposed. Only the offending on parole was found to be relevant. The appellant had been recalled on two previous occasions. An uplift of at most two months (11 per cent) was found to be justified.

[43]   Reference to four very recent cases indicates that lower level uplifts for such matters are commonly applied. In R v Rata,20 a sentencing for manslaughter (using a

17     Skipper v R, above n 12.

18     White v Police [2020] NZHC 1535.

19     Thomas v R [2020] NZCA 257.

20     R v Rata [2022] NZHC 2749.

firearm) and firearms offending, an uplift of eight per cent was applied to reflect previous firearms convictions and firearms offending while on bail for firearms offending. In the motor manslaughter case of R v Speir21 an uplift of 2.5 per cent (two months) was applied to reflect the offence occurred whilst the defendant was subject to a sentence of supervision for driving while suspended (third or subsequent). In R v Kopua,22 a starting point of nine years for causing grievous bodily harm was uplifted by one month for offending while on EM bail. And in Charlett v Police, Osborne J upheld an uplift of eight per cent for offending on bail from an adjusted starting point of 36 months’ imprisonment.23

[44]   Mr Lester committed the first burglary in January 2021 when he was on release conditions following a sentence of 10 months’ imprisonment imposed in May 2020 for receiving stolen property and a number of other charges, including dangerous driving and possession of methamphetamine utensils. The District Court Judge sentencing Mr Lester on that occasion described the receiving as “closely connected to a burglary”. The dangerous driving offending comprised Mr Lester accelerating away from Police in a deliberate attempt to avoid apprehension for possession of drugs and ended in him colliding into a tree. It was for this offending that Mr Lester was originally disqualified from driving. This conduct bears a concerning similarity to the manner in which Mr Lester fled the scene of the second burglary to avoid detection and where damage ensued.

[45]   Mr Lester unlawfully interfered with vehicles and then committed the second burglary and the driving offences while he was on bail having pleaded guilty to the first burglary and awaiting sentence.

[46]   That Mr Lester would commit a residential burglary while on bail having been given a sentence indication of home detention for offending of the very same nature provides a clear indication of his disregard for the legal process. It must have been plain to him that further offending, and particularly further burglary offending, would

21     R v Speir [2022] NZHC 2850.

22     R v Kopua [2022] NZHC 2757.

23     Charlett v Police [2022] NZHC 1029.

not only result in a custodial remand but would close the door to any community-based sentence.

[47]   Understandably, Ms Scally focuses most on the three-month uplift for offending on release conditions which she submits was too high. Although counsel could not confirm the date the release conditions ended, it was agreed the first burglary was committed towards the end of that period.

[48]   Standing alone, I would regard the discrete three-month uplift for offending while on bail to be excessive. I regard the commission of a residential burglary while awaiting sentence for an earlier residential burglary to seriously aggravate that offending. However, having regard to the authorities and viewed globally, I find the 20 per cent uplift is too high. I consider an uplift of 10 to 15 per cent would be appropriate.

[49]   Before determining whether that should lead to the appeal being allowed, I must consider the second ground of appeal.

Application to admit the s 27 report as fresh evidence

[50]   Mr Lester seeks to admit a s 27 cultural report as fresh evidence on appeal. Section 335 of the CPA allows the Court to receive new evidence in a sentence appeal if it considers it necessary or expedient in the interests of justice.24 New evidence on appeal ought to be fresh and cogent and should only be admitted if it is in the interests of justice.25  Although a cultural report is not “evidence” which has to be adduced as s 27 provides authority for it to be taken into account,26 I accept the fresh evidence principles will nevertheless guide the approach to admission on appeal.

[51]   In Carroll v R, the Court of Appeal observed that, as a general principle, s 27 reports should not be submitted for the first time on appeal:27

24 See Mark v R [2019] NZCA 121 at [16].

25   Deslaurier v Police  [2022] NZHC 1078 at [15], applying Lundy v R  [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and R v Bain [2004] 1 NZLR 638 (CA) at [18]-[27], affirmed in Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].

26 Fraser v R [2020] NZHC 3504 at [13].

27 Carroll v R [2019] NZCA 172.

[8]   The Crown did not oppose admission of the cultural report on appeal. We observe that such reports should not be produced for the first time on appeal. The questions whether a cultural report justifies any allowance in the sentence, and if so how much, are best answered by the trial judge. Where the opportunity to produce such a report has not been taken at first instance and it appears to this Court that the report may make a difference, the proper course may be to remit the matter to the trial judge for re-sentencing. In this case, however, neither party wanted us to do that.

[52]   This is not an invariable rule. Examples can be found of successful appeals relying on cultural reports as fresh evidence when the defendant wanted to have a cultural report at sentencing but, for whatever reason, a report was not available.28 In cases where the Crown consents, appellate courts have allowed the admission of s 27 reports and had regard to the reports in quashing and substituting sentences.29 In Carroll, the Court admitted the report because it considered it sufficiently established a causal connection between the appellant’s cultural circumstances and offending, identified mitigating circumstances and pointed to genuine prospects of rehabilitation. Each case will of course depend on its particular circumstances.

[53]   In Te Wheoro v R, the Judge declined to receive a cultural report as fresh evidence because it was unheralded, filed late (only the day before the appeal hearing), was advanced despite the acknowledgement the appellant first considered obtaining a report after sentencing (having only then appreciated that a report might have been helpful), and importantly did not materially add to the pool of information already available in the form of a comprehensive pre-sentence report.30 In terms of the interests of justice test, the Judge considered the report could have been obtained with reasonable diligence at first instance and lacked cogency.

[54]   The Court will take a cautionary approach when considering an application to admit a cultural report on appeal. That is because evidence of an offender’s personal, family and cultural background is a mandatory sentencing consideration.31 It is well- established that an offender’s personal background of trauma or deprivation can

28 See Deslaurier v Police, above n 25; and Clarke v R [2021] NZCA 96 in which sentencing was adjourned to facilitate the preparation of a cultural report but sentencing counsel did not realise it was his responsibility to obtain one so none was prepared.

29 Byrne v R [2022] NZHC 897 at [28], citing Carroll, above n 27, at [18]; and Lisipa v R [2021] NZCA 341 at [3] and [24]. See also Poi v R [2020] NZCA 312 at [28]-[31]; Samuels v R [2022] NZHC 432.

30     Te Wheoro v R [2022] NZHC 1234. See also Laipato v R [2021] NZCA 562.

31     Sentencing Act, s 8(i).

warrant a discount where there is a causal nexus with the offending, however that does not require the Court to be satisfied that those matters are a proximate cause of the offending.32

[55]   What of Mr Lester’s cultural report? Three factors lead me to find the report ought not be admitted on appeal.

[56]   First, no adequate explanation is given for the failure to arrange the preparation of the s 27 report at first instance. Mr Lester instructs Ms Scally that he had wanted a s 27 report prepared for his sentencing. His former counsel has not been invited to comment. It seems more likely the issue was not raised until appellate counsel was instructed. There is no reason why the evidence could not have been adduced with reasonable diligence.

[57]   Second, having reviewed the report, I accept it is largely based on self- reporting. As Zhang v R makes clear, an application for a discount for cultural or socioeconomic deprivation should be based on persuasive evidence as opposed to mere self-reporting, with the onus of proof, to the civil standard, lying on the offender.33 The Court of Appeal has recently observed that s 27 reports based almost solely on self-reporting offer the Court only modest assistance beyond the submissions of counsel and do not serve the wider purposes intended by the provision.34

[58]   While the report author is undoubtedly credible, especially in relation to matters of te ao Māori, it does not appear she has spoken to other individuals to corroborate the matters raised by Mr Lester not mentioned in the pre-sentence report. By contrast, the pre-sentence report writer engaged in discussions with Mr Lester’s mother. Further, the s 27 report writer’s opinion that particular events manifested in an aggressive behavioural change, that resulted in an ADHD diagnosis, would have been more properly adduced by way of a psychologist’s report. I do not consider the report-writer is suitably qualified to offer the opinion she advanced.

32     Carr v R [2020] NZCA 357 at [64].

33     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148], affirmed in Spence v R [2021] NZCA 499, [2021] NZCCLR 22 at [80].

34     Cavallo v R [2022] NZCA 276 at [78].

[59]   Thirdly, and importantly, I do not consider the s 27 report adds greatly to the pre-sentence report. Relevant information as to Mr Lester’s ADHD diagnosis, his repeated head injuries, methamphetamine use, and susceptibility to anti-social influences was well canvassed in the pre-sentence report and referred to by the Judge. While the s 27 report refers to Mr Lester’s socioeconomic background more generally, I am not persuaded it materially adds to the pool of information available to the Judge for the purposes of establishing a nexus between Mr Lester’s personal circumstances and the current offending to justify a discount.

[60]   In these circumstances, I am not satisfied admission of the s 27 report is in the interests of justice and decline to admit it on appeal.

Was the 10 per cent allowance for personal considerations too light?

[61]   I nevertheless consider whether the 10 per cent allowance for personal considerations is too light. The pre-sentence report-writer assessed Mr Lester as having a high likelihood of reoffending and as presenting a high risk of harm to others based on his offending history. He identified his offending-related factors as drug use, anti-social associations and poor impulse control. In respect to his background, the report, in reliance on discussions with his mother, detailed that Mr Lester was involved in a serious accident when he was aged eight, in which he was knocked unconscious and hospitalised. As a result, he presented with behavioural problems as a child and was diagnosed with ADHD. His mother advised that Mr Lester continues to be impulsive and demonstrate erratic behaviour. Mr Lester reported that his symptoms have progressively worsened as a result of sustaining two further head injuries.

[62]   The report then explained that a Community Corrections substance assessment showed Mr Lester was at high risk of abusing substances. The writer said Mr Lester was candid in discussions with him as to his drug use and said at the time of his offending he was using methamphetamine and other drugs daily. He said he had fallen in with the wrong people and that he committed offences for these people to be paid in methamphetamine. He acknowledged the people he thought were friends were in reality “just feeding his addiction”. Mr Lester’s mother confirmed to the report writer that Mr Lester’s choice of associates has been a main factor in his offending. She

described her son as having always sought acceptance from others and having sought to please them.

[63]   With the benefit of this information, the Judge found there was a link between Mr Lester’s background and the offending and, in combination with his willingness to attend restorative justice, allowed a discount of 10 per cent.

[64]   Ms Scally placed weight on Mr Lester’s head injury, but no medical evidence was offered to explain that injury and how it might impact on behaviour. In my view, the Judge was correct that a modest discount was appropriate to recognise the degree of causal connection between Mr Lester’s ADHD, his suggestible and impulsive disposition, and his apparent dependence on methamphetamine.

[65]I do not accept the submission that the allowance of 10 per cent was an error.

[66]   Finally, I observe the Judge allowed a one month discount to reflect the time spent on “EM bail” between February and November 2021. Counsel are agreed the Judge wrongly described Mr Lester as having been on EM bail. He was not. The one month deduction was a reasonable reflection of Mr Lester having been on a night-time curfew for several months.

Conclusion

[67]   I have found the uplift for personal considerations to be too high by a margin of five to 10 per cent. I do not consider an adjustment of 10 per cent to be tinkering. But the ultimate question is whether the sentence imposed was manifestly excessive.

[68]   I agree with Mr Smith that a significantly higher uplift than the six months imposed by the Judge was available for a residential burglary when victims were confronted and for the  associated driving offences committed to  avoid detection.  Mr Lester also benefitted from a generous discount of 15 per cent for his guilty pleas notwithstanding the plea to the first burglary being entered on the eve of his jury trial. Those factors assume real relevance in determining whether a sentence of 26 months’ imprisonment was manifestly excessive. I am not persuaded it is.

Result

[69]The appeal is dismissed.

...................................................

Eaton J

Solicitors:

Crown Solicitor’s Office, Dunedin Public Defence Service, Dunedin