Lewis v Police
[2023] NZHC 1675
•3 July 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2023-483-000007
[2023] NZHC 1675
BETWEEN BRODIE LEWIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 June 2023 Appearances:
M McGhie for the Appellant J Liu for the Respondent
Judgment:
3 July 2023
JUDGMENT OF ROBINSON J
[Sentence appeal]
This judgment was delivered by me on 3 July 2023 at 10:30am.
Registrar/ Deputy Registrar
Solicitors:
M McGhie, Whanganui Crown Solicitor, Whanganui
LEWIS v NEW ZEALAND POLICE [2023] NZHC 1675 [3 July 2023]
[1] On 30 August 2022 Mr Lewis pleaded guilty to one charge of burglary.1 On 31 March 2023, in two separate decisions, Judge Krebs declined Mr Lewis’ application for a discharge without conviction2 and sentenced him to five months’ and two weeks home detention.3
[2] Mr Lewis appeals. He says he should have been granted a discharge without conviction. Alternatively, he says his sentence is manifestly excessive.
[3] Mr Lewis also applies for leave to adduce further evidence on appeal in the form of an Alcohol and Drug Report. The respondent opposes. There is no evidence as to why any such report was not (or could not have been) prepared prior to sentencing in the District Court. Nor is it apparent how the proposed evidence would be relevant, or add to the evidence already set out in Mr Lewis’ affidavit of 23 March 2023. For these reasons the application for leave to adduce further evidence is declined.
The offending
[4] During the evening of 26 June 2022 Mr Lewis drove his Toyota to a commercial kiwifruit orchard in Whanganui. He was towing a tandem trailer. He was with a female associate.
[5] The victim was part way through having a shed built on a small section of the property. Mr Lewis drove through an open gate to where the shed was being built. He and his associate placed $1,520.00 worth of building material on to the trailer. Mr Lewis then drove away.
[6] At approximately 3:15 am Police stopped Mr Lewis while he was towing the trailer and the stolen property. Mr Lewis must have told the Police that all was in order because the Police let him go.
[7] The supplies were later reported stolen. When Police executed a search warrant at Mr Lewis’ address they found the stolen building supplies in the backyard.
1 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
2 Police v Lewis [2023] NZDC 6168.
3 Police v Lewis [2023] NZDC 6389.
Legal principles
Discharge without conviction
[8] Section 106 of the Sentencing Act provides that the Court may discharge an offender without conviction. A discharge under s 106 is deemed to be an acquittal.4 Section 107 sets a threshold for the Court’s discretion:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[9]This requires the Court to engage in a three-step proportionality assessment:5
(a)First, the Judge must identify the gravity of the offending, including all the aggravating and mitigating factors of the offending and the offender. An assessment of the gravity of the offending is informed by the culpable conduct which is to be determined on an assessment of the facts rather than the nature of the charge.6
(b)Second, the Judge must identify the direct and indirect consequences of a conviction for the offender. There must be a real and appreciable risk that any posited consequence will occur.7
(c)Third, the Judge must consider whether those consequences are out of all proportion to the gravity of the offending.
Approach on appeal
[10] An appeal of a refusal to discharge without conviction under s 106 is considered first as an appeal against conviction; and secondly as one against sentence.8
4 Sentencing Act 2002, s 106(2).
5 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]-[28].
6 J v R [2021] NZCA 690. See also R v Taulapapa [2018] NZCA 414.
7 Costello v Police [2021] NZHC 2796 at [6].
8 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]-[8].
[11] In respect of conviction, the appeal is brought pursuant to s 232(2)(b) or (c) of the Criminal Procedure Act 2011. This Court must allow the appeal if a miscarriage of justice has occurred by virtue of a material error by the sentencing Judge in entering a conviction; or, if for any reason the Judge has erred in applying the principles for discharging an offender without conviction in s 107.9 Because the s 107 test is a matter of fact, general appeal principles apply.10
[12] If the conviction aspect of the appeal fails, the appeal proceeds as one against sentence. The usual sentence appeal principles apply. The Court must allow Mr Lewis’ appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.11 Otherwise, the Court must dismiss the appeal.12 Whether the end sentence is ‘manifestly excessive’ is a useful guide in determining whether there is an error.13 The appeal Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.14
Discharge without conviction
[13] In support of his application for a discharge without conviction Mr Lewis filed an affidavit explaining the background to his offending, and the adverse consequences he considers a conviction would have for him. Mr Lewis explained that at the time of his offending he was addicted to cannabis and methamphetamine. He says the burglary is an example of bad lifestyle choices he was making at that time. However, he has since taken positive steps to address his addiction.
[14] Mr Lewis says that a conviction will have adverse consequences on his insurance arrangements and potential employment opportunities. He is also concerned that a conviction is likely to interfere with his future plans to travel, including with his family. Counsel for Mr Lewis, Mr McGhie submits that these adverse consequences will be out of all proportion to his offending.
9 At [12]; and Gaunt v Police [2017] NZCA 590 at [9].
10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
11 Criminal Procedure Act 2011, s 250(2).
12 Section 250(3).
13 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SAB5.01].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482at [36].
District Court ruling
[15]The Judge accurately set out the relevant legal test, as set out at [9] above.15
[16] In assessing the gravity of the offence, Judge Krebs noted that the maximum penalty for burglary is 10 years’ imprisonment. He noted that the burglary was of a rural orchard property not a residential burglary, and as such did not have some of the aggravating features present in home burglaries.16 On the other hand the Judge thought it relevant that Mr Lewis’ offending was premediated. Mr Lewis had identified the property, made a plan to steal the materials and did so in the early hours of the morning when less likely to be apprehended doing so.17 The Judge thought it relevant that when stopped by Police Mr Lewis “bluffed [his] way through the Police questions and carried on home…”. The Judge recorded that Mr Lewis used some of the items that he stole for his own purposes (which Mr Lewis disputes –discussed below18). Overall Judge Krebs described the offending as “calculated, premeditated and of moderate seriousness as burglaries are concerned [sic]”.19
[17] In terms of the consequences of conviction the Judge noted that he did not have any material about the urgency of any particular travel plans Mr Lewis might have.20 In any event, he considered it was for other countries to determine whether to grant entry to somebody who has offended in this way, and, if so, on what conditions.21 Similarly, the Judge considered that insurance companies and potential employers were entitled to know what had occurred:22
I do not believe that it is appropriate in your case given in [sic] what I view as a relatively serious burglary, that information should be supressed from those that require it.
[18] Counsel for Mr Lewis had emphasised (as he does on appeal) that Mr Lewis’ offending occurred at a time when he was subject to a methamphetamine addiction.
15 At [6].
16 At [7]. For example, the risks of encountering occupants and potential violence.
17 At [8].
18 At [9].
19 At [9].
20 At [11].
21 At [12].
22 At [13].
However, Judge Krebs “[did] not particularly see the nexus between that addiction and what [Mr Lewis] did here”.23
[19] Applying the statutory balancing test and taking into account the entitlement of future employers to know what had occurred, Judge Krebs was not satisfied that the consequences of conviction, as Mr Lewis identified in his affidavit, were out of all proportion to the gravity of his offending.
Submissions on appeal
[20] Mr McGhie for Mr Lewis acknowledges that burglary is a serious charge but submits that the nature of the charge itself is no barrier to a discharge without conviction. The focus is on the gravity of the offending and the culpability of the offender. I agree.
[21] Mr McGhie describes the gravity of Mr Lewis’ offending as low to moderate. He emphasises that this was Mr Lewis’ first burglary offence, and that it was of an unsecured commercial premises. He points out that all the building supplies taken were recovered.
[22] Mr McGhie emphasises Mr Lewis’ addiction to methamphetamine at the time of the offending. He says the evidence shows Mr Lewis’ life had spiralled downwards as a result of his addictions, as a result of which he was making bad lifestyle choices. Mr McGhie submits that the offending would not have occurred but for Mr Lewis’ addiction. On the other hand, Mr McGhie points out the considerable steps Mr Lewis has taken to address his addiction since his offending.
[23] Mr McGhie also points out that Mr Lewis’ associate who was with him at the time of the offending was granted Police diversion. In his written submissions Mr McGhie acknowledges that her personal circumstances may have been different but submits that nevertheless this is relevant to an assessment of the seriousness of what he describes as their co-offending on this occasion.
23 At [12].
[24] In terms of the consequences of conviction, Mr McGhie refers me to correspondence exhibited to Mr Lewis’ affidavit that he received from insurers and potential employers shortly before his sentencing. He says these demonstrate that the consequences for Mr Lewis of a conviction will be out of all proportion to the gravity of his offending.
[25] For the respondent, Mr Liu’s submission is that the s 107 test is not made out and Judge Krebs was correct to decline the application for the reasons he gave. Mr Liu submits that Judge Krebs was correct to find that the offending was moderately serious. On the other hand, Mr Liu says the consequences of conviction Mr Lewis has identified in relation to his employment are speculative. He also points out that in 2019 Mr Lewis was convicted of unlawfully converting a motor vehicle and submits that the consequences of an additional burglary conviction will be limited in light of that conviction. For these reasons Mr Liu says the consequences for Mr Lewis of a conviction are not out of all proportion to the gravity of his offending.
Analysis
[26] I do not consider the Judge erred in entering the conviction or in applying the principles for discharging an offender without conviction.
[27] In terms of the gravity of the offending, I agree with the Judge that the offending was moderately serious, albeit perhaps at the lower end of that range. The offending was carefully premediated. When the Police stopped Mr Lewis he appears to have deceived them. Mr Lewis could have returned the stolen materials at this point, but instead he continued with his plan and took them home.24
[28] I do not accept Mr McGhie’s submission that the fact that Mr Lewis’ associate received Police diversion signifies the low level of offending. It is usual for the Police to take into account a number of different factors in determining whether or not to
24 This appears to be a reference to some shell rock material for which Mr Lewis was ordered to pay reparation. However, I understood Mr McGhie to say Mr Lewis disputes this, and points out correctly that shell rock is not listed in the summary of facts as amongst the material that was stolen. I do not consider anything much to turn on this, but I note it for completeness.
grant diversion. However, there is no evidence before me of the associate’s personal circumstances, or the basis upon which the Police decided to grant her diversion.
[29] Nor do I consider that Mr Lewis’ drug addiction at the time of his offending reduces the gravity of the offending for the purposes of determining whether a discharge without conviction is appropriate. That issue, together with Mr Lewis’ efforts to rehabilitate, is more relevant to sentence.
[30] In terms of the consequences of conviction, the nature of the adverse consequences Mr Lewis identifies are among the ordinary and foreseeable consequences of a conviction for this type of offending. In any event it is unclear to me the extent to which the risks Mr Lewis identifies are real and appreciable risks. In his affidavit of 28 March 2023 he says that he and his partner made an offer to purchase a property which was accepted over the weekend; but that he has been made aware: “we would potentially be uninsurable with a burglary conviction”. The correspondence dated 23 March 2023 between an insurer and the insurance broker working for Mr Lewis and his partner confirms that the insurer will not offer them cover due to Mr Lewis’ criminal conviction. However, it is unclear whether the insurer knew of Mr Lewis’ conviction in 2019 for unlawfully converting a motor vehicle; and whether the insurer would have offered insurance if it had known of that conviction. In any event, the evidence also shows that on 24 March 2023 (that is, the day after the relevant correspondence with the insurer) Mr Lewis’ partner entered into a Sale and Purchase Agreement in her own name.
[31] As for Mr Lewis’ employment situation, correspondence dated 23 March 2023 advises that if Mr Lewis is convicted it will “jeopardise his chances of furthering himself” and that he could not be employed or recommended “due to the pending charges”. Correspondence dated 22 March 2023 concerning Mr Lewis’ application for a sharemilker position is more emphatic. The prospective employer advises that due to the pending charges which Mr Lewis has disclosed it is unable to offer him the position for which he would otherwise have been a strong contender. They advised this is non-negotiable. But again, it is unclear whether this employer was aware of Mr Lewis’ previous conviction and therefore whether it was declining to employ Mr Lewis purely as a consequence of the pending burglary charge.
[32] In any event, I agree with Judge Krebs that employers are entitled to know of offending by prospective employees such as the burglary carried out by Mr Lewis.
[33] For these reasons I consider the Judge was correct to conclude that the consequences of Mr Lewis’ conviction are not out of all proportion to the gravity of his offending.
Sentencing
[34] Judge Krebs adopted a starting point of 16 months’ imprisonment. He applied a 25 per cent discount for Mr Lewis’ guilty plea. The Judge gave a further discount of one month on account of Mr Lewis’ addiction and his rehabilitation efforts to date, which amounted to a discount of six point two five (6.25) per cent on his 16-month starting point.25
[35] This resulted in an end sentence of 11 months’ imprisonment which the Judge commuted to five months two weeks home detention.
Starting point
[36] Mr McGhie points out that there is no guideline decision for burglary offending. That is because the range of circumstances in which the offence can be committed is so varied.26 The circumstances of the offending in each case predominate when setting the starting point.27
[37] In R v Nguyen28 the Court of Appeal identified six relevant factors in assessing the seriousness of a burglary:
(a)the degree in planning and sophistication in the offending;
(b)the nature of the premises entered;
25 Police v Lewis, above n 3, at [8]-[11].
26 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189at [78].
27 Nikora v Police [2020] NZHC 2013 at [8].
28 R v Nguyen CA110/01, 2 July 2001 at [17].
(c)the kind and value of the property stolen;
(d)the damage done;
(e)the impact and potential impact upon occupants or owners of the property; and
(f)the extent of the offending where multiple burglaries are involved.
[38] Counsel refer to Elers v Police.29 In that case the defendant entered an enclosed commercial area at night by climbing a fence. Once inside he removed batteries from the premises and passed them to an accomplice. The sentencing Judge in the District Court had been told the batteries had a value of $1,500.00. The Judge adopted a starting point of 16 months’ imprisonment. In fact, the batteries were worth $150.00. On appeal, Grice J did not think that the value of the goods was particularly relevant. She referred to four comparative cases30 and concluded that the 16 months starting point was squarely within a range of 12 to 18 months’ imprisonment for this sought of offending, even if the batteries were only valued at $150.00.
[39] Mr McGhie submits that if a starting point in the range of 12 to 18 months was appropriate in Elers, then a starting point of around eight to 10 months was appropriate for Mr Lewis. He submits that Mr Lewis’ offending was relatively unsophisticated and points out Mr Lewis drove in through an open gate without causing any collateral damage to property.
[40] I disagree. I think it is irrelevant that Mr Elers climbed a fence whilst Mr Lewis drove through an open gate. The more important similarities are that they both entered commercial premises at night, with an accomplice, for the purposes of taking goods that did not belong to them.
[41] I consider Judge Krebs’ starting point of 16 months’ imprisonment was entirely appropriate.
29 Elers v Police [2018] NZHC 497.
30 At [14].
Personal circumstances
[42] Mr McGhie submits that a more substantial discount was appropriate in light of Mr Lewis’ addiction at the time of the offending, and his efforts at rehabilitation. It is relevant to recall that Judge Krebs gave only a six point two five (6.25) per cent discount in recognition of these factors, noting that he did not find Mr Lewis’ drug addiction to be directly related to his offending.31
[43] I accept Mr McGhie’s submission that a more significant discount should have been given to reflect Mr Lewis’ addiction at the time of his offending, and his subsequent efforts towards rehabilitation.
[44] Recently, in Berkland v R the Supreme Court confirmed that in assessing sentencing discounts for a defendant’s background, which will necessarily include any previous drug addiction, a defendant does not need to establish that his or her addiction is a proximate cause of their offending.32 Rather, the Supreme Court said that it is sufficient for a defendant to show that their addiction made a causative contribution to their offending, albeit indicating that the strength of that contribution would influence the level of the discount to be given.33 The Supreme Court confirmed that a defendant’s own personal evidence about their addiction could be taken into account, and that whether a mitigatory factor was therefore proved was a question for a sentencing Judge to consider in all the circumstances of the case.34
[45] The Supreme Court also strongly endorsed providing sentencing discounts to recognise and to incentivise rehabilitation. The Court said:35
Sentencing judges should encourage offenders to take up the opportunities offered by rehabilitative programmes to make the necessary changes in their lives. One way to do this is by providing material sentencing discounts when the evidence suggests that is what an offender is genuinely willing to do. Such encouragement can be an inflection point in the life of a prisoner.
31 Police v Lewis, n 3 at [10].
32 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]-[109].
33 At [107] – [109].
34 At [129].
35 At [161].
[46] In that case the Supreme Court considered that the defendant should have been given a 10 per cent discount for his efforts at rehabilitation, together with a 10 per cent discount to recognise the role his addiction played in causing his offending.36
[47] Mr Lewis’ evidence satisfies me that there was a causative connection between his drug addiction and his offending. He describes the circumstances in which he began to use methamphetamine and then became addicted to it. In a relatively short space of time he went from being successfully self-employed and living with his partner and three children to being unemployed and living without his family. Mr Lewis had become an increasingly heavy drug user. To use his words, his partner was unwilling to stick around while his life spiralled downwards, and she moved away for the best interest of their children. Mr Lewis gave up working, his business became insolvent, and his house had to be sold. He says he was hopelessly addicted to methamphetamine and cannabis, his lifestyle became reckless and he was associating with people who also made poor life choices.
[48] Seen in that context I accept Mr Lewis’ evidence that he has no logical explanation for the burglary, and it was an example of his poor decision making at that time. I also accept that his addiction made a significant causative contribution to his offending.
[49] More positively, Mr Lewis has successfully and voluntarily completed the Bridge Programme which is a 12-week residential rehabilitation programme run by the Salvation Army. He has remained sober and away from drugs since then. He has joined Narcotics Anonymous which he attends regularly. His affidavit exhibits letters from those involved with him in those programmes. They are corroborative and highly supportive.
[50] Fortunately, Mr Lewis has also reconciled with his partner and is living with her and their three children again.
[51] Although I do not accept that these matters reduce the gravity of Mr Lewis’ offending so as to justify a discharge without conviction, I do accept that they justify
36 At [162].
sentencing discounts significantly greater than the six point two five (6.25) per cent allowed by Judge Krebs. Taking into account the Supreme Court’s guidance in Berkland I consider that a discount of 10 per cent is appropriate to reflect the causative connection Mr Lewis’ addiction made to his offending. I consider a further discount of 15 per cent is appropriate to reflect his rehabilitative efforts to date and his demonstrated ongoing commitment to them.
[52] Applying a total of 50 per cent discount to a starting point of 16 months’ imprisonment gives an end sentence of eight months’ imprisonment. This is to be commuted to an end sentence of four months home detention. This sentence should be treated as having commenced on the same day Mr Lewis’ home detention began in accordance with his sentencing in the District Court. For completeness I record that a six-week reduction of a sentence of five months and two weeks home detention is a reduction of approximately 27 per cent which I do not consider to be “tinkering”.
Result
[53] Mr Lewis’ appeal of Judge Krebs’ ruling declining a discharge without conviction is dismissed.
[54]Mr Lewis’ appeal against sentence is allowed.
[55]The sentence of five months two weeks home detention is quashed.
[56] A sentence of four months home detention is substituted. All other aspects of the sentence set out in Judge Krebs’ sentencing notes continue to apply including the post-detention conditions and reparation.
Robinson J
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