Luke v Police

[2013] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-026 [2013] NZHC 3175

BETWEEN  CHEYNE ROBERT LUKE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   29 November 2013

Counsel:                  J Mooney for Appellant

AWM Britton for Respondent

Judgment:                29 November 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Crown Solicitors, New Plymouth

Nicholsons, New Plymouth

LUKE v POLICE [2013] NZHC 3175 [29 November 2013]

Introduction

[1]      On 5 July 2013, Mr Luke pleaded guilty in the New Plymouth District Court to two charges of burglary, one charge of receiving property and one charge of possession of cannabis.  He was sentenced by Judge Roberts to imprisonment for a term of one year three months on the burglary charges and a concurrent sentence of twelve months on the receiving charge.   He was convicted and discharged on the charge of possession of cannabis.

[2]      Mr Luke appeals against sentence on the grounds that the starting point of twenty  months  imprisonment  adopted  by the  Judge  was  too  high,  leading  to  a sentence that was manifestly excessive.   In written submissions, it had also been contended that the Judge erred in rejecting home detention as a sentencing option. However, that aspect of the appeal is not proceeded with as Mr Luke has served five months and three weeks of his prison sentence and the substitution of a sentence of home detention is not a practicable option.

Facts

[3]      The burglaries both took place in the early hours of the morning of 6 April

2013. A community hall in Bell Block was broken into. A donation box in the main hall was broken open and some coins stolen.  The intruder also broke into a locked store room and stole two projectors valued at $1,000, the property of a church which used the premises. The second burglary was of a dairy in Bell Block. The front door was forced and cigarettes, tobacco and lighters to the value of $3,700 were taken.

[4]      When Mr Luke’s home was searched on 10 April, the police found two grams of cannabis, several packets of cigarettes and lighters stolen from the dairy and the two  projectors  taken  from  the  community  hall.    Mr  Luke  was  also  found  in possession of a Smart ticket device and charger that had been stolen in a burglary of the Bell Block community police station on the night of 8 and 9 December 2012. The discovery of those items led to the receiving charge.

[5]      The impact of the burglary on the dairy owner was particularly severe.  He had just started a new business.   His stock was not insured.   In his victim impact statement he said he did not know how he was going to get over the loss.

Sentencing decision

[6]      In  his  sentencing  remarks  Judge  Roberts  reviewed  a  pre-sentence  report which had concluded with a recommendation of imprisonment.  At age 22, Mr Luke had twelve previous convictions.   The most serious was of assault with intent to injure for which Mr Luke was sentenced to six months home detention in 2008.  His more recent convictions, mainly in 2009, were of a relatively minor nature, although there was one conviction for assault for which he received a sentence of community work.

[7]      The   pre-sentence   report   identified   alcohol   and   drug   dependency   as contributing to the offending.  It described Mr Luke as “directionless” and lacking motivation or remorse.  Although Mr Luke took issue with this characterisation, the Judge agreed with the probation officer.  He described Mr Luke as without remorse, disinterested  in  rehabilitation  and  without  identifiable  family  support.    He  was plainly unimpressed with a letter from Mr Luke’s parents supporting his plea for home detention.  Noting that the stolen goods had been introduced into the family home, Judge Roberts observed that Mr Luke’s criminal behaviour must have been obvious to those with whom he lived.

[8]      Judge Roberts  identified  as  aggravating features  the fact  that  one of  the victims was a religious group and the extent of the loss suffered by the dairy owner. He said that although Mr Luke could not be identified as the burglar of the police station,   he   must   have   been   “very   close”   to   an   unidentified   person   who, coincidentally, was pursuing the same sort of activity as him.   On that basis, he adopted a starting point of one year and eight months imprisonment which he said would accommodate totality and the impact on victims.   He said that the starting point he had selected for multiple offences was still, to use his words, “beneath the two-year start for repeat offenders”.  Judge Roberts allowed the full discount of 25 per cent for guilty pleas entered at an early stage, leading to an end sentence of one

year and three months.   He imposed special release conditions, including that Mr Luke attend alcohol and drug counselling, a Te Kainga Maori programme and, if found suitable, a motivation programme.  He rejected home detention as an option, describing  it  as  quite  inappropriate,  having  regard  to  the  seriousness  of  the offending; Mr Luke’s lack of remorse and interest in rehabilitation; and what he referred to as his lack of family support.

Appellant’s submissions

[9]      For Mr Luke, Ms Mooney submits that a starting point of one year should have been adopted, having regard to the totality of the offending and the lack of any previous burglary convictions.  She relies on Senior v Police1 where a Full Court of the High Court identified three categories of burglary for sentencing purposes – the first-time burglar, the recidivist burglar and the spree burglary – and said that in the case of a first-time burglar, depending on aggravating and mitigating factors, a prison sentence may be imposed although frequently this is not the case.

[10]     Ms Mooney referred to Tipiwai v Police2 and Iwikau v Police3, as illustrations of significantly lower starting points being adopted in circumstances similar to the present.  In Tipiwai the appellant faced one charge of burglary of a school, receiving charges and the use of a stolen cheque book.  On appeal, a two-year starting point was  reduced  to  one  year and  three months  and  the end  sentence reduced  from

17 months to 10 months.

[11]     In Iwikau a starting point of 18 months imprisonment on a charge of burglary was held to be too high, notwithstanding two previous convictions for burglary.  A starting point of 15 months was preferred.

[12]     Mr Britton, for the Crown, agreed in written submissions that the starting point adopted by Judge Roberts was too high and also supported a starting point of

12 months imprisonment.   However, in oral submissions he acknowledges that a

starting point  of 15  months  could  be justified, having regard to  the number of

1      Senior v Police (2000) 18 CRNZ 340 (HC).

2      Tipiwai v Police HC Wanganui CRI-2007-483-14, 17 October 2007.

3      Iwikau v Police [2012] NZHC 2027.

burglaries, the unrecovered loss in excess of $3,000 and the targeting of the community hall.

Decision

[13]   The decision in Senior v Police4 helpfully distinguishes between broad categories of burglary offenders but, as the Court of Appeal said in R v Southon5, it should not be regarded as more than a very helpful analysis of historic sentencing patterns in the area.6     In the end, sentencing for burglary, as for other offending, requires the Court, in the first instance, to identify the culpability inherent in the offending by reference to the circumstances.7   That requires, as the Court of Appeal said in Nguyen v R8  that the offender’s culpability in a burglary should be assessed by reference to the degree of planning and the sophistication in the offending, the nature of the premises entered, the kind and value of the property stolen, the damage done, the impact and potential impact upon occupants or owners of property and the extent of the offending where multiple burglaries are involved.

[14]     Comparisons with other sentencing decisions  may be  necessary in order, among other things, to  achieve consistency in  sentencing.   However,  care must always be taken to ensure that points of distinction are not overlooked.  Many of the aggravating factors commonly encountered and present in sentencing decisions on burglary charges are not present in this case.   They include a risk of danger to occupiers; sophistication in planning and execution; and the wanton destruction of property.

[15]     The Judge rightly identified the targeting of a community organisation and a particular loss to the dairy owner as aggravating factors.   However, even taking account of those factors, I am bound to accept that the starting point he adopted was high in relation to cases which appear to involve broadly similar levels of culpability such as Tipiwai and Iwikau, but particularly the former.  I consider, however, that a

starting point of 12 months would be too lenient.   It is to be remembered that the

4      Senior v Police, above n 1.

5      R v Southon (2003) 20 CRNZ 104 (CA).

6 At [13].

7      R v Columbus [2008] NZCA 192 at [13].

8      Nguyen v R CA110/01, 2 July 2001 at [17].

totality of the offending includes receipt of the proceeds of a third burglary.   In Tipiwai  the  dishonesty  offending,  primarily  receiving,  was  regarded  as  serious enough to warrant an uplift of nine months to a starting point, on the single charge of burglary, of six months.

[16]     Even if a somewhat lower starting point for the burglary charges alone had been adopted, plainly, an uplift for the receiving charge would be warranted.  In my view, a starting point of 15 months adequately captures the gravity of the offending in its totality.  Applying the 25 per cent discount for an early guilty plea adopted by Judge Roberts, a sentence of 11 months imprisonment results.

Result

[17]   For these reasons, the appeal is allowed.   The sentence of 15 months imprisonment  on  the burglary charges  is  quashed  and  a sentence of  11  months substituted.   The sentence of 12 months imprisonment on the receiving charge is quashed and a concurrent sentence of nine months imprisonment substituted.