Martin v Police

[2012] NZHC 2623

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-26 [2012] NZHC 2623

ISAAC MARTIN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 October 2012

Counsel:         L Lafferty for the Appellant

N M Graham for the Respondent

Judgment:      9 October 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr L Lafferty, Solicitor, Napier

Ms N M Graham, Elvidge & Partners, Office of the Crown Solicitor, Napier

MARTIN V POLICE HC NAP CRI-2012-441-26 [9 October 2012]

[1]      Mr Martin appeals against a sentence of 2 years 10 months imprisonment for three offences of receiving, one burglary and one theft committed between October

2011 and March 2012.

[2]      I will set out chronologically the essential facts of the offending.

(a)      The first offence was on 18 October 2011 when Mr Martin stole a taxi driver’s  cellphone  worth  around  $160  while  the  taxi  driver  was helping unload Mr Martin’s groceries.  The maximum penalty for that offence is 3 months imprisonment.

(b)The second offence was the burglary on 24 November 2011.  This is the most serious offence.   The maximum penalty for burglary is 10 years imprisonment.  The appellant and another person drove down a long driveway to a house.  No one was home.  The owner returned to the property and saw the appellant in the sunroom.   The appellant walked up to the complainant and spoke to her asking if some random person lived at the house.   The complainant said he had the wrong address and the appellant asked her to move her car so they could reverse out.  The complainant returned to find a ranchslider had been smashed using a golf club.  Although insurance covered most of the cost, the damage to the ranchslider cost $2,800 to repair and there were further expenses of around $500.  It is relevant to note, in respect of further offending, that the appellant first appeared on this charge on

16 January 2012.

(c)      The third offence was the first receiving offence.  This was a watch worth  around  $400.    The  maximum  penalty for  this  is  3  months imprisonment.

(d)The fourth offence was on 23 January 2012.   This was seven days after the appellant’s first appearance on the burglary charge.  On this occasion the appellant received a mountain bike frame worth around

$1,300.  This had been taken in a burglary that occurred that day.  The maximum penalty for this offence is 7 years imprisonment.

(e)      The final offence was receiving which occurred between 24 February and 30 March 2012.  The appellant received a pair of running shoes worth around $250.   The maximum penalty here is 3 months imprisonment.

[3]      The appellant was sentenced on 29 June 2012 by Judge Rea. After setting out the essential facts, and particularly in relation to the burglary, the Judge said:

[5]       Although you are still a young man you have 19 previous instances of burglary over the Youth Court and the District Court and it is really no exaggeration to say that you have become something of a career criminal.  I consider that the preferable way of sentencing this matter is to look at the overall starting point for all of this offending and deal with it from there.  I consider that  overall  the  starting point  should  be  two  and  a  half  years’ imprisonment for all of the offending.  There needs to be an uplift of some nine months to reflect your past record and that leaves a term of three years and three months or 39 months.  I am prepared to reduce that by five months to reflect your late guilty plea to the serious charges and, overall, on the burglary and the receiving of the Merida bike you will be sentenced to two years and 10 months’ imprisonment.  In relation to the other charges you will be sentenced to two months’ imprisonment on each of those.  All terms are concurrent, running together, making a total of two years and 10 months.

[4]      That records the essence of the reasons for the sentence itself. There was also an order to pay a total amount of reparation of $419 to be paid by 31 December

2014.

[5]      For the appellant Mr Lafferty advanced two principal grounds of appeal.  The first is that the Judge incorrectly took into account burglaries which had been proved against the appellant in the Youth Court.  Of the total of 19 burglaries referred to by the Judge, 12 offences had been proved or admitted in the Youth Court.  Mr Lafferty

relied in particular on observations of Woolford J in Mackie v Police.1    The Judge

had noted submissions on behalf of the respondent referring to the Court of Appeal’s

approval in R v Ronganui2 of remarks in a High Court decision of Kohere v Police.3

I will come back to that. At [16] the Judge said:

[16]     As to the number of previous convictions, although I accept that a sentencing Judge can have regard to matters proved in the Youth Court, I am of the view that it is not appropriate to give as much weight to these matters as adult convictions. They are dealt with in the Youth Court because of the recognition that youths are not yet adults and their adolescent brains are not yet fully developed. Adolescents often lack an awareness of consequences, as a result of which they make poor judgements. They are not fully responsible.

[6]      Mr Lafferty also explained, as I understand it, that Mr Martin sees the Judge’s reference to the offending dealt with in the Youth Court as involving the imposition of a penalty now when none was imposed, or could be imposed, in the Youth Court – or at least in the same way as it is in the District Court.  It is relevant to record at this point that previous offending is not referred to for the purpose of imposing a further penalty.  That cannot be done.  It is relevant, however, to determine the appropriate penalty for the current offending.  Past proved conduct, whether in the Youth Court or in the District Court, when it is related, is relevant to an assessment of the final sentence for the offences being dealt with,

[7]      The second principal ground for appeal is that the sentence is manifestly excessive.

[8]      Again,  relying  in  particular  on  Mackie,  Mr  Lafferty  submitted  that  the starting point for the burglary should be 18 months imprisonment.  He responsibly and properly acknowledged that there could be an uplift for prior convictions and submitted that this should be 6 months.  That would take the sentence to 24 months imprisonment.  He further submitted that the reduction applied by the Judge for the guilty pleas should be applied reducing the sentence to 19 months.

[9]      For the Crown, Ms Graham submitted, in essence, that the lead offence of burglary is  a  serious  offence  because  it  is  a  burglary of  a  private  home.    She submitted that the starting point could be at least 18 months.

[10]     She supported the Judge’s assessment of an uplift for the other offences.  She emphasised that some of this offending occurred while on bail.  Two of the receiving offences occurred while on bail for the burglary, and I note that the appellant was by then on bail for the first receiving charge.  Ms Graham also noted that the burglary was committed the day after the appellant received a suspended sentence for breaching prison release conditions.

[11]     As to the uplift for prior offending, Ms Graham submitted that this was not excessive and that the Judge was entitled to have some regard to offences that had been established or admitted in the Youth Court.  In this respect she referred to R v Skipper4 and especially to paragraph [27].  Mr Lafferty had submitted that the facts of that case are quite different.   Ms Graham acknowledged this.  The point of the reference was that the Court of Appeal’s observation that the uplift for previous

offences by the sentencing Judge in that case, being an increase of 6 months, should probably have been around 18 months.  In that regard there are parallels between that case and the present case.

Discussion

[12]     The appellant  is  aged  23.   This  does  warrant  appropriate weight.    I am satisfied that the Judge did not lose sight of this.

[13]     I am satisfied that the offending dealt with in the Youth Court can be taken into account.  Woolford J in the Mackie5 case did not in fact suggest otherwise.  As the citation above indicates, he concluded that the important thing is to carefully assess the weight that is given to this.  There is no indication of undue weight being placed by a Judge in this case on the offending dealt with in the Youth Court.   I earlier referred to the Court of Appeal decision in Ronganui6 in which observations of Anderson J in Kohere7  were approved.   The relevant passage in Kohere   is as

follows:

4 R v Skipper [2011] NZCA 250.

5 Mackie v Police [2012] NZHC 1654.

It is the case that matters dealt with in the Youth Court do not constitute convictions for offences and to that extent the Youth Court is not a criminal Court of record, but this is not to say that matters which are dealt with in the Youth Court must be totally ignored by the District Court.  Proceedings in the Youth Court and the steps taken to assist young people form part of the behavioural history of a person who stands to be sentenced in the District Court or the High Court.  Whilst such behavioural history does not amount to prior convictions it must be the case that such history can have some relevance in  determining what is an appropriate sentence for the person appearing in the Court of criminal record.  Thus I am unable to accept the submission on behalf of counsel for the appellant that the learned District Court Judge was in error in having regard to the behavioural history of the appellant as indicated by proceedings in the Youth Court, which proceedings were formally admitted before the learned District Court Judge.

[14]     It  is  also  relevant  that  the  appellant  has  a  number  of  convictions  for dishonesty offences in addition to the convictions for burglary in the District Court and the burglary offences dealt with in other ways in the Youth Court.  Those dealt with in the District Court from June 2006 include 14 convictions for offences such as receiving, theft, shoplifting, unlawfully on property, unlawfully taking or interfering with cars and fraud.  There are 13 broadly similar offences that had been dealt with in the Youth Court.   This includes one robbery, although it was not aggravated robbery.

[15]     On five occasions between December 2006 and July 2010 in the District

Court the appellant received prison sentences.

[16]     There are aggravating features of the offending.  Mr Lafferty quite properly acknowledged that there are the following aggravating features, with the wording taken from Senior:8

(a)       Behaviour  which  involves  actual  danger  to  or  confrontation  with occupiers or the risk of such danger and confrontation.

(b)      Behaviour which is likely to make the victim feel targeted.

(c)      Wanton destruction of property and acts of vandalism.

8 Senior v Police [2000] 18 CRNZ 340.

(d)Offending while on bail, while on parole or in close proximity to court appearances on other charges, particularly of burglary.

[17]     It  is  also  relevant  to  refer  to  the  victim  impact  statement.    I  note  the following, quoting from the statement:

I couldn’t sleep for 2 nights after the burglary.  It never felt safe leaving the

house.  I was really security anxious.

The experience was unsettling.  It takes me 15 minutes longer to leave the house because I will go around making sure everything was locked.  I’d hide my laptop, hard drive, any money, my handbag and the keys to car if I was going out for a walk.

We now lock the gate leading up our driveway, so it will mean any more burglars will have to climb over it to get to the house.   I now lock the upstair[s] windows of the house.  We never felt the need to do either of these things before the burglary.

[18]     These matters  sufficiently indicate seriousness  of the  burglary offence in particular.

[19]     The probation officer in the pre-sentence report assessed the appellant as being at high risk of re-offending.  This is reasonably apparent from the sequence of these offences with the further offences on bail and the burglary the day after the imposition of the sentence on the other matter.

[20]     I have referred to some cases dealing with burglaries.  Others of relevance, and which I have referred to, are: Tawharu;9 Tahere;10 and Wathey.11

[21]     The Judge did not identify a starting point for what is obviously the lead offence of burglary.  He indicated what amounts to an uplifted starting point for all offences of 2 years 6 months.  This represents the assessment of the gravity of the burglary  as  the  lead  offence  with  an  uplift  for  the  other  offending.    I  am  not persuaded that this is excessive when viewed in that way.  The starting point for the burglary, looking at it alone, could be 2 years. The maximum, as I have already said,

is 10 years imprisonment.  This was a serious home invasion.  And it is also to be

9 Tawharu v Police HC Palmerston North CRI-2004-454-01, 6 April 2005 per Wild J.

10 Tahere v Police HC New Plymouth CRI-2008-443-000021, 7 November 2008 per Andrews J.

11 Wathey v Police HC Rotorua CRI-2006-463-000118, 20 March 2007 per Venning J.

noted that the maximum penalty for one of the receiving charges is 7 years, although that is not to be overstated when related to the particular circumstances of that offence.  The uplift of 9 months to a total of 39 months might possibly be seen to be at the upper limit.   But this needs to be assessed against a possible starting point uplifted against the other offences which could in fact be a little low.

[22]     Assessing the matter overall, and in particular addressing the submissions carefully made for the appellant by Mr Lafferty, I am not persuaded that the end sentence imposed in this case was manifestly excessive.  And there was no error of law  warranting  interference  by  this  Court  –  referring  in  this  regard  to  the submissions relating to the offences dealt with in the Youth Court.

[23]     Accordingly, the appeal is dismissed.

Woodhouse J