Martin v Police HC Auckland CRI-2010-404-495

[2011] NZHC 1484

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-495

BETWEEN  JASON MARTIN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 April 2011

Appearances: H Craven-McLeay for the Appellant

H Ifwersen for the Respondent

Judgment:      31 May 2011 at 10:00 AM

JUDGMENT OF PETERS J

This judgment was delivered by me on 31 May 2011 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ........................................

Solicitors/Counsel:

Meredith Connell, Crown Solicitor, Auckland – Email: [email protected]

Hanna Craven-McLeay, Barrister, Auckland – Email:  [email protected]

MARTIN v POLICE HC AK CRI-2010-404-495 31 May 2011

[1]      On 28 July 2010, the appellant was sentenced to a total of two years, three months’ imprisonment  on  a  variety  of  dishonesty  charges.    The  appellant  now appeals against sentence.

[2]      To  succeed,  the  appellant  must  establish  that  the  sentence  imposed  was clearly or manifestly excessive (see s 121(3)(b) Summary Proceedings Act 1957).

[3]      Counsel for the appellant submits that the sentence was manifestly excessive and that at the most a sentence of two years’ imprisonment was appropriate.  The Crown opposes the appeal.   The Crown submits the sentence was not manifestly excessive and that the appellant’s suggestion of a three month reduction would be no more than “tinkering”, which an appellate Court will not undertake.

[4]      The appellant was sentenced on 15 charges, all summarily laid, as follows:

Burglary - CRN 3411

(a)       A charge of burglary in breach of s 231(1)(a) of the Crimes Act 1961

(“the Act”).

Theft – CRNs 3557-3560, 3562 and 3564

(b)A charge of theft in breach of ss 219 and 223(d) of the Act.   This charge concerned the appellant’s theft of a wallet, which wallet contained a small amount of cash, and bank and credit cards.   The appellant obtained the wallet and its contents by rifling through a bag he came across, in circumstances I do not need to address.

(c)      Another four charges of theft, arising from the appellant stealing a range of items from shops, the most expensive of which was $200.00. This was also in breach of ss 219 and 223(d) of the Act.

(d)      A charge of attempted theft in breach of ss 219 and 223(d) of the Act.

Dishonest use of a document - CRNs 3554-3556, 3561 and 4116-4119

(e)      Five charges of dishonest use of a document and three charges of dishonestly attempting to use a document, in breach of s 228(b) of the Act.  The “document” was one or more of the credit cards which the appellant obtained from the wallet he had stolen, as referred to above.

[5]      The Judge took the burglary as the lead offence and adopted a starting point of three years’ imprisonment.  He added a further one month imprisonment on the charge of theft referred to in [4(b)], an additional two months for the offending referred to in [4(c)] above and an additional two months for the offending referred to in [4(d)] above.  Within each category of offending, the sentences were to be served concurrently.  However, the sentences themselves were to be served cumulatively, ie a total of three years and five months.  The Judge gave the appellant a discount of

33 per cent for his guilty pleas.   This gave a final sentence of two years, three months’ imprisonment.

[6]      The appellant filed his notice of appeal on 25 August 2010.

Grounds of appeal

[7]      Counsel for the appellant submits that the Judge erred in two respects.

[8]      First,  counsel  submitted  that  the  Judge’s  starting  point  of  three  years’

imprisonment on the burglary charge was too high.

[9]      Secondly, counsel submitted that the Judge erred in calculating the three years, five months sentence, before reducing the sentence on account of the appellant’s guilty pleas.  Counsel submitted that the Judge intended to order that all the sentences were to be served concurrently, so that the total sentence, prior to the

33 per cent reduction, was three years.  Applying a discount of 33 per cent, the final sentence would have been two years.

[10]     The circumstances of the burglary offending are as follows.

[11]     Shortly before 5:00 pm on Friday, 26 February 2010, the appellant was found in offices on the tenth floor of a building on Queen Street.  Apparently the appellant entered  the  building,  went  to  the  10th   floor,  saw  that  the  reception  area  was unoccupied and then went into an office behind the reception area.  A member of staff saw the appellant rifling through a desk and drawers, called for staff assistance and that led to the Police arriving.

[12]     In relation to this offending, counsel for the appellant emphasised that the burglary was of a commercial premises, during the daytime and that there was no loss of property.

[13]     In sentencing the appellant, the Judge referred to the decision in Senior v Police[1].  In Senior the Court referred to three categories of burglar, namely the first- time burglar, the recidivist burglar and the spree burglar.  The Judge described the appellant as a recidivist burglar and said that, on the Senior categories, the appellant would be “category three”.

[1] Senior v Police [2000] 18 CRNZ 340

[14]     In my view, if Senior were applied, the appellant would be category two.  In [36] of that case, the Court said that a category two burglar, who pleaded guilty to a single offence of burglary, or even two or three offences, was unlikely to receive a sentence of more than three years’ imprisonment.

[15]     As  the  Judge  said,  the  appellant  has  numerous  previous  convictions, including many for burglary.   However, as two recent Court of Appeal decisions make  clear,  the  correct  approach  to  sentencing  on  a  charge  such  as  this  is  to determine a starting point by reference to the circumstances of the offending itself.

It may then be appropriate to increase or reduce the sentence because of matters

relating to the offender, including any prior relevant convictions.   The Court of

Appeal decisions to which I am referring are R v Columbus[2] and R v Stevens[3].

[2] R v Columbus [2008] NZCA 192

[3] R v Stevens [2009] NZCA 190

Columbus and Stevens

[16]     In Columbus, to which counsel for the respondent referred me, the appellant used force to enter a garage at a residential property, causing damage in the process, and then stole a mountain bike, gardening tools and a toolbox.   Over the next 2 weeks or so, the appellant stole a lawnmower from a residential property, stole petrol from a service station and, after his property was searched, the appellant was found to be in possession of a cannabis pipe and some loose cannabis leaf.  The appellant pleaded guilty to the various charges at a late stage of the process, and he was then sentenced in the District Court.

[17]     At [16] of its decision, the Court of Appeal said that the circumstances of the burglary themselves would not have justified a starting point of more than one year’s imprisonment.   The Court also considered that it was appropriate to increase the starting point by six months for the theft of the lawnmower and petrol and the possession of the cannabis pipe and leaf.

[18]     At [18], the Court said that a further increase was appropriate to recognise the appellant’s previous dishonesty offences.  The appellant had 89 previous convictions, of which 13 were for burglary and another 34 were for property related offences.  He had been sentenced to imprisonment on 15 occasions since 1989.   The Court considered that the appellant’s previous history justified a further increase of one year, giving two and a half years’ imprisonment for all the offending.

[19]     The Court then made some further comments in relation to the discount given for the guilty plea which are not relevant to this case.

[20]     The appellant in Stevens also appeared on several charges, the most serious of which was one count of burglary.  The appellant had keys to premises which he had

previously been employed to clean.   He used the keys to get into the building,

deactivated the security system and then took several metres of copper piping from the walls.

[21]     The District Court Judge said that a starting point of two years’ imprisonment on the burglary charge would be appropriate, with an uplift of 12 months for the appellant’s prior convictions, with a discount then to be applied for the guilty plea.

[22]     The Court of Appeal considered that the appropriate starting point on the

burglary charge would have been no more than 18 months’ imprisonment.

[23]     The Court then considered the appellant’s previous criminal convictions.  The appellant previously had committed some 60 dishonesty offences and was subject to intensive supervision at the time of the offending.  He had three prior convictions for burglary, the most recent of which was in 1997. The Court of Appeal considered that the addition of 12 months’ imprisonment on this ground was within the range that was open to the Judge.

Moses and Guest

[24]     I have also had regard to two recent decisions of White J, in Moses v Police[4] and in Guest v Police[5].  In Moses, the appellant had broken into a shop in the early hours of the morning by smashing his way through a window at the front of the store.  He stole cigarettes and tobacco to the value of $2,687.00.  None of the items

[4] Moses v Police HC WHA CRI-2011-488-000006

[5] Guest v New Zealand Police HC WHA CRI-2010-488-0063

were recovered.   White J considered that in the particular circumstances of that offending,  a starting point  of two  and  a half  years was  appropriate taking into account the forced entry to the premises, the value of the unrecovered goods and the absence of any violence.  In addition, the appellant had an extensive list of previous convictions, including 26 prior convictions for burglary.  The Judge considered an increase of one year and six months’ imprisonment would be appropriate.

[25]     In Guest, the appellant was sentenced on two charges of burglary and one charge of receiving stolen goods.

[26]     The first burglary, committed with an associate, was of a private home.  The second was of a Post Shop.  White J took the first burglary as the lead offence.  He adopted a starting point of two years and six months’ imprisonment.  He made an uplift to the sentence of one year, eight months on account of the appellant’s prior convictions.   Over a 30 year period, the appellant had been convicted of 145 dishonesty offences, including 23 for burglary.

This case

[27]     Turning to this case, I am not satisfied that the offending was as minor as counsel for the appellant submitted.   The appellant clearly had made a deliberate decision to enter the building and make his way up to the 10th  floor, and he was looking for items in the desk of an office when he was interrupted by a staff member. That said, I accept that the offending was at the lower end of the scale.

[28]     Having regard to the authorities to which I have referred, I am satisfied that a starting  point  of  15  months’ imprisonment  would  have  been  appropriate  in  the circumstances.

[29]     I then turn to the history of the appellant’s previous convictions.  At the time of this offending, the appellant was 35 or 36.  His criminal and traffic history runs to some 12 and a half pages.   Since late 1989 the appellant has been convicted on numerous occasions for dishonesty offences, including shoplifting, theft, false pretences, entering with intent, being in an enclosed yard unlawfully and possession of instruments for burglary.  By my count the appellant has 28 previous convictions for burglary.  He has been sentenced to at least 16 terms of imprisonment.  Prior to the sentencing which is the subject of this appeal, the appellant was most recently sentenced to two years’ imprisonment on 17 February 2009, in respect of a burglary offence committed in December 2008.

[30]     Again, having regard to the authorities, in my view an uplift of 18 months’ imprisonment  is  appropriate  because  of  the  appellant’s  prior  convictions.    That means that, before making any deduction on account of the appellant’s guilty plea,

the sentence on the burglary charge would be no less than two  years and nine

months’ imprisonment.

Other offending

[31]     I do not propose to interfere with the sentences which the Judge imposed for the offending referred in paragraph [4(b)] to [4(d)] above.  The sentences which the judge imposed were clearly within the range which was open to him.  In addition, I do not consider the Judge erred in ordering that the additional five months were to be served cumulatively.   Although they are dishonesty offences, the offences are different in kind and were committed several days after the burglary.   The most important matter is that the appellant embarked on the subsequent offending, having already been apprehended on the burglary matter.  So, in my view there is a clear division between the burglary and the other offending.

Result

[32]     Taking the sentence of two years and nine months’ imprisonment on the burglary charge and five months’ imprisonment on the other offending, the total sentence is three years and two months’ imprisonment.  Allowing the appellant the benefit of the 33 per cent deduction given by the Judge because of the appellant’s guilty pleas, the final sentence would be a little over two years, one month.   The Judge’s final sentence was two years and three months.   Because there is so little difference between the results the Judge and I have arrived at, I am not satisfied that the sentence the Judge arrived at was manifestly excessive and, accordingly, decline to vary the sentence which he imposed.  I dismiss the appeal accordingly.

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

PETERS J