Mathias v Police
[2018] NZHC 1910
•30 July 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000054
[2018] NZHC 1910
BETWEEN PAUL ALURED MATHIAS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 July 2018 Appearances:
S G Bailey for Appellant
S Bicknell Young for Respondent
Judgment:
30 July 2018
JUDGMENT OF DUNNINGHAM J
Introduction
[1] On 16 May 2018 Judge Ruth sentenced Paul Mathias to two years and three months’ imprisonment on charges of burglary, receiving, possession of instruments for burglary and failing to carry out obligations regarding the Search and Surveillance Act 2012.
[2]Mr Mathias appeals that sentence on the basis that it is manifestly excessive.
Background
[3] On the afternoon of 13 April 2017, a townhouse in Staveley Street, Avonhead, was broken into by forcing a downstairs ensuite window open. The property stolen included electronics, jewellery, alcohol and foreign currency, and had a total value of
$12,510. The currency included 6.8 million Indonesian rupiah and $AUD500.
MATHIAS v NEW ZEALAND POLICE [2018] NZHC 1910 [30 July 2018]
[4] The appellant’s customer account at a money exchange at Riccarton Mall was used at 5.25 pm the same day, to exchange 6.75 million Indonesian rupiah for $NZ650 and $AUD225.
[5]The appellant pleaded guilty to receiving based on these facts.
[6] Overnight on 22-23 October 2017, a townhouse in Wharenui Road, Riccarton, was broken into by forcing a downstairs toilet window open. The tenants of the house had recently moved out, but furniture and household items belonging to the owner were left. Property taken included a toolbox, two blankets, towels, cleaning products, a washing basket and a basket from a shelving unit, to a total value of $481. The property owner also believes that whoever broke into the property used a shower and slept in one of the beds. Police found fingerprints belonging to the appellant in the property.
[7]The appellant pleaded guilty to burglary based on these facts.
[8] On 15 January 2018, the appellant arranged for his mother to obtain and return various items to the police that were stolen during this burglary. The tool box and the majority of the tools that were in it, along with the basket from the shelving unit, are still missing, to a value of $190.
[9] On 7 December 2017, police spoke to the appellant about the burglaries, with which he initially denied involvement. Under warrant, police searched the appellant’s vehicle and found a balaclava, jemmy bar, screw drivers, a window breaker, a large number of keys, torches, gloves and other tools and items used to commit burglary. The appellant pleaded guilty to possession of instruments for burglary based on these facts. The appellant was also found to have $1091 cash on him, which was seized by police. He refused to supply the passcode to his cell phone to police, which led to his charge of failing to carry out an obligation under the Search and Surveillance Act.
District Court decision
[10] The District Court Judge noted the appellant’s extensive criminal history and described him as a “recidivist burglar”. However, he recognised that the appellant had
written letters of apology, had returned some of the stolen goods, and had also addressed the Court saying that he wanted to turn his life around.
[11] Having considered the police prosecutor’s submissions and the authorities referred to in them, the Judge set a starting point of 18 months for the burglary charge as the lead offence. The Judge then uplifted that by 15 months to reflect both the other offending and “any aspect of recidivism”. With a “roughly” 20 per cent discount for the appellant’s guilty plea, the end sentence was two years and three months’ imprisonment. The Judge considered this appropriate as the appellant would go to the Parole Board “so that arrangements and risk factors can be properly assessed”.
[12] The Judge granted the police’s application for the forfeiture of the $1091 found on the appellant when he was arrested. From the money forfeited, the Judge ordered that $875 of it be paid as reparation for the foreign currency received and exchanged, and $190 be paid as reparation for the stolen goods not returned.
[13] The Judge sentenced the appellant to four months’ imprisonment on the receiving charge, one month on the failing to carry out obligations charge, and nine months on the charge of having burglary instruments, all to be served concurrently.
[14] The Judge also ordered the destruction of the burglary instruments, as sought by the police.
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, 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.1 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.2 It is only appropriate for this court to
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3
Submissions
Appellant’s submissions
[16] Ms Bailey, who was not counsel in the District Court, submits that the starting point of 18 months’ imprisonment was too high, the uplift of 15 months was excessive, and the appellant did not receive sufficient discount for his guilty pleas.
[17] In terms of the starting point for the burglary charge, Ms Bailey submits that 15 months would have been appropriate as this burglary was at the very low end of the scale. In support of this submission she noted that the rental property was not occupied so the likelihood of confronting anyone was minimal, the appellant entered to obtain shelter, the taking of items was opportunistic, most of the items were returned, reparation is possible, and there was minimal damage.
[18] Ms Bailey submits that an uplift of nine months would be appropriate to reflect the other offending, plus a further uplift of three months for the appellant’s previous convictions. Ms Bailey stresses that the receiving charge should not be overstated or tainted by the additional information in the summary of facts relating to the burglary itself, which the appellant was not charged with by the time of sentencing.
[19] Ms Bailey submits that the appellant should have received a full 25 per cent discount for his guilty pleas. His guilty plea to the burglary was entered at an early stage. The plea for the receiving charge came after he pleaded not guilty to the second burglary charge, and it was downgraded to receiving.
[20] In addition, Ms Bailey submits that the appellant deserved a further 5-10 per cent discount for remorse, considering his letters of apology, his voluntary return of taken items and his willingness to attend Restorative Justice.
3 Ripia v R [2011] NZCA 101 at [15].
[21] Ms Bailey takes issue with the Judge’s comment that the sentence imposed will mean the appellant would go to the Parole Board “so that arrangements and risk factors can be properly assessed”. She submits that sentences should not be tailored for certain outcomes to occur.
[22] Finally, Ms Bailey raises a concern that the terms of the order for destruction were uncertain. The order sought in the summary of facts was expressed as follows:
An order is also sought for the destruction of the items listed above namely the balaclava, jemmy bar, screw drivers, window breaker, a large amount of keys, torches, gloves and other tools and items all instruments used to commit burglaries.
[23] The Judge’s decision simply made an order for the destruction of the “burglary instruments” without more, so it is assumed to be made on the terms set out in the summary of facts. The appellant had other items in the vehicles including painting and gardening gear. He appeals this order to the extent it gives the police a discretion to decide what is to be destroyed.
Respondent’s submissions
[24] Counsel for the respondent, Ms Bicknell Young, submits that the end sentence is within range and the appeal should be dismissed.
[25] Regarding the starting point, she notes that burglary does not have a tariff judgment but that a starting point of 18 months is line with the authorities for a low- level burglary of a dwelling house. The Court of Appeal rejected a submission that burglaries of holiday homes involve a lower level of culpability than those of residential homes,4 and counsel submits this should also apply equally to a vacated rental property. In fact, she submits that this burglary may be more serious than an average burglary, in that he stayed in the house, in a “Goldilocks” style of offending.
[26] Ms Bicknell Young considers the uplift of 15 months was within range. She notes that the appellant was subject to release conditions at the time of each of the dates of offending, in April, October and December. He has a significant history of
4 Penniket v R [2016] NZCA 154 at [43].
dishonesty offending in the Youth and District Courts, including 16 previous convictions for burglary, two for unlawfully being in an enclosed yard and two for receiving. With reference to cases where similar uplifts were made,5 counsel submits that an uplift of at least 15 months was available to the Judge for the appellant’s three additional charges, previous convictions and offending whilst subject to release conditions.
[27] Ms Bicknell Young acknowledges that the Judge could have given more credit for the appellant’s guilty pleas and remorse, but that adjustment for that may amount to tinkering. She also notes that there was strong evidence for the burglary charge he pleaded guilty to, with the appellant’s fingerprints being found at the scene, and that the other guilty pleas came later, at a case review hearing, which she submits was not the first reasonable opportunity. These factors warranted the discount being less than 25 per cent.
Analysis
Starting point
[28] There is no tariff judgment for burglary. However, the Court of Appeal has given guidance in Arahanga v R:6
[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months imprisonment.
[29] The Courts have often recognised the emotional impact and sense of violation that occur when a private home is burgled.7 As discussed by counsel for the respondent, the Court of Appeal rejected a submission that burglaries of holiday homes are less serious than those of residential homes, saying:8
5 For example, French v Police [2015] NZHC 2635.
6 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
7 See, for example, R v Lowe CA62/05, 4 July 2005 at [34].
8 Penniket v R, above n 4, at [43].
There is still the significant possibility of the victims being present, and the victim impact reports show how the losses of valued personal items affected the residents and their ability to enjoy their dwellings. These factors can apply equally to residential or holiday homes.
[30] I accept that these principles apply, in part, to a recently vacated rental property. The owner of the property was checking the property regularly and there was still a chance of confrontation particularly given the evidence the appellant spent some time there. Furthermore, the fact the property was used by the appellant is an aggravating factor because it adds to the sense of private space being violated. However, I accept it must be considered less so here where it is a vacated rental property, where neither tenants or the owners are using it as a personal residence.
[31] It is clear therefore that this offending is at the lower end of the scale. However, the Judge recognised this in setting the starting point at 18 months, being the low point for dwelling house burglaries in Arahanga. In my view, there is little basis for this to be lowered further, and the Judge was not wrong to adopt the 18 month starting point.
Uplift
[32] The Judge uplifted the sentence by 15 months to reflect the other offending and the appellant’s previous convictions. In this regard I accept that the appellant’s history of this type of offending was significant. In addition, the Judge did not reference the fact that the appellant was subject to release conditions at the time of each offence. Taking that into account, the uplift given by the Judge is clearly reasonable, and if anything, generous. Again it is not wrong.
Discount
[33] While the Judge awarded a “roughly” 20 per cent discount, the timing of the appellant’s guilty pleas do appear to be at, or close to, the earliest opportunity. However, I also accept that that is not the only consideration. Here, the strength of the evidence was a factor which could have warranted the discount being slightly less than 25 per cent. Similarly, the reduction of the burglary charge to receiving was of benefit to the defendant and can have a bearing on whether a defendant should also get a full discount for a guilty plea. Thus, while another Judge may have given a full 25 per cent discount I cannot conclude the Judge was wrong to give less.
Totality
[34] A modest discount could arguably have been given for remorse, but given the history of offending the Judge was entitled to put little or no weight on that factor. However, we do not know his views on that. In my view, a discount for remorse would not have altered the overall sentence by more than a month or two. Looked at in totality I do not consider the overall sentence was excessive, nor do I think a different sentence should be imposed.
Order for destruction
[35] I accept that the Judge’s order for destruction must be assumed to be on the terms set out in the summary of facts and counsel were agreed that it cannot pertain to unspecified items.
[36] I accept that an order for destruction should not be made in general terms which grants a discretion to police to decide what items are covered by it. Instead, it should clearly describe or itemise the items to be destroyed. In order to clarify matters I accept the order for destruction should exclude the words “and other tools and items all instruments used to commit burglaries” and the order is amended accordingly.
Conclusion
[37] The sentence imposed on the appellant is not manifestly excessive, and the appeal is dismissed, save for clarifying that the order for destruction is amended to read as follows:
An order is also sought for the destruction of the items listed above namely the balaclava, jemmy bar, screw drivers, window breaker, a large amount of keys, torches and gloves.
Solicitors:
Serina Bailey, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
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