McIndoe v The Queen

[2021] NZHC 3023

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CRI-2021-485-73

[2021] NZHC 3023

BETWEEN

PAUL JOZEF MCINDOE

Appellant

AND

THE QUEEN

Respondent

Hearing:	9 November 2021
Appearances:	R Solomon and C O Thorburn for Appellant A G McCluskey for Respondent
Judgment:	9 November 2021

ORAL JUDGMENT OF ISAC J

Introduction

[1]                  Mr McIndoe appeals a sentence of two years and six months’ imprisonment1 imposed on charges of burglary, theft, four charges of driving while disqualified, driving while suspended, and failing to stop for red and blue flashing lights.2

[2]                  I have concluded that the appeal should be allowed, and the sentence substituted for one of home detention.

1      Police v McIndoe [2021] NZDC 20314.

2      Crimes Act 1961, s 231(1)(a), maximum penalty 10 years’ imprisonment (burglary); ss 219 and 223(d),  maximum  penalty  three  months’  imprisonment  (theft);  Land  Transport  Act  1998, ss 32(1)(a) and 32(3), maximum penalty three months’ imprisonment, $4,500 fine and mandatory six months’ disqualification (driving while disqualified); ss 32(1)(c) and 32(3), maximum penalty three months’ imprisonment, $4,500 fine and mandatory six months’ disqualification (driving while suspended); ss 52A(1)(a)(ii), (5), (6) and 114(2), maximum penalty three months’ imprisonment, $10,000 fine and mandatory two years’ disqualification (failing to stop for red and blue flashing lights).

MCINDOE v R [2021] NZHC 3023 [9 November 2021]

The offending

The driving offences

[3]                  Mr McIndoe was suspended from driving on 11 December 2020 until 11 March 2021. He drove on 4 February 2021 and was subsequently disqualified from driving in the Porirua District Court.

[4]                  On 18 February 2021 Mr McIndoe was driving and the Police activated their lights and sirens to stop his vehicle. Mr McIndoe failed to stop and weaved in and out of traffic, in excess of 100 km/hour. Police abandoned the pursuit. Mr McIndoe drove again on 19 February and twice on 24 February.

Theft

[5]                  On 8 April 2021, Mr McIndoe was at a petrol station. An associate handed him a Bluetooth speaker worth $40, which Mr McIndoe hid in his jacket before exiting without paying.

Burglary

[6]                  On 8 May 2021, Mr McIndoe entered Michael Hill Jeweller wearing a black face mask, a black hooded top and black gloves. He jumped over the counter and when challenged he told a staff member to “fuck off”. Mr McIndoe took $28,895 worth of jewellery, put it in his pockets and attempted to leave but was restrained by the store manager and a member of the public. He told Police he stole the jewellery to pay a drug debt.

District Court judgment

[7]                  The Judge classified the burglary as “an extreme version” of shoplifting and acknowledged the factual similarities between the offending and the cases referred to by the prosecution of aggravated robbery.3 He then concluded the burglary charge could not be dealt with through a community-based sentence.4 The Judge identified

3      Police v McIndoe, above n 1, at [2].

the significant dangers to the staff in store and members of the public who may have been there.5

[8]                  Given the cases he was referred to, the Judge considered a starting point “in the order of three years would be about as low as it could reasonably get.”6 And given Mr McIndoe’s history, particularly with shoplifting, the Judge noted “there could be a lift to that [starting point].”7 The Judge gave Mr McIndoe the full 25 per cent credit for his guilty pleas.8 Although a community-based sentence was not available, the Judge noted Mr McIndoe’s history of non-compliance would have raised “serious issues about such a sentence”.

[9]                  The sentence was then calculated as: two years and six months’ imprisonment on the burglary charge, and two months’ imprisonment on the charge of theft and the driving offences, which were to be served concurrently. The Judge also disqualified Mr McIndoe from driving holding a driver licence for 12 months.9

This appeal

[10]              Mr McIndoe says the sentence was manifestly excessive. His grounds of appeal are:

(a)the adopted starting point was too high; and

(b)the sentence should have been reduced in recognition of:

(i)Mr McIndoe’s addiction and his efforts to engage in rehabilitation; and

(ii)the time he spent on EM bail.

5 At [3].

6 At [5].

7 At [5]. Although not explicit, it seems a three-month uplift was applied to reach the end sentence.

8 At [6].

[11]              The Crown’s position is that the end sentence was within range, although it acknowledges discounts for addiction and time spent on EM bail could have been given.

Approach on appeal

[12]              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 be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.10 A court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.11 It is only appropriate for this Court to intervene and substitute its own view if the sentence being appealed is "manifestly excessive”.12

[13]              The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.13

[14]              The Crown responsibly does not challenge the admission of two letters for the purposes of this appeal.

Discussion

[15]              Counsel for Mr McIndoe challenged the starting point adopted by the Judge, principally due to his reliance on two aggravated robbery cases cited by the prosecution, R v Eru and R v Lawson.14 While those cases may not have been the most obvious to determine a starting point on a charge of burglary, I nonetheless consider the starting point adopted by the District Court was within range and that the Judge did not place undue reliance on those authorities.

10     Criminal Procedure Act 2011, ss 250(2) and 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

12     Ripia v R [2011] NZCA 101 at [15].

[16]              There is no tariff decision for burglary,15 although the Court of Appeal in R v Nguyen identified a number of factors to be considered when determining the criminality of burglary offending, including: the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners or property, and the extent of the offending where multiple burglaries are involved.16

[17]              I consider the central aggravating feature of Mr McIndoe’s offending to be the actual confrontation with staff members going about their work, and the associated impact of that on them. Given this, I accept the Crown’s submission that the Court of Appeal’s statement in Arahanga v R that burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants is applicable in this context despite offending involving commercial premises.17 Although there were no express threats of violence, Mr McIndoe did jump over the counter and when confronted told a member of staff to “fuck off”. He was wearing a black mask and gloves. No doubt Mr McIndoe considered wearing attire of that nature would be a clear signal to shop staff and the public that he was there to rob the premises.

[18]              There was also quite clearly an element of planning to the offending, considering Mr McIndoe took steps to conceal his identity, and he targeted a jewellery shop. The value of the jewellery taken —$28,000 — was substantial. And although less significant, I consider the fact the shop is located on a busy street during retail hours to be relevant in assessing the criminality of the offending, given the greater chance members of  the  public  could  have  —  indeed  were  —  confronted  by  Mr McIndoe and his offending.

[19]The cases cited on behalf of Mr McIndoe can all be distinguished from his

15     See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

16     R v Nguyen CA 110/01, 2 July 2001 at [17].

offending, as they all involved burglaries of commercial buildings with no other people present.18 Mr McIndoe’s offending needs to be met with a sterner response. The Crown has drawn my attention to cases involving aggravated robbery and robbery cases, given the index offending in this case appears to have more in common with decisions dealing with sentences for those offences rather than burglary simpliciter.19 Of course, the Court should be careful about the degree of weight attached to those authorities given they involve different offences. But they do provide a useful measure of support for the starting point adopted in the District Court for offending that had broad similarities.

[20]              In all, I consider a starting point — bearing in mind totality — of three years’ imprisonment on the lead charge of burglary was within range. As I have noted there were several seriously aggravating features that indicate Mr McIndoe’s offending was not typical of burglaries involving commercial premises.

[21]              In Arahanga v R, the Court of Appeal noted that 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.20 I do not think the present offending can be considered minor, so a starting point beyond that band was available. And the fact it did not involve a dwelling house carries relatively little weight given Mr McIndoe appears to have targeted a jewellery store that was operating in normal retail hours and when members of staff and the public were present.

18 Adams v R [2012] NZCA 515 (starting point of 21 months’ imprisonment: defendant broke into a commercial building with a co-offender, and removed jewellery (valued at $25,000), suitcases, alcohol, mobile phones and computers); Ikahihifo  v  R [2012] NZHC  3553 (starting  point  of 20 months’ imprisonment: defendant and a co-offender drove from Auckland to Te Kuiti in a planned operation, broke into a supermarket and stole over $20,000 worth of cigarettes and tobacco, and caused $2000 worth of damage); Sherlock v Police [2021] NZHC 110 (starting point of 12 months’ imprisonment: defendant and a co-offender broke into commercial premises at night and stole items including an X-box game console controller, a glass vase and scrap metal).

19 R v Love [2020] NZHC 1215 (starting point of 18 months’ imprisonment: defendant went into a café, demanded a cashier hand over money, and said that if she did not he would “blow her brains out” before taking $380); King v R [2019] NZCA 413 (starting point of two to two and a half years’ would have been appropriate for the robbery alone: offender went into a back with his face covered, and demanded that two tellers put money ($3000) in his bag; R v Lawson, above n 14 (starting point of five and a half years’ imprisonment: offender entered the bank wearing a disguise and carrying a knife, threatened tellers, and left with around $2,500); Fitikefu v R [2014] NZCA 99 (starting point of five years and four months’ imprisonment: offender went into a bank with co- offender and his face covered. He stayed at the door while his co-offender leapt over the security barrier and demanded the tellers empty their tills. He yelled threats at the staff as the two men ran to a getaway vehicle. $2800 was taken).

[22]In any event, I respectfully agree with Osborne J’s comment in Lenihan v R

that:21

… a binary distinction between burglaries of commercial buildings and those of residential premises is likely to be unhelpful. What the Court of Appeal recognised in Arahanga is the significantly aggravating quality of the burglary of a domestic residence. The case is not authority for the proposition that commercial burglaries are uniformly less serious than those of residential premises. A burglary of residential premises is likely to involve numerous, relevant factors. A proper analysis flows from a consideration of all aggravating (and mitigating) factors relevant to gravity and not through any presumption arising from one particular feature such as the nature of the premises entered.

[23]              Finally on the question of starting point, I note that the Judge did not provide any increase in the starting point  to  reflect  the  additional  offending  for  which  Mr McIndoe was sentenced. While not as serious as the burglary, the additional matters would have separately warranted a discrete sentence of imprisonment. The four charges of driving while disqualified, combined with another theft charge, suggest that a sentence in the range of four to six months’ imprisonment on those matters alone was warranted. There cannot be any complaint, then, about a starting point of three years overall on the lead charge.

[24]              Turning to the question of uplift for Mr McIndoe’s previous criminal history, it appears implicit in the sentence that the Judge adjusted the starting point by three months. Although I accept counsel’s submission that Mr McIndoe cannot be considered a recidivist burglar, he has received 20 convictions for less serious property offences since 2018. Given this, it was open to the Judge to impose the uplift he did.

Discounts for addiction and rehabilitative prospects

[25]              The Judge did not provide any discounts for addiction and rehabilitative prospects. I consider this to be an error, and an adjustment of 15 per cent should have been acknowledged.

21     Lenihan v R [2020] NZHC 2543.

[26]              Addiction may give rise to a discount of up to 30 per cent depending on the extent to which it mitigates the moral culpability for the offending.22 Addiction must also be causative of the offending.23

[27]              The alcohol and drug report prepared by Mr Procter outlines the struggles   Mr McIndoe has had with methamphetamine. He started using when he was 18 and became addicted almost immediately. Mr McIndoe fell into a cycle of committing crime to support his habit. Indeed, the current offending occurred after Mr McIndoe relapsed and in order to pay a drug debt. At the height of his addiction, he reports using a quarter gram daily. The report states that Mr McIndoe meets the DSM-5 criteria for severe Stimulant Use Disorder.

[28]              I have no hesitation in accepting Mr McIndoe’s drug addiction is linked to his offending. But what I also consider to be crucial here is the appellant’s impressive efforts to address his addiction. He reports that he has been off methamphetamine for over five months, which is supported by the fact he has returned negative drug tests undertaken by Corrections in accordance with conditions of his supervision. Most importantly however, Mr McIndoe self-referred to CareNZ and has been participating in formal drug counselling to help with harm reduction strategies. An offender who is willing to address addiction issues ought to be rewarded at sentencing. And a drug and alcohol counsellor working with Mr McIndoe, and the Corrections Officer working with him as part of his sentence of supervision, have both remarked on the positive engagement they have had with Mr McIndoe. Their professional assessment is that he may have now turned a corner, and is motivated to avoid relapse by learning the skills he needs.

Time spent on EM bail

[29]              The Judge did not adjust the sentence for the time Mr McIndoe has spent on EM bail.

[30]              Time spent on EM bail is a mitigating factor that the court must take into account.24 And in taking into account that the offender spent time on EM bail, it must consider the period of time spent on EM bail, the relative restrictiveness of the conditions and the defendant’s compliance.25

[31]              Mr McIndoe was on EM bail from 3 June 2021 to 13 October 2021 — just over four months. He was on a restrictive 24 hour curfew with exceptions only to attend appointments as approved by Corrections. Mr McIndoe was highly compliant with the conditions, bar one low level breach of deviating during an approved absence.

[32]              I consider Mr McIndoe is entitled to a discount of 2 months for the time he spent on EM bail.

Sentence and result

[33]I adopt a starting point of 36 months as did the District Court Judge.

(a)From the starting point deductions of 25% to reflect an early guilty plea and 15% for the role of addiction in the offending and the appellant’s rehabilitative efforts are appropriate. That reduces the starting point to twenty-one months’ imprisonment.

(b)A further reduction of 2 months for time spent on EM bail is also warranted. That reduces the sentence to 19 months imprisonment.

(c)An uplift then of three months is appropriate to reflect previous criminal offending, leaving an end sentence of 22 months. This is a “short term” of imprisonment, which allows home detention to be considered.

[34]              Given the positive steps taken by the appellant, his efforts to stay clean, and the importance of prioritising rehabilitation over denunciation and deterrence, I

consider it is appropriate to impose a sentence of home detention commencing today. The total sentence imposed, then, is one of 11 months home detention.

Home detention conditions

[35]              As well as the standard conditions for home detention, which is to be served at the address outlined in the Probation report, I am going to impose certain special conditions, which have been recommended by Corrections. These are:

(a)Not to possess, consume or use any alcohol or drugs not prescribed to you.

(b)To attend an assessment for alcohol and drug use as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.

(c)Attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.

Isac J

Solicitors:

Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent