Melgren v R
[2016] NZHC 2482
•18 October 2016
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2016-470-000019 [2016] NZHC 2482
BETWEEN KURT SAVANA MELGREN
Appellant
AND
THE QUEEN Respondent
Hearing: 18 October 2016
(Heard at Rotorua)
Appearances:
C M Andersen for Appellant
N T C Batts for RespondentJudgment:
18 October 2016
ORAL JUDGMENT OF PALMER J
Solicitors:
Webby & Associates, Tauranga
C M Andersen, Barrister, TaurangaCrown Solicitor, Tauranga
MELGREN v THE QUEEN [2016] NZHC 2482 [18 October 2016]
Facts
[1] Mr Kurt Melgren, aged 20, was convicted on 4 May 2016 of aggravated burglary, which has a maximum penalty of 14 years’ imprisonment. He was also convicted of being armed with intent to commit burglary, which has a maximum penalty of five years’ imprisonment; and wilful damage, with a maximum penalty of three months’ imprisonment.
[2] This offending arose out of incidents in January 2015 when Mr Melgren tried to buy cannabis but discovered there was none provided in return for his money. Mr Melgren and an associate went to where the vendor lived. Mr Melgren took with him a hunting knife and covered his face with a bandana. He slashed the tyres of a car, which is the subject of the wilful damage charge. He entered a house and stole items including electronic items and a guitar. The occupants were asleep in the house. It turned out to be the wrong house.
[3] Mr Melgren and his associate then went to the right house, slashed the tyres on another car, used the knife to tap on a bedroom window, which an occupant pulled closed. Mr Melgren and his associate left.
[4] In addition, Mr Melgren was convicted of:
(a) possession of cannabis, which has a maximum penalty of three months’ imprisonment;
(b)possession of equipment for the cultivation of cannabis, which has a maximum penalty of five years imprisonment; and
(c) and possession of a pipe or utensil for the consumption of cannabis, which has a maximum penalty of one year’s imprisonment.
[5] In relation to that, in March 2016 when Police were called to Mr Melgren’s
address he admitted to smoking cannabis and showed the Police the cannabis and a
bong. They found 28.7 grams of cannabis head, 134 grams of cannabis leaf, a bong, pipe and heat lamp.
[6] Mr Melgren has two previous convictions, which did not relate to violence. [7] Mr Melgren pleaded guilty.
District Court decision
[8] On 4 May 2016, Judge Cameron of the District Court sentenced Mr Melgren to two years or 24 months’ imprisonment for the charge of aggravated burglary and three months’ imprisonment for each of the charges of wilful damage and being armed with intent to commit burglary, to be served concurrently with each other but additional to the two years.1 He was sentenced to two months’ imprisonment on each of the three drugs charges, also to be served concurrently with each other but additionally to the two years. So 29 months’ imprisonment all up, as well as reparation.
[9] Judge Cameron arrived at the sentence by taking a starting point of three and a half years on the lead charge of aggravated burglary. He took into account aggravating features, he uplifted the starting point by three months for the other two charges, he applied a 15 per cent discount for Mr Melgren’s youth, 25 per cent for a guilty plea, and a two month discount for remorse.
Submissions
[10] Ms Andersen, on behalf of Ms Webby for Mr Melgren, submits that the sentence is manifestly excessive because the starting point of three and a half years was too high by around six months. She also submits there should not have been an uplift for the related offending, but a starting point should have been set in respect of all of the related offending. The drug offending, she says, should have been the subject of discount for mitigating factors. And there should have been a deduction
considering the totality of the offending.
1 R v Melgren [2016] NZDC 7714.
[11] Ms Andersen emphasises the desirability of Mr Melgren’s sentence being less
than two years’ imprisonment. She says, in written submissions, that:
(a) either the starting point should have been three years with an uplift of three months, then the discounts yielding 18 months; or,
(b)if the starting point was three and a half years a totality approach together with the guilty plea for drugs charges should yield 22 months.
[12] Mr Batts, for the Crown, submits the starting point was within range, the uplifts supplied were lenient and the end sentence was well within range and cannot be shown to be manifestly excessive.
Law
[13] Under s 250 of the Criminal Procedure Act 2011, I am required to allow the appeal if I am satisfied that for any reason there is an error in a sentence imposed and a different sentence should be imposed, otherwise I must dismiss the appeal. The High Court does not intervene where the sentence is within a range that can be properly justified by accepted sentencing principles.
[14] Here, the purpose of sentencing identified by s 7 of the Sentencing Act 2002 include, particularly:
(a) holding Mr Melgren accountable for the harm done to the victims and to the community by his offending;
(b)promoting in Mr Melgren a sense of responsibility for, and acknowledgement of, that harm;
(c) denouncing his conduct and deterring him and others from committing such offences;
(d) protecting the community from Mr Melgren; and also
(e) to assist in Mr Melgren’s rehabilitation and reintegration into the
community.
[15] Section 8 of the Sentencing Act sets out principles of sentencing I am required to apply. Here, they include, particularly:
(a) taking into account the gravity, culpability and seriousness of the offending;
(b)consistency with sentences for similar offenders committing similar offences in similar circumstances; and
(c) the least restrictive outcome appropriate in the circumstances.
Decision
[16] I have considered all of Mr Melgren’s and the Crown’s submissions.
[17] Is there an error in the sentence imposed? Ms Andersen’s first submission is
that the starting point was wrong.
(a) Judge Cameron accurately identified a number of aggravating factors.
I consider he appropriately relied on the guideline judgment of R v Mako in relation to aggravated robbery.2 The factors were: being with another offender, entering a house, at night, with occupants being asleep, being disguised by a bandana, and carrying hunting knife.
(b)I accept possession of a weapon is an element of the offence but I do take into account the type of weapon it was.
(c) I do not consider there was a high degree of pre-meditation, though there clearly was some, in taking the knife and organising to be driven
to the place of the offending.
2 R v Mako [2002] 2 NZLR 170 (CA).
(d)But I acknowledge the Crown’s submission in its written submissions, that there is Court of Appeal authority that a home invasion element is an aggravating factor in aggravated burglary cases, that can justify a higher starting point than otherwise.
[18] The best point in Mr Melgren’s favour was that no violence was committed. That distinguishes this case from a number of others cited to me such as Rangi v R, where Mr Rangi pushed the complainant into a wall putting a hole in it, punched him eight times and showed him a gun.3 However, in that case where the starting point was three and a half years, which the Judge considered himself bound by, the Court of Appeal commented that Mr Rangi’s sentence was “extraordinarily lenient”.
[19] I acknowledge a starting point of three and a half years is out of kilter with the sentence in Warren v Police, but I agree with the Crown’s submissions that the sole issue for the High Court there was the appropriateness of home detention. The starting point was not an issue in the High Court’s consideration of the case and it does seem to be a particularly lenient starting point.4
[20] In R v Shirley, objected to by Ms Andersen as a precedent, there were more aggravating factors than are present here.5 The Crown says that entering a stranger’s home here is aggravating, compared to that in Shirley and points to a significant amount of property being stolen. I am not sure that that makes it more aggravating than in Shirley. But, the starting point of three and a half years at a mid-point in a range of three to four years, was not challenged in Shirley so the Court of Appeal did not consider the starting point.
[21] And the Crown is correct that the potential for violence was clearly present here, given Mr Melgren’s determination evident in approaching another address when he realised he had the first one wrong, as well as his possession of a hunting knife. Ms Andersen accepts that using the knife to tap on the window is
intimidating, as she must.
3 Rangi v R [2014] NZCA 524.
4 Warren v Police HC Greymouth, CRI 2011-418-149, 17 November 2011.
5 R v Shirley [2009] NZCA 216.
[22] I consider the comparative examples traversed in Rio v Police show that three and a half years is not uncommon for aggravated burglary where there was no violence or property taken.6 Violence often lifts the starting point to six or seven years.
[23] In particular, I consider the case of Kahotea v Police as a useful comparison. 7
That involved three offenders driving to and entering a building, searching it and finding cannabis. The occupants were threatened by the others, who were armed, though not by Mr Kahotea who did take a camera. No violence was committed. The starting point was three and a half years.
[24] I do not consider Judge Cameron erred here, in setting a starting point of three and a half years. It was within the range available to him.
[25] Ms Webby and Ms Andersen submit that there should not have been an uplift for the related offending but a starting point should have been set in respect of all of the related offending.
[26] As the Crown points out, the charge of being armed with intent related specifically to the second address and is a distinct and not necessarily part of the whole transaction, as was the slashing of tyres. I agree that uplift was available to the Judge and that three months was appropriate and not excessive.
[27] Ms Webby, in her written submissions, submitted it was an error for the drug offending not to be discounted for youth and remorse. The Crown suggested that three months was particularly lenient given the amount of cannabis and the fact it was discovered while Mr Melgren was on bail. I do agree with that. There was an effective discount for that reason. But, in addition, I am not convinced that the Judge did not impose a discount as well. The second method by which the Judge arrived at his sentence indicated two months were imposed, whereas the first indicated three,
so there may have been a discount by him as Ms Andersen concedes.
6 Rio v Police HC New Plymouth CRI 2011-443-33, 26 August 2011.
7 Kahotea v Police HC Tauranga CRI 2011-470-18, 15 August 2011.
[28] In any case Mr Melgren had also committed four drug related offences for which he was dealt with in the Youth Court. It is not inappropriate to take that into account as a relevant consideration in mitigating a discount. I conclude there was no error in the sentence.
[29] Finally, Ms Andersen submitted there was an error in considering the totality of the offending under s 85 of the Act. I accept Judge Cameron was not explicit in his judgment in considering the totality of the offending. However, after going through his approach to the sentence, he then went through it again in a different way. The way in which he did that suggests to me that he did have regard to the offending overall.
[30] I should make clear that I am sympathetic to the point that imprisonment will not be good for Mr Melgren. He is young. He has issues to deal with including drug abuse, and the effects of significant difficulties in his childhood.
[31] But the drug offences were committed on bail and Mr Melgren committed a relatively serious offence in aggravated burglary. The seriousness of that offence is illustrated by the maximum term of imprisonment being 14 years and, by the fact that those convicted of aggravated burglary receive a first strike warning, by order of New Zealand Parliament, which Mr Melgren has received. That will mean that he will get no parole if he is convicted of further such offending.
[32] I consider a further discount of six months to get below two years imprisonment, with the associated benefits to Mr Melgren, would represent almost
20 per cent of the total sentence and would be too much on top of the other discounts already given. While I am sympathetic to Mr Melgren’s circumstances it is a basic principle of criminal law reflected in s 8(e) of the Sentencing Act that there should be consistency in the sentencing of similar offenders who commit similar offences in similar circumstances.
[33] Having regard to all the cases to which I have been referred I cannot agree
there has been an error in the Judge’s sentence in light of the totality of offending.
The total sentence pronounced by Judge Cameron in my consideration contains no error. The sentence was not manifestly excessive.
Result
[34] Accordingly, I decline the appeal.
Palmer J
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