Miller v Police

[2012] NZHC 3237

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-55 [2012] NZHC 3237

DALE ALICK JOHN MILLER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 December 2012

Counsel:         A Schulze for the Appellant

S T Simmers for the Respondent

Judgment:      3 December 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr A Schulze, Lance & Lawson, Solicitors, Rotorua

Mr S T Simmers, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

MILLER V POLICE HC ROT CRI-2012-463-55 [3 December 2012]

[1]      Mr Miller appeals against a sentence of two years two months imprisonment for one offence of burglary and one of driving while suspended on the third or subsequent occasion.  The maximum penalty for burglary is 10 years imprisonment and the maximum penalty for the driving offence is two years imprisonment together with disqualification.

[2]      I  will  preface  a  brief  summary  of  the  facts  of  the  burglary  with  a chronological background to the burglary because it is relevant.   On 4 December

2011 Mr Miller was caught driving while suspended.  He was summonsed to appear in Court on 20 January 2012 but failed to appear.   On 19 March 2012 he was sentenced to community detention for shoplifting.  The burglary was committed four days later on 23 March 2012.

The burglary

[3]      The  burglary  was  committed  with  a  Mr  Patterson.    Mr  Miller  and  Mr Patterson broke into commercial premises at about 1.00 o’clock in the morning. They jemmied a sheet of corrugated iron from a side wall and exposed a small gap in the internal wall.  They crawled through the gap and on to the main floor of the shop. I interpolate at this point that the means by which they got into the shop suggests that they knew that they could get in this way.  This is relevant to the extent of planning. What is also relevant to the extent of planning is that they were carrying bolt cutters. They appear to have gone immediately to a rack containing firearms which were secured.  They cut the trigger guards from three firearms and immediately left with the firearms. These were a rifle, a pump action shotgun and a single shot rifle.  They were caught by Police soon after.

[4]      The rifles were recovered but the shop owner had to destroy them because they were dangerous without the trigger guards.   The victim impact statement indicates a loss in this regard of $2,500.  There was also a cost of around $800 to repair the damage from the entry point.

Personal factors

[5]      Mr Miller is aged 25.  I note that his accomplice, Mr Patterson, is aged 18. That has a bearing on the end sentence because there is a question of parity.  In terms of assessing a starting point, however, I proceed on the basis that Mr Patterson had equal responsibility with Mr Miller for the offending.

[6]      In respect of personal factors I have already noted that the burglary occurred within days of the imposition of the community detention sentence.  And there is the preceding history I have outlined starting with the driving while suspended.

[7]      Mr  Miller  has  nine  previous  convictions  for  dishonesty  offences.     In particular there are three previous convictions for burglary and one for receiving.  In respect of a submission that was made to the District Court Judge, and which has been made to me, that there should be a sentence of home detention I also note that there have been eight previous breaches of community work sentences and two breaches of release conditions.

[8]      At the time of sentencing Mr Miller had outstanding approximately $10,500 for fines, reparation and enforcement costs.  This sum was remitted on the present sentencing.

[9]      Mr Miller pleaded guilty to the present charges in the course of a defended hearing.

Judgment under appeal

[10]     The Judge noted as particularly aggravating factors of this offending the targeting of the firearms coupled, of course, with the theft of the firearms, together with the extent of premeditation evidenced by a degree of planning.

[11]    For the burglary offence the Judge, after outlining relevant background, including personal factors, said:

Taking account of the aggravating features of your offending and your personal situation the position is a sentence of two years for the burglary itself.

[12]     This, plainly enough, was what may be called a true starting point  – an assessment related solely to the gravity of the particular offence – coupled with some uplift for what the Judge described as Mr Miller’s “personal situation”.  It is not clear as to what was contained in the reference to Mr Miller’s personal situation. Immediately following the sentence I have quoted, the Judge said that there is also the driving while suspended charge.  He then said:

There will be an uplift of six months to take account of your previous history in this area making a total of two and a half years imprisonment.

[13]     There  was   finally  a   deduction   of  four  months   for  what   the  Judge understandably described as a very belated  plea of  guilty together with, and in particular, three months that Mr Miller had spent on electronic bail pending the hearing.   This resulted in the end sentence of two years and two months imprisonment.

Submissions on appeal

[14]     I received comprehensive and helpful submissions from Mr Schulze, for Mr Miller, and from Mr Simmers, on behalf of the Crown.   I will provide a brief summary of what I regard as the central aspects of the submissions and intend no discourtesy in not setting these out in detail.

[15]     Mr Schulze submitted that a “true” starting point for the burglary would be between 9 months to 15 months imprisonment.  He took no significant issue with the increase of six months, which appears to have been imposed for the previous offences, nor for the reduction of four months that I have just outlined.

[16]     Mr Schulze also submitted that there was  material disparity between the sentence of Mr Miller and that of Mr Patterson.  The end sentence for Mr Patterson was three months home detention.  The sentencing notes for Mr Patterson are very short, running to three short paragraphs.  There is no assessment of a starting point

and the other usual considerations.   Mr Schulze submitted that if one worked backwards from the three months home detention it might be inferred that there was an end sentence of imprisonment of around six months imprisonment and that this was arrived at after a deduction of perhaps 50% for personal factors, indicating an earlier assessment of 12 months imprisonment with that being an indication of a probable starting point.  The end sentence on this basis is readily understood from the Judge’s reference on sentencing Mr Patterson to factors such as his youth and some other matters which I do not need to go into.  The defence submission is not disparity in the end sentence but disparity in the starting point.

[17]     Mr Schulze referred to Senior,1  Southon2  and Columbus3  in terms of the broad background to burglary sentencing.  He referred in particular, for comparative purposes, to Yukich,4  Walker5  and Ewart.6    Of these three cases most emphasis was placed on Yukich for understandable reasons.   That was a case involving burglary with theft of seven firearms and two knives from a residential property.  On appeal a starting point of 12 months imprisonment was assessed.   The end sentence is not relevant.    The  two  other  cases  were  cited  in  particular  because  they  relate  to burglaries of commercial premises.  However, I consider they are of less assistance

than Yukich.

[18]     Mr Schulze also referred to decisions in Stevens7 and Iwikau8 on the question as to whether or not Mr Miller could be regarded as a recidivist burglar.  I accept the submission that this is not a case where Mr Miller could be regarded as a recidivist burglar.

[19]     On the question of parity Mr Schulze referred to the decision of the Court of

Appeal in Lawson9  and, on the relevant facts of this case and that of Mr Patterson, referred to matters that I have already touched on.

1 Senior v Police (2000) 18 CRNZ 340 (HC).

2 R v Southon (2003) 20 CRNZ 104 (CA).

3 R v Columbus [2008] NZCA 192.
4 Yukich v Police HC Rotorua CRI-2008-463-90, 23 February 2009, Lang J.

5 Walker v Police [2012] NZHC 2628.
6 Ewart v Police HC Timaru CRI-2008-476-11, 31 July 2008, Fogarty J.
7 R v Stevens [2009] NZCA 190.
8 Iwikau v Police [2012] NZHC 2027.

9 R v Lawson [1982] 2 NZLR 219 (CA).

[20]     Against that background Mr Schulze summarise his submissions on the basis that the starting point should have been at around 15 months, as opposed to the lowest period in the range he mentioned of 9 months.  He submitted that the increase for the other offence of driving while suspended and the circumstances of the offending,  and  in  particular  occurring  on  community  detention,  warranted  an increase of three months.   Mr Schulze submitted that the increase for previous offending should be a further three months to ensure that Mr Miller was not effectively penalised twice for the same offences.   There was no quarrel with the reduction of four months. This would result in an end sentence of 17 months.

[21]     On this basis there was a firm submission that this case justified a sentence of home detention.   Mr Schulze did not shy away from the negative aspects of Mr Miller’s previous offending and failure to comply with sentences.  Against this he referred, amongst other things, to the fact that Mr Miller has now been in prison on the sentence imposed on 24 August for 101 days and there had been an earlier period in custody on remand of around two and a half months.  In addition, there was the period on EM bail, which the Judge took into account.   I note that the probation officer recommended home detention.  The Judge declined to impose a sentence of home detention because of Mr Miller’s previous history and the serious nature of the offending.

[22]     For the Crown, Mr Simmers initially submitted that although the starting point could be regarded as stern it was nevertheless within range.   He referred in particular to decisions in Pirini10 and Taylor.11

[23]     In the course of discussions with Mr Simmers on the question of parity, and with this focused solely on a starting point, Mr Simmers acknowledged that this is a relevant factor and if the starting point were to be assessed on that basis some adjustment may be warranted to avoid a sentence that would not offend in respect of the principles stated by the Courts on questions of disparity.  Mr Simmers submitted that this is not a case where home detention would be justified having regard to the gravity of the offence, but more particularly to Mr Miller’s history.

Discussion

[24]     As with any appeal based on a submission that a sentence is manifestly excessive, the ultimate question is whether the end sentence is manifestly excessive. The enquiry is not whether the process by which the end sentence was reached is strictly in accordance with the guidelines of the leading Court of Appeal decisions.  I approach the appeal on that basis.

[25]     The first and principal question is the starting point, and looking at that in terms of the gravity of this offence before considering parity of sentencing.   I do consider that the decision of this Court in Yukich12  is important.   There are some differences which may indicate that the offending of Mr Miller is worse than that of Mr Yukich.  But there are other factors pointing the other way.  One example of the latter  is  the  fact  that  the  Yukich  burglary  was  a  burglary of  a  home.    Broadly

speaking, it is difficult to draw significant differences from the facts of the Yukich case and this case.  The starting point in Yukich was 12 months imprisonment.  In referring to this case, and indeed the other cases I have noted, it is also relevant to record that it appears that counsel who appeared for Mr Miller on sentencing in the District Court (not Mr Schulze) did not refer the Judge to any comparable cases.

[26]     The Yukich  case,  and  some of the other cases  referred  to,  together  with another Yukich case in the Court of Appeal,13  satisfy me that a starting point of around two years imprisonment was manifestly excessive.   In coming to that conclusion  I do  make  due  allowance  for  the  fact  that  the  period  of  two  years imprisonment   referred   to   by   the   Judge   also   made   some   allowance,   albeit unquantified, for some personal factors.   If the starting point is then considered in

relation to parity there would also appear to be a difficulty either with the starting point  for  Mr  Miller  or  the  starting  point  for  Mr  Patterson.    It  is  important  to emphasise in respect of questions of parity that it is not simply a case of seeking to determine whether the sentence in the case under consideration is too high if there is a sentence for a co-offender which is significantly lower.  It may be that the sentence for the co-offender was far too low.  The question of parity is concerned overall with

the administration of justice and it applies on both sides of the scales.  Nevertheless, the broad assessment of what would have to have been a starting point for Mr Patterson does indicate that the uplifted starting point for Mr Miller is unduly disparate.

[27]     One of the difficulties that does seem to arise with sentencing for burglary is the effective incorporation into a starting point of previous offending.  This tends to arise in particular with offenders with a significant number of previous convictions for burglary.  This is a matter that was touched on in the Columbus14 decision, one of the authorities referred to by the Crown and Mr Schulze.   In this case at least I consider it is better to focus at the outset solely on a true starting point.  Mr Miller’s previous offences, for burglary and otherwise, and his offending while subject to

another sentence, and the other personal factors, need to be left to one side.  On that basis I am satisfied that a starting point in excess of 15 months imprisonment would be manifestly excessive.   The starting point that must have been adopted by the Judge before the uplift for some elements of personal factors must have been well above that.  There does then need to be an uplift for the other offence, the offending while subject to the community detention sentence and the previous offences.   In respect of previous offences, as I have already indicated, Mr Miller in my judgment cannot be described as a recidivist burglar.   Overall I do not consider that there should be an increase in excess of the increase applied by the Judge of six months. That would take it to 21 months imprisonment.  There should then be the deduction allowed by the Judge of four months and in particular for the period on EM bail. That results in an end sentence of 17 months imprisonment.

[28]     With an end sentence under two years imprisonment home detention can be considered.  Whether there should be home detention or imprisonment in this case might be described as a question arising on the margin.  There certainly are factors pointing against home detention.   In my judgment it is not so much the previous offending but the apparent indifference to sentences and other orders of the Court with this bordering on contempt.  Nevertheless Mr Miller has now had the periods in custody that I have already outlined.  Important purposes of sentencing in relation to

denunciation and deterrence, and in particular seeking to bring these matters home to

14 R v Columbus, above n 3.

Mr Miller himself, have been adequately served by the periods already spent in custody.  The periods in custody amount to something in excess of five and a half months.   And there was the period of approximately three months on EM bail. Taking account of these factors I am satisfied when assessing the matter against the adjusted end sentence of imprisonment that this is a case where home detention should be substituted for a sentence of imprisonment.  Against an end sentence of imprisonment of 17 months the sentence of home detention will be eight months.  I have not made a further adjustment downwards from the conventional approach of home detention – being around half that of a prison sentence – as a result of the periods already spent in custody because these matters are offset by the need for denunciation and deterrence in Mr Miller’s case.

[29]     Accordingly, the appeal is allowed.  The sentence of imprisonment imposed in the District Court is quashed.  There will be a sentence of home detention of eight months.  The sentence is to be served at 9 Korimako Place, Tokoroa and subject to the further special conditions for home detention recorded at page 4 of the pre-

sentence report.

Woodhouse J