Mitchell v Police
[2013] NZHC 2517
•26 September 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2013-443-027 [2013] NZHC 2517
OSJAM PATRICK MITCHELL
v
NEW ZEALAND POLICE
Hearing: 25 September 2013 Counsel:
R T Wilson for Appellant
A Britton for CrownJudgment:
26 September 2013
JUDGMENT OF WILLIAMS J
Introduction
[1] The appellant appeals against his sentence of nine months imprisonment imposed by Judge Roberts on the basis that it was manifestly excessive, and more severe than the sentence imposed on a co-offender.
[2] He was sentenced on 17 July 2013 and has spent approximately 10 weeks in prison now. By my calculations he has nine weeks until his release on 1 December.
Facts
[3] The appellant was sentenced as a party to burglary, in respect of his somewhat ancillary role in a night time burglary of a residential property. Two of the appellant’s associates invited him to take part in the burglary, which involved forced entry through a window and the removal of alcohol, food and a 42 inch television.
Mr Mitchell said he did not go into the property but helped carry items back to his
MITCHELL v NEW ZEALAND POLICE [2013] NZHC 2517 [26 September 2013]
home address, which was located nearby. Once complete, Mr Mitchell said he returned to the address to ensure there was no evidence linking him to the burglary.
District Court sentencing
[4] Judge Roberts noted the appellant’s previous convictions for dishonesty offending: a burglary conviction in the Youth Court, and in the District Court dishonestly using a document (2007), receiving (2010) and shoplifting (2010). He then noted the pre-sentence report writer’s view that Mr Mitchell fails to take ownership of his offending, minimises his involvement and blames others. Electronically monitored sentences were not recommended because at the time of sentencing there was no consent at proposed current address, and no other address was nominated. The report also noted little family support, a fractured relationship with mother and sister, and transient residence in between their houses, with no nominated address at which to serve a sentence. It transpires that through no fault of the learned Judge, that assessment was wrong. I will come back to this.
[5] In any event, the Judge considered an electronically monitored sentence was inappropriate. He dismissed the suggestion of the defendant relocating to the South Island to live with his father where he could work. The Judge said “I struggle with people who are always able to find work in the shadow of the court gate but display no interest prior to the event”.
[6] The Judge then stated that a starting point of 12 months’ imprisonment was appropriate, for a “mean-spirited burglary” of elderly people, involving premeditation, and the property being returned to his address. He then discounted
25 per cent for guilty plea, and imposed an end sentence of nine months’
imprisonment.
Was the end sentence manifestly excessive?
[7] The appellant submits that the starting point did not reflect his role as a party and not a principle and the fact that this is his first offence for burglary. The appellant claims that the Judge sentenced him as though he was a principal offender,
as he did not believe that the appellant had only entered the premises to check that there was no incriminating evidence against him.
[8] In terms of the starting point, 12 months does not appear manifestly excessive in these circumstances. The defendant’s role in the burglary was not great, but he did provide a convenient place to the store the stolen property after the burglary, and the added element of checking the residence again to ensure no trace of the offenders remained is aggravating.
[9] In Nguyen v R, the Court of Appeal held that the offender’s culpability in a burglary should be assessed by reference to the “degree of planning and the sophistication in the offending, the nature of the premises entered, the kind and value of the property stolen, the damage done, the impact and potential impact upon occupants or owners of property and the extent of the offending where multiple burglaries are involved”.1 R v Snowden noted that the invasion of a domestic private home is an aggravating feature of the burglary itself, as it creates a greater feeling of violation and insecurity in the victim.2 In these situations Ellis J stated that a starting
point of at least 18 months was justified.3
[10] There was not a high degree of planning or sophistication in this burglary, it was more opportunistic. The appellant was invited to become involved at a late stage, and acted as a party rather than a principal offender. There was also only one property affected, and the value of the property stolen was only moderate (TV valued at $1500+ alcohol). However, the residential nature of the property is aggravating, the fact that it was at night and although the occupants were not home the resultant effect of feeling violated and insecure cannot be discounted.
[11] In R v Columbus,4 the defendant broke into the garage of a residential home and stole a mountain bike and tools. He later stole a lawnmower from the rear of a nearby property and $68 of petrol. The Court of Appeal considered a starting point
of one year was appropriate for what it considered to be “opportunistic and
1 Nguyen v R CA 110/01, 2 July 2001, at [17].
2 At [16].
3 At [17].4 [2008] NZCA 192.
spontaneous” offending, and applied an uplift of one year to take account of his 13
prior burglary convictions.
[12] In consideration of these authorities, a starting point of 12 months was open to the sentencing Judge.
[13] The Crown and defence both refer to Senior v Police and R v Columbus,5 which both take into account prior convictions for dishonesty in setting the starting point, justifying higher starting points for “recidivist” burglars. However, in a more recent case Sunnex v Police, French J considered that the methodology had now changed to align sentencing for burglars with the Taueki methodology.6 R v Stevens
and Snowden v Police reflect this change.7 As a result, starting points have reduced
because previous convictions are no longer factored into the assessment, however French J noted that did not justify a reduction to overall end sentences.8 Therefore the categories in Senior, and the classification of Mr Mitchell as a recidivist burglar is no longer valid.
Disparity
[14] Mr Mitchell also claims that there is an unacceptable disparity between his sentence of imprisonment and the five months home detention imposed on a principle offender in this case, Owen Wood.
[15] Mr Wood was also facing charges of unlawful possession of an airgun, unlawful possession of a firearm, receiving firearms knowing they had been stolen, possession of a cannabis plant and theft. On the final two charges he was convicted and discharged, and on all the other charges concurrent sentences of five months’ home detention were imposed. His sentencing notes are not available, however counsel for the appellant suggests a starting point of 15 months, reduced to
10 months for guilty plea and youth (Mr Wood was 17 or 18 at the time of the offending). He estimates that a 12 month starting point would have been adopted for
the burglary, and uplifted by three months to reflect the additional charges.
5 (2000) 18 CRNZ 340 (HC) and [2008] NZCA 192.
6 Sunnex v Police HC Christchurch CRI-2010-409-000043, 17 June 2010, at [8].
7 R v Stevens [2009] NZCA 190, Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.8 Sunnex v Police at [9].
[16] The appellant submits that given their difference in culpability, Mr Wood and Mr Mitchell should not have received similar starting points for the burglary charge. Mr Mitchell was only charged as a party and did not take part in the planning stages or the removal of property from the house.
[17] In response the Crown submit that the culpability of all the co-offenders was the same, as they had the same degree of knowledge and premeditation.
[18] Section 8(e) of the Sentencing Act requires the court to take into account the desirability of consistency of sentencing “in respect of similar offenders committing similar offences in similar circumstances”. Disparity in sentences imposed on co- offenders may lead to the reduction of an otherwise appropriate penalty on appeal. The Court of Appeal in R v Lawson discussed the circumstances where such a
reduction would be appropriate:9
[D]ifferences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute … But the test is objective, not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[19] Mr Mitchell’s role as a party in itself does not necessarily warrant a lower starting point than his co-offenders. He provided a nearby place to store the stolen goods and returned alone to check there was no trace of the offenders in the house, which were two steps to aid the burglary that the co-offenders did not take. In my view their culpability is similar enough, and the same starting point of 12 months for
both can be justified.
9 [1982] 2 NZLR 219 at 223
Home detention
[20] I mentioned earlier, that the learned Judge appears to have misapprehended the situation with respect to the support available from Mr Mitchell’s family for him and his prospects of rehabilitation. Three brief points can be made.
[21] The first is that both parents appeared in court and were given leave to address me (with the consent of Crown counsel) in order to give their perspective on matters. The learned District Court Judge did not have this advantage of that opportunity when he sentenced Mr Mitchell. Both parents are able to provide home detention addresses for him and are very supportive of his circumstances. They are of the view that there is yet good in this boy. His father in fact took the view that his last 10 weeks in prison have helped to wake him up and that he is ready for change with family support.
[22] The second point is that the appellant does appear to have genuine mental health issues. His father is a long term sufferer from ADHD, and he was treated by the same specialist who was recently involved in treating the appellant. I received a somewhat dated but nonetheless instructive letter from that specialist, a Dr Hanne. It suggests that the appellant has number of personality difficulties associated with relatively severe ADHD. These can be treated and overcome with proper support. These issues are, in part at least, causative of this offending.
[23] The third point is that although the appellant left school at a very early age, he has managed to hold down various jobs for extended periods, and he has a number of practical kitchen-based qualifications. He is not necessarily the unsupported, undirected, incorrigible waster that Judge Roberts described. With family support, treatment and perhaps work, the appellant may yet find a more productive path than the one he has been on. In this sense also, the appellant’s situation is comparable to that of his co-offender, Mr Wood, in whose sentencing, the learned Judge expressed some hope of rehabilitation.
[24] In light therefore of the new information before me, I am satisfied that it is in order for the appellant to serve what would have been the rest of his term of imprisonment on home detention.
[25] I am aware that there is only nine weeks remaining on his sentence and there is insufficient time to await an assessment of the suitability of the proposed address for a home detention sentence. I propose therefore to bail the appellant to the suggested address until the assessment can be done, and the sentence completed.
[26] The appeal is allowed accordingly and, taking full account of time already served in prison, a sentence of nine weeks’ home detention is substituted. The home detention address is to be 152 Portia Street, Stratford. This sentence is subject to the condition that the appellant reside at that address with his father for the entire period of the sentence.
[27] In the meantime, and to allow Corrections time to establish appropriate home detention infrastructure, the appellant is bailed to the same address subject to the following conditions:
(a) that the appellant’s father also reside at that address for the duration of
the bail;
(b)the appellant to present himself at the door if called upon by the police;
(c) not to communicate or contact or attempt to communicate or contact either directly or indirectly any co-offenders; and
(d)curfew to that address 7pm to 7am daily unless attending a medical appointment or in possession of written confirmation of such
appointment.
Williams J
Solicitors:
C&M Legal, New Plymouth
Crown Solicitor, New Plymouth
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