Morgan v Police HC Wellington CRI 2010-485-27
[2010] NZHC 667
•5 May 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2010-485-27
THOMAS JAMES CHARLES MORGAN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 4 May 2010
Counsel: M J Baker for Appellant
MWC Snape for Respondent
Judgment: 5 May 2010 at 11am
In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 11am on the 5th day of May 2010.
RESERVED JUDGMENT OF MACKENZIE J
[1] The appellant appeals against a sentence of 15 months imprisonment imposed by Judge Harrop in the District Court at Lower Hutt on one count of burglary, to which the appellant had pleaded guilty.
[2] The facts are that on 17 December 2009 the appellant went to the Breast
Screening Clinic on the ground floor of Hutt Hospital. He forced entry into an office and searched a cabinet and drawers. He took $30 in cash.
MORGAN V NEW ZEALAND POLICE HC WN CRI-2010-485-27 5 May 2010
[3] In sentencing, the Judge noted that the burglary did not involve occupants, it did not involve threat or any particular threat of violence, and it was not premeditated. He noted the amount stolen was small but there was an element of persistence as the appellant had rummaged through the office for an hour. He also noted that the burglary was of a hospital. The Judge considered the appellant’s previous convictions to be the “over riding feature of this sentencing”. He noted that there were 21 previous convictions for burglary, some of which had resulted in significant sentences. The Judge considered the appellant to be a recidivist burglar. Weighing up these considerations the Judge concluded that a starting point of 15 months was justified by the circumstances of the offending. He considered that an uplift of eight months was appropriate to take account of the appellant’s previous convictions. He allowed a 30 per cent reduction, of eight months, to reflect the appellant’s guilty plea. The effective end sentence was 15 months imprisonment, which the Judge described as the least restrictive sentence that he could properly impose.
[4] Counsel for the appellant submits that the sentence is manifestly excessive. She submits that the starting point of 23 months imprisonment, after the uplift for previous convictions, was too high. Counsel submits that the burglary is at the lower end of the scale in that it involved an office, in day light hours, and only a small amount of cash. She submits that there was other property such as laptops and medication in the office which were not removed. That is acknowledged in the sentencing decision. Counsel submits that the appellant did not specifically target the hospital and was there to visit his mother who was a patient. Counsel describes this as opportunistic offending. She is instructed that the appellant has repaid the
$30, as required by the order for reparation, with a letter of apology.
[5] Counsel for the appellant relies upon R v Nguyen[1]and Senior v Police[2]and submits that none of the aggravating features referred to in Senior were present in this case. She submits that a starting point should have been around nine months. She submits that the uplift of eight months is high, having regard to the age of the convictions.
[1] R v Nguyen CA111/01, 2 July 2001.
[2] Senior v Police 18 CRNZ 340.
[6] Counsel for the respondent submits that, having regard to the nature of the premises and that the offending demonstrates an element of persistence, the starting point of 23 months was stern but within the range available to the Judge. Counsel for the respondent submits that there can be no question that the appellant’s
21 previous convictions for burglary place him within the category of a recidivist burglar and that, when viewed against the uplifts of other cases, the Judge’s uplift of eight months to reflect the appellant’s history was lenient. Counsel submits that while a starting point of 15 months based on the circumstances of the offending alone might be regarded as stern, the focus must be on the end sentence. Counsel submits that the end point of 23 months (before the discount for the guilty plea) is not excessive. Counsel submits that a starting point of 11 months to reflect the circumstances of the offending, with an uplift of 12 months for the previous offending, would have produced the same outcome.
[7] No issue is taken with the discount for the guilty plea. The question must accordingly be whether the sentence (before discount) of 23 months, taking into account the circumstances of the offending and the appellant’s previous history, was manifestly excessive.
[8] As the Court of Appeal noted in R v Lowe[3]the starting point in cases involving recidivist burglars is often used in a slightly different sense from the normal meaning of starting point as the sentence appropriate for the offending prior to consideration of aggravating and mitigating personal circumstances.[4] In this case, the Judge has adopted a starting point in the normal sense as described in R v Taueki,[5] and added a specific uplift for personal factors. That approach is helpful, as it is possible to examine both stages of the sentencing exercise. Viewed in isolation, without regard to the appellant’s previous history, I consider that counsel for the Crown’s description of the 15 month starting point as stern is appropriate. When regard is had to the appellant’s record, I consider that the previous convictions might well have justified a higher uplift than the eight months which the Judge took. The appellant has some 21 previous convictions for burglary,
[3] R v Lowe CA61/05, 1 July 2005.
[4] at [31].
[5] R v Taueki [2005] 3 NZLR 372.
commencing in the Youth Court in 1990 when the appellant was 14 years of age. There is a regular history of burglary offences, punctuated by periods of imprisonment, extending to a most recent conviction for a burglary committed in May 2005, for which the appellant was sentenced to two and a half years in April 2006. In addition, there are a number of other convictions for a range of offending, the most relevant of which are a number of convictions for receiving. That extensive history clearly places the appellant into the recidivist category identified in Senior. As this Court noted in Senior, in the case of a recidivist burglar, the protection of the public is a significant factor and Judges are likely to impose sentences which are more severe than those imposed on the offender on previous appearances for the same offence. This case is similar to the typical case described in Senior of that involving a burglar with perhaps 20 or 30 previous convictions for
burglary appearing for sentence on only one, or a limited number of offences.[6] The
[6] At [30].
Court observed that a recidivist burglar who pleaded guilty to a single offence or even two or three offences is unlikely to receive a sentence which exceeds three years. The Court however went on to note:[7]
[7] At [36].
… Allowing for early release, such a sentence will involve a compulsory cessation of that offender's criminal activities of no more than a year or so. Some would say that this is not long enough given the prevention principle referred to in Ward.[8]
[8] R v Ward [1976] 1 NZLR 588.
[9] The Court of Appeal has subsequently warned in R v Southon[9] that recidivist burglars within that category cannot rely upon three years as an upper limit.[10]
[9] R v Southon (2003) 20 CRNZ 104.
[10] At [13].
[10] Taking those factors into account, I consider that an uplift of eight months to reflect the previous record must be seen as at the lower end of the range. When the focus is, as it must be, on the end point adopted to reflect both the circumstances of the offending and the appellant’s recidivism, I consider that the sentence (before discount) of 23 months is within the available range. The end sentence is accordingly not manifestly excessive.
[11] The appeal is accordingly dismissed.
“A D MacKenzie J”
Solicitors: Miss Baker, Barrister and Solicitor, Wellington, for Appellant.
Crown Solicitor, Wellington, for Respondent.
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