Nelson v Police
[2019] NZHC 2434
•23 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000320
[2019] NZHC 2434
BETWEEN JOHVAN NELSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 September 2019 Appearances:
D Taumihau for the Appellant T Stuart for the Respondent
Judgment:
23 September 2019
ORAL JUDGMENT OF HINTON J
Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland
NELSON v POLICE [2019] NZHC 2434 [23 September 2019]
Introduction
[1] Mr Nelson was sentenced by Judge Gibson in the Auckland District Court on 9 July 2019 on 15 charges, basically amounting to a lengthy petty crime spree:
(a)burglary;1
(b)unlawfully taking a motor vehicle;2
(c)possession of a utensil for cannabis (x 2);3
(d)possession of cannabis (x 2);4
(e)driving while disqualified;5
(f)failing to carry out obligations in relation to a computer search;6
(g)unlawfully in a building;7
(h)wilful damage;8
(i)unlawfully uses a document for a pecuniary advantage (x 2);9
(j)unlawfully in an enclosed yard;10
(k)shoplifting (under $500);11 and
(l)receiving property (over $1,000).12
1 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
2 Section 226(1). Maximum penalty seven years’ imprisonment.
3 Misuse of Drugs Act 1975, s 13(1)(a) and 13(3). Maximum penalty one year’s imprisonment.
4 Section 7(1)(a) and 7(2). Maximum penalty three months’ imprisonment.
5 Land Transport Act 1998, ss 31(1)(a) and 32(3). Maximum penalty three months’ imprisonment.
6 Search and Surveillance Act 2012, s 178. Maximum penalty three months’ imprisonment.
7 Summary Offences Act 1981, s 29(1)(a). Maximum penalty three months’ imprisonment.
8 Section 11(1)(a). Maximum penalty three months’ imprisonment.
9 Crimes Act 1961, s 228(1)(b). Maximum penalty seven years’ imprisonment.
10 Summary Offences Act 1981, s 29(1)(b). Maximum penalty three months’ imprisonment.
11 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months’ imprisonment.
12 Sections 246 and 247(a). Maximum penalty 10 years’ imprisonment.
[2] Judge Gibson sentenced Mr Nelson to 23 months’ imprisonment with leave to apply for home detention. Mr Nelson appeals his sentence on the grounds that the starting point was excessive, there was insufficient credit given for mitigating features, particularly youth and mental impairment, and the Judge failed to impose the least restrictive outcome appropriate. Mr Nelson is 22 years old.
[3]The respondent submits the sentence was appropriate.
Background
[4]There are four distinct sets of offending.
First set – 3 January 2019 offending
[5] The first set relates to unlawfully taking a motor vehicle, possession of cannabis and a pipe, driving while disqualified, and failing to comply with obligations in relation to a computer search. On 3 January 2019, Mr Nelson obtained access to an insecure vehicle and drove it away. He was caught by Police at another address. They conducted a warrantless search and found cannabis and a pipe. During the search, Police requested Mr Nelson’s pin code for his mobile phone and he refused. The Police also found the keys for the stolen car.
Second set – 24 and 25 January 2019 offending
[6] The second set of charges relates to the unlawfully in a building, possession of cannabis, and wilful damage charges. These arose from events on 24 and 25 January 2019. Mr Nelson and an associate entered a primary school, where Mr Nelson ripped off the door and damaged the window of a playhouse. Mr Nelson and his associate stayed the night in the playhouse until they were seen by the local parish priest, who called the Police. The Police found cannabis on Mr Nelson.
Third set – 22 and 27 February and 18 and 23 March 2019 offending
[7] The third set of charges concerns the use of two credit cards, being in an enclosed yard, and shoplifting.
[8] On 22 February 2019, Mr Nelson stole a credit card from a changing room at Moana Pool in Dunedin. He then used the card to make two purchases, totalling
$121.54.
[9] On 27 February 2019, Mr Nelson stole another card out of a parked car through a faulty window. He used it to make two purchases totalling $95.40.
[10] On 18 March 2019, he went into a person’s front yard without permission, and walked around the front and side of the property before leaving.
[11] On 23 March 2019, Mr Nelson stole a $40-bottle of liquor from a store. An employee noticed him taking it. When challenged, Mr Nelson ran away with the bottle.
Fourth set – 18 March and 8 April 2019 offending
[12] The fourth set of offending relates to the burglary, receiving, and possession of a pipe charges.
[13] Around 1.00 am on 18 March 2019, a bicycle was stolen from Trafalgar Street, Dunedin, valued at $1,000 and around 2.56 am, Mr Nelson was observed in possession of that bicycle. At that same time, he committed a burglary at 91 Richardson Street, being a residential address. A fanlight window was forced open and an inside glass pane shattered. Mr Nelson reached through the glass window. His fingerprints were found on the interior side. The summary of facts Mr Nelson pleaded to is quite non-specific, and I only have the details I have described.
[14] On 8 April 2019, Mr Nelson was arrested on an unrelated matter at the Auckland City Police Station. He was found with a cannabis pipe.
District Court decision
[15] The Judge began by noting Mr Nelson’s age, and that he has a growing criminal history, but that most of it is anti-social, low-level type offending. The Judge considered, however, that the burglary charge was an escalation. The Judge took the
burglary offence as the lead charge, noting there was very little detail in the summary of facts as to the circumstances, much as I have already noted.
[16] The Judge then said that Mr Nelson had written an extensive letter of apology, but that the pre-sentence report-writer did not consider he displayed noticeable remorse or empathy with the victims. His risk of offending was assessed as high. The report also commented that Mr Nelson had mental health issues, and he was not on medication when he was offending. A psychological assessment noted that if Mr Nelson’s substance abuse is untreated, he is at high risk of offending further.
[17] After considering the reports, the Judge said that what he considered Mr Nelson really needed was assistance with treatment and a stable address. If that were possible, the Judge said he would look favourably at granting home detention. Otherwise, the Judge was concerned that Mr Nelson would return to living on the streets and living the lifestyle he had been living to this point. The pre-sentence report-writer noted that Mr Nelson has entrenched anti-social attitudes towards the use of drugs and seemed to enjoy the criminal life he was leading.
[18] In terms of the sentence, the Judge took burglary as the lead charge. He began by noting there was no tariff, but that the Court of Appeal in Arahanga v R indicated that for a relatively unsophisticated burglary of a residential property, a starting point of between 18 months and two-and-a-half years was appropriate.13 The Judge took 18 months as the starting point. He noted he could sentence cumulatively because of the separate nature of the sets of charges, but said he considered it more appropriate to uplift by 12 months to account for all of the other offending. He uplifted by a further two months because the latter three sets of offending occurred while Mr Nelson was on bail for the first. This came to 32 months’ imprisonment.
[19] The Judge did not add an uplift for previous convictions and gave a discount of approximately 10 per cent (or three months) for Mr Nelson’s mental health issues, and 20 per cent (six months) for the guilty plea. This came to one year and 11 months’ imprisonment. The Judge gave leave to apply for home detention.
13 Arahanga v R [2012] NZCA 480.
Approach on appeal
[20] The grounds of appeal are that the Judge adopted an excessive starting point, gave insufficient credit for youth and mental impairment, and failed to impose the least restrictive outcome, namely intensive supervision and community work.
[21] Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.14
[22] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.15 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.16 The focus is on the end result rather than the process by which the sentence was reached.17
Discussion
[23] I will address each ground of appeal in turn. Of course, the test is whether the sentence taken as a whole is manifestly excessive, which I will consider at the end of my discussion.
Starting point
[24] Mr Taumihau, for the appellant, submits the starting point for the burglary charge was excessive. He says that the range for the starting point should be 12 to 16 months’ imprisonment in this case. The respondent submits the starting point of 18 months is well within the range for this type of burglary.
[25] As cited by the Judge, the Court of Appeal in Arahanga v R wrote that, although there was no tariff case for burglary because of the wide range of circumstances in which offending of this type can occur, dwellinghouse burglaries at
14 Criminal Procedure Act 2011, s 250(2).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
16 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].
17 Tutakangahau v R, at [36].
the relatively minor end of the scale tend to attract a starting point of between 18 months’ and two-and-a-half years’ imprisonment.18
[26] In Senior v Police, a full bench of this Court set out a number of factors that will make a burglary more serious. These factors are often referred to in cases such as this:19
(a)Behaviour which involves actual danger to or confrontation with occupiers, or the risk of such danger and confrontation. This factor will almost always be present with the burglary of a dwellinghouse particularly by night and it is of particular concern where the occupants of such a dwelling house are elderly, infirm or vulnerable.
(b)Behaviour which is likely to make the victim feel targeted. For instance, repetitive burglaries of the same property and the theft of personal items.
(c)Wanton destruction of property and acts of vandalism.
(d)The theft of items of high monetary or sentimental value.
(e)Sophisticated planning and execution.
(f)Offending while on bail, while on parole or in close proximity to Court appearances on other charges, particularly of burglary.
[27] In terms of the present offending, from the few details I am provided with, the aggravating features here are that it was a dwellinghouse, and it was at night, so there was a risk of confrontation. But the summary of facts does not say that Mr Nelson actually entered the address, that there were occupants present, or that he took anything. I can only proceed on the basis he broke a window and reached in with his hand. The Crown submit it is an aggravating factor that the stolen bike was used in
18 Arahanga v R [2012] NZCA 480 at [78].
19 Senior v Police (2000) 18 CRNZ 340 (HC) at [19].
the offending. I do not accept this submission. While Mr Nelson may have been unlawfully in possession of the bike at the time, this is accounted for in the uplift for other offending. Considering these aggravating factors, I can only conclude this is a low-level dwellinghouse burglary.
[28] Mr Taumihau has cited a number of cases to me where starting points of less than 18 months were set for burglaries of a dwellinghouse.20
[29] In McKee v Police, the offender entered a residential property by forcing a bedroom window, at an unspecified time of day. No significant property was taken, and no one was at home. Woodhouse J held an appropriate starting point was 12 months’ imprisonment.21
[30] In Tairi v Police the offender broke into a residential property during the day by smashing a window pane and took items of not significant value. It does not appear there were occupants present.22 Duffy J held a starting point of 16 months was appropriate.
[31] In Blissett v Police, the defendant took $2,000 worth of goods and the Judge adopted a starting point of 17 months’ imprisonment.23
[32] To these cases, I add Kós J’s decision in Newton v Police.24 The offender in that case was driving by an address one morning, stopped, entered a house and stole goods worth a reasonably large amount of money. Kós J held that an appropriate starting point was 15 months, taking into account that it was an unoccupied residential address, in the morning, and there was no premeditation.
[33]From the cases referred to me, and the cases referred to by Kós J in Newton,25
I conclude that the Court of Appeal’s guidance in Arahanga is not strictly accurate or
20 McKee v Police [2012] NZHC 2684; Tairi v Police [2015] NZHC 187; and Moeroa v Police [2015] NZHC 2226.
21 McKee v Police [2012] NZHC 2684 at [20].
22 Tairi v Police [2015] NZHC 187.
23 Blissett v Police [2013] NZHC 156.
24 Newton v Police [2012] NZHC 2829.
25 At [14]–[17].
has not strictly been applied. All these cases considered Arahanga and came to starting points of less than 18 months. A more realistic range might be one year to two-and-a-half years’ imprisonment.
[34] I consider that the starting point adopted by the Judge was too high. While Mr Nelson’s offending occurred at night at a residential address, on the facts, there is no evidence he entered the address, beyond a fingerprint on the inside of the window, that there were occupants present, or that he took anything. While burglaries of a dwellinghouse will always be serious, especially where there is a heightened risk of encountering occupants, which there is at night, I consider a more appropriate starting point here would be 14 months’ imprisonment.
Insufficient discount for mitigating features
[35] Mr Taumihau cites the Court of Appeal’s decision in Churchward v R for the proposition that a discount for youth is appropriate.26 The Court gave three reasons why a youth discount is appropriate: first, to reflect the neurological differences between adults and young people, which make young people more susceptible to negative influences. Second, long sentences of imprisonment may have a “crushing” effect on young people; and third, young people have a greater capacity for rehabilitation.
[36] Mr Taumihau further notes that a youth discount has been found to be available in the case of a 25-year old.27 He submits that a discount for youth alone in this case should be 15 per cent.
[37] In terms of Mr Nelson’s mental health, Mr Taumihau submits a lengthy sentence of imprisonment will only delay Mr Nelson’s getting the treatment he needs and would exacerbate any underlying issues he has. He submits that a further discount of 15 per cent is appropriate to reflect this. In other words, a total discount for youth and mental health of effectively 30 per cent or close thereto.
26 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
27 Richards v R [2017] NZCA 232 at [37]; and Gacitua v R [2013] NZCA 234.
[38] As Mr Taumihau says, in some ways, youth and mental health are similar issues and there are similar points to be made.
[39] I accept Mr Taumihau’s submission that the discount is too low. The present convictions have all of the hallmarks of youthful, impulsive, stupid, substance-fuelled offending, committed by a young person without structure in his life. Also, Mr Nelson has mental health issues. In these circumstances, I consider a 20 per cent discount for youth and mental impairment together is appropriate.
[40] Although the respondent suggests the uplift for offending while on bail is modest, neither counsel disputes the two uplifts. Therefore, from my adjusted starting point of 14 months, with the uplifts of 12 and two months for the other offending, and for offending while on bail respectively, I reach an adjusted starting point of two years and four months. By taking approximately 20 per cent off this figure for personal mitigating circumstances, being six months, this comes to one year and 10 months. With a further 20 per cent (approximately) for the guilty plea, which again neither counsel disputes, this comes to one year and five months’ imprisonment.
Intensive supervision and community work
[41] Mr Taumihau submits that a sentence of intensive supervision, coupled with a sentence of community work, would be the least restrictive outcome available.28 I do not agree. I consider such a sentence would not sufficiently meet the need to hold Mr Nelson accountable for his actions, deter him from committing further offending or protect the community from further offending.29 Intensive supervision would not keep Mr Nelson confined to an address. Taking into account the pre-sentence report-writer’s and the psychologist’s comments that he is at high risk of re-offending, I do not consider intensive supervision appropriate.
[42] I consider home detention would be the least restrictive outcome that a Court could impose. There is no application before me, but I understand an application has been made in the District Court. A 24-hour, electronically monitored curfew at an
28 Which the Court must impose per s 8(g) of the Sentencing Act 2002.
29 Sections 7(1)(a) and (g).
address where Mr Nelson has support and supervision would be ideal. He would, I imagine, be able to obtain leave to attend any treatment sessions he was able to. I can only hope he can persuade the District Court that he has a suitable address. I am concerned, having read the PAC report, that his mother’s address may not be ideal for him or his mother and Mr Taumihau tells me she now lives in Dunedin. It is unfortunate that we do not have an equivalent to home detention (but without a home), for the many cases that are like this one.
Conclusion
[43] Having rejected the submission that I should substitute a sentence of intensive supervision, and there being no application for home detention before this Court, I must finally consider whether the six-month difference between the sentence I have reached and Judge Gibson’s sentence of one year and 11 months, makes that sentence manifestly excessive. I consider it does.
[44] I therefore allow the appeal and, on the charge of burglary, substitute the sentence of one year and 11 months’ imprisonment for a sentence of one year and five months’ imprisonment.
[45] I again echo Judge Gibson in saying that this is an appropriate case for home detention, and I encourage Mr Nelson, with the help of his lawyer, to do his best to promote that application.
[46]I also thank counsel for their submissions, which I found very helpful.
Hinton J
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