Newton v Police

[2012] NZHC 2829

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-38 [2012] NZHC 2829

BETWEEN  CHAINEY BEAU NEWTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 October 2012

Counsel:         J W A Rainger for Appellant

R J Collins for Respondent

Judgment:      30 October 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1]      Mr Chainey Newton is 23 years of age.  While out driving with a friend one Monday morning he stopped, entered a house and stole a television and some jewellery.1   The offending occurred while on bail on driving offences committed ten days earlier.  He has 20 previous convictions.  None is for burglary and few are for dishonesty.

[2]      The District Court Judge sentencing him noted that burglaries were plaguing the  Hawkes  Bay  region.    This  type  of  offending  would  be  firmly  dealt  with, therefore.   Considering the value of the property and that a private dwelling was involved, a starting point of two years’ imprisonment was adopted.  That was then discounted by 25 per cent for the guilty plea entered.  The sentence imposed for the burglary was, therefore, 18 months’ imprisonment.2

[3]      From that sentence Mr Newton appeals.

1      The television has since been recovered. The remaining property, worth perhaps $2,000 has not.

2      Reparation of $500 was also ordered. He received a further month on the earlier driving charges

(dangerous driving, refusing to stop and to give a blood sample).

NEWTON v NEW ZEALAND POLICE HC NAP CRI 2012-441-38 [30 October 2012]

Submissions

[4]      Mr Rainger initially was minded to press three arguments for the appellant. But on reflection his argument came down to a single proposition: that the sentence was manifestly excessive.   The starting point was outside the available range in relation to other cases.3  Although entry into a private residence is serious, there were no other aggravating features.  While there was the potential for confrontation, there was no actual confrontation or danger to the residents, there was no further damage, the items did not have high monetary or sentimental value and the offending was opportunistic.  It was accepted it occurred whilst on bail  granted on the driving

charges.

[5]      For the police Mr Collins submitted the appeal was meritless.  He relied on the recent Court of Appeal decision in Arahanga v R:4

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.  Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with occupants.   Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point   of   approximately   18   months   to   two   years   and   six   months imprisonment.

Mr Collins also submitted the 25 per cent guilty plea reduction was generous given the strength of the prosecution case and the one month cumulative sentence on the other driving-related charges was modest.

Sentencing appeal principles

[6]      This is a general appeal heard by way of rehearing.   The onus is on the appellant to satisfy the Court that the grounds of appeal have been made out and that it should differ from the original decision.  The appellate Court must come to its own

view on the merits.5   The Court may confirm the sentence.  But if the sentence is one

3      Senior v Police (2000) 18 CRNZ 340 (HC); Rota v R [2012] NZCA 49; Snowden v Police HC Hamilton CRI 2010-419-52, 15 July 2010.

4      Arahanga & Withington v R [2012] NZCA 480 at [78].

5      Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

in which the Court had no jurisdiction to impose, or is clearly excessive, inadequate or inappropriate, it may quash or vary the sentence or any part of it.

[7]      As to whether a sentence is manifestly excessive, in R v Monkman6 the Court of Appeal said:

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to this particular kind of offending).

And in R v MacCulloch7 the Court said that the issue of whether or not a sentence is manifestly excessive is to be examined in terms of the sentence actually passed, rather than the process by which it is reached.

[8]      But the High Court on appeal from the District Court will not lightly alter a sentence imposed by an experienced sentencing Judge. It is not the function of this Court to tinker with sentences, or alter them at all unless it feels that the sentence imposed is contrary to both principle and conscience.

Discussion

[9]      The Court of Appeal’s decision in Arahanga is not, as it says expressly, a tariff decision.   Its observation was that dwellinghouse house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two  years and six  months’ imprisonment is observational rather than obligatory, of course.   It must not be taken to set a fixed minimum sentence start point for dwellinghouse burglary.

[10]     Senior v Police8 sets out helpful guidance on burglary offending.  It is often referred to.   Matters regarded as aggravating the offending are set out at [19] and

include:

6      R v Monkman CA445/02 3 March 2003, at [6].

7      R v MacCulloch [2005] 2 NZLR 665 (CA), at [50].

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

(a)      danger to occupiers – particularly where burglary occurs at night, and where the victims are vulnerable;

(b)      behaviour targeting the victim;

(c)       wanton destruction and vandalism;

(d)      theft of items of high monetary or sentimental value; (e)           sophisticated planning and execution; and

(f)       offending whilst on bail.

[11]     I pause to note that only the last of those considerations applies in this case. This was in every sense a purely opportunistic burglary.  The occupants of the house were out and there was no risk to them.  The victim impact report makes clear that the initial sense of violation had receded almost completely six weeks later.

[12]     Turning then to the characteristics of the offender himself, the Court in Senior then outlined three categories of burglary offending, although these are not hard- edged and an offender may fit into more than one category:9

(a)      first time burglar – in respect of whom a prison sentence may be imposed, depending on the burglar’s aggravating and mitigating features, “although frequently this is not the case”;10

(b)recidivist   burglar   -   someone   with   multiple   previous   burglary convictions  but  appearing  for  sentence  on  one  or  two  burglary charges; and

(c)      spree burglar – where there are a large number of individual burglaries being sentenced on.

9      At [22] – [43].

10 At [25].

[13]     I pause again to note that Mr Collins accepts that in this case the appellant must be considered a first time burglar.  The appellant has 20 previous convictions and seven Youth Court adverse determinations.  Most are driving offences.  He has three previous dishonesty convictions or determinations: unlawful interference with a vehicle (x2) and theft.  In 2008 he received his only sentence of imprisonment - 1 month and 2 days for wilful damage and breach of community work.  In this context Mr Collins was right to concede that he is a first time burglar.

Comparable cases

[14]     The decision of the Court of Appeal decision in R v Columbus11 involved an opportunistic, daylight burglary of a garage attached to house.  A small amount of property was taken.  A mountain bike and some tools.  That was said to justify no more than a start point of 1 year imprisonment.  The daylight aspect is comparable, but the degree of risk there was lower (outbuilding rather than dwellinghouse) and the extent of theft was also lower than here.

[15]     In R v Povey12  a starting point of two years for burglary involving entry by night into a woman’s apartment was upheld by the Court of Appeal.  Aggravating features of the offending were the night time entry, the gender of the occupant, the presence of two offenders in the property, the possession of a potentially lethal weapon  (a  speargun)  and  the  degree  of  premeditation.    Povey  was  a  recidivist burglar.

[16]     In Curry v R13  two offenders set about burgling a residential property at

7:45 pm.  One entered the property, the other stayed with the car.  A television and speakers valued at $2500 were taken.  On being sentenced, separately, each asserted that  they  were  the  driver  and,  accordingly,  somewhat  less  culpable.    The  first offender to be sentenced on that basis had a start point of nine months’ imprisonment adopted.  The appellant was sentenced subsequently, but on the same basis.  A start

point of 15 months’ imprisonment for him was upheld in the Court of Appeal.

11     R v Columbus [2008] NZCA 192.

12     R v Povey [2009] NZCA 362.

13     Curry v R [2010] NZCA 491.

Relevant factors were the residential dwelling, night time entry, and value of the property greater than in Columbus.

[17]     In Hale v Police14 two burglars broke into a suburban house and stole a $500 television which was not recovered. Brewer J adopted a start point of 18 months’ imprisonment.  Aggravating features of the offending were: burglary of a residence, two burglars, at night, $500 television stolen and not recovered, and the traumatising effect on the occupants even though they were not home.  An uplift of 6 months’ imprisonment was imposed for offending whilst on supervision and previous convictions (including for burglary).

This case

[18]     In this case the appropriate starting point would have been 15 months.   I reach that by reference to the authorities cited in the course of this judgment and to these mitigating features:   first time burglar, opportunistic offending without significant premeditation, daylight entry, single burglar, absence of risk to (absent) occupants, and limited impact on those occupants in fact.   It is, however, an aggravating factor that some property (other than the television) has not been recovered.  The fact that the offending occurred while the appellant was on bail is a personal aggravating consideration, rather than a matter aggravating the offending

itself.15

[19]     The 15 month start point should be uplifted, then, by three months to reflect the facts that the offending occurred while on bail and by an offender with prior dishonesty convictions.  Eighteen months.

[20]     That figure must then be discounted by 25 per cent for the early guilty plea.  I acknowledge that the effect of the Supreme Court decision in Hessell v R16  is to require  some  evaluation  of  the  strength  of  the  prosecution  case  in  setting  the

discount.  That is not necessarily an easy exercise.  But in this case the sentencing

14     Hale v Police [2012] NZHC 1243.

15     See e.g. Coulson v R [2012] NZCA 420 at [31].

16     Hessell v R [2010] NZSC 135.

Judge  allowed  a  discount  of  25  per  cent  and  I  do  not  propose  to  disturb  that assessment. Thirteen and a half months.

Result

[21]     Appeal allowed.

[22]     A sentence of 13 months and 14 days is substituted for the District Court sentence of 18 months on the burglary charge.

[23]     The cumulative sentencing on the other charges remains undisturbed.

Stephen Kós J

Solicitors:

Public Defender Southern for Appellant

Crown Solicitor, Napier for Respondent