Nicol v Police

[2013] NZHC 3326

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-454-31 [2013] NZHC 3326

BETWEEN  TALOR NICOL Appellant

ANDPOLICE Respondent

Hearing:                   19 November and 11 December 2013

Counsel:                  C L Linton for Appellant

B Vanderkolk (11 December) with D Flinn (19 November) for
Respondent

Judgment:                11 December 2013

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1]      On Christmas Eve 2012 the appellant and four friends broke into the elderly victim’s house at Feilding.   From that house they stole the victim’s antique arms collection.   It was valued at over $13,000.   Only two of 16 items stolen were recovered.  A week later the appellant was found in possession of four small snap lock bags with 0.64 grams of methamphetamine.  A month later, the appellant and two associates visited a number of properties in another part of Feilding.  From two of them they stole various consumer goods.  Two of the victims of that offending were also elderly.

[2]      The result of all these incidents was that the appellant faced three charges of burglary, one of possession of a Class A controlled drug, two of unlawfully being in

an enclosed yard or area and one of charge of theft.

TALOR NICOL v POLICE [2013] NZHC 3326 [11 December 2013]

[3]      In April 2013 the appellant pleaded guilty to these charges.  At that stage he had only one prior conviction.  It was for indecent assault of a female aged over 16 years. That offence was committed two years previously.

Sentence

[4]      On 17 September 2013 a District Court Judge sentenced the appellant.  He treated the Christmas Eve firearms burglary as the lead charge.  He considered that the appellant fell between a “first time burglar” and a “spree burglar”.  The Judge took a starting point of two years for the firearms burglary and uplifted it to six months for the other convictions.  The Judge then gave a seven months discount for the guilty pleas to reach one year and 11 months’ imprisonment.   The Judge then allowed a further discount of three months for other mitigating factors, (particularly the relative youth of the appellant) leading to a sentence of one year and eight months’ imprisonment.

[5]      The  Judge  declined  to  order  home  detention.    In  part  the  Judge  was influenced by a pre-sentence report.  It is accepted that that report contains a number of serious errors.   The Judge considered that home detention would insufficiently denounce the serious nature of the repeated offending in this case, and would insufficiently hold the appellant responsible for his involvement in the offending. The Judge also ordered the appellant to pay reparation of $1,998 for the firearms, and $3,713 for the burgled items.

[6]      From that sentence the appellant appeals, on the basis that it is manifestly excessive.

Appeal

[7]      The essential grounds for the appeal are, first, the errors in the pre-sentence report,  in  particular its  conclusion  that  the appellant  had  failed  to  comply with previous community based sentences.  Secondly, that the Judge relied too heavily on denunciation  and  deterrence  without  appropriate  weight  being  given  to  the mandatory principle that the least restrictive available outcome is to be imposed (Sentencing Act 2002, s 8(g).   Thirdly, inconsistency with the sentencing for co-

offenders on the lead charge.  Those co-offenders, who had already been sentenced at the time of the appellant’s sentencing, received variously three months’ imprisonment, reparation and 200 hours community work and a reparation order with an order to come up for sentence if called upon.

Discussion

[8]      In the event it is unnecessary for me to analyse these grounds of appeal with any exactitude.  There is now agreement the appeal should be allowed.  And that a home detention-based sentence should instead be imposed.

[9]      At the November hearing I invited counsel to confer and consider whether conditions or arrangements could be put in place so that if given a sentence of home detention, the appellant could undertake community work so that the majority of the sentence was undertaken in a way that offered tangible contribution back to the community.

[10]     Having considered matters further, and the options available, the Crown now is supportive of a proposal to sentence the appellant to home detention.

[11]     On that basis, the appeal is allowed by consent.

[12]     The sentence of 20 months’ imprisonment is remitted.

[13]     The appellant will instead:

(a)      serve a sentence of eight months’ home detention (with effect from the date of his release).  That amount allows for the time that he has spent in prison already; and

(b)also complete 400 hours of community work, subject to the qualification noted in [14](c).   Given the nature of the offending in this case, I encourage community work contribution focused on assisting elderly persons in Feilding.

[14]     The following special conditions of home detention will apply:

(a)      The appellant is to travel directly from prison on release to the address specified  in  the  pre-sentence  report  and  await  the  arrival  of  a probation officer and representative from the monitoring company.

(b)The appellant is to reside at the address stated in (a) for the duration of the term of home detention, except as provided for in (c) to (e) below.

(c)      The appellant is to complete any work incentive or training course deemed suitable by his probation officer.   The Court notes that the appellant wishes to undertake a MARA Automotive SAC Level 1 and

2, Introduction to Motor Industry course.   It involves approximately

640 hours training.  A place on that programme is available for the appellant.  Up to 200 hours of that training is to be credited against the

400 hours community work ordered in [13].

(d)The appellant may also be released, on such terms and conditions as are approved by his probation officer, to participate in community work during the period of his sentence of home detention.

(e)      Where the appellant is approved by the probation officer to be absent from the address in (b) for the purposes set out in (c) and (d), he is to travel directly between the approved addresses for residence, training or community work, without diversion or delay.

(f)      He is to present himself at the door on request by any probation officer, monitoring company representative or police officer.

(g)      He is not to associate with any member or prospective member of the

Head Hunters gang.

(h)He is not to consume and possess alcohol, synthetic cannabinoids or non-prescription drugs, unless prescribed by a medical practitioner, for the duration of the home detention sentence.

(i)He is to submit to an alcohol and/or drug test should the probation officer have reasonable grounds to suspect him to be under the influence of alcohol or non prescription drugs.

(j)Any dogs are to be contained away from the main dwelling at all times to allow unhindered access to the property for the probation officer, monitoring company and police for the duration of the home detention sentence.

[15]     I remind the appellant that non-compliance with these conditions (or any further offending during his period of home detention) will result in him coming back before the Court.   In that event he is likely to return to prison.  Any further burglary offending by the appellant at any time in the future will also likely result in a return to prison.

Result

[16] Appeal allowed. Sentence varied, as provided for in [13].

Stephen Kós J

Solicitors:

Winter Woods Lawyers, Palmerston North for Appellant

Crown Solicitor, Palmerston North for Respondent