Otter v Police

[2015] NZHC 2857

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000043 [2015] NZHC 2857

BETWEEN

RICHARD BRUCE OTTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 November 2015
Appearances:	J S Jefferson for Appellant MJM Mitchell for Respondent
Judgment:	18 November 2015

ORAL JUDGMENT OF HINTON J

Counsel/Solicitors:

Scott Jefferson, Barrister, Napier

Elvidge & Partners, Napier

OTTER v NEW ZEALAND POLICE [2015] NZHC 2857 [18 November 2015]

Summary

[1]      The appellant, Mr Otter, was found guilty following a Judge alone trial of two charges of burglary1  and one charge of obstruction.   He was sentenced in the District Court to three years’ imprisonment.2    He now appeals that sentence on the ground that it was manifestly excessive.

Factual background

[2]      For about ten  years, Mr Otter worked for the victim in  this matter as a labourer.  Mr Otter’s father had also worked for the victim.  Mr Otter was familiar with the layout of the victim’s property and the work shed.  The property is semi- rural and neighbours are not close by.  Mr Otter had spent many hours working in that shed.   In November 2013, there was a falling out between Mr Otter and the victim.

[3]      During August 2014, Mr Otter planned to burgle the victim’s address.   He completed drive-bys of the address and obtained walkie talkies and a scanner. Between 10pm on 2 August and 7am on 3 August, he and unknown associates went to the address, cut a hole in the tin wall at the back of the shed and gained entry. With his knowledge of the shed, Mr Otter went to the fuse box and turned off the power.  He located two gun safe keys and removed rifles from the safes.  He returned the next night and removed more property.

[4]      Approximately ten firearms and a large quantity of ammunition were stolen. Tools and hunting gear were also taken.  The total estimated value of the property stolen is between $40,000 and $60,000.  The Crown suggested the value could be higher but this seemed to be based on the victim’s insurance schedule which I do not consider it appropriate to rely on in this context.  Ms Mitchell effectively agreed with

that.

1      Crimes Act 1961, s 231(1)(a); maximum penalty of 10 years’ imprisonment.

2      Police v Otter [2015] NZDC 18490.

[5]      In sentencing Mr Otter, Judge A J Adeane canvassed the background facts and considered the aggravating factors of the offending to be:

(a)      The breach of trust involved.   Mr Otter had been employed by the owner of the property and they parted on bad terms.

(b)The degree of premeditation.  Mr Otter targeted the premises using his inside knowledge of them and went there on two consecutive nights to, as the Judge put it, “maximise the effect of his thieving”.   The Judge also drew an inference from the quantity of the stolen property, that Mr Otter had assistance from others; and

(c)      The extent of the loss and the emotional harm caused to the victim and his partner.   The victim was a collector and “it was a veritable treasure trove of valuable and diverse items”.

[6]      The Judge considered the police’s submitted starting point of five years six months to be too high and instead adopted a starting point of three years’ imprisonment.  He then considered Mr Otter’s personal circumstances:

[17]      So far as Mr Otter’s personal circumstances are of concern, there can be no discount for a guilty plea or remorse; none has been shown.   He is middle aged and, while he does not have a history of burglary, he has a history of dishonesty and these two burglaries are simply one manifestation of that.  In Mr Otter’s case it is a history which is spread over many years, demonstrating just how intractable his tendencies are in this regard.

[7]      The  end  sentence  imposed  was  three  years’  imprisonment.  The  Judge considered there were no factors justifying an uplift or a reduction of the starting point. No order for reparation was made as it would have no practical effect.

Approach to appeal

[8]      Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[9]      In any other case, the Court must dismiss the appeal.3

[10]     The  Court  of Appeal  in  Tutakangahau  v  R  has  recently  confirmed  that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.4     Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.5

[11]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.6

Appellant’s submissions

[12]     Mr Jefferson submits that the Judge erred in setting a starting point on the burglary charges of three years’ imprisonment.  He submits the starting point should have been 20 months’ imprisonment with an uplift of four months for previous dishonesty offending.

[13]     He accepts that there are no relevant mitigating factors; therefore the end sentence he submits should be two years’ imprisonment.  He then submits that home detention would be appropriate, pointing out that Mr Otter was assessed as suitable for home detention, that Mr Otter is a self-employed painting contractor and home

detention would allow him to maintain his business.

3      Criminal Procedure Act 2011, s 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

5      At [33], [35].

6      Ripia v R [2011] NZCA 101 at [15]; Gibson v R [2015] NZCA 57 at [9].

[14]     There is no tariff decision for burglary.7   The Court of Appeal in R v Nguyen considered  that  the  range  of  factors  which  relate  to  the  criminality of  burglary offending include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, impact upon owners of property, and the extent of the offending where multiple burglaries are involved.8

[15]     In determining whether the starting point adopted by the District Court Judge of three years’ imprisonment was appropriate, I have had regard to a number of cases, including those cited by Mr Jefferson.

[16]     In Shierney v Police, three years six months was adopted as the starting point for a burglary of a garage of a residential property.   The offender returned to the property several hours later.   The owners were overseas.   Rifles, ammunition, jewellery and electronic products were stolen.  The value was not mentioned in the judgment.  The starting point was upheld on appeal, although it was noted to be at

the upper end of the available range.9    The factors in Shierney were similar to the

offending here.

[17]     Mr Jefferson suggested Shierney could be distinguished because of the large number of prior burglary convictions on the part of Mr Shierney, but that is not a distinguishing feature as it is not relevant to the starting point.   Mr Jefferson did seem to acknowledge that.

[18]     In Yukich v R, a starting point of 20 months’ imprisonment was upheld on appeal, for the burglary of a rural farm house and shed.  Eight shotguns, three pistols, ammunition and other items were taken.   It seems that there was no loss as the

offenders were shortly afterwards apprehended by the police.10

7      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

8      R v Nguyen CA110/01, 2 July 2001 at [17].

9      Shierney v Police [2014] NZHC 2963 at [13] and [23].

10     Yukich v R [2010] NZCA 499.

[19]     In  Miller  v  Police,  the  burglary  was  of  commercial  premises  and  three firearms were stolen to the value of $2,500.   On appeal, Woodhouse J adopted a starting point of 15 months’ imprisonment.11

[20]     In Yukich v Police (a different case to Yukich v R), a burglary of a residential property was involved.   Seven firearms and two hunting knives were stolen.   The offending was opportunistic, but the offender then disposed of the guns and refused to disclose to whom.  A starting point of two years was adopted.   On appeal, the Crown conceded that a starting point of 12 months’ imprisonment was more appropriate.12    Lang J said, given the concession by the Crown the appeal must be allowed.  The case is not helpful as there was no analysis on appeal of whether the starting point was appropriate.

[21]     In Wishnowsky v Police, a spree of seven burglaries of unoccupied residential homes involving the theft of firearms, electronics, jewellery and other property to the total value of $47,000, resulted in a starting point of three years six months’ imprisonment.  On appeal, that starting point was seen as stern but not unjustified.13

[22]     In my view, the three year starting point in this case was appropriate.  The offending here was more serious than Yukich v R, Yukich v Police and Miller. Wishnowsky was arguably overall slightly worse offending in that there were seven burglaries but there was not the breach of trust or level of victim distress present in this case. Also the starting point in Wishnowsky was higher.

[23]     Out of the cases cited, the offending here was most similar to Shierney, the case I referred to first.   In that case the starting point was three years six months’ imprisonment.

[24]     As the Crown submits, the offending here involved a number of aggravating features including a gross breach of trust and a premeditated targeting of the victim’s premises  that  Mr  Otter  knew  to  contain  firearms  and  where  he  knew  that  the

property taken would be of significance to the victim, beyond its financial value.

11     Miller v Police [2012] NZHC 3237.

12     Yukich v Police HC Rotorua CRI-2008-463-90, 23 February 2009.

13     Wishnowsky v Police HC Palmerston North CRI-2009-454-26, 14 August 2009.

The property stolen included a large number of firearms which elevates the gravity of the offending significantly.  The defendant was apparently on-selling these.  The total  property  was  also  of  considerable  financial  value,  being  $40,000-$60,000. There was also damage and resulting cost of repair to the premises.   It is concerning that not much of the property has been recovered, including six of the ten firearms. In short, I consider the three year starting point was appropriate and consistent with other cases.

[25]     I agree with the Judge that there are no appropriate discounts or uplifts in this case and none were argued for by Mr Jefferson.   I agree that the end sentence is therefore  three  years’ imprisonment.  There  is  no  jurisdiction  to  consider  home detention.

Conclusion

[26]     Mr Otter’s appeal against sentence is therefore dismissed.

Hinton J