Partridge v Police HC Palmerston North CRI 2010-454-32

[2010] NZHC 1748

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2010-454-32

BETWEEN  RORY DAMIAN PARTRIDGE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 September 2010

Counsel:         S N Hewson for Appellant

E Killeen for Respondent

Judgment:      28 September 2010

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      The appellant says that a sentence of 20 months’ imprisonment for three burglaries was manifestly excessive.   An appropriate summary of the facts of the three cases is set out in the District Court Judge’s sentencing notes as follows:

[2]       The facts relating to your offending are these.  On 29 April this year you drove out to a rural farm property on Cole Road, Rongotea.  You walked

150 metres onto the property through a locked gate and then you entered an

implement shed.   You removed an 80 litre copper cooling tank that was attached to a stationary motor and it was housed within the building.  You then drove to a scrap metal merchant in Palmerston North and you sold it for

$160.80.  When you were later spoken to by the police you admitted selling the tank.  You claimed that you had received it from an associate as payment

for an outstanding debt which obviously was not true.

[3]       Then on Tuesday 18 May this year you went back out into the rural community to do precisely the same thing.  This time you went to a property on Mingaroa Road, Halbombe.   This time you entered the house via an unlocked bedroom window.   I am told upon entering the building you activated a burglary alarm.  Nevertheless, you uplifted a red plastic insulated Lion Red stubbie holder beside a bedside cabinet.   The stubbie holder contained about $100 worth of associated New Zealand and other countries’

RORY DAMIAN PARTRIDGE V NEW ZEALAND POLICE HC PMN CRI 2010-454-32  28 September 2010

coins.  On Wednesday 19 May you were arrested by the police.  A search of your car revealed the red stubbie holder and the coins that I have just spoken about.  You claimed that the stubbie holder belonged to you.  You refused to make any further statement to the police.

[4]       On   that   same   day   you   drove   to   another   rural   property   on Mingaroa Road in Halbombe.  This time you entered an implement shed and then entered an unlocked utility motor vehicle and rummaged through the interior.  You removed a set of keys to numerous farm sheds from the centre console and then you left the property.  When you were arrested on 19 May a search of your car revealed the set of stolen keys.  When you were spoken to about the keys you declined to make any statement to the police.

[2]      In the District Court the Judge took into account in sentencing:

a)       what he described as the appellant’s “extensive history of offending”;

b)that the burglaries were pre-meditated although not especially sophisticated.   The Judge considered the appellant had targeted vulnerable properties in a rural area;

c)       that on one occasion there was an entry of a dwelling which had heightened risk because of potential confrontation with a home owner;

d)       the burglaries were committed during a three week period.

[3]      The Judge considered that a proper starting point for that offending was two years’ imprisonment.

[4]      As to aggravating features personal to the appellant the Judge uplifted the start sentence by six months given the appellant’s past conviction record.

[5]      As to mitigation he reduced that start sentence by ten months to take into account the appellant’s age at 19 years and his guilty plea at a “reasonably early time”.

[6]      The  sentence  of  20 months  was  imposed  on  all  offending  concurrently together with reparation of $160.  Given a car was used in the commission of the offence the appellant was disqualified for 18 months.  In addition to the sentence of imprisonment  the  appellant  was  given  special  conditions  of  release  after  his sentence.

[7]      Counsel for the appellant submits that the sentencing Judge double counted the appellant’s prior criminal history by taking it into account in setting the starting point of two years’ imprisonment and then uplifting the sentence to take into account the appellant’s past record.   I reject the claim that the Judge double counted the appellant’s past convictions.

[8]      The first part of the sentencing notes deals with the facts ([1] to [5]).  The Judge then deals with a letter the appellant wrote which appears to misapprehend the seriousness of his offending ([6]).  Then he mentions in that context the appellant’s previous convictions ([7]).

[9]      The Judge then moves to the purposes and principles of sentencing and the relevant authorities ([8] to [10]).  He deals with counsel submissions ([11]).  He then considers ([13] to [16]) the “level of criminality involved in these offences”.  Then in that context in the following paragraph ([17]) he states:

Having regard to the totality of your offending, in my view a starting point of two years’ imprisonment is appropriate.

[10]     The Judge then says at the following paragraph ([18]):

I next consider the aggravating and mitigating factors personal to you.

[11]     In that context only the Judge considers how the appellant’s past record is relevant to sentencing.  I therefore reject this ground of appeal.  It is clear that the Judge did not take into account the appellant’s previous convictions in setting a starting point of two years’ imprisonment and only did so in uplifting that start sentence by six months to 30 months’ imprisonment.

[12]     The second ground of appeal is that insufficient account was taken of the appellant’s guilty plea, his youth and “other personal circumstances”.   The Judge considered the proper starting point for the offending together with the uplift for previous convictions was 30 months’ imprisonment.  He deducted 33% for the guilty plea and what is suggested to be the appellant’s personal circumstances.

[13]     The appellant pleaded guilty seven days after his first appearance in Court on

20 May 2010.  In those circumstances the full 33% deduction for his guilty plea was appropriate.  The Judge mentioned the appellant’s youth in his sentencing remarks in the context of personal mitigating factors.  Although not expressed directly I infer that the Judge was intending to give some discount for the appellant’s youth.  In the event he did not do so because the full amount of the 33% discount would have been taken up in the appellant’s immediate guilty plea.

[14]     It is doubtful, however, that the appellant was entitled to any reduction in sentence for his youth.   He was 19 years of age when he pleaded guilty to these charges.   The appellant has constantly been in the District Court from late 2008 through to 2009 and now 2010.   He has convictions in the Youth Court almost continuously from the end of 2006 to late 2008.  Effectively the appellant has been a regular offender for the last four years.   In that context a deduction for youth is difficult to justify given the appellant is now 19 years of age.  However, it is proper to reflect the intention of the Judge that there be a reduction for youth.  I consider, therefore, that a small deduction for youth is fair in the circumstances.  I will return to this matter at the end of the sentencing.

[15]     The  final  ground  of  appeal  is  that  the  starting  sentence  of  two  years’

imprisonment was too high resulting in a manifestly excessive sentence.

[16]     These three burglaries, while of course serious, were not the most serious of their type.  Two of the burglaries involved breaking into implement sheds.  In one the appellant sold a copper cooling tank that he had stolen for $160.80.  In the other only a set of keys were stolen which were returned when the appellant was arrested. The third burglary, which was a burglary of a house property, was the most serious because of the serious invasion of privacy and the capacity for confrontation with an

owner.  The appellant took a red plastic stubbie holder and some coins.  Both were recovered when he was arrested.  As can be seen the burglaries were unsophisticated and involved the theft of very modest value property.  The result was little or no loss to the owners of the premises.

[17]     I consider, therefore, that this offending by itself justified a start sentence of no more than 18 months’ imprisonment.   In that I consider the start point by the Judge in the District Court at 24 months was too high.

[18]     The  appellant  cannot  complaint  about  the  six  month  uplift  given  in  the District Court.  This was his 10, 11th and 12th convictions for burglary in the space of four years.  From the starting sentence of 18 months’ imprisonment I therefore add a further six months to reach 24 months’ imprisonment.  From that it is appropriate to deduct a full 33% for the appellant’s early guilty plea.  As I have noted the plea was made  at  the  first  reasonable  opportunity.    That  reduces  the  start  sentence  to

16 months’ imprisonment.

[19]     For reasons that I have mentioned I am also prepared to give the appellant a very modest reduction for his youth.  This is as I have identified generous given that no deduction for youth could be justified.  I do so because I infer it was the intention of the District Court Judge to give a small reduction to reflect the appellant’s youth. I therefore deduct a further two months from Mr Partridge’s sentence reducing the final sentence to one of 14 months’ imprisonment.

Summary

[20]     The appeal is allowed.   The sentence of 20 months’ imprisonment quashed and a sentence of 14 months’ imprisonment substituted.  The sentence is imposed on all three of the charges of burglary concurrently.  The sentence with respect to post

detention release remains unaffected by this appeal as does the reparation.

Solicitors:

S N Hewson, Ord Legal, Barristers & Solicitors, PO Box 10 909, Wellington

Ronald Young J

E Killeen, Ben Vanderkolk & Associates, PO Box 31, Palmerston North, email: [email protected]