Patterson v Police HC Auckland CRI 2010-404-134
[2010] NZHC 720
•17 May 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-134
BETWEEN JAMES KEITH PATTERSON Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 17 May 2010
Counsel: D Dickinson for the appellant
C Merrick for the respondent
Judgment: 17 May 2010
JUDGMENT OF POTTER J
Solicitors: Crown Solicitor, P O Box 2213, Auckland 1140
Public Defence Service, P O Box 90243, Auckland 1142
PATTERSON V NEW ZEALAND POLICE HC AK CRI-2010-404-134 17 May 2010
Introduction
[1] Mr Patterson appeals against a sentence of two years and three months imprisonment imposed by Judge Joyce QC in the District Court at Auckland on 26
March 2010 on a charge of burglary. The appeal is based on two grounds:
a) The sentence is manifestly excessive;
b) The sentence was based on a pre-sentence report dated 14 October
2009 instead of a full pre-sentence report with home detention appendix as ordered on 26 February 2010.
The offending
[2] At about 7 p.m. on Sunday 9 August 2009 the appellant was in Ayr Street, Parnell carrying a crow bar, approximately 50 centimetres long and a radio scanner which was set to the Police channel. He was wearing gloves.
[3] He entered the property at 10A Ayr Street and pried open a door using the crow bar. He removed items inside the property having an estimated value of $300. These were subsequently recovered from the backpack worn by the appellant.
[4] Mr Patterson was arrested on 9 August 2009 and charged the following day with burglary, possession of instruments for burglary and possession of electronic equipment for burglary.
Sentencing
[5] The sentencing Judge observed that Mr Patterson is a recidivist offender which is not contested on appeal and that his most recent convictions in November
2008 for a “small wad of burglary offences” had resulted in a sentence of “16 months or so” imprisonment.
[6] He said that a starting point of around three years would be appropriate. He acknowledged the submission of the appellant’s counsel that given the small scale nature of this particular burglary the starting point might be something less. However, acknowledging, as counsel did, the recidivist nature of the appellant’s offending and his past offending, the Judge considered the three years starting point appropriate.
[7] He then allowed a discount of twenty five per cent for the guilty pleas entered, but not at the first opportunity which he said “errs on the generous side if anything at all”.
[8] The end sentence was two years three months imprisonment.
Appellant’s submissions
[9] The appellant’s submissions placed some reliance on the unavailability of an up to date pre-sentence report. Mr Dickinson acknowledged the provisions in s 26(3) of the Sentencing Act 2002 referred to by the Crown, that the Court must not direct the preparation of a pre-sentence report on any aspects of the personal characteristics or personal history of an offender if a report covering those aspects is readily available to the Court and there is no reason to believe that there has been any change of significance since the report was prepared. Mr Dickinson emphasised the absence in this case of a home detention appendix which had been previously ordered and which, he submitted, could well have been of assistance to the appellant on sentencing.
[10] Counsel sought support from a judgment of Priestley J in Pomana v New Zealand Police.[1]The result of the appeal in that case was that Priestley J quashed the sentence of three years four months imprisonment imposed, directed that a pre- sentence report be prepared as a matter of urgency and remitted the sentencing back to the District Court.
[1] Pomana v New Zealand Police HC Hamilton CRI-2010-419-000002 9 February 2010.
[11] The other limb of the appellant’s submissions focused on the sentence being manifestly excessive and referred to an observation in Senior v Police[2] that a recidivist burglar who pleads guilty to even two or three offences is unlikely to receive a sentence which exceeds three years. Counsel noted that the property in this case was unoccupied at the time, there was no damage beyond that caused by the forced entry, and the value of the property taken was about $300, which had been
[2] Senior v Police (2000) 18 CRNZ 340 at [37].
recovered.
[12] In oral submissions counsel did not challenge the twenty five per cent discount for the guilty plea allowed by the sentencing Judge.
Crown’s submissions
[13] The Crown submitted:
a) The starting point of three years adopted by the sentencing Judge was within range given the aggravating features of the offending and the offender;
b) The credit for the guilty plea was generous in light of the Court of
Appeal’s guidelines in R v Hessell;[3]
[3] R v Hessell CA170/2009 20 October 2009.
c) The sentencing Judge was fully informed of the appellant’s background and personal circumstances, and the use of a pre-sentence report predating the appellant’s plea to this offending did not have an effect on the end sentence.
[14] In relation to the starting point the Crown referred to the judgments in Senior v Police and R v Columbus[4]and in particular to the following passage from the judgment in Columbus:[5]
[4] R v Columbus CA608/07 27 June 2008 (CA).
[5] At [13], [14] and [15].
[13]... The starting point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3
NZLR 372 at [42]-[44] (CA). The same principle applies in burglary sentencing, where the intrinsic nature and gravity of the
offence charged is the primary consideration: R v Power [1973] 2
NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served
by this approach.
[14]Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate in fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not in itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8A and 9(1)(i) Sentencing Act 2002) and for the purposes of deterrence and community protection (s7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]-[30] (HC).
[15]Sentencing judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms ‘recidivist’ or ‘habitual’ while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living; Senior at [30]. The principle inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[15] The Crown referred to a number of recent High Court judgments when the guidance provided by Columbus had been followed in sentencing: White v Police,[6]Tumohe v Police[7] and Pomana v Police.[8]
[6] White v Police HC Gisborne CRI-2009-416-0002 27 February 2009.
[7] Tumohe v Police HC Hamilton CRI-2008-419-72 13 November 2008
[8] Pomana v Police HC Gisborne CRI-2008-416-0019.
[16] In relation to the appropriate starting point the Crown referred to a number of High Court judgments including R v Osborne,[9] R v Kingi,[10] Sunnex v Police[11] and to the Court of Appeal judgment in R v Stevens.[12]
[9] R v Osborne HC Whangarei, AP21/02 13 May 2002.
[10] R v Kingi HC Rotorua AP44/99 25August 1999.
[11] Sunnex v Police HC Christchurch CRI-2010-409-43 22 April 2010.
[12] R v Stevens CA757/08 19 May 2009
[17] Taking those decisions into account, the Crown submitted that an appropriate starting point for the present offending, being one instance of burglary with forced entry, a degree of premeditation and where the items stolen were recovered, is in the vicinity of eighteen months imprisonment.
[18] However, the Crown submitted that given the aggravating features in this case an uplift of eighteen months from a starting point of eighteen months is not out of range. The Crown identified as the aggravating factors of the offending:
a) premeditation, in particular the use of gloves and radio equipment;
b)forced entry into a private residential dwelling using a crow bar and that subsequent damage was caused by the forced entry;
c) taking of items of sentimental value, including jewellery boxes;
d)the impact on the victims as evidenced by the victim impact statement.
[19] As to aggravating features personal to the appellant, the Crown noted that the appellant has seventeen previous convictions for burglary and five previous convictions for burglary related offending. The appellant’s most recent convictions for burglary related to two charges of which he was convicted on 4 November 2008 for which he received a prison sentence of sixteen months. The Crown noted that this offending was carried out on 9 August 2009 which was while the appellant was still subject to the sentence of imprisonment imposed on 4 November 2008. Further, the appellant has twenty two convictions for other dishonesty offending.
[20] Mr Merrick submitted that the two years uplift applied by Priestley J in Tumohe where the appellant had a previous criminal history involving eleven burglary convictions and twenty seven dishonesty related convictions, could well have been applied here.
[21] In relation to the pre-sentence report, the Crown submitted that the appellant’s personal circumstances would not have changed given his custodial
status and that the pre-sentence report available to the sentencing Judge would have been informative as to the appellant’s background and personal circumstances, such that the Judge was fully informed on those matters when sentencing the appellant. Mr Merrick also referred to s 26(3) of the Sentencing Act to which I have earlier made reference.
Discussion and conclusion
Pre-sentence report
[22] Judge Joyce noted that a completely up to date pre-sentence report was not available but that one had been prepared on 14 October 2009 since which time the appellant had been in custody. He said the report was as helpful as might be and he had had a good look at it.
[23] I consider the decision in Pomana of little assistance to the appellant. Priestley J recorded that it was counsels’ collective view that the sentence was clearly excessive and at [11] the Judge indicated in a non-binding way, that from a starting point of around two and a half years, increased by six months to reflect the aggravating feature of the appellant’s prior convictions, and allowing a discount in the region of twenty per cent for a somewhat late guilty plea, he would have arrived at an end sentence of two and a half years.
[24] The Judge further recorded the agreed position of counsel that the matter should be referred back to the District Court so that the sentencing exercise could be done with the assistance of a full pre-sentence report, there having been no pre- sentence report of any kind available in that case.
[25] In this case the Judge had the benefit of a fairly recent and carefully considered pre-sentence report, which I have read. It was helpful and constructive. I do not consider in the circumstances of this case that the absence of an up to date pre-sentence report, albeit one that addressed the issue of home detention could have
affected, adversely from the appellant’s perspective, the end sentence that was
imposed.
[26] It appears the appellant’s counsel did not seek a further adjournment of the sentencing to await a subsequent pre-sentence report, and in the circumstances it is understandable that he did not.
Starting point and uplift
[27] The Judge did not articulate in detail how he reached the starting point of three years imprisonment. He appeared to have taken an overall approach taking into account this offending and the appellant’s history of offending in the way described by the Court of Appeal in R v Lowe:[13]
[13] R v Lowe CA62/05 4 July 2005 at [31].
In the case of recidivist burglars, however, this Court appears frequently to have taken the appellant’s prior history into account when fixing the actual “starting point”.
[28] The appropriate approach is that identified in R v Columbus. On the basis of the authorities referred to by the Crown, I agree with the Crown’s submission that an appropriate starting point for this offending, being one instance of burglary of items of a comparatively minor amount, but with aggravating features as identified by the Crown, was in the vicinity of eighteen months imprisonment.
[29] The Court of Appeal judgment in R v Stevens is of assistance. It concerned a burglary of commercial premises and the goods taken were valued at about $350. The Court considered that an appropriate starting point for the burglary would have been no higher than eighteen months imprisonment.
[30] I also agree with the Crown that an uplift of eighteen months from that starting point was open to the sentencing Judge. There is no doubt that the appellant is a serious recidivist offender. At the age of 33, he has ninety three previous convictions including the convictions for burglary, burglary related offending and dishonesty offending identified by the Crown.
[31] Thus, a revised starting point of three years imprisonment was open to the
sentencing Judge.
Discount for guilty plea
[32] The twenty five per cent discount is not challenged on appeal. I observe that I agree with the sentencing Judge and the Crown that the discount allowed was generous. Mr Patterson was arrested on 9 August 2009. On 5 November 2009 he elected trial by jury and on 26 November 2009 he vacated his not guilty plea and pleaded guilty, electing the summary jurisdiction. Mr Patterson was caught “red handed” because his entry into the property in Ayr Street activated the burglar alarm to which the Police responded and they caught him as he tried to depart. He had every opportunity promptly to acknowledge his guilt but elected not to do so. As the
Court of Appeal in R v Hessell said:[14]
[14] At [32].
First reasonable opportunity means what it says. The maximum discount is appropriate only for those who are prepared to acknowledge their guilt at the outset.
Conclusion
[33] In the circumstances of this case I do not consider the absence of an up to date pre-sentence report, given the availability of the report dated 14 October 2009 prepared following the arrest of the appellant for this offending and while he was in custody, can have contributed to an unjust outcome. It appears his counsel did not seek a further adjournment to await a subsequent pre-sentence report, and as I have said, in the circumstances it is understandable that he did not.
[34] The overall starting point of three years imprisonment taking into account the aggravating features of the offending and the offender was within the range available to the sentencing Judge. The discount of twenty five per cent for the guilty plea was generous. The end sentence of two years three months imprisonment cannot be regarded as manifestly excessive in the circumstances.
[35] The appeal is dismissed.
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