Paul v Police
[2015] NZHC 2583
•20 October 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-463-46 [2015] NZHC 2583
BETWEEN MADELINE HUIA PAUL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 October 2015 Counsel:
E L Reilly for Appellant
M S Jenkins for RespondentJudgment:
20 October 2015
JUDGMENT OF BREWER J
Solicitors: Lance Lawson (Rotorua) for Appellant
Gordon Pilditch (Rotorua) for Respondent
PAUL v POLICE [2015] NZHC 2583 [20 October 2015]
Introduction
[1] The appellant, Ms Paul, appeals a sentence of two years one month imprisonment imposed by Judge R Collins in the District Court at Rotorua on
4 August 2015.1 Judge Collins had to sentence Ms Paul on two charges of burglary,2
two charges of theft,3 one charge of being unlawfully in a building4 and two charges of breach of bail conditions.5
[2] Ms Paul appeals the sentence on the ground that it is manifestly excessive in all the circumstances.
Background
Offending
[3] Ms Paul’s offending occurred on a number of occasions between November
2014 and January 2015. It involved burglaries and theft committed at residential properties, three of which belonged to elderly occupants. The facts relating to each offence are as follows.
[4] On the morning of 27 November 2014, Ms Paul knocked on the door of a house in Rotorua and asked the occupier if she could use the toilet. When in the bathroom she opened the window and threw a gold plated man’s watch out of it. She then walked around the house and picked up the occupant’s wallet. She asked to use the bathroom again and threw the wallet out of the bathroom window. Once she left the house she retrieved the watch and wallet from outside the bathroom window. Ms Paul was charged with theft in relation to this incident. Together the watch and
the wallet were valued at $400.
1 Police v Paul [2015] NZDC 15339.
2 Contrary to s 231 of the Crimes Act 1975. The maximum penalty for this offence is 10 years’
imprisonment.
3 One charge of theft was for an amount between $500 and $1000 contrary to s 223(c) of the Crimes Act 1975. The maximum penalty is one year’s imprisonment. The second was for theft under $500. Under s 233(d) the maximum penalty is three months’ imprisonment.
4 Summary Offences Act 1981, s 29(1)(a). The maximum penalty is three months’ imprisonment.
5 Bail Act 2000, s 38. The maximum penalty is one year’s imprisonment. The individual sentences, which were all imposed concurrently, were: two years one month’s imprisonment on each of the burglary charges, four months’ imprisonment for theft ($500-$1,000), one month’s imprisonment for each of the charges of the theft under $500, unlawfully being on a property, and the two breach of bail charges.
[5] On 28 December 2014, Ms Paul drove a van and parked outside a residential property. She knocked on the front door of the house and told the elderly couple who opened the door that she was lost, needed to use their phone, and asked for petrol money. The couple allowed her to use their phone, waiting politely in the next room. Whilst she was making a phone call, Ms Paul took a handbag which was hanging on a walker and took a cellphone from it. Upon finishing her phone conversation, Ms Paul left the address, taking the cellphone with her. Ms Paul was originally charged with burglary for this offending. However, this charge was later amended to theft.
[6] Later that day, 28 December 2014, Ms Paul drove her van to another residential property and knocked on the front door. She told the elderly lady who came to answer the door that she was lost, needed to use her phone and needed some money for petrol. She was led into the kitchen and pretended to call someone on the phone. When the occupier of the house was out of the room she grabbed a petanque set from the hallway and hid it by the front door. The occupier then drove to a service station with Ms Paul following in her van. Once there, Ms Paul asked the occupier for money instead of petrol and was given $30. The occupier returned home and when she arrived noticed Ms Paul’s van parked outside. Ms Paul ran out of the van, grabbed the petanque set from beside the door and drove off with it. Ms Paul was charged with burglary for this offending.
[7] On 29 December 2014, Ms Paul parked outside another residential address and knocked on the door. An elderly lady answered. Ms Paul asked for money for petrol and to use her phone. The elderly lady said that she was running late for an appointment and sent Ms Paul away. Ms Paul waited until the elderly lady had left her house. She then went to the house, smashed a window and went inside. She took a Panasonic television set.
[8] The final offence of this series, unlawfully being on a property, was committed on 31 January 2015. A neighbour who knew Ms Paul saw her walk around to the back of a residential property and climb in through a broken window. Ms Paul searched the address, and discovered that an elderly male was deceased in
an armchair in the lounge. Ms Paul left the property through the same window. She did not call emergency services.
[9] The two breaches of bail occurred in February and April 2015 while Ms Paul was on bail for the other offending.
Reports before the District Court
[10] Ms Paul is 29 years old. A pre-sentence report details that Ms Paul acknowledged that an underlying issue in her offending is her mental health. Whilst on remand in custody, Ms Paul engaged with the Mason Clinic and was diagnosed with depression and post traumatic stress disorder. The report writer recommended imprisonment, given her current mental health, the nature of her offending, the impact her offending would have had on the victims as well as her previous offending. However, the report writer noted that home detention was also available if the Court wished to show leniency.
[11] Also before Judge Collins was a report prepared pursuant to s 38(2)(b) of the
Criminal Procedure (Mentally Impaired Persons) Act 2003. The report is dated
22 June 2015 and was compiled by Dr Duggal. While Dr Duggal considered that Ms Paul was fit to stand trial, the report details her history and childhood and Dr Duggal’s view that Ms Paul displayed symptoms consistent with post traumatic stress disorder. She has a lengthy history of physical and sexual abuse both during her childhood and at the hands of previous partners. Ms Paul confirmed that she had used cannabis and synthetic cannabis for many years. Dr Duggal considered that her substance abuse met the criteria for polysubstance abuse disorder.
[12] A preliminary report prepared by a psychologist in April 2015 is also on the file as well as a letter written by a member of the Crossroad Bible Institute. Ms Paul is described as having reconnected with Christianity since being remanded in custody.
[13] Ms Paul has four children; the eldest two are in foster care and the younger two live with whanau, who Ms Paul describes as having disowned her.
Criminal History
[14] Ms Paul has a number of previous convictions for relatively minor offences. They include aggravated assault, assaulting Police and resisting Police, disorderly behaviour, obstructing Police, wilful neglect of a child under 17, speaking threateningly, and possessing a needle/syringe. In addition, she has nine offences
relating to failing to comply with Court orders.6
District Court decision
[15] Against the background I have just traversed, Judge Collins noted that starting points of between 18 months and two-and-a-half years are normally adopted for residential burglary cases. The Judge considered that the first burglary charge required a starting point at the lower end of the scale and adopted a starting point of
18 months. He considered that the second burglary offence was “quite a serious burglary of an elderly person’s home” and required an uplift, taking into account totality, of 12 months. The Judge considered that the two theft charges required a further uplift of four months, the charge of unlawfully being in a building required an uplift of one month, and that there should be a further one month for the two breaches of failing to answer District Court bail. This took the Judge to a total starting point of 36 months’ imprisonment.
[16] The Judge then gave a discount for the “difficulties and challenges” that Ms Paul had had in her life, bringing the sentence down to 30 months.7 After this, he gave a further five months discount for her pleas of guilty.
[17] Having arrived at an end sentence of two years one month’s imprisonment, the Judge stressed that while home detention was not available, even if it were he would not impose it. This was due to Ms Paul’s previous non-compliance with
community-based sanctions and Court orders, as well as the targeting of elderly
6 Five breaches of community work, and breach of conditions of supervision, two convictions for failure to answer District Court bail and one conviction for failure to answer police bail.
7 Earlier in the Judgment Judge Collins noted that he had read the reports prepared for the Court which detailed a number of sad aspects of her life which were not of her making and which she had to contend with which he stated would be taken into account.
victims. The Judge added that a discount for genuine remorse was built into the credit for Ms Paul’s personal circumstances.
[18] I have had difficulty deciding which charges the Judge was referring to when imposing the starting point and uplift for the burglaries. The Judge described the incident on 28 December, where Ms Paul stole the cellphone, as “the first of the burglary charges”. It appears that he used this incident as the lead offence. However, this charge was amended to a theft charge and the conviction entered was
for theft.8 It appears from the Judge’s comments that the second burglary charge was
quite a serious burglary, that this was the occasion where Ms Paul stole the television.
[19] Nevertheless, there were two charges of burglary and the overall circumstances are reasonably similar. It is the starting point that reflects properly the overall criminality that is, I think, the principal issue in this appeal. I will come to it.
Appeal
[20] Ms Reilly for Ms Paul submits that her sentence is manifestly excessive. The home detention aspect of the appeal is no longer pursued because Ms Paul no longer has an approved address and is not likely to acquire one.
[21] Ms Reilly, in her written submissions, submits that the Judge took too high a starting point on the first burglary and compounded that by imposing too high an uplift for the second burglary. In her submission, a starting point of 18 to 24 months for both burglaries was appropriate. This contrasts with Judge Collins’s combined starting point of 30 months’ imprisonment.
[22] Ms Reilly submits also that the uplifts for the remaining offences were also too high. Ms Reilly points out that this was a spate of offending and should be
treated as being concurrent with the burglaries. Any uplift should be minor.
8 The charging document showing this charge is amended by hand. A conviction for theft for the charge (CRI 1506300003) is recorded.
[23] On the downdraft side of things, Ms Reilly contends that the Judge should have given a further discount for remorse.
[24] In Ms Reilly’s submission, an end start point of two years to two-and-a-half years is appropriate. Following the application of the discount for guilty pleas, this would yield a result of less than two years imprisonment.
Discussion
[25] A sentence appeal is by way of rehearing. This Court must allow the appeal if satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.9 The approach taken to sentence appeals was not changed by the passing of the Criminal Procedure Act 2011; the appellant must demonstrate an error on the part of the sentencing Court, in that the sentence was manifestly excessive or wrong in principle.10 This Court will not intervene if the end sentence was within a range properly justified by accepted principles.11
[26] Given my view that the Judge appears to have adopted the charge which was revised to a theft charge as the lead burglary offence, I will assess whether the end sentence was within range bearing in mind the facts of the actual burglary charges.
[27] While the Court of Appeal has not set a tariff for burglary because of the broad range of circumstances, it stated in Arahanga v R that dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of between 18 months to two years and six months’ imprisonment. The heightened risk of confrontation with the occupants is a significant aggravating factor.12
[28] However, this Court has noted that the Court of Appeal’s decision in
Arahanga should not be taken as expressing a fixed minimum starting point for
9 Sentencing Act 2002, s 250.
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].
11 Ripia v R [2011] NZCA 101 at [15].
12 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
dwelling house burglary,13 as the Court of Appeal simply observed the approximate starting points that tend to be imposed.14
[29] Factors commonly taken as relating to the seriousness of a burglary are:15
(a) Danger to occupants – particularly where the burglary occurs at night and where the victims are vulnerable;
(b) Behaviour targeting victims;
(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.
[30] In the current case, whilst no value of the property was given, both the petanque set and the television were worth under $500. Both burglaries involved elderly victims. The burglary of the petanque set occurred during the day, when Ms Paul knew that the occupant was at home. I consider that this burglary also involved a breach of trust, given that Ms Paul moved the set to a place from where she could easily take it in circumstances where the occupant had invited her into her house to help her and she returned to the house to take it once the occupant had driven her to the petrol station and given her money. The burglary where the television was taken involved Ms Paul smashing a window to gain entry. Ms Paul knew that the occupant was not home so the risk of confrontation was less. Finally, both sets of offending appear to have been premeditated and it is at least arguable, given the surrounding circumstances of the two theft charges, that Ms Paul
specifically targeted properties of elderly occupants.
13 Newton v Police [2012] NZHC 2829 at [9].
14 See Borthwick v Police at [21].
15 Senior v Police (2000) 18 CRNZ 340 at [19].
[31] I have considered a number of cases involving relatively low level burglaries of dwelling houses:
(a) In Stepanicic v R, the Court of Appeal held that two years was the appropriate starting point for burglaries of residential premises committed the same morning.16 The appellant had entered a house through an unlocked door at around 5:45 am. He went into the bedroom where a woman was asleep and took her backpack, shoulder bag, Adidas shoes, keys and wallet. He also took a cellphone, video camera and another set of keys from the kitchen. Afterwards he went to another house and broke in by ripping off the latches to the kitchen
window. He took two wallets, a camera, laptop, earrings, keys, bag and play station console. The occupant was woken when the alarm was set off.
(b)In Marsters v Police, Whata J considered that a global starting point of 16 months for burglary, receiving, being unlawfully in a closed yard and possession of an offensive weapon was within range.17 The burglary charge related to an incident where the appellant and an associate had used a screwdriver to open a door to a house, placed a gaming console and games valued at approximately $700 in a
backpack before leaving the property with them when disturbed by a neighbour beeping a horn in the driveway.
(c) In Newton v Police, the appropriate starting point was considered to be 15 months. The appellant entered a house during the day, stole a television and some jewellery worth about $2,000. The appellant was on bail while the offending occurred. Justice Kós identified as relevant that the appellant was a first time burglar, the offending was
opportunistic without significant premeditation, occurred during the
16 Stepanicic v R [2015] NZCA 211.
17 Marsters v Police [2014] NZHC 3273.
day, there was a single burglary and the occupants were absent and the burglary had a limited effect on them.18
(d)In Hale v Police, the appellant and an associate had broken into a house at 9:30 pm by breaking a bedroom window, searched it and had stolen a television worth $500. I considered a starting point of
18 months’ imprisonment was appropriate bearing in mind that it was a residence, there were two burglars, it occurred at night, and whilst the occupants were not at home the burglary had had a traumatising effect.19
(e) In Borthwick v Police, the appellant pleaded guilty to three charges of burglary.20 All were committed in the day. First, the appellant entered the house through an unlocked door and stole $2,100 worth of property and $300 cash. He entered the second house through a back door and stole a laptop worth $890. The elderly resident was home, although neither was aware of the other’s presence. On the third occasion, the appellant stole an angle grinder from a shed. Justice Clifford observed that the appropriate starting point for the first
burglary was between 15 and 18 months. An uplift of between nine to
12 months for the second burglary would have been appropriate and an additional six months for the third.
(f) In McFall v Police, Andrews J considered the appropriate starting point for two charges of burglary was 21 months imprisonment on the basis that there were two burglaries of domestic properties during the day and that nature of the property taken. The first had occurred in the morning where the appellant smashed a glass door, searched several bedrooms taking three passports, a 42 inch flat screen
television, Xbox console, acoustic guitar, laptop and iPad. Shortly
18 Newton v Police, above n 13.
19 Hale v Police [2012] NZHC 1243.
20 Borthwick v Police [2014] NZHC 2772.
after this he smashed the window of another residential address taking a laptop and several items of footwear.21
[32] In light of the cases above, I consider that the starting point for the two burglary charges of two years six months’ imprisonment was outside of the range available. In particular, I consider that Stepanicic v R and McFall v Police indicate that the starting point should not have been more than two years. Stepanicic is broadly similar. Both cases concern two burglaries of a dwelling house where the value of the property stolen appears to be relatively low. The aggravating features in Stepanicic – that the offending occurred at night, personal property was stolen and the offending had a significant impact on the victims – are not apparent in the cases I am now considering. And Ms Paul did not go into a victim’s bedroom whilst the victim was asleep. I accept that in the cases I am considering, breach of trust, premeditation and vulnerability of the victims are relevant. However, given the low value of the property taken, that the offending was during the day and neither incident involved a prolonged search of the house, the offending here could not be seen as more serious than in Stephanicic. McFall was less serious as the aggravating factors were not present but the value of the property was much greater. Accordingly, I assess a starting point of two years’ imprisonment for the two burglaries to be appropriate.
[33] Judge Collins did not mention totality when assessing uplifts. However, I consider that his Honour had that principle firmly in mind when he set the uplifts for the remaining offending. The thefts and the unlawful entering had many of the features of the burglaries. When added to the burglaries, they make up five separate occasions in which the appellant entered the houses of strangers. In four of those cases, she tried to talk her way into the confidence of her victims. They were vulnerable and she preyed upon them. In my view, combined uplifts of five months are manifestly inadequate unless the Judge was having regard to the totality principle.
[34] Likewise, the breaches of bail did not deserve a makeweight uplift. Ms Paul has previous convictions for breaches of Court orders. In 2004, she was convicted of
21 McFall v Police [2015] NZHC 2095.
failing to answer Police bail. In 2005 and 2010, she accumulated three convictions for breaching community work. In 2012, she failed to answer District Court bail. In
2013, she breached community work and failed to answer District Court bail on three further occasions. In 2014, she was again convicted of breach of community work as well as breach of conditions of supervision. The two breaches which Judge Collins had to consider were intimately involved with the other charges upon which Ms Paul appeared for sentence.
[35] In my view, given a starting point of 24 months for the burglaries, the uplifts properly available for the thefts, the unlawful entry and the breaches of bail together would easily achieve 12 months’ imprisonment. Accordingly, I cannot say that the overall start point of 36 months adopted by Judge Collins was manifestly excessive, or indeed excessive at all.
[36] That means I now have to consider what the available discounts are. I do not accept Ms Reilly’s submission that a further discount for remorse should have been added to the six months discount for what can be described as Ms Paul’s personal factors. Discounts for mental health issues may be given in appropriate circumstances. The Court of Appeal has found:22
If causative of the offending, it moderates the offender’s culpability. It may also render less appropriate, or more subjectively punitive, a sentence of imprisonment. It may be relevant because of a combination of those reasons. Sentencing does have an essentially moral base. As such, mental disorder may mitigate moral fault and, accordingly, criminal culpability. But, at the same time … care has to be taken when assessing the causative impact and mitigating effect of mental illness on offending.
[37] In that case the Court of Appeal upheld a discount of approximately six per cent for the appellant’s personal circumstances which included physical, sexual and psychological abuse by a stepfather. The Court considered this recognition was appropriate given that the reports before the Court did not assess the extent to which
any of the factors were causative of or mitigated the appellant’s offending.23 A
similar observation can be made about the reports in this case.
22 Nelson v R [2014] NZCA 121 at [22].
23 At [28].
[38] In the current case, the Judge gave a 20 per cent discount for the factors with which Ms Paul has had to contend through her life and for her remorse. Ms Paul’s remorse was shown by a letter that she wrote to the Court in which she states that she is very sorry and wished to take responsibility for her actions. Spending time in prison, she says, has opened her eyes to the life she is leading. This seems supported by a report from a mental health clinician based at the Auckland Regional Women’s Prison which details Ms Paul’s willingness to look at herself honestly and work towards a more successful future.
[39] Dr Duggal’s opinion was that:
Ms Paul grew up in a very adverse environment where she was exposed to impoverishment and a range of abuses. She was profoundly affected by sexual abuse and appears to have sustained longstanding psychological sequelae of this to the current day.
She appears to have been in a physically abusive relationship and using illicit recreational substances prior to, throughout and beyond the period of the alleged offending. It is possible that there is a nexus between Ms Paul’s need for substances to cope with her unstable emotional state during the alleged offending and the actual offending alleged.
[40] Dr Duggal does not state that a prison sentence would be harder on Ms Paul than on another offender. In his view she would benefit from substance abuse counselling and specific psychological assistance for post traumatic stress disorder, and further follow up through the prison in-reach mental health service. In light of this report and the Court of Appeal’s guidance, I consider that the discount was generous; but given that was the appreciation of a very experienced District Court Judge, and given the fact that the Crown does not seek to disturb the discount, I will allow it.
[41] Finally, the Judge gave a discount of five months for the pleas of guilty. This is a discount of 17 per cent of the end sentence. Neither party seeks to disturb that discount and given the moderate delay in entering pleas of guilty, I find it to be appropriate.
Decision
[42] Accordingly, although by a different route, I have reached the same sentence outcome as did Judge Collins. I make the point that in an appeal against sentence, it is the end point which the Court focuses on rather than the process by which it was reached.
[43] Finally, although I acknowledge that Ms Paul no longer seeks a sentence of home detention, I record that I agree with Judge Collins that even if it were available it would not be appropriate, given Ms Paul’s history of non-compliance with Court orders including the two breaches of bail which are part of this sentence.
[44] The appeal is dismissed.
Brewer J
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