Paul v Police HC Gisborne CRI 2010-416-1

[2010] NZHC 251

IN THE HIGH COURT OF NEW ZEALAND

GISBORNE REGISTRY

CRI 2010-416-000001

JASON KINGI PAUL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2010

Appearances:  N Witters for the Appellant

J E Rielly for the Respondent

Judgment:      4 February 2010 at 12:00pm

JUDGMENT OF WYLIE J

[Appeal against sentence]

This judgment was delivered by Justice Wylie

on 4 February 2010 at 12:00pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Woodward Chrisp, P O Box 347, Gisborne

Crown Solicitor, P O Box 609, Napier 4140

J K PAUL V NEW ZEALAND POLICE HC GIS CRI 2010-416-000001  4 February 2010

[1]      Mr Paul appeals against a sentence of 20 months’ imprisonment imposed on him on 25 November 2009 by His Honour Judge A J Adeane in the District Court at Gisborne.

[2]      The  sentence  was  imposed  after  Mr  Paul  pleaded  guilty  to  one  charge  of burglary under s 231(1)(a), and one charge of theft under ss 219 and 223(d), of the Crimes Act 1961.  The offence of burglary under s 231 is punishable by a maximum term of imprisonment of 10 years.  The offence of theft pursuant to s 223, where the value  of  the  property  stolen  does  not  exceed  $500,  is  punishable  by  a  term  of imprisonment not exceeding three months.

Relevant facts

[3]      On 12 July 2009 Mr Paul broke into a motor vehicle parked at the rear of a residential property in Gisborne.  A wallet containing a driver’s licence, an IRD card and a bank card was stolen.   Further, a CD holder containing CDs and a set of car keys were taken.

[4]      On 10 August 2009, Mr  Paul again went to the  rear of another property in Gisborne.   He  smashed  the  top  and  bottom  window  panes  in  a  French  door  and gained  access  to  the  house.   He  then  started  going through  the  house  and  took  an MP3 player, a digital camera and two expired passports.   The alarm at the address then sounded and Mr Paul was seen by a neighbour attempting to exit by the front door.   He was unable to do so and he then left by the rear door.   He was seen by another neighbour.   That neighbour spoke to him.   Mr Paul gave a false name.   He then  walked  to  the  front  footpath.   When  he  was  told  that  the  Police  were  being called, he ran away across a rugby field into the rear of a property bordering another road.  He went to elderly gentleman’s address, and asked that gentleman to call him a taxi.   He then waited for the taxi to arrive.   When the taxi arrived, he got in and thus escaped a Police cordon which had been placed around the area.

[5]      Subsequently, the Police visited Mr Paul’s home address. He initially denied being dropped off by the taxi. He was spoken  to  in  relation  to  the  burglary  and admitted going onto the address with the intent to burgle it, but denied entering the

property.  In explanation, he stated that he had smashed the rear two windows of the address, which had set off the burglar alarm, and that he then left the address after speaking to the neighbour from next door.  The Police found the driver’s licence and the  IRD card taken  from the motor vehicle in  a bag in  Mr Paul’s possession.   Mr Paul was spoken to about these items.  He stated that he had found the wallet at the local Polytech and admitted that he had failed to hand it in.

[6]      Mr Paul was charged and he pleaded guilty at the first available opportunity

on 19 August 2009. He   was   subsequently   sentenced   by   Judge   Adeane   on

25 November 2009 as noted above.

[7]      Mr Paul lodged a notice of appeal against  sentence  on  18  December  2009. The notice of appeal alleges that the sentence imposed was manifestly excessive. It also alleges that the Judge placed insufficient weight on mitigating factors, namely

his  remorse  and  a  desire  to  move  away  from  this  type  of  offending,  and  that  he placed too much weight on the previous convictions that Mr Paul has.

Sentencing notes

[8]      Judge Adeane noted that the theft was a relatively minor matter. He observed, however, that burglary is never minor. He noted that the community views  burglary  as  particularly  contemptible  and  serious  offending. He  also  noted that Mr Paul has five previous convictions for burglary, and that in respect of three

of those convictions, he had been sentenced as recently as October 2008 to a term of imprisonment of 16 months.  He observed that Mr Paul had only been out of jail for

a few months prior to the offending the subject of this appeal.

[9]      The Judge referred to the decision of the Court of Appeal in R v Columbus

[2008] NZCA 192, and recorded that that authority required him to identify a starting point. He recorded that Mr Paul’s burglary involved a dwelling house, and that this factor required a starting point of two years’ imprisonment. He uplifted that starting point by six months to reflect the fact that Mr Paul was only just out of jail for other burglaries, and that he has previously been convicted of numerous other dishonesty- related offences. He recorded that Mr Paul was entitled to a substantial discount for

his early guilty plea and deducted 10 months.   The net result was a sentence of 20 months’  imprisonment  for  the  burglary.              He  sentenced  Mr  Paul  to  one  month’s imprisonment on the theft charge, to be served concurrently.

Submissions

[10]     Mr  Witters,  appearing  on  behalf  of  Mr  Paul,  submitted  that  the  sentence imposed by the Judge was manifestly excessive.  He submitted that the starting point imposed by the Judge of two years was too high.   He put it to me that the burglary committed  by  Mr  Paul  was  unremarkable,  and  not  dissimilar  to  the  burglary  in Columbus.   He noted the comments made by the Court of Appeal in Columbus that the burglary in that case of itself did not justify a starting point of more than one year’s imprisonment — see [16].

[11]     Mr Witters accepted that the charge of burglary was also accompanied by a charge of theft, but he noted that the theft was committed before the burglary and that Mr Paul was not on bail at the time (unlike in Columbus). He suggested that an increase of approximately two months in respect of the theft charge was appropriate,

as opposed to the six-month uplift endorsed  by the Court of  Appeal  in  Columbus.

He also accepted that the further uplift of six months was appropriate to reflect the fact  that  Mr  Paul  was  only  just  out  of  jail  for  other  burglaries,  and  that  he  has numerous dishonesty-related convictions.

[12]     On this basis, Mr Witters submitted that a total sentence of 20 months was appropriate.  He  did  not  take  issue  with  the  one-third  discount  allowed  by  Judge Adeane,  and  argued  that  as  a  result,  a  sentence  of  13  months  and  10  days imprisonment was appropriate, and should be substituted for the sentence imposed by the Judge.

[13]     Mrs Rielly for the Crown submitted that the Judge was entitled to impose a starting point of two years, given the intrinsic nature and gravity of the offending to which Mr Paul pleaded guilty. She noted that the premise burgled was a dwelling- house, and not a garage as in Columbus. She submitted that  the  starting  point adopted by the Judge was both appropriate and justified. Further, she submitted that

the  six-month  uplift  allowed  by  the  Judge  was  modest  in  the  circumstances.   She noted  that  Mr  Paul  is  29  years  of  age,  that  he  has  19  previous  convictions  for dishonesty   (including   five   for   burglary),   and   that   a   sentence   of   16   months’ imprisonment had been imposed in relation to three charges of burglary as recently as  October  2008. She  referred  me  to  a  number  of  decisions  where  the  Court  of Appeal  has  approved  uplifts  ranging  from  50  to  66  per  cent  where  there  were significant relevant previous convictions.  Again she submitted that there was ample justification for the 6 month uplift made by Judge Adeane.  She did not take issue with  the  discount  allowed  by  the  Judge,  and  submitted  that  irrespective  of  the starting point, the uplift, and the discount for a guilty plea, the end sentence imposed was well within range and could not be said to be manifestly excessive.

Analysis

[14]     This is an appeal against sentence under s 115 of the Summary Proceedings Act  1957.   Section  121 of  that  Act  confers  power  on  the  Court  to determine  such appeals.  Relevantly it provides as follows:

(1)      The [High Court] shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

(2)      ... (2A)    ...

(3)In the case of an appeal against sentence, the [High Court] may— (a)        Confirm the sentence; or

(b)      If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the [High Court] is satisfied that substantial facts relating to the offence or to the  offender's  character  or  personal  history  were  not  before  the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)       Quash the sentence and either   pass   such   other sentence warranted in law (whether more or less severe) in substitution therefor as the [High Court] thinks ought to have been passed or deal with the offender in any other way that

the  Court imposing sentence  could  have  dealt  with  him on the conviction; or

(ii)      Quash   any   invalid   part   of   the   sentence   that   is severable from the residue; or

(iii)     Vary,   within   the   limits   warranted   in   law,   the sentence or any part of it or any condition imposed in it.

(4)      ...

(5)      ...

(6)      In any case, the [High Court] may exercise any power that the Court whose decision is appealed against might have exercised.

(7)      Subject to the provisions of section 144 of this Act, the decision of the [High Court] on any general appeal shall be final.

[15]     Here  there  is  no  suggestion  that  Judge  Adeane  lacked  jurisdiction,  or  that substantial  facts  relating  to  the  offending  or  to  Mr  Paul’s  character  or  personal history were not before the Court.  It follows that the appeal against sentence should only  be  allowed  if  the  sentence  imposed  was  manifestly  excessive,  inadequate  or inappropriate.

[16]     It is trite law that this Court should not interfere with the sentence of a trial

Judge unless the sentence is manifestly excessive  or  wrong  in  principle  —  see

R v Brooks [1950] NZLR 658 (CA) at 659 and R v Radich [1954] NZLR 86 (CA) at

87.  This Court should not substitute its own opinion for that of the sentencing Judge, and  it  should  only intervene  if  the  sentence  imposed  was  manifestly excessive  — Wells v Police [1987] 2 NZLR 560 (HC) at 565.

[17]     Whether a sentence is manifestly excessive is to be considered by reference

to the sentence imposed, rather than the process by which the sentence was reached –

see R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

[18]     Burglary is rightly regarded as a serious offence — R v Southon (2003) 20

CRNZ 104 (CA) at [12]. While there is no “tariff” decision for the offence of burglary, the decisions in Columbus and Senior v Police (2000) 18 CRNZ 340 (HC) are often referred to in this context. There are passages in Senior – see, e.g. [17] and

[23] – which suggest that it is a tariff decision.  The case does not however provide

sentencing bands.   The Court of Appeal in Southon has made it clear that Senior is not a tariff case, and that rather it is useful as a discussion of historical sentencing patterns.  I note the observations in [13] and [14].

[19]     The  sentencing  Court  is  required  to  fix  a  starting  point  identifying  the culpability  inherent  in  the  offending  by  reference  to  its  circumstances;  it  is  the intrinsic   nature   and   gravity   of   the   offence   charged   which   are   the   primary considerations — see Columbus at [13]. As was noted in Senior, there are a number of aggravating circumstances which can be relevant to this type of offending.

[20]     Here   Mr   Paul’s   burglary   was   of   a   residential   dwelling-house.        This distinguishes  the  present  case  from  Columbus,  where  the  burglary  was  from  a garage.   Because the premises were  a residential dwelling, there was a heightened risk  of  confrontation  with  the  occupiers,  which  is  an  aggravating  feature  of  the offending. Further,  there  was  unlawful  entry  into  the  dwelling-house. Window panes were broken, and the entry was forced.   That is an aggravating feature which can  be  taken  into  account  by the  Sentencing  Act  —  s  9(1)(b).   As  a  result  of  the forced entry, damage was caused to the house which was burgled — see s 9(1)(d). Two of the items taken  by Mr Paul were passports.   It can be  expected  that those documents would have sentimental value.   This fact, together with the forced entry into the dwelling, aggravates the distress which will have been suffered by the home owners.  Mr Paul committed the theft offence shortly before the burglary.  Although minor  in  itself,  the  circumstances  —  unlawful  entry  onto  the  rear  of  a  residential property — were not dissimilar.

[21]     In my judgment, in the circumstances of this case, the starting point adopted

by  Judge  Adeane  —  two  years  —  while  stern,  cannot  be  said  to  be  manifestly excessive.

[22]     Nor was the uplift of six months allowed by the Judge manifestly excessive. Mr Paul is a relatively young man — 29 years of age.  He has an appalling criminal record. He has some 49 previous convictions, commencing in November 1997, and extending through to October 2008. Nineteen of those convictions are for dishonesty-related offending. There are five convictions for burglary.   Further, Mr

Paul’s offending seems to have accelerated in recent years. He had some 18 convictions entered against him during 2008 in relation to offending which occurred between  October  2006  and  August  2008. He has three recent convictions  for burglary in respect of which he was sentenced to a term of 16 months’ imprisonment

as  from  10  October  2008.   He  had  only been  released  from  custody  some  two  to three months prior to the present offending.   Mr Paul is clearly a recidivist burglar, and he falls into category two identified in Senior.   In my view, the uplift imposed by Judge Adeane was, if anything, modest.

[23]     The only mitigating feature was the relatively early guilty plea entered by Mr Paul to the charges.   This was fully recognised and allowed for by Judge Adeane. The discount given – 10 months – was consistent with the Court of Appeal’s recent guideline decision in R v Hessell [2009] NZCA 450.

[24]     In  my  view,  it  cannot  be  said  that  Judge  Adeane  adopted  a  starting  point which  was  manifestly  excessive,  or  that  he  arrived  at  an  end  sentence  for  the burglary which was manifestly excessive.  The sentence imposed for the lead offence of burglary, whilst stern, was well within the range open to the Judge.   Deterrence and community protection were the primary considerations in sentencing Mr Paul. His criminal record reinforced the need for a meaningful sentence in this case.

[25]     The appeal is dismissed.

Wylie J