Pell v Police

[2019] NZHC 1513

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-128

CRI-2019-404-129 [2019] NZHC 1513

BETWEEN

PAUL PELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 July 2019

Appearances:

G P Timms for Appellant

H E Macdonald and R N T Thompson for Respondent

Judgment:

1 July 2019

ORAL JUDGMENT OF PALMER J

Solicitors:

Public Defence Service, Auckland Crown Solicitor, Auckland

PELL v NEW ZEALAND POLICE [2019] NZHC 1513 [1 July 2019]

What happened?

[1]    Mr Paul Pell, aged 42, had a troubled early life, infused with alcohol, abuse, a head injury and offending. He has been addicted to methamphetamine for the last three years. He has an extensive criminal history. He wants to address his alcohol and drug use. He has four children. In January and February 2018, he burgled three homes in Ponsonby, Snell’s Beach and Grey Lynn, Auckland, entering through open windows. He stole electronics, jewellery, keys, bank cards, cash, air pistols and other personal items, worth $28,800, and a Volkswagen Amarok worth $40,000. There is CCTV footage of him, and an associate, using one of the bank cards from Ponsonby. He was disturbed by a victim at the Snell’s Beach property, where he left a sock with his DNA. There is no suggestion the other properties were occupied at the time of the burglaries. Some of the property from Grey Lynn was found in his car, as well as property stolen from another Grey Lynn residence. Mr Pell was charged with three counts of burglary, using a bank card to pecuniary advantage and receiving stolen property worth less than $500. These offences carry maximum sentences of 10 years’ imprisonment, seven years and three months’ imprisonment respectively. He pleaded guilty to all charges.

[2]    On 19 July 2018, Mr Pell was given a sentence indication of two years and nine months’ imprisonment, as part of a determination hearing in the Alcohol and Other Drug Treatment Court. I do not have a copy of that. I have seen the impressive Alcohol and other Drug Treatment Court Report. I have also seen Corrections’ pre- sentence advice which assessed Mr Pell as at high risk of re-offending. He pleaded guilty and was accepted into the Court’s programme. He absconded from the programme after 154 days and has been exited from it. On 27 March 2019, Judge B A Gibson sentenced Mr Pell to three years and six months’ imprisonment.1 He noted Mr Pell’s past criminal offending, including 17 convictions for burglary, which have become frequent in recent years, probably largely driven by his addiction to methamphetamine.2 He accepted Mr Pell had developed insight into his offending and acknowledged a letter in which he expressed regret but noted Mr Pell finds prison easier than the outside world. Mr Pell did not want to seek home detention so as not

1      Police v Pell [2019] NZDC 5651.

2      At [2]–[3].

to put his sister to trouble. Judge Gibson identified as aggravating factors: the fact the properties were residential, raising the risk of confrontation; the amount of property taken; and Mr Pell’s return to one of the addresses to take the car. Using Arahanga v R as guidance,3 he set a starting point of five years’ imprisonment for all of the charges, uplifted that by six months for previous convictions, credited him with six months for his previous attempts to give up methamphetamine and gave a further credit of six months for personal factors identified in Corrections’ pre-sentence report. From the resulting four and a half years’ imprisonment, he gave a 20 per cent discount for the guilty pleas.

Submissions

[3]    Mr Timms, for Mr Pell, submits the starting point and end sentence were manifestly excessive. Compared with Arahanga, he submits a starting point of no more than four years would have been appropriate. By comparison, he submits there was only one night-time burglary, there was only one burglary with an associate and there was no damage at two of the properties. He submits the Judge placed too much emphasis on the houses not being baches, made assumptions about the risk of confrontation and placed too much weight on the starting point in Arahanga. He relies on Stepanicic v R, Harrison v R, Makene v R, Leach v Police, and Wilkinson v Police, where starting points of between two years’ and four years’ imprisonment were adopted.4 He submits the starting point here was disproportionate to the gravity of  the offending. He accepts the discounts applied by the Judge were appropriate.

[4]    Ms Macdonald, for the Police, submits the sentence was plainly available to Judge Gibson and the starting point was well within range. She submits Judge Gibson distinguished rather than applied Arahanga and that the appellant simply disagrees with the end point. She relies on French v Police, Proctor v Police, R v Aldridge and Marsh v R, where starting points of 20 months to five years were either adopted or approved.5 Even if the starting point was too high, Ms Macdonald submits the end

3      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

4      Stepanicic v R [2015] NZCA 211; Harrison v R [2011] NZCA 80; Makene v R [2013] NZCA 178;

Leach v Police [2016] NZHC 1565; Wilkinson v Police [2016] NZHC 1845.

5      French v Police [2015] NZHC 2635; Proctor v Police [2018] NZHC 763; R v Aldridge [2009] NZCA 550; Marsh v R [2010] NZCA 445.

sentence was within the available range because there could have been higher uplifts for the previous convictions.

Decision

[5]    Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. My focus is on whether the end sentence is within the available range. I have stated before, consistent with the Supreme Court’s judgment in Sena v Police in relation to conviction appeals, that I consider absence of reasoning in a sentencing decision will require an appellate court to undertake the decision afresh and is highly likely to be an error.6   It  might be more precise to join the dots and say that, under    s 250, an appellate court must consider a sentencing decision afresh in order to determine whether there is a material error in the end sentence and an absence of reasoning means error is highly likely. But strictly, and thankfully, those observations are obiter here because reasoning is not absent.

[6]    In Arahanga v R, the Court of Appeal gave general guidance on sentencing for burglary. Burglary of a domestic residence is a significant aggravating factor, due to the heightened risk of confrontation with occupants. I do not consider there is material difference between domestic residences and baches, in these days of Book-a-Bach. Both carry the risk of confrontation, which is an aggravating factor for both, as indicated in Arahanga. Relatively minor-scale burglary of domestic residences tends to attract a starting point of one and a half to two and a half years’ imprisonment. Aggravating factors include where more than one house is burgled, there is more than one burglar or high value items are taken. In Gorgus v R, the Court of Appeal confirmed that, to the extent High Court decisions might differ from the approach approved in Arahanga, they should not be followed.7

[7]    I have reviewed the cases referred to by both counsel. I consider two of the Court of Appeal decisions relied upon by the Police, Aldridge and Marsh, are of little assistance because they both took into account the offenders’ previous criminal history

6      Allport v Police [2019] NZHC 1306 at [15]; Papa v Police [2019] NZHC 1309 at [5]; citing Sena v Police [2019] NZSC 55.

7      Gorgus v R [2016] NZCA 508 at [11].

in setting the starting points. Since the decision of R v Clifford in 2011, that factor goes to uplift, not starting point.8 Aldridge also took into account the offender having been on home detention and Marsh took into account the offender being on bail and on parole as well as parity with a co-offender in setting the starting point.

[8]    Using the Court’s guidance in Arahanga, relatively minor-scale burglaries of domestic residences tend to attract a starting point of one and a half to two and a half years’ imprisonment. The fact three residences were burgled here is an aggravating factor, as is the presence of another burglar on one occasion and high value items and a motor vehicle being taken. In Arahanga itself, the Court of Appeal adopted a starting point of four years for two charges of burglary and one charge of unlawfully taking a motor vehicle. I do not consider the differences between the facts here and there justify a year’s higher starting point. In Arahanga there were two burglaries, by two burglars, at night, of one unoccupied bach and one bach where the occupants were asleep. The offenders then took a car and came back and confronted the occupants of one of the baches, made threats, and assaulted the Police when they arrived.

[9]    I consider the additional burglary here is more than outweighed by the offenders in Arahanga embracing the risk of confrontation. That is consistent with the authorities relied upon by Mr Timms. Consistent with the guidance in Arahanga, I consider there was a material error in the sentence. I agree a four-year starting point for all charges would be appropriate.

[10]   I agree Judge Gibson’s unchallenged discounts, of a net discount of six months and a discount for the guilty pleas of approximately 20 per cent (rounded up), were appropriate. Applying them leads to an end sentence of two years and nine months. It follows I consider a different sentence should be imposed. I quash Mr Pell’s sentence of three years and six months’ imprisonment and substitute it with a sentence of two years and nine months’ imprisonment. I uphold the appeal.

Palmer J

8      R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23 at [60].