Pickering v Police

[2015] NZHC 3112

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-031-434 [2015] NZHC 3112

BETWEEN

ANTON LEE PICKERING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

7 December 2015

(Heard at Wellington via AVL)

Counsel:

J K Mahuta-Coyle for Appellant
D R Davies for Respondent

Judgment:

8 December 2015

JUDGMENT OF SIMON FRANCE J ( Appeal against sentence)

[1]      Following a trial, Mr Pickering was convicted of one count of burglary, and one of cultivating cannabis.  He had earlier pleaded guilty to a charge of breaching parole conditions.   Mr Pickering was sentenced to four and a half years’ imprisonment.1

[2]      The appeal identifies various errors in the Judge’s approach which I accept was not orthodox in the sense of identifying a starting point, and adjusting for aggravating and mitigating factors.  In such situations it can be appropriate for the appeal court to consider the matter itself,2 which is what I propose to do rather than

overly analysing the sentencing process that the Judge followed.

1      Police v Pickering [2015] NZDC 9573.

2      R v Shipton [2007] 2 NZLR 218 (CA) at [138].

PICKERING v POLICE [2015] NZHC 3112 [8 December 2015]

[3]      The  burglary  for  which  Mr  Pickering  was  convicted  was  a  particularly serious burglary.  It involved entering the garage of a dwelling in which there were two classic motor vehicles.  Parts were taken from one, and the other car was stolen, stripped down into parts and disguised.  It was insured for $85,000.  It was owned by the widow of the man who had restored it to an impeccable condition.  There was an understandably high sentimental value attached to the vehicle.

[4]      In  R  v  Southon  the Court  of Appeal  emphasised  an  important  aspect  of sentencing in this area.3   The well known case of Senior v Police, with its categories of first time, recidivist and spree burglars was not intended to distract from consideration of the actual burglary itself.4    This is such a case.  Mr Pickering is a recidivist burglar but I consider it important to first identify an appropriate starting point for this burglary.

[5]      In that regard the intrusion is not as serious as in some.  However the garage was attached to the home with internal access.  The offending occurred at 3.20 am and the elderly occupant was woken by the sound of the car being pushed down the road.  The offending was planned, with the vehicles being targeted. The Judge found more than one person to have been involved and there is no basis to differ on that.

[6]      It is difficult to identify from other authorities anything other than a broad range.   This is because the circumstances vary in terms of approach (whether the focus was on the particular offence or the recidivist character of the offender), the number of burglaries covered by the sentencing, the nature of the burglaries and the

value taken.  Some decisions are helpfully reviewed in Harrison v R.5   I consider a

starting point here of three and a half to four years to be appropriate.

3      R v Southon (2003) 20 CRNZ 104 (CA) at [12]–[13].  See also R v Columbus [2008] NZCA 192 at [13]–[14].

4      Senior v Police (2000) 18 CRNZ 340 (HC).

5      Harrison v R [2011] NZCA 80.

[7]      That figure has no regard to the fact Mr Pickering was on parole at the time nor his previous criminal history.   On 28 September 2011 Mr Pickering had been sentenced to a total of two years and seven months’ imprisonment for a range of driving and property offences.   That sentence had not expired at the time of the current offending.  Looking at his criminal history and lumping together the offences of interference with vehicles, burglary and receiving, Mr Pickering has 16 previous convictions. These factors together require an uplift of at least a year.

[8]     I accordingly conclude the appropriate starting point including personal aggravating factors is four and a half to five years.   There is then the need to incorporate the culpability for the cannabis offending and the breach  of release terms.  That latter offence relates to matters other than the burglary.   It is also the second such breach in relation to Mr Moore’s release from his most recent sentence. These two matters push the appropriate starting point to the top of the range.

[9]      The Judge gave a six month deduction for personal factors.   It seems the Judge had an instinct Mr Pickering was capable of better and so gave a six month deduction on an incentive.  On appeal it is submitted further credit should be given by  way  of  acknowledgement  of  time  spent  on  electronically  monitored  bail. However, a six month deduction is the most that can be justified on a principled basis, and could be seen as generous, especially since the bail lasted for little over two months.

[10]     Finally,  I  note  that  on  the  appeal  a  letter  of  remorse  was  tendered. Mr Pickering has been in jail for some time, and is undertaking courses.   I accept there appears to be new insight and his apology to the victim seems genuine.  I am not persuaded it requires recognition in the sentence, especially given the charge was defended and is only now admitted, but it offers hope for the future.

[11]     In the end, albeit by a different route, I would arrive at a sentence around that

imposed by the Judge and accordingly the appeal is dismissed.

Simon France J

Solicitors:

J K Mahuta-Coyle, Barrister, Wellington

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North