Pluim v Police

[2012] NZHC 1592

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-019 [2012] NZHC 1592

RICHARD PLUIM

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 July 2012

Appearances: T Bolstad for the appellant

A Britton for the respondent

Judgment:      5 July 2012

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant,  Richard  Pluim,  pleaded  guilty to  two  charges  of burglary under s 231(1)(a) of the Crimes Act 1961.  He was sentenced by Judge Roberts in the District Court at New Plymouth on 31 May 2012 to 21 months’ imprisonment. Mr Pluim now appeals that sentence as being manifestly excessive.

Facts

[2]      The two charges Mr Pluim faced arose out of incidents in July 2002 and April this year.

PLUIM v POLICE HC NWP CRI-2012-443-019 [5 July 2012]

[3]      On 30 July 2002 a pharmacy was burgled at Bell Block.  The pharmacy was broken  into  at  4.15am  via  a  rear  door.    During  the  burglary a  safe  was  taken containing pethidine and morphine sulphate tablets.  Cold and flu preparations were taken  from  the shelves  of the pharmacy.   The  estimated  value of the safe was between $500 and $600.  At the time, a swab of an unknown clear fluid (possibly either nasal fluid, tears or saliva) was taken from the surface of a packet of tablets found at the scene. That sample was forwarded to ESR for DNA analysis.

[4]      On 22 December 2011 Mr Pluim was arrested in Te Kuiti and charged with theft.  He provided a sample of his DNA to the police.  That sample was matched with the sample taken from the 2002 crime scene.  When spoken to by the police later,  Mr Pluim  initially  denied  knowing  anything  about  the  burglary.    When presented with the DNA evidence he at first implied that his associates must have put it there.  He subsequently accepted responsibility.

[5]      The April offending this year involved Mr Pluim and an associate breaking into a disused boiler room in the grounds of a derelict local hospital.   Although derelict, many of the buildings which formerly comprised the hospital are used by community organisations.   The hospital grounds have recently been the target of copper thefts.

[6]      Mr Pluim and his associate removed a large copper cylinder and associated piping from within a boarded-up shed.  They cut the cylinder up and sold it as scrap metal for $735.

[7]      Mr Pluim is 49 years old.  He has a multitude of previous convictions over some  30  years  of  offending.    Most  relevantly,  Mr Pluim’s  previous  convictions include, by my count, two burglary charges (in August 1989 and July 1980) and some further 28 other dishonesty charges (including theft, unlawfully taking motor vehicles and receiving).

The Judge’s sentencing decision

[8]      Mr Pluim pleaded guilty to the July 2002 burglary before Judge Roberts on

8 March 2012.  Whilst on bail for that offending, Mr Pluim committed the burglary

at  the derelict  hospital grounds.    Naturally,  this  was  an  important  factor  in  the Judge’s sentencing approach who had until then been considering the possibility of a sentence of home or community detention for the 2002 offending.

[9]      In essence, and because of that April 2012 offending, the Judge classified Mr Pluim as a recidivist burglar.  By reference to Senior v Police he set a starting point of two years imprisonment.[1]   He then imposed an uplift of four months to take account of the fact that Mr Pluim had offended whilst on bail.  From that adjusted starting point he allowed a full 25 per cent credit for Mr Pluim’s guilty pleas.

Submissions

[1] Senior v Police (2000) 18 CRNZ 340 (HC).

[10]     For Mr Pluim, Ms Bolstad’s essential argument was that the starting point of two years adopted by the Judge was too high.  The Judge had erred in categorising Mr Pluim as a recidivist burglar.  Given the length of time between the two charges for which  Mr Pluim  was  being sentenced,  and  that  the two  earlier instances  of burglary  offending  had  occurred  as  long  ago  as  1989  and  1980,  Mr Pluim  fell somewhere  between  a  first  offender  and  a  repeat  offender.    But  he  was  not  a recidivist.  Given the characteristics of the two burglaries for which Mr Pluim was sentenced, namely that the premises entered into were of a commercial nature, the relatively small amount of property involved and, particularly as regards the more recent burglary, the lack of sophistication, a starting point sentence of somewhere in the vicinity of 18 months would have been appropriate.

[11]     Ms Bolstad accepted that the uplift for offending whilst on bail could not be challenged.    On  reflection,  Ms  Bolstad  also  accepted  that  Mr Pluim  could  not realistically argue for anything more than the full 25 per cent guilty plea discount.

[12]    For the Crown, Mr Britton acknowledged the Judge may have erred in categorising Mr Pluim as a recidivist burglar.   Nevertheless, Mr Britton submitted that when all the circumstances were considered a starting point sentence of two

years  was  not  inappropriate.     However,  Mr Britton  acknowledged   that  that

submission depended on the assessment of the significance for this sentencing exercise of Mr Pluim’s history of dishonesty offending.

Analysis

[13]     This is not a straightforward sentencing exercise.   The complication is, of course, that Mr Pluim is now to be sentenced for a burglary committed as long ago as 2002, as well as for one committed this year.

[14]     I do not think Mr Pluim is properly to be categorised as a recidivist burglar. He has committed four burglaries but two of those are 20 and 30 years ago respectively.  It is now over 10 years since the 2002 burglary.  Recidivist burglary offending, such as that discussed in Senior v Police and R v Columbus, typically

involves  multiple  offences  over  much  shorter  periods  of  time.2[2]     The  offending

discussed in those cases also most typically involves burglaries of domestic premises which, as recognised in the English tariff case of Brewster referred to in Senior, have always been regarded as very serious offending.[3]   Mr Pluim is perhaps best described as an occasional burglar.  At the same time, Mr Pluim has a considerable history of dishonesty offending.  By far the greatest part of that offending, however, occurred prior to 1996.  Mr Pluim may have been a recidivist dishonesty offender at that time. I am not certain it would be fair to categorise him as such an offender today.  His recent history of dishonesty offending – putting aside the burglary charges – involves a 2011  theft,  the 2002 burglary,  a 2009  unlawfully taking a motor vehicle and

receiving in 2004 and 2005.  All other dishonesty offending occurred prior to the year 2000.

[2] R v Columbus [2008] NZCA 192.

[3] R v Brewster [1998] 1 Crim App R 220, Lord Bingham CJ at 225.

[15]     On that basis, by my assessment, and taking the approach the Judge did, namely to include in the starting point the significance of Mr Pluim’s earlier burglary and other dishonesty offending, an 18 month starting point would have been appropriate.  I say that for the following reasons:

(a)       First, and as I have noted, I do not think it is appropriate to consider

Mr Pluim as a recidivist burglar.

(b)Secondly, and although Mr Pluim does have a lengthy list of previous dishonesty offending, by far the greater part of that occurred before

2000.

(c)      Finally, the two burglaries involved were not of domestic premises, although the burglary of the pharmacy does require particular deterrence and denunciation.   Therefore the aggravating factors identified in Senior, except for that of offending whilst on bail, are not present.[4]     The most recent burglary – of the copper tank from the partially used grounds of a derelict hospital – is by my assessment offending that lacks sophistication and is of an inherently less serious

nature than burglary of domestic premises.

[4] At [19].

[16]     There would also appear to be an element of double counting in the way the Judge approached matters.   That is, he classified Mr Pluim as a recidivist burglar, and identified a starting point accordingly, because of this year’s on bail burglary offending.  He then added a discrete uplift because of the same fact.

[17]     By my assessment, therefore, the starting point identified by the Judge was too high and has resulted in a manifestly excessive sentence.

[18]     Adopting an 18 month starting point, uplifting by four months by reference to the factor of offending whilst on bail, and allowing a 25 per cent discount for Mr Pluim’s guilty plea, results in an end sentence of 16 months.

[19]     Mr Pluim’s appeal is therefore allowed.  The sentence of one year and nine months’ imprisonment is quashed and a sentence of one year and four months is substituted in its place.

“Clifford J”

Solicitors:

T Bolstad, New Plymouth for the appellant

The Crown Solicitor, New Plymouth for the respondent