Police v K HC Rotorua CRI-2005-463-85

[2005] NZHC 226

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2005-463-85

BETWEEN  NEW ZEALAND POLICE Appellant

ANDK  

Respondent

Hearing:         15 November 2005

Appearances: Larry Meredith for Appellant

Jonathan Kay for Respondent

Judgment:      15 November 2005

JUDGMENT OF HARRISON J

SOLICITORS

Ronayne Hollister-Jones Lellman (Tauranga) for Appellant

Hamertons (Whakatane) for Respondent

POLICE V K  HC ROT CRI-2005-463-85  15 November 2005

[1]      On 28 September 2005 in the District Court at Whakatane, Judge Thomas Ingram  convicted  and  sentenced  Mr   K   on  one  charge  of  burglary following a plea of guilty to, first, a term of 12 months supervision subject to special conditions; second, 150 hours of community work; and, third, payment of reparation of $150.  The Judge sentenced Mr K   separately to supervision on one charge of driving while forbidden.

[2]      The Judge concluded his sentencing remarks with these words to Mr K  :

This is the last chance you are going to get Mr K  .   If you are back on charges of this kind you are looking at sentences in the order of five to seven years.  Do not come back, stand down.

[3]      Mr K   was 24 years of age when he was sentenced.   He had at least 70 previous convictions for burglary and related dishonesty offending.   He had previously served eight terms of imprisonment.  The Crown has appealed against the sentence imposed by Judge Ingram on the ground that it was manifestly inadequate or wrong in principle.

[4]      The  burglary  itself  was  not  of  the  worst  kind.    Mr K    had  entered  a dwellinghouse on 27 August, just after his release from prison, and removed a laptop computer, purse, cellphone and calculator.   The owner was caused considerable inconvenience through the loss of stored data, although the laptop was returned later. The crime itself would not have normally attracted a prison sentence.

[5]      Judge Ingram’s sentencing notes are concise and to the point.  He was, like all  Judges  in  that  jurisdiction,  fully  cognisant  of  the  principles  and  purposes mandated by the Sentencing Act 2002.   He was also conscious of the particularly aggravating factors.  He noted what he described as Mr K  ’s appalling record.  He was,  as  Mr K  ’s  counsel,  Mr Kay,  has  emphasised  today,  fully  aware  of  the leading authorities and their effect (R v Southon (2003) 20 CRNZ 104; Senior v Police (2000) 18 CRNZ 340; R v Wilson (2004) 21 CRNZ 56).  On this basis, as he said, a term of imprisonment of between three and four years would normally be appropriate.

[6]      Judge Ingram then identified what he described as “the real question”.   He said this:

[8]       … am I going to give you a chance to change your ways, or am I simply going to send you to prison to refine your ready considerable skills as a burglar.

He answered the question in the next sentence by expressing his conclusion that:

… everybody’s best interests lie in your breaking the pattern of offending. Prison has been tried, and so far at least it does not seem to have worked.

[7]      In following this course Judge Ingram identified it as “something of a special case”.   He acted consistently with one of the principal statutory purposes.    He imposed  a  non  custodial  sentence  designed  expressly  to  assist  in  Mr K  ’s rehabilitation (s 7(1)(h) Sentencing Act 2002).  He was fully aware of the risks but on the evidence available he was satisfied they were worth taking.  He observed:

It seems to me that there is at least a chance that you will proceed to mend your ways if this opportunity is given to you.

[8]      Two  distinct  sentencing  options  were  available  to  Judge  Ingram.     He exercised his discretion to follow one ahead of the other.   In my judgment his decision can be challenged only on proof that he had an insufficient legal or factual basis for imposing a non custodial sentence.

[9]      Today,  in  support  of  the  Solicitor-General’s  appeal,  Mr Meredith  has suggested that Judge Ingram acted solely on the basis of a brief probation report. With respect, I am not satisfied that Mr Meredith is correct.   Even if he was, the brevity of the report is not determinative; rather, its content is relevant.

[10]     The probation report was brief – less than one and a half pages – but it was prepared by an officer who, as Mr Kay emphasised, is very familiar with Mr K  ’s circumstances.    The  officer  observed  that  Mr K    appeared  well  motivated  to “address his reoffending behaviours and willingness to complete interventions to reduce his risk of reoffending”.   The officer also noted “a vast improvement in compliance since his release despite his offending” and that “Mr K   is slowly developing insight into his behaviour”.  He had been waitlisted to attend the Straight

Thinking Programme (he has since been confirmed for the January 2006 course). The officer recommended a range of special conditions to assist the process of Mr K  ’s self-improvement and rehabilitation.

[11]     Additionally, Judge Ingram had the benefit of a letter from Mr Mark Valach of Bethel House, a Christian rehabilitation centre for men, and the invaluable opportunity of speaking with Mr Valach at sentencing.  He was able to evaluate for himself the worth of the programmes available to Mr K  .  Mr Valach’s letter said this about Mr K  :

Since [  ] has been with us we have monitored his progress very closely. He was brought to our attention through the Whakatane Police and placed in our care because of  our long history with  helping the police. [  ] has a serious history of drugs and alcohol and offending.  We know that prison will not help him break this cycle.  It will just keep him off our streets for whatever period of time he is given.   We here at Bethel House believe we can help break the cycle, as we have with many people already, and [  ] through our observation is determined to break it as well.  He has been  going  to  all  probation  appointments.    He  is  doing  his  community work…

[My emphasis]

[12]     The same letter was tendered to me.  Mr Valach also paid me the courtesy of accompanying Mr K  ’s parents to attend today’s hearing.  I was most impressed by him.  He is, as he freely acknowledges, a graduate of the programme.   He has been involved with Bethel House for 15 years, 10 of them in a supervising capacity. Most significantly, he reports that Mr K   has  manifested  his  determination  to break his cycle of crime and listened to advice and  guidance  from leaders and mentors available through the programme at Bethel House.   Both reactions auger well for rehabilitation.

[13]     While attending as a resident at Bethel House Mr K   is subject to a 24 hour curfew.   He remains drug and alcohol free.   He is allowed leave only for official purposes.  Like Judge Ingram, I am satisfied that Bethel House offers Mr K   a real prospect of rehabilitation.  I commend Mr Valach for his efforts.

[14]     I am satisfied that the Judge imposed a community based sentence which was reasonably available to him in the circumstances for what he concluded was a special

case.  Sending Mr K   back to prison for yet another term would have only served a compounding or aggravating effect.  The Judge was entitled to take advantage of the special opportunities offered by Bethel House, Mr Valach and his staff.  He was also entitled to recognise that Mr K   himself may have turned an important corner in his life.

[15]     District Court Judges are not automatons.   They are appointed to exercise judgment according to the law.  Judge Ingram performed that function here.  He was not acting out of mercy or compassion.  The sentence he imposed was designed, as I have emphasised, to protect the public by assisting Mr K   to break an escalating cycle of crime and imprisonment.  Despite Mr Meredith’s careful arguments, I am not persuaded that the sentence was manifestly inadequate or wrong in principle.

[16]     I add for the record Mr Kay’s advice that since the sentence was imposed Mr K   has paid the reparation order of $150 and served 33 hours of community work  (the  sentence  was  suspended  following the Solicitor-General’s  decision  to appeal).

[17]     I am surprised that the Solicitor-General has chosen to pursue this appeal. Were it not for the fact that Mr K   is legally aided, I would have considered an application by his counsel for costs.  I can only assume that, when consenting to the appeal, the Solicitor-General was unaware that police officers in Whakatane, who know Mr K   and his background well, had introduced him to Mr Valach and the programme at Bethel House.

[18]     Time alone will tell whether or not Judge Ingram’s judgment is vindicated. He should not be judged on the result but on the judgment he exercised on the evidence  available  to  him.    I  repeat  my  satisfaction  that  the  Judge  imposed  a sentence that was appropriate in the circumstances; indeed it was one which was specifically in the public interest, intended to save the community the ongoing social and financial cost of Mr K  ’s continual criminality.

[19]     I can only repeat Judge Ingram’s words in my own way.  The future lies with Mr K  .  He will have to determine whether or not he takes advantage of the very unique opportunity he has been offered by the Judge and others.

[20]     I confirm that the appeal is dismissed.  I also thank Mr Meredith and Mr Kay for the quality of the arguments presented today.

Rhys Harrison J