Rangi v Police

[2013] NZHC 465

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-004 [2013] NZHC 465

JOHN WILLIAM RANGI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 March 2013

Appearances: R D Smith for Respondent

S Dolby for Appellant

Judgment:      8 March 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against sentence.  The appellant was sentenced to two years and one month imprisonment.

[2]      The appellant had been apprehended burgling a commercial premises, entered at night.  He gained entry by climbing through a hole in a padlocked wire mesh gate. He smashed an office window to gain entry to the office itself.   He apparently searched the premises for cash, but was disturbed by a security guard.  There was a confrontation, but there was no violence.

[3]      The appellant has 27 previous convictions for burglary, from 2000 through to

2009.  He is 32 years of age.  He has other convictions, including drugs, dishonesty and driving related offences.

RANGI V NEW ZEALAND POLICE HC DUN CRI-2013-412-004 [8 March 2013]

[4]      He was categorised as a recidivist burglar, following the guidance of the full Court of the High Court in Senior v Police.[1]    The key reasoning of the Judge is in [10] of the decision, which reads as follows:

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

In my view, recognising that this was a one-off incident, as opposed to a number of burglaries, with few aggravating features, this attracts a starting point of two years.  There will be an uplift for previous convictions by nine months.  That is a start-point sentence of two years and nine months, less a full R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 discount for your guilty plea of eight months, which means that you finish with a sentence of two years and one month’s imprisonment.

[5]      The full Court decision of the High Court in Senior is useful for identifying the  characteristics  of  someone  who  should  be  classified  as  a  recidivist  burglar. Mr Smith submitted, however, that it is no longer a reliable guide for starting points, and that I shall be better guided by decisions of the Court of Appeal.  I accept that submission.  Mr Smith agreed with submissions of Ms Dolby, that better guidance for starting points are the decisions of the Court of Appeal in R v Stevens[2]  and R v

[2] R v Stevens [2009] NZCA 190.

Brown,[3] both decided in 2009.  Both took a starting point of 18 months.  Stevens was

[3] R v Brown [2009] NZCA 288.

the burglary of commercial premises.  Brown was the burglary of a school, where the appellant had removed glass from a window and taken a computer.   Stevens and the case of R v Columbus[4] indicate that the Court, in the case of recidivist burglars, will give quite a significant uplift for previous convictions.   In Stevens it was for 12 months, in Columbus it was for 12 months.

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

[6]      Mr Smith was unable to point me to any recent decisions showing a starting point  of  two  years,  which  is  the  effective  starting  point  in  this  case  before aggravating features.

[7]      I caution myself against tinkering with the decision, but I am satisfied that there is no justification on the authorities for a starting point of two years.  I take a starting point of 18 months, following Stevens and Brown.  However, I give a greater uplift than the Judge did.   I give an uplift of 12 months, again in line with the

authorities I have cited.  This produces a sentence of 2 and a half years before the

Hessell v R[5] discount.  With 25% for the Hessell discount, I bring the sentence down to 23 months.

[5] Hessell v R [2010] NZSC 135.

[8]      There is, of course, a significant difference between a sentence of less than two years and a sentence of two years and one month’s imprisonment.  There are a number of Court of Appeal authorities which say that a sentencing Judge should not have regard to the difference.  As it happens, the analysis that I have followed has reached a level below two years, without regard to the consequence.

[9]      When it comes, however, to substituting a sentence of less than two years, one needs to have regard to the desirability of special conditions of release.   Mr Smith recommended a special condition, which Ms Dolby was not able to disagree with, and I adopt it, except that it cannot be 12 months. The limit is six months.

[10]     Accordingly,  the appeal  is allowed.   The appellant is re-sentenced to  23 months imprisonment with six months special conditions after release, to attend and complete any such counselling or treatment as is deemed appropriate to address substance use to the satisfaction of a counsellor, and as directed by the probation officer.

[11]     I note that the appellant has denied having any substance abuse problem, even though there was a minor cannabis charge which has been dismissed.  At the very least, he appears to be a cannabis user.

Solicitors:

Farnan Garthwaite Law, PO Box 1440, Dunedin

Crown Solicitor, PO Box 803, Dunedin