Rhind v Police
[2019] NZHC 1065
•15 May 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2019-419-26
[2019] NZHC 1065
BETWEEN SIJAYE EDWARD TE PUPUHI RHIND
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 April 2019 Appearances:
R B Quin for Appellant
A R A Pell for Respondent
Judgment:
15 May 2019
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 15 May 2019 at 11:00 am
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Hamilton
RHIND v POLICE [2019] NZHC 1065 [15 May 2019]
Introduction
[1] Mr Rhind (the appellant) appeals his sentence of 12 months’ imprisonment on the ground that it is manifestly excessive.
[2] Having entered a plea of guilty to a charge of attempted theft of a flat screen television set, he was sentenced on 20 March 2019 in the District Court at Huntly by Judge Connell.1 He had initially been charged with an offence of burglary2 in relation to the same offending, however when that charge was amended to attempted theft, he entered a plea of guilty to the amended charge, and also to a charge of intentional damage of two windows and the wall at the premises where the flat screen television was located.3
[3] In addition, he entered pleas of guilty and was sentenced at the same time on charges of:
(a)Breaching post detention conditions by associating with his victim without the written consent of his Probation officer.4
(b)Breaching post detention conditions by failing to report as directed by his Probation officer.5
(c)Failing to appear in court contrary to the terms of bail. 6
[4] On the breach of sentence conditions charges, the Judge imposed a sentence of three months’ imprisonment to be served concurrently with the sentence imposed on the attempted theft and wilful damage charges.
1 Crimes Act 1961, ss 219, 231(b) and 311.
2 Crimes Act 1961, s 231.
3 Crimes Act 1961, s 269(2)(a).
4 Sentencing Act 2002, s 80U.
5 Sentencing Act 2002, s 80U.
6 Bail Act 2000, s 38(a).
Background
[5] Sometime between 28 October and 30 October 2018, the appellant went to the victim’s property. He broke two windows and gained entry. Once inside he attempted to remove a flat-screen television from the wall, which was unsuccessful and caused a hole in the wall. Some of his blood was spilt during this attempt and was left on the wall. While inside the premises he urinated on the floor of the bathroom, and took food from the fridge. When interviewed by police, he said that the granddaughter of the occupant of the address had given him permission to enter the property and take the television. The television was valued at $1450.
[6] Although the appellant was initially charged by the police with burglary, they later accepted that he had been given permission by a relative of the occupant, to stay at the property, and consequently the charge was amended to attempted theft.
The Judge’s sentencing decision
[7] Judge Connell adopted a starting point of 10 months’ imprisonment on the charge of attempted theft.7 He said:
[6] I agree with your counsel, a starting point on this, particularly the attempted theft, is a term of I say 10 months’ imprisonment. It is not a full blown burglary and that is why the sentence is reduced in line with the reduction of the charge itself so that is a 10 month starting point.
[8] The Judge then added an uplift of three months’ imprisonment to take account of “these six convictions of getting into people’s houses and dealing with their property dishonestly ...”8, and a further three month uplift for the charges of breaching sentence conditions. The Judge referred to the breaches of sentence charges and said:
[8] … Warranted in this case is a three month uplift again so you will understand we have got to a point where there is a 16 month term of imprisonment as a starting point. You are entitled to acknowledgment of your guilty plea. You get a discount for that. That will be a generous allowance of some four months, taking you down to a 12 month term of imprisonment. As I say no release conditions.
7 Police v Rhind [2019] NZDC 6266.
8 At [7]
Submissions
The appellant’s submissions
[9] The appellant appeals solely as regards the charge of attempted theft. His counsel Mr Quin, submits that the Judge erred by treating the sentencing as if it related to an offence of burglary, leading him to adopt a starting point that was too high and an end sentence that was manifestly excessive. The appellant says that although he was not related to the victim, the Judge erroneously referred to him as having stolen from his family, and made other comments which indicated that he was treating the offending as an attempted burglary.
[10] Mr Quin says that if the charge was for an attempted burglary of a residential dwelling, a starting point of 10 months would have been appropriate, in line with R v Arahanga.9 However, for the charge of attempted theft, Mr Quin says a lower starting point of three to five months would have been appropriate.
[11] Mr Quin accepts however that the appellant’s previous convictions warrant an uplift of around three to four months from the starting point. He also notes that the Judge did not refer to the wilful damage charge, and he acknowledges that an uplift on account of that charge was warranted as the wilful damage contributed to the overall criminality of the offending.
The respondent’s submissions
[12] Mr Pell for the respondent submits that given the facts of the offending, the starting point adopted by the Judge was at the lower end of the available range. He submits that although the appellant was not sentenced for burglary, the aggravating factors of breaking and entering of the premises and the damage caused by the appellant to the house as well as leaving his blood and urine behind, are significant to the assessment of a starting point for the overall criminality of the offending.
[13] Mr Pell says that the offending can be contrasted to opportunistic offending where there is an attempt to steal property. Here however, the appellant broke into a
9 R v Arahanga [2012] NZCA 480.
dwelling house, and once inside damaged a wall when attempting to remove the television set from it, as well as urinating on the floor and leaving his blood on the wall. Mr Pell says that although the appellant was not charged with burglary, those aspects of his offending were properly treated by the sentencing Judge as being aggravating factors of the appellant’s offending, and consequently relevant to his assessment of the appropriate starting point.
[14] Mr Pell referred to Henriksen v Police which involved an unsuccessful appeal against conviction and a sentence of 12 months’ imprisonment imposed for the theft of two trailers valued at $1,600.10 Mr Henriksen had asked the complainant if he could take some scrap metal from her farm. She said that he could take a length of bailer chain from the rubbish heap. When the complainant later inspected where the chain had been, she noticed that two trailers were also missing. On appeal, Lang J upheld the sentence, observing:11
Like the Judge, I consider that the offending was of moderate seriousness given the value of the property stolen and the brazen way in which the theft was committed. An end sentence of twelve months imprisonment was well within the available range having regard to Mr Henriksen’s previous history.
[15] Mr Pell acknowledges that in Henriksen the theft was a completed offence, as opposed to merely being an attempt, but he submits that nevertheless the instant case involved more serious offending than that in Henriksen because it involved the breaking and entering of a dwelling and damage being caused to the house. He submits that those features of the offending support the adoption of a higher starting point than Henriksen.
[16] Finally, the respondent also acknowledges that Judge Connell erroneously referred to the appellant as having six previous burglary “convictions”, when in fact he has three previous burglary convictions, and three Youth Court notations. As regards the appellant’s convictions, which include two for aggravated robbery and one for wilful damage, the respondent submits that the three-month uplift that the Judge applied for previous convictions should be considered lenient.
10 Henriksen v Police [2015] NZHC 2572.
11 Henriksen v Police at [22].
Approach on Appeal
[17] This Court will not lightly intervene in a sentence imposed by the District Court.12 But the Court must allow Mr Rhind’s appeal if it is satisfied that, for any reason, there is an error in the sentence imposed by the District Court and if it is satisfied a different sentence should be imposed.13 In any other case, the appeal must be dismissed.14
[18] The approach to be taken to an appeal brought under s 250(2) of the Criminal Procedure Act 2011 was addressed by the Court of Appeal in Tutakangahau v R.15 The Court said:
[30] The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, in the words of Shipton, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal. If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.
(footnotes omitted)
[19] Where an error or errors are found to have occurred, the court’s assessment of their significance will inform its decision as to whether a different sentence should be imposed. The Court of Appeal noted that although s 250(2) makes no express reference to a “manifestly excessive” sentence, this concept remains engrained in the courts’ approach to sentence appeals.16
Was the sentencing starting point too high?
[20] There is no tariff decision for this type of offending. The offence of attempted theft carries a maximum penalty of three and a half years’ imprisonment.17 The offence of intentional damage carries a maximum penalty of seven years’ imprisonment.18
12 Te Aho v R [2013] NZCA 47 at [30].
13 Criminal Procedure Act 2011, s 250(2).
14 Criminal Procedure Act 2011, s 250(3).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
16 At [33] and [35].
17 Crimes Act 1961, ss 72, 219, 223 and 311.
18 Crimes Act 1961, s 269(2)(a).
[21] Although the appellant was sentenced for attempted theft and not for the crime of burglary, the circumstances of the attempted theft, which included him breaking windows to enter a private dwelling house and once inside causing damage, are directly relevant to an assessment of the gravity of the offending and are aggravating features of the offending.
[22] And although the Judge erroneously referred to the offending as involving a theft from a family member, that feature does not appear to have directly influenced the adoption of the starting point.
[23]The Judge referred to the offending as being a burglary, stating:19
…with the way that I see things when I look at the nature of the burglary and I have already passed the comment around the fact that you are trying to steal from your own whānau. You have got into a house, maintaining you had some sort of authority to do so and you know you did not.
[24] However, when addressing and setting the sentencing starting point, the Judge corrected his earlier statement and, in my view, clarified his approach regarding the attempted theft when he said:
[6] … It is not a full blown burglary and that is why the sentence is reduced in line with the reduction of the charge itself so that is a 10 month starting point.
[25] Accordingly, although the Judge had described the offending earlier in his sentencing decision as a “burglary”, when moving to decide the appropriate starting point he was clear that the charge under consideration was attempted theft.
[26] Because the nature of the criminality involved here is closely comparable to burglary offending, I consider that some assistance is also derived from comparing the present case to cases of burglary with similar features. The Court of Appeal in Arahanga v R explained that it has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Relevantly as regards the present case, the Court of Appeal observed that burglary of
19 Police v Rhind [2019] NZHC 6266 at [4].
a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with occupants. The Court of Appeal said:20
Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.
[footnotes omitted]
[27] The decision in Henriksen in which a 12-month sentence was imposed after the defendant was found guilty at a defended hearing provides a comparison. The present case involved an attempted theft and accordingly is not as serious as the theft of the trailers in Henriksen where the theft of the two trailers was completed. However, in the present case the fact that the attempted theft was carried out following the entry into a dwelling house that involved two windows being broken with further damage also caused to the dwelling is a significantly aggravating factor for the same reasons as noted by the Court of Appeal in Arahanga.
[28] In my view the circumstances of the appellant’s offending, which involved breaking windows to enter a dwelling house and then also causing further damage to interior wall of the house when attempting to remove the television set, place the appellant’s offending on a more serious level than the offending in Henriksen. The commission of an offence within a dwelling house involves an invasion of the occupants’ privacy and security, which is a seriously aggravating feature of this offending.
[29] Accordingly, I find that the Judge’s adoption of a starting point of 10 months’ imprisonment for the attempted theft offending was well within the available range, and certainly not manifestly excessive.
[30] The Judge added uplifts on account of the appellant’s previous burglary offending. While the Judge erroneously referred to the appellant having six rather than three convictions for burglary, I do not consider that that error was material in terms of the its effect on the uplift of three months’ imprisonment adopted by the Judge.
20 Arahanga v R [2012] NZCA 480 at [78].
That was clearly appropriate in order to take account of the appellant’s relevant and previous burglary offending, and within range.
[31] No issue is taken by the appellant with the Judge having applied an uplift of three month’s imprisonment as regards the charges of breaching sentence conditions.
[32] Finally, the Judge appears to have treated the damage caused to the victim’s premises as being aggravating features of the attempted theft offending and consequently he did not add a separate uplift for the offending comprised in the intentional damage charge.
Conclusion
[33] An appellate court will not intervene where the sentence is within range and can be properly justified by accepted sentencing principles.21
[34] Although the appellant has shown that the Judge erred by referring to the offending as if it was burglary offending, the offending was in substance closely similar, as it involved conduct by the appellant which are elements of the offence of burglary. Moreover, I do not consider that the Judge’s use of the term “burglary” when referring to the attempted theft offending indicates that he proceeded with the sentencing on the basis that the appellant was being sentenced for the offence of burglary. The Judge was clear that he was imposing a sentence for the offence of attempted theft.
[35] The starting point adopted by the Judge for the attempted theft offence was well within range, and the end sentence of 12 months’ imprisonment was not manifestly excessive.
Result
[36]The appeal is dismissed.
Paul Davison J
21 Tutakangahau v R [2014] NZCA 279 at [36].
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