Selfe-Brennan v Police

[2012] NZHC 220

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-2 [2012] NZHC 220

BETWEEN  QUAID LUCAS SELFE-BRENNAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         20 February 2012

Counsel:         I Miller for Appellant

M A O'Donoghue for Respondent

Judgment:      29 February 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

Introduction

[1]      In August 2011 the appellant and two friends found themselves on a private driveway with a broken-down car.  The occupants of the property were just leaving. The appellant and his friends asked them to help jump start the car.  They tried, but failed.   The occupants then went on their way.   They were not rewarded for their kindness.   Once they were out of the way the appellant and his friends forced a window of their house.   They took a television, cash, alcohol and other electronic items.  And from its garage, they took the occupants‘ other car (valued at $40,000). They drove the stolen car to a river, where they managed to enmire it.  One of the appellant‘s  friends,  a  Mr  Wedderburn,  then  set  it  alight.    It  was  completely destroyed.

[2]      The appellant, who is aged 18, was charged with burglary and theft of a motor vehicle as a result of that escapade.  A charge of arson was pursued against Mr

Wedderburn, but not the appellant.   The appellant was placed on  electronically

SELFE-BRENNAN v NEW ZEALAND POLICE HC BLE CRI-2012-406-2 [29 February 2012]

monitored bail (e-bail) pending sentencing.   He was also sentenced to a term of community detention for breaching a prior community work sentence.1

[3]      But then the appellant committed another burglary.  He was permitted to be absent from the approved bail address on Fridays to attend community work.   On Friday, 25 November 2011 the appellant contacted the Probation Service and told them he would not be attending community work that day.  What excuse was given I do not know.   It does not matter in the scheme of things.   Having obtained this approved absence, the appellant met up with two friends.  They went to the house of one of the group.  Behind the house is an enclosed yard.  It is used by the district council to store impounded vehicles.  The trio climbed into that yard.  There they broke into a car.  They took a number of items from it:  clothing, fuses, CDs, and a stereo.  They also took a generator stored in yard.  They siphoned the petrol from it and poured that into one of their own vehicles.

District Court decision

[4]      The Judge considered he had to determine whether the appropriate sentence was imprisonment or community or home detention.  He noted there was no proven history of dishonesty at District Court level.  However, the appellant had been dealt with in the Youth Court on similar matters.

[5]      The Judge considered prison was the appropriate start point.   The Judge concluded that nothing short of prison was appropriate given the brazen nature of the first burglary, and the fact that the appellant had engineered his absence from community work to commit another burglary offence.  Deterrence was emphasised by the Judge.

[6]      On the first charges of burglary and theft he took a starting point  of 12

months‘ imprisonment, reduced to nine months for a guilty plea.

[7]      For the second burglary a starting point of 12 months‘ imprisonment was

taken, with an uplift to reflect the fact the sentence was committed whilst on e-bail. The Judge does not specify the uplift, but it appears to have been in the vicinity of 3

1      Imposed for unrelated drug offending.

months, applying a 25 per cent credit for the guilty plea.   After a reduction for a

guilty plea the end sentence was 12 months‘ imprisonment.

[8]      The sentences were imposed cumulatively.  So the appellant received a total

of 21 months‘ imprisonment.

Appeal

[9]      The appellant appeals that sentence.   First, he submits the sentence was manifestly excessive in light of the offending and the appellant‘s level of culpability. He was not the primary offender in the first set of offending.   Rather, he assisted Mr Wedderburn.   In relation to the second offending, he admits the aggravating factor of offending whilst on bail.  But he says the offending was less in terms of value and damage.  He says it warrants a lesser sentence than the first set.

[10]     Secondly, he submits the Judge erred in sentencing the two sets of offending cumulatively, without taking into account the totality of the offending.  An uplift of

3 months would have been appropriate to take into account the additional offence committed.

[11]     Thirdly, he says there was disparity in sentences between the appellant and his co-offender, Mr Wedderburn who received exactly the same sentence.  The test in R v Lawson2 is met as the disparity is ‗unjustifiable and gross‘.  It is accepted that the appellant committed a further burglary to which Mr Wedderburn was not a party. But Mr Wedderburn too was sentenced on a number of other charges not involving the appellant.3   Further, Mr Wedderburn had a history of similar offending.  He had previously been imprisoned.

[12]     Finally, he submits the Judge was wrong in principle not to impose home detention.   It is accepted that at the time of the second offence the appellant was serving a community detention sentence.  It was effectively one of home detention. But the appellant says he was under significant stress with an ill father.   A home

detention sentence would have a certain end date and be more manageable for the

2      R v Lawson [1982] 2 NZLR 219 (CA).

3      Arson, theft of petrol, unlawful taking of a vehicle (x2), possession of cannabis, and breach of release conditions (x2).

appellant.  Home detention still reflects the principles of deterrence and punishment, and is consonant with imposing the least restrictive outcome.

Crown submissions

[13]     The Crown submits the sentence was not manifestly excessive.  Although not a recidivist or habitual burglar, his Youth Court offending does form part of his relevant history and can be taken into account.  The appellant committed the second burglary whilst on e-bail for the first burglary, and whilst subject to a community detention sentence for breaching a prior community work sentence.   There was a high level of premeditation and planning.  And a pattern of refusal to comply with Court  sentences.     These  features  significantly  aggravated  and  increased  the appellant‘s  culpability.    Deterrence  and  community protection  called  for  a  firm sentence.

[14]     Secondly, the Crown submits the Judge did not err in applying the totality principle.  It is not for this Court to substitute its own reasoning as to how it would have arrived at the end sentence.   Although the totality principle is not expressly referred to, the Crown submits the total sentence is not wholly out of proportion to the  gravity of  the  overall  offending.    Burglary  is  a  serious  offence,  carrying  a maximum ten year penalty.  Theft of a motor vehicle carries a seven year maximum penalty.   There was also a high degree of premeditation involved in both sets of offending.

[15]     Thirdly, as to disparity, the Judge sentencing Mr Wedderburn had noted that he was a recidivist dishonesty offender.   So a starting point of three to four years would have been warranted.  However, the Judge took a merciful approach because of his age.  He reduced the starting point to 24 months, and ultimately a 21 month sentence was imposed (allowing for a cumulative two month sentence on other charges).   The Crown submits that sentence was unduly lenient and the merciful approach  taken  was  wrong  in  principle.    There  was  also  no  uplift  to  reflect Mr Wedderburn‘s   previous   history   of   offending.      The   respondent   accepts Mr Wedderburn also faced additional charges, but notes Mr Wedderburn did not face a second burglary charge, unlike the appellant, committed whilst on bail, an aggravating factor.

[16]     Finally, the Crown submits the grant of home detention is a discretion.  The appellant had demonstrated he was incapable of abiding by a community-based sentence.  He had breached numerous sentences of community work.  He had abused the privilege of e-bail.   A sentence of imprisonment was the only real and viable sentencing option.  The commission of two burglaries within months of each other meant community protection was a significant consideration.   There are no errors committed by the Judge in exercising his discretion not to impose home detention

Discussion

[17]     It follows from ss 115 and 119 of the Summary Proceedings Act 1957 that this is a general appeal to be heard by way of rehearing.  The onus is on the appellant to satisfy the Court that the grounds of appeal have been made out and that it should differ from the original decision.  The appellate Court must come to its own view on the merits.4

[18]     In relation to the home detention ground, that is an appeal from a discretion. The question will be whether the appellant has shown that the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was simply ―plainly wrong‖.5

Starting points for this offending

[19]     In R v Monkman6 the Court of Appeal observed:

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence;  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to this particular kind of offending).

[20]     Senior v Police7  sets out helpful guidance on burglary sentencing.   First, matters identified in it as aggravating, relevant to this case, include the taking of

4      Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).

5      James v R [2010] NZCA 206 at [17].

6      R v Monkman CA445/02, 3 March 2003, at [6].

7      Senior v Police (2000) 18 CRNZ 340 (HC)

property of high value, and offending whilst on bail or in close proximity to other court appearances.

[21]     Against that background I do not consider the starting point on each set of offending could be described as manifestly excessive.   I agree with the Judge that firm sentences are called for to reflect denunciation and deterrence of this type of offending in the community.

[22]     The first set of offending involved two charges, including the taking of a valuable $40,000 car.   That itself is an aggravating factor.   But the fact that this offending was visited on innocent homeowners who had earlier tried to assist the appellant is an aggravating factor.  The appellant is not to be treated as culpable for its destruction, however.  The 12 month starting point fixed by the Judge was not at all excessive.  Indeed it may be seen as lenient, and appears to have been set at that level in part as a reflection of the appellant‘s age.  I will return to that point.

[23]     As to the second offending, that occurred whilst the appellant was on e-bail. As the Court of Appeal has said, that is a seriously aggravating factor.  An uplift was warranted for this factor.   The incident was premeditated rather than merely opportunistic.  That too is an aggravating factor.  Taken in the round, the 15 month starting point fixed by the Judge on this charge was not excessive.  Again it appears to have been influenced by the appellant‘s age.

Totality/cumulative sentencing

[24]     Where  I depart  from  the  learned  Judge  however  is  in  his  imposition  of cumulative sentences.  Where an accused person is young, it is particularly important to consider the totality of the offending.   If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they should not result in a total period of imprisonment out of proportion to the gravity of

the overall offending.8     A lead offence should be identified if possible.   Uplifts

should be applied for the other offending being sentenced.  This course is preferable to the alternative of cumulative sentencing, especially if that has the effect of unduly

protracting the term of imprisonment of a young person who has never served a term

8      Sentencing Act 2002, s 85(2).

of imprisonment before.  Where imprisonment of such a person is required, a shorter sentence than would otherwise be appropriate will often be justified in order to lessen the prospect that the offender comes out of prison a greater risk to the community than he or she was before.9   As the Court of Appeal said in R v K:10

[T]he gravity of a young offender‘s offending has necessarily to be balanced against the need to consider his rehabilitation and reintegration into society and the outcome should be the least restrictive in the circumstances of the case. Whilst these are not the only principles that require balancing in the case of a young offender, they are the principles to be given emphasis. If not, a truly crushing sentence might be imposed that diminishes any real hope of reformation in a young person. Although there is no material before the Court pointing to a particular rehabilitative path for this appellant, his youthfulness alone requires a rehabilitative approach, as the victims themselves responsibly recognised

[25]     The Judge did not expressly undertake an assessment of the totality of the offending in imposing two cumulative sentences.  The question is whether the total period of imprisonment is out of proportion to the overall gravity of the offending. With  respect  to  the  experienced  trial  Judge,  I  have  concluded  that  it  is.    The offending was close together in time.   It would have been appropriate, especially given the youth of the appellant, to consider the two charges together.  The second offending should be treated as the lead offence because it is the more serious one. The Judge‘s starting point makes that clear.   The first offending was more opportunistic in nature.   The ultimate destruction of the stolen car (for which the appellant was not responsible) should not be visited on the sentencing assessment of the burglary offence.

[26]     The preferable course in this case would have been a sentence of 15 months imprisonment on the second charge, and an additional six months uplift on the first. A total of 21 months imprisonment.

Aggravating and mitigating factors relevant to the offender

[27]     I turn now to aggravating and mitigating factors relevant to the appellant himself.

9      R v Accused (2000) 17 CRNZ 300 at [18].

10     R v K (2003) 20 CRNZ 62 (CA) at[22].

[28]     First, I note that the Judge gave the appellant a 25 per cent discount for early guilty pleas.  Applying that to the revised sentence in [26] the result is a sentence of

15 months (with the benefit of rounding down of stray weeks).

[29]     Secondly, the Crown accepts in this case that the appellant here cannot be described as a recidivist burglar.11     Such categorisation would be relevant not so much to the starting point (which is concerned with the nature of the offending) as to factors personal to the offender.  In other words, recidivism is itself an aggravating factor.

[30]     The Crown however points to the appellant‘s Youth Court record, which includes eight burglaries and two other dishonesty offences.  What use may I make of that record?

[31]     Judicial views in the High Court on that issue appear to vary.  The Court of

Appeal in R v Rongonui12  said that an offender‘s Youth Court offending history

―ought to [be] taken into account and given significant weight‖.   It is clear, though, that Youth Court proceedings do not result in a criminal conviction.  They cannot be taken into account as a ―previous conviction‖ pursuant to s 9(1)(j) of the Sentencing Act 2002.  But they may still be taken into account under s 9(4).  This is done in two ways.  The Youth Court history is relevant to offset a discount otherwise available for youth, or for being a first offender.

[32]     In R v Putt13 the Court was dealing with an appellant also aged 18.  He was sentenced in 2008 on a conviction for of wounding with intent to cause grievous bodily harm.   His Youth Court history comprised of operating a motor vehicle recklessly  and  possession  of  an  offensive  weapon  in  2005  and  kidnapping, dangerous driving and possession of an offensive weapon in 2006.  It said:

We accept [the Crown‘s] submission that such a history may be a relevant factor in sentencing. Section 9(4) of the Sentencing Act makes it plain that the sentencing court is not limited to a consideration of the aggravating or mitigating factors listed in s 9(1) and 9(2) but that the court may consider

11     In terms of the categories in Senior v Police (2000) 18 CRNZ 340 (HC).

12     R v Rongonui [2009] NZCA 279 at [88].

13     R v Putt [2009] NZCA 38

other factors as ―the court thinks fit‖. As Anderson J said in Kohere v Police

(1994) 11 CRNZ 442 at 444 (HC):

[While the Youth Court] behavioural history does not amount to prior conviction it must be the case that such history can have some relevance in determining what is an appropriate sentence for the person appearing in the Court of criminal record.

However, in the present case, the previous history involves no application of violence and is not particularly extensive. The appropriate course in this case was to, as [the Crown] submitted, offset this history against the discount that might otherwise have been given to the appellant for his youth. The history in the present case was not such as to completely negate the effect of his youth but was a relevant factor in that context.

The Court reduced by two years the sentence of five and a half years imprisonment.

[33]     The Court of Appeal followed its approach in Putt in Geros v R.14   There the appellant was aged 17.  He was sentenced on convictions for wounding with intent to cause grievous bodily harm, burglary and theft.  At age 15 he was dealt with in the Youth Court on similar charges.  The Court of Appeal found that that history was

―plainly relevant in any assessment of how the courts should respond to Mr Geros‘s latest offending‖.15   The Court considered there was clearly a case for an uplift (including for previous offending sentenced in the District Court) and a slim case for discount on the grounds of youth.   The Court considered, in line with what they called the ―Putt solution‖,  these personal factors effectively cancelled one another. Leave to appeal to the Supreme Court in Geros was declined.16 Geros was recently followed by the Court of Appeal in Haimona v R.17

[34]     In Bennet v R18 Allan J considered it was wrong to consider the appellant as a first time burglary offender.  He took into account two previous burglaries dealt with in the Youth Court, whilst noting that ―care must be taken over the use to which appearances in the Youth Court are put for subsequent sentencing purposes‖.19     He

considered it appropriate however to take them into account in determining whether

14     Geros v R [2011] NZCA 122.

15 At [18].

16     Geros v R [2011] NZSC 108.

17     Haimona v R [2011] NZCA 375 at [38].

18     Bennet v R  HC Hamilton CRI-2011-419-78, 3 November 2011.

19 At [18].

the appellant should be treated as a first time burglar.     In Shaw v Police20  the appellant was sentenced on a burglary.  The appellant had 13 entries for burglary in the Youth Court, and 11 in the District Court.  Although spaced over a considerable period of time, J Hansen J considered the appellant was a recidivist burglar.

[35]     Green v Police21   is an authority of particular assistance.  The appellant, aged

18, was sentenced on three counts of burglary, one of which was committed whilst on bail, along with a range of other offences involving thefts from cars and the possession of instruments.  Notably he had 48 appearances for burglary in the Youth Court.  The sentencing Judge described him as a ―one man crime wave‖.  He was sentenced to two years imprisonment concurrently on the first two burglary charges, one year   cumulatively on third burglary committed whilst on bail, and to fully concurrent terms on the other matters.   Three years in all.  On appeal Chisholm J concluded that whilst the Youth Court history was a relevant consideration, it was necessary to take into account that this was the first time the appellant had been sentenced to imprisonment, he was aged only 18, and there had been a three year lull in offending before his latest lapse.  The Judge was persuaded the sentence was too severe.    He  reduced  the  sentence  on  the  secondary  burglary  conviction  by  six months, thus reducing the total sentence by that same amount.

[36]     The upshot of these authorities is as follows.  First, I accept as I must that the appellant‘s  Youth  Court  history  should  be  taken  into  account  under  s  9(4). Secondly, it is relevant to offset any discount otherwise available for youth or for being a first offender.  Thirdly, on that basis I would conclude that the appellant here is not to be treated as a recidivist (as the Crown accepts), but nor is he in truth a first time burglar (in respect of either current offence).   Fourthly, I do not consider it appropriate to allow any further discount for youth.  There are two reasons for that conclusion.  The first is that I follow the approach taken by the Court of Appeal in Putt in concluding that the appellant‘s prior history really cancels out the benefit that might be given for youth.   The other is that, as I noted earlier, the starting points

adopted by the Judge were on the low side in the first place.  They seem to have been

20     Shaw v Police HC Christchurch, No File No., 7 November 2002.

21     Green v Police HC Christchurch CRI-2004-409-145, 20 September 2004

set at that level in part as a reflection of the appellant‘s age.   There is no reason,

therefore, to confer any further discount for youth.

Disparity

[37]     In these circumstances there is no need for me to consider the ―disparity‖ ground of appeal.22     There is however  no requirement in law that co-offenders should be treated alike when sentencing; nor is there any principle of law to the effect that once disparity is shown to exist, a sentence appealed against should be interfered  with.    As  the Court  of Appeal  said  in  R  v Lawson23   the question  is

―whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice‖. Of course it is desirable that co-offenders should, all things being equal, receive the same sentence.24

Standing back

[38]     Standing  back,  I  consider  the  outcome  indicated  in  [26]  and  [28]  to  be broadly in line with that adopted by Chisholm J in Green v Police.25   That case also involved repeated burglary offending,26 on one occasion on bail.  But the appellant‘s adverse Youth Court offending history here is in an altogether different order of magnitude  from  that  in  Green.    The  appellant‘s  burgling  history  was  hitherto

confined to a single year – 2007 – when he would have been 14.   Thereafter the appellant‘s issues have been with driving and with drugs.   The appellant is by no means  a  recidivist  burglar,  and  there  is  a  foundation  on  which  society  has justification for optimism that he will not become one.   He is no ―one man crime wave‖, unlike the appellant in Green.  I have read the letter written by the appellant‘s father to the Judge, and I bear its contents in mind.   It is clear that despite the difficulties both have confronted, they remain devoted to each other.  That too gives

some grounds for optimism.  The consequence is that any term of imprisonment in

22 See [11] and [14] above.

23     R v Lawson [1982] 2 NZLR 219 at 233, recently followed in Mau’u v R [2011] NZCA 385.

24     R v K (2003) 20 CRNZ 62 (CA) at [20].

25     Green v Police HC Christchurch CRI-2004-409-145 20 September 2004, discussed at [35]

above.

26     But three charges, rather than two.

this case should be – on this occasion at least – as short as is reasonably consonant with the need to deter this sort of offending.

Home detention?

[39]     Section 15A of the Sentencing Act 2002 provides:

15A Sentence of home detention

(1)       If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—

(a)       the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)       the court would otherwise sentence the offender to a short- term sentence of imprisonment.

[40]     Section 16 provides that when considering the imposition of a sentence of imprisonment for any particular offence, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.  The Court must not impose a sentence of imprisonment unless it is satisfied the purposes in s 7 cannot be achieved by another sentence and no other sentence would be consistent with the application of the principles in section 8 to the particular case.  Section 17 provides the Court has a discretion to impose imprisonment if the Court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.

[41]     The proper  approach  of  an  appellate Court  in  cases  involving the  home detention discretion has been expressed by the Court of Appeal in this way: 27

The choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review, focusing, as in other sentencing appeals to this court, on the identification of error, if any, in the court below.

27     Manikpersadh v R [2011] NZCA 452 at [12] following William Young P in R v Vhavha [2009] NZCA 588 at [29].

[42]     The Court of Appeal in James v R28 said:

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits.   The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?   Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree.   We are satisfied, in accordance with earlier  authority  in  this  Court,  that  the  decision  about  whether  home detention  will  meet  those  objectives  in  a  particular  case  is  a  strictly evaluative exercise.  It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[43]     In my view, no such error of law can be identified.  The Judge was entitled to take into account the appellant‘s non-compliance with e-bail detention and offending whilst on bail as relevant to the exercise of his discretion.  The appellant has four previous convictions for breach of community work.  As I said to Mr Miller at the hearing, his argument could not reach the standard required to upset the Judge‘s exercise of discretion on this front.

Disposition

[44]     The appeal is allowed.  The sentence of 21 months imprisonment imposed in the District Court is replaced with one of 15 months.

[45]     Mr Selfe-Brennan should consider himself fortunate.  He has been given the least term of imprisonment I am able to give him.  He is being given that opportunity so that he may get back on track, bring his current reversion to burgling (after a gap

of four years) to an end, and sort his life out properly.  A good start would be to

28     James v R [2010] NZCA 206 at [17].

choose better friends to hang round with.   If Mr Selfe-Brennan does not take this opportunity, and finds himself back in court on a new dishonesty charge, or worse, then he should expect that the book will then be thrown at him, and with some force.

Stephen Kós J

Solicitors:

City Legal, Blenheim for Appellant

Crown Solicitor, Blenheim for Respondent