Sheddon v Police HC Auckland CRI 2010-404-34
[2010] NZHC 1366
•22 June 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2010-404-34
ROBERT MALCOLM SHEDDEN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 June 2010
Appearances: M Pecotic for the Appellant
J G Donkin for the Respondent
Judgment: 22 June 2010 at 2:00 pm
JUDGMENT OF COURTNEY J
This judgment was delivered by me on 22 June 2010
at 2:oo pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date……………………..
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Counsel: M N Pecotic, PO Box 6379, Auckland 1141
SHEDDEN V POLICE HC AK CRI 2010-404-34 22 June 2010
[1] Mr Shedden was sentenced in the District Court at Auckland on
13 January 2010 to a total of two and a half years imprisonment on two charges of burglary. He appeals that sentence on the grounds that the Judge:
a) Failed to indicate a starting point or to state either what discount was given for the guilty plea ; and that
b) The final sentence was manifestly excessive.
[2] The burglaries, both of residential properties, occurred in July and September
2009. In the first, Mr Shedden stole a laptop, handbag and wallet. In the second burglary he took several electronic items including a plasma television, laptops, iPods and cameras. His reason for committing the burglaries was to obtain money for his daughter so that she could leave a violent relationship.
[3] In sentencing Judge Andrée Wiltens treated Mr Shedden as a recidivist burglar and imposed cumulative sentences in each of the burglaries:
[4] You are 54 years of age. You have 25 previous convictions for burglary and yet you say “Oh I know I am too old for this, I shouldn’t be here”. It is meaningless what you are saying. It is your conduct that we are concerned about, because if I give you a lenient sentence today you will go right back out there and do it again. You are a recividist burglar, nothing else.
[5] Home detention is suggested by the pre-sentence report writer. I am afraid I do not agree with that at all, even if the ultimate term is such that home detention were available. It seems to me that for these two offences you should be sentenced to 15 months’ imprisonment on each, served as you committed them, one after the other, cumulatively. The total term is two years and six months’ jail. That is taking into account your guilty pleas, the fact that I cannot award any reparation because you have no means to pay, and taking into account this vast number of previous convictions for exactly the same thing.
[4] Both Mr Donkin, for the Crown, and Ms Pecotic, for Mr Sheddon, were agreed that the Judge failed to identify either a starting point or the discount given for the guilty plea. Mr Donkin contended, however, that by working back from the final sentence imposed it was possible to determine the likely starting point and discount. I do not, however, consider that to be an appropriate approach. There is simply no indication from which I could confidently assume what the Judge’s starting point or discount was and to do otherwise would be speculating. I consider
it a better course to approach the exercise afresh, starting with determining the appropriate starting point.
[5] The Judge’s reference to Mr Shedden being a recidivist burglar was undoubtedly based on the distinction drawn by the Court of Appeal in Senior v Police between the “first time burglar”, the “recidivist burglar” and the “spree burglar” [1]. Of the recidivist burglar, the Court of Appeal said:
[30] The more typical case in this category is likely to involve a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions for burglary) and who is appearing for sentence on only one or a limited number of offences. This burglar will probably be a professional burglar in the sense of being a person who burgles and steals for a living and often enough to sustain a drug habit but at what might be regarded as a subsistence level.
[1] Senior v Police (2000) 18 CRNZ 340
[6] I refer to this description of recidivist burglar because it is relevant to Ms Pecotic’s submission that Mr Shedden should not be regarded as a recidivist burglar of the type described in Senior. However, as I will also come to, Mr Shedden does have a large number of previous convictions and I start my consideration of an appropriate starting point by reference to the Court of Appeal’s
comments in R v Columbus[2]as to the part played by previous convictions in fixing
[2] R v Columbus [2008] NZCA 192.
an appropriate starting point on a burglary charge:
[13] We agree that it is not the function of a divisional Court to resolve apparent inconsistencies in approaches to starting points between burglary and other offending. Nevertheless, we may be able to offer some guidance in this difficult area. As a Full Court of this Court has emphasised, the starting point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3 NZLR 372 at [42]-[44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served by this approach.
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the
particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police (2000) 18 CRNZ 340 at [27]-[30] (HC).
[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[7] Ms Pecotic submitted that an appropriate starting point for the totality of the offending is two years and that the imposition of cumulative sentences is inappropriate in this case. Mr Donkin however, considered that the appropriate starting point for the totality of the offending was three years. He relied heavily on
the Court of Appeal’s decision in R v Curran[3] which he considered to be comparable
to the present case. However, I consider that Curran reflects more serious offending and in response Mr Donkin suggested that an appropriate starting point on that basis might be two years nine months. The reason I considered Curran not to be a helpful comparison is that, although it also involved two charges of burglary by a man with a large number of previous convictions, the judgment referred to the “wanton destruction of irreplaceable personal chattels and deliberate and malicious trashing of a house”. In the present case, apart from the relatively minor damage to the properties done for the purpose of effecting entry, there was no suggestion of gratuitous damage or vandalism to the properties. Curran must therefore be regarded as quite significantly different from the present case.
[3] R v Curran [2008] NZCA 138.
[8] Ms Pecotic relied on the decisions in Monsall v Police[4], R v Phillips[5], Tioke v Police[6]. I agree that these are more comparable, particularly Tioke. Columbus, Phillips and Tioke all involved two burglary charges and Monsall a single burlgary charge. Columbus and Phillips also involved appellants with a large
number of previous convictions. In comparison, in Tioke there was reference only to
three previous convictions for burglary since August 2007. It is unclear as to whether that was the full extent of the previous convictions.
[4] Monsall v Police HC Tauranga CRI-2009-087-1134, 21 August 2009, Asher J.
[5] R v Phillips [1008] NZCA 440.
[6] Tioke v Police HC Rotorua CRI-1009-463-100, 9 December 2009, Harrison J.
[9] In the present case, Mr Shedden has numerous previous convictions acquired with depressing regularity since 1972 (apart from time in prison). Most are for dishonesty offences including 17 convictions for burglary. However, Ms Pecotic argued strenuously that Mr Shedden should not be regarded as a typical recidivist burglar in the sense described in Senior because there was a long gap between 1986 and 2004 without any convictions for burglary and then two burglary offences in
2005. Because of the long period of time during which there were no burglary offences (only a short time of which was spent in prison) I agree that it does not seem appropriate to label Mr Shedden now as a true recidivist burglar. On the other hand, one cannot completely ignore such a large number of previous convictions altogether.
[10] I consider that the nature of the offending, taking into account the level of previous convictions, is akin to the offending in Columbus and Tioke. In Tioke Harrison J took a starting point or 21 months that included the previous convictions. Allowing for the fact that most of Mr Shedden’s previous convictions occurred some time ago, but also recognising the fact that there were considerably more of them than in Tioke, I find that an appropriate starting point is two years. That is to be subject to an uplift of three months to reflect the fact that Mr Shedden’s offending occurred while he was on parole. From that term of 27 months, Mr Shedden is entitled to a one-third discount to reflect his early guilty plea, producing a final sentence of 18 months.
[11] The appeal is allowed. The sentences are quashed and substituted by concurrent sentences of 18 months on each charge.
P Courtney J
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