Sila v Police

[2012] NZHC 1982

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-157 [2012] NZHC 1982

RHYS DANIEL SILA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 July 2012

Appearances: J Moroney for the appellant

S Locke for the respondent

Judgment:      8 August 2012

JUDGMENT OF CLIFFORD J

Introduction

[1]      The  appellant,  Mr  Rhys  Sila,  pleaded  guilty  to  charges  of  burglary, threatening to kill, breach of intensive supervision and breach of community work. Mr Sila was sentenced by Judge Dawson in the District Court at North Shore on

24 April 2012 to 22 months’ imprisonment.[1]    Mr Sila now appeals that sentence as

being manifestly excessive.

Mr Sila’s offending – facts

[1] R v Sila DC North Shore CRI-2011-044-007903, 24 April 2012.

[2]      At about 11.35pm on Saturday 5 November 2011 Mr Sila was driven by associates to his former partner’s address at Snells Beach, where she and their seven

SILA v POLICE HC AK CRI-2012-404-157 [8 August 2012]

month old baby were asleep.  Also asleep in her bed was a 17 year old friend who was visiting for the night and her six month old baby.   Mr Sila entered the house through a closed and unlocked ranch slider door, went into his   former partner’s bedroom and stood over her as she was sleeping.  Mr Sila woke her up.  At the time, Mr Sila was holding a black handled knife with a smooth blade some 10 to 15 centimetres long in his right hand in front of his body, clearly showing it to his former partner.

[3]      Mr Sila asked his former partner who was sleeping next to her.  She pulled the blankets back, showing Mr Sila that it was her friend.  Mr Sila then said “You’re fucking lucky.  I was going to go to jail and kill you tonight”.

[4]      Mr Sila then walked into the bedroom where his daughter was sleeping. When informed by his former partner that the police had been called Mr Sila said: “If I ever see a guy here I am going to kill you and kill him”.

[5]      Mr Sila then left the address with his associates.

[6]      Those events gave rise to the charges of burglary and threatening to kill.

[7]      On 16 August 2011, Mr Sila was sentenced to 185 hours’ community work following  an  earlier  breach  of  a  sentence  of  community work  which  had  been imposed for unpaid fines.   Having completed some 50 hours of that sentence, he failed to report on 5 October 2011.   It appears he had lost his licence.   He subsequently failed to report on two further occasions.  These events gave rise to the breach of community work charge for which he was sentenced by Judge Dawson and

which he now appeals.[2]

[2] I note there is currently a lack of clarity around those convictions as neither of them appear on

Mr Sila’s New Zealand Police Criminal History, as they ought to.   I issued a minute on 26 July

2012 asking for the position to be clarified by the Crown.   In response the Crown filed a memorandum advising that the sentence under appeal here was recorded on the Department of Correction’s criminal history for Mr Sila, but that the earlier similar conviction was not.  The Crown was endeavouring to have the records corrected.  In that memorandum the Crown also recorded advice from the Community Probation Service that it was likely that on 16 August Mr Sila’s original sentence would have been cancelled, and the 185 hours imposed would have included any outstanding hours, plus a punitive element of perhaps 40 hours for the breach itself.

[8]      On  7  October  2011  Mr  Sila  was  sentenced  to  one  year  of  intensive supervision on charges of disorderly behaviour (x 2), theft (x 1), common assault (x 4), assaulting a police officer, resisting a police officer and driving with excess breath alcohol.  Mr Sila failed to report as ordered to the Warkworth District Court on 25 October 2011.  When subsequently contacted on 28 October he reported – as directed, to that Court that day.   That event gave rise to the breach of intensive supervision charge.

The sentencing decision

[9]      In sentencing Mr Sila, the Judge, having set out the facts relating to the offending  in  question,  noted  Mr  Sila’s  previous  criminal  history.[3]      The  Judge referred, in error the Crown accepts, to Mr Sila having removed an electronic monitoring device to enable him to commit this offending.   The Judge noted the aggravating factors of Mr Sila’s offending, being in particular the unlawful entry into domestic premises at night, the carrying of a weapon and the threat to kill.   The Judge  also  referred  separately  to  the  aggravating  factors  of  Mr Sila’s  previous convictions and the mitigating factor of his guilty pleas.  The Judge then determined the sentence for Mr Sila’s burglary and threatening to kill offending in this way:[4]

[3] Mr Sila’s pre-sentence report states that his former partner, the victim here, was also the victim of two of Mr Sila’s male assaults female convictions.  That matter was not referred to in the statement of facts to which Mr Sila pleaded guilty, nor by the Judge when sentencing him.  I have, therefore, not had regard to that matter either.

[4] At [12]-[13].

...After taking the submissions from the Crown and defence into account in the cases that I have referred to, I am of the view that a starting point to sentence you would be a sentence of imprisonment of 18 months. After then taking into account the aggravating factors to be appropriate to increase that sentence to one of two years, then apply a 25 percent discount for your early guilty pleas and convict and sentence you to a term of imprisonment for

18 months for the burglary charge.   The standard release conditions will apply for six months after your sentence completion date.   Your fines of

$5284.07 are remitted in full so that you can leave prison with a clean slate,

hopefully not to go back there.

On the charge of threatening to kill, you are convicted and sentenced to 18

months’ imprisonment to be served concurrently.

[10]     As a final step, the Judge – cancelling the underlying sentences – imposed cumulative sentences of two months on each of the breach of community work and

breach of supervision charges, thus arriving – without any guilty plea discount for those cumulative sentences – at a total sentence of 22 months’ imprisonment.

Mr Sila’s appeal

[11]     In his written submissions, Mr Moroney advanced Mr Sila’s appeal on a number  of  points,  including  that  the  Judge  had  had  before  him  an  erroneous statement of facts.  Before me, Mr Moroney accepted that that was not correct.  As argued, Mr Moroney – appropriately in my view – limited his submissions to one point.   For Mr Sila, Mr Moroney accepted that sentences of 18 months for the burglary and threatening to kill offending were appropriate, but  argued that the cumulative uplift of four months on account of the two breach charges was not.  That uplift had caused the overall sentence to be manifestly excessive.

[12]     For the Crown, Ms Locke – again appropriately in my view – acknowledged at the hearing that the Crown could not defend that cumulative four month uplift for the breach offending as there was no significant history of previous similar offending and the breaches involved had been relatively minor.   The Crown’s written submissions had considered those uplifts to be available.  At the hearing the Crown instead argued that the end sentence of 22 months was not manifestly excessive when regard was had to the criminality of Mr Sila’s offending and to the aggravating factors  present.    Ms  Locke’s  argument  was  that  a  starting  point  sentence  for Mr Sila’s offending taken overall, but before uplift for aggravating factors personal to him, in the vicinity of 22 or 23 months would be appropriate.   The personal aggravating  factors  of  Mr  Sila’s  previous  convictions  and  his  offending  whilst subject to a sentence of supervision called for an uplift of seven or six months.  That resulted in a 29 month sentence before allowing a 25 per cent discount for Mr Sila’s guilty pleas.  In that way, the 22 month sentence was argued to be within range.

Analysis

[13]     It is well established that the focus of the appellate Court should be on the appropriateness of the end sentence rather than the means by which the sentencing Court has arrived at its decision.  Here, given the somewhat unorthodox approach of

the Judge and the way this appeal was argued, I need in effect to undertake a fresh sentencing  exercise  to  assess  whether  that  end  sentence  here  was,  as  Mr Sila contends, manifestly excessive.

[14]     When sentencing for burglary offending, it is usual to refer to authority such as the Court of Appeal decision of R v Columbus and the High Court decision of Senior v Police.[5]    These decisions analyse the seriousness of burglary offending by reference to the more usual case of burglary where the intent is to steal property. Relevant, therefore, in  assessing a sentence will be the offender’s previous like offending (if any) and, in particular, whether the offender is to be regarded as a

recidivist burglar and, if so, just how extensive the offender’s previous record of burglary offending is.   Reference is also made to “spree” offending.   When considering authority on burglary offending, it is also to be remembered that not infrequently starting point sentences have, in the past, taken account of previous burglary offending.

[5] R v Columbus [2008] NZCA 192; Senior v Police (2000) 18 CRNZ 340.

[15]     Whilst Mr Sila should be treated as a first time burglar, it is clear that his offending does not easily fit within the patterns of offending to which those decisions are directed.  Mr Sila did not unlawfully go onto his former partner’s property with the intent of stealing from her, but rather with violence on his mind.

[16]     Mr Sila’s offending can, perhaps, be considered in two ways:

(a)      first, it can be regarded as threatening to kill offending, aggravated by the feature of unlawful entry into a domestic dwelling house at night; or

(b)secondly, it can be regarded as burglary offending where aggravating factors of the offending include the entry into a domestic dwelling at night, further aggravated by the additional offending involved in the

threatening to kill.

[17]     Considered as threatening to kill offending – absent the factor of unlawful entry - a sentence of some 12 months would be appropriate,[6] having regard to:

[6] Allan  v  Police  HC  Dunedin CRI-2011-412-37, 1  December 2011;  R  v  Penney CA 24/04,

4 August 2004; Waldron v Police [2012] NZHC 1674; McKinlay v Police HC Rotorua CRI-

2011-470-28, 28 November 2011.

(a)      the premeditated nature of the threat, as Mr Sila went to the victim’s home with the intent of threatening her and any male that may be staying with her;

(b)there was a degree of specificity and precision to the threat – in that it was targeted as Mr Sila’s former partner, with whom there is some history of violence; and

(c)      there was a knife present which obviously elevated the seriousness of the threat.

[18]     Regarded as burglary offending – absent the threat to kill – a starting point sentence in the vicinity perhaps of 18 months would be appropriate having regard to the fact that Mr Sila would be considered as a first time burglary offender,[7] where the burglar offending involved the following features:

[7] See Brown v Police [2012] NZHC 396; R v Wilson [2012] NZHC 65; Dickerson v Police HC Wanganui CRI-2010-483-49, 1 September 2010; Police v Vincent DC Palmerston North CRI-

2008-054-004634, 21 April 2009.

(a)      the  property  was  a  residential  dwelling,[8]   and  was  occupied  by Mr Sila’s former partner, their baby and another young woman and child;

[8] I note that s 9(1)(b) of the Sentencing Act 2002 provides unlawful entry into the dwelling house is expressly stated to be an aggravating feature.

(b)      the offending occurred at night in the victim’s room while she slept;

and

(c)       the act of unlawfully entering the premises was premeditated with

associates driving the appellant to the victim’s home.

[19]    Bearing in mind those separate starting point sentences, and the overall criminality  of  Mr Sila’s  offending,  I  consider  that  a  starting  point  sentence  of

22 months, the lower end of the Crown’s suggested range, responds appropriately to the totality of that burglary and threatening to kill offending.

[20]     The breach charges are relatively minor and as the Crown conceded, partially due to the uncertainty around these charges, no uplift is necessary.

[21]     Given Mr Sila’s criminal history (including eight offences related to violence and four minor property offences) and the fact that he was serving a sentence of intensive supervision at the time of the offending, a further uplift of two months is appropriate resulting in an overall starting point of 24 months.  An uplift of six to seven months, as suggested by the Crown for these factors, would be excessive.

[22]     Finally,  as  acknowledged  by  both  counsel,  a  discount  of  25  per  cent  is

appropriate for Mr Sila’s guilty pleas.

[23]     That results in an end sentence of 18 months’ imprisonment.  Given this is the appropriate sentence, in my view the sentence of 22 months’ imprisonment is outside the appropriate range and is manifestly excessive.

Result

[24]     The appeal is allowed.  The sentence of 22 months’ imprisonment is quashed and concurrent sentences of 18 months’ imprisonment are substituted on each of the charges of burglary and threatening to kill and of one month’s imprisonment are substituted on each of the breach charges.

“Clifford J”

Solicitors:

Thode Utting & Co, Albany, Auckland for the appellant ([email protected]) Meredith Connell, Auckland for the respondent ([email protected])