Sinclair v Police
[2020] NZHC 3091
•23 November 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000062
[2020] NZHC 3091
BETWEEN MATT DYLAN SINCLAIR
Appellant
AND
NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS
Respondents
Hearing: 18 November 2020 Appearances:
C G Nolan for Appellant
P N M Brown for Respondents
Judgment:
23 November 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 23 November 2020 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date…23 November 2020
Introduction
[1] On 21 April 2020 Judge Garland sentenced Matt Sinclair to three years and four months’ imprisonment on a number of charges: one of burglary, 10 of theft, two of dishonest use of a document, one of attempted dishonest use of a document, three of intentional damage, two of breach of District Court bail and one of breaching his
SINCLAIR v NEW ZEALAND POLICE [2020] NZHC 3091 [23 November 2020]
release conditions.1 He appeals his sentence on the basis it is manifestly excessive because the Judge’s uplift for previous convictions was too high, and the Judge wrongly declined to make any discounts for addiction, deprivation and remorse.
Facts
[2] The ten theft charges relate to thefts between 17 February 2019 and 21 December 2019. Mr Sinclair stole petrol, liquor and beer, clothing, and electrical equipment from nine different businesses and two individuals. The value of the items stolen was over $10,000.
[3] Mr Sinclair was convicted for the dishonest use of a document charges and attempted dishonest use of a document charges between 5 March 2019 and 10 July 2019. In this period on three separate occasions he broke into unattended cars and stole either bank or petrol cards which he used or attempted to use to purchase petrol.
[4] The two charges of breaching District Court bail and one of breaching his release condition relate to Mr Sinclair’s failure to answer district Court bail on both 5 June 2019, and 1 November 2019 and his failure to report to the Parole Board on 6 June 2019 as required as a condition of his release on a previous burglary charge.
[5] The intentional damage charges relate to an incident on 18 March 2019 when a police patrol car spotted Mr Sinclair in Timaru standing next to a car that they ascertained had false plates. When the police approached the car Mr Sinclair entered the front passenger seat of the vehicle and his associate drove away. The police activated their red and blue flashing lights, but Mr Sinclair’s vehicle sped away. The patrol car pursued the vehicle and in an attempt to stop the patrol car Mr Sinclair threw Z nails onto the road at an intersection. The Z nails punctured two of the patrol car’s tyres and two other road users suffered tyre punctures.
[6] The burglary charge was committed on 26 December 2019. In the late afternoon Mr Sinclair climbed over a fence into the rear courtyard of a clothing store
1 Police v Sinclair [2020] NZC 6717.
on Bryndwr Road. The shop was closed but some of the clothing was in the courtyard secured by a padlocked plastic windbreak. Mr Sinclair pulled up the plastic windbreak causing the zip to break, he took 14 shirts, a pair of Timberland shoes and a brown bag. The items were worth $1,190 and the damage will cost around $200 to repair.
District Court decision
[7] Judge Garland first considered Mr Sinclair’s personal circumstances. The Judge noted at a young age Mr Sinclair was involved with an allegation which placed him in an environment where offending was likely to occur. Judge Garland recognised the submissions for Mr Sinclair that he had genuine remorse, was receiving counselling and needed to address his methamphetamine addiction as much of his drug addiction was due to self-medication to address past trauma. The probation officer in his report noted there was no evidence Mr Sinclair had empathy towards his victims or the emotional component necessary for remorse.
[8] However, the Judge also recognised Mr Sinclair continued to offend as an adult, has amassed 41 charges over 16 years all of a similar nature, and has spent a significant time in an institutional system. Peer association, lifestyle and offending supportive attitudes continued to influence Mr Sinclair to offend. The Judge acknowledged Mr Sinclair’s desire to turn things around but referred to the fact Mr Sinclair had previously expressed similar desires but faced real difficulty in breaking the cycle.
[9] The Judge considered the various options available to Mr Sinclair. The probation officer recommended Odyssey House (although admissions had been placed on hold due to COVID-19). There were also various rehabilitative programs available to him in prison.
[10] Judge Garland considered the 10-month period where Mr Sinclair committed 21 separate offences many whilst on bail were premeditated and calculated. He took the burglary as the lead offences and noted it was a vulnerable commercial premises. Mr Sinclair’s previous theft from the same premises was an aggravating factor leading to a starting point of 18 months’ imprisonment for that shoplifting and burglary charge.
[11] The Judge provided a starting point of 18 months for the remaining dishonesty offending involving property worth $8000. A starting point of three months’ imprisonment was taken for the wilful damage charges and a starting point of three months’ imprisonment for the breach of District Court bail and breach of release conditions was also adopted. This provided an overall starting point of three and a half years’ imprisonment. The Judge provided an uplift of one year to account for Mr Sinclair’s history of dishonesty offending including 18 convictions for burglary, two for receiving stolen property, some convictions for theft and four convictions for breaching release conditions and offending on bail.
[12] Judge Garland then provided a reduction of 14 months for Mr Sinclair’s guilty plea despite the late entry of the plea, leading to an overall sentence of three years and four months’ imprisonment. The Judge also imposed concurrent sentences of imprisonment on the remaining charges.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.5
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 Skipper v R [2011] NZCA 250 at [28].
Submissions
Appellant’s submissions
[14] Mr Nolan, for Mr Sinclair, submits the 12-month uplift for Mr Sinclair’s previous convictions was excessive as the Judge took into account some of Mr Sinclair’s previous convictions which are unhelpful to the sentencing exercise. Fourteen of the burglary convictions were historic. Citing Beckham v R, Mr Nolan submits a previous conviction does not justify an increase in sentence.6 Mr Nolan also cites Wipa v R which stated:7
[a] sentence ought to be based primarily on the facts of the offence for which the offender is being sentenced; any uplift must be kept in proportion; and the sentence must not be increased merely because of a previous conviction, for that would be to increase the sentence imposed on the previous occasion.
For these reasons Mr Nolan submits the uplift of 12 months for previous history was too high in the circumstance.
[15] Mr Nolan submits Judge Garland did not take into account Mr Sinclair’s personal mitigating factors related to addiction, deprivation and remorse and these factors warrant a 30 per cent reduction in the sentence. First Mr Nolan submits there is a causative link between Mr Sinclair’s offending8 and his addiction and the current offending was due to a relapse into his methamphetamine addiction but that he has shown insight into his substance abuse and need to address past trauma. He has taken advantage of an Odyssey House Programme, has been approved re-entry on release and has good prospects of rehabilitation.
[16] Second, Mr Nolan submits the circumstances of Mr Sinclair’s upbringing warrant a significant discount, he suffered a traumatic event aged 14, was placed in a Boys Home where he suffered abuse and this trauma impacted on his mental health. Mr Sinclair developed Post Traumatic Stress Disorder which perpetuates his drug use.
6 Beckham v R [2012] NZCA 290 at [84].
7 Wipa v R [2018] NZCA 219 at [26] footnotes omitted.
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [144]-[149].
[17] Third, Mr Nolan submits if a Judge finds genuine remorse is demonstrated then sentencing credit should be given separately from the guilty plea credit.9 As Mr Sinclair sought restorative justice with his victims, has expressed genuine remorse by wishing to apologise and has sent a letter to the Court, genuine remorse has been shown.
[18]Mr Nolan therefore submits the appropriate sentence to be:
(a)a starting point of 18 months’ imprisonment for the burglary charges;
(b)an uplift of 18 months on the remaining charges;
(c)an uplift of three months for offending for previous convictions;
(d)a credit for personal mitigating factors of 30 per cent; and
(e)a 20 per cent credit for a guilty plea.
This calculation provides an end sentence of 24 months’ imprisonment with leave to apply for a sentence of home detention to a residential drug programme.
Respondent’s submissions
[19] Ms Brown submits the starting point of three years and six months was within range as the burglary could have attracted an 18 month starting point in isolation,10 the further 18 months for the 13 dishonesty offences including three thefts over $1000 and charges of using a document was within range, and the uplifts for the wilful damage, breaching release conditions and failing to answer bail charges, while stern, were not manifestly excessive. Any interference, she submits, would amount to tinkering.
[20] Addressing the uplift for previous convictions, Ms Brown submits the Court of Appeal has noted.11
9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
10 Senior v Police (2000) 18 CRNZ 340 (HC); Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]; Stepanicic v R [2015] NZCA 211.
11 Ripia v R [2011] NZCA 101 at [10].
[t]he extent then to which such convictions are taken into account, and the manner in which they are taken into account, is a matter initially for the sentencing judge. On appeal, an assessment of the judge’s evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.
[21] Mr Sinclair has four convictions for breaching release conditions and bail, two for receiving, two for theft and 22 for burglary. While acknowledging Mr Sinclair’s youth at the time he committed 18 burglaries between 2003 and 2004, Ms Brown submits for the four other burglaries committed from 2006 to 2016 he was between 20 and 30 years old with limited gaps between periods of imprisonment. Mr Sinclair was on release conditions for his 2016 burglary conviction at the time of the current offending. Ms Brown submits previous dishonesty convictions have often been treated as a component of burglary because they are directly relevant to assessing an offender’s culpability.12 Care must be taken not to double count13 but substantial uplifts have frequently been upheld in cases of recidivist burglars.14
[22] For these reasons Ms Brown submits the starting point of 42 months’ imprisonment was not too high and an uplift of 12 months was proportionate to the sentence as a whole. It does not amount to further punishment from his previous offending.
[23] Turning to personal mitigating features, Ms Brown acknowledges the information about Mr Sinclair’s personal circumstances but submits it was within the Judge’s discretion not to afford credit. The Judge clearly considered them as he made reference to Mr Sinclair’s substance abuse issues,15 history of trauma16 and rehabilitation options.17 Ms Brown rejects that any discount for remorse was available as his remorse was questioned by the probation officer. Ms Brown submits even if the Judge had exercised his discretion and applied some credit, stepping back and looking at the sentence as a whole it is unlikely to have made a significant discount.
12 Senior v Police, above n 10 at [27]-[30].
13 Singh v R [2011] NZCA 139 at [15].
14 R v Columbus [2008] NZCA 192 at [14]-[15].
15 Police v Sinclair, above n 1, at [5].
16 At [5].
17 At [6] and [8].
[24] Taking those factors into account Ms Brown submits the end sentence was within range and the appeal should be dismissed.
Analysis
Starting point
[25] There was no dispute that the burglary was the lead charge, nor was there any particular challenge taken to the starting point of 18 months on that charge. Given the burglary involved a commercial building, it was premediated, the goods stolen were high value, there was damage to the property of the business, and he targeted the same business twice, the starting point of 18 months for this charge was appropriate.
[26] Mr Nolan suggests an uplift of 18 months should have been adopted on all other charges. However, I consider the uplift of 18 months for the 13 other dishonesty offences was within range given they were discrete offences where items of significant value were taken. This takes into account the number of offences that were committed over a protracted period, and the fact that many were calculated and premeditated.
[27] The wilful damage charges involved the use of Z nails to puncture the tyres of patrol vehicles to evade the police. I consider Mr Sinclair’s actions in throwing the Z nails could have endangered both the police and other road users. Again, I consider a three-month uplift for the wilful damage charges was within range.
[28] Finally I consider, the uplift of three months to account for Mr Sinclair’s repeated failure to answer District Court bail and his failure to comply with release conditions was within range. As a comparator, the Court of Appeal in Stepanicic applied an uplift of four months to a two year sentence for burglary to account for the fact Mr Stepanicic was on bail for other offending.18 I therefore consider the global starting point of three and a half years’ imprisonment was appropriate.
18 R v Stepanicic, above n 10, at [10].
Uplift for previous convictions
[29] At the heart of the appeal is the appropriate uplift for previous offending and the appropriate discount for Mr Sinclair’s personal factors.
[30] I accept Mr Nolan’s submission that as noted in Wipa v R any uplift must be kept in proportion and the sentence should not be increased just based on the fact of previous conviction. It is also important in burglary cases not to double count. However, it is appropriate that an uplift be applied where the previous convictions are relevant.
[31] When discussing uplifts for previous dishonesty convictions in a burglary context in Renata v Police Justice Lang noted:19
[13] The learned authors of Adams on Criminal Law describe uplifts of up to 25 per cent as "common" in this context.20 Case law supports higher uplifts in relation to offences of dishonesty. Andrews J adopted a 40 per cent uplift in King v Police;21 whilst Panckhurst J a 50 per cent uplift in Samuels v Police although the offending in that case occurred whilst the offender was on parole.22An uplift of 66 per cent was employed by the Court of Appeal in R v Columbus.23 Although I accept another Judge may well have applied a lesser uplift, the cases show that the uplift of 26 per cent was not outside the available range.
[32] Here Mr Sinclair has a significant history of burglary offending. While some is historic, as Ms Brown points out he has three recent previous convictions in 2013 and 2016 for burglaries. These occurred when Mr Sinclair was an adult. Mr Sinclair also has three recent convictions for breaching post detention conditions and other relevant dishonesty offending including a theft conviction in 2014 and two receiving stolen property charges in 2016. Mr Sinclair was also subject to release conditions from his 2016 burglary sentence when he committed this offending starting in early 2019.
[33] Here the Judge adopted an uplift of 12 months on an overall starting point of three and a half years’ imprisonment which represents an uplift of 28 per cent. In King
19 Renata v Police [2018] NZHC 2673.
20 Simon France (ed) Adams on Criminal Law (online ed, Westlaw) [at SA9.15(6)].
21 King v Police [2014] NZHC 2946.
22 Samuels v Police [2014] NZHC 1134.
23 R v Columbus, above n 14.
v Police, the starting point for Mr King’s burglary offending was reduced to two and a half years, but the Court of Appeal accepted that a 12 month uplift to account for Mr King’s previous burglary and dishonesty convictions was appropriate.24
[34] Like Mr Sinclair, Mr King had a history of burglary offending (45 previous convictions) but it was mostly historic from the early 1990s. Mr King only had two recent burglary convictions from 2008 and 2005. While just a single example, I consider it confirms that the uplift in this case was not out of range, particularly having regard to the analysis in Renata v Police.25
Discount for personal factors
[35] In determining the correct sentence, a judge must consider the personal circumstances of the offender including their personal family, whānau, community and cultural background.26 While personal deprivation is not a specific mitigating factor in s 9 Sentencing Act 2002 the Court is entitled to consider “any other aggravating or mitigating factor [it] thinks fit”.27 Zhang v R noted that the moral culpability of the offending may be diminished in the case of causative addiction.28 Here, as noted by the trial judge and the pre-sentence report writer, Mr Sinclair uses methamphetamine to address past trauma. This self-medicating via methamphetamine makes the cycle of drug use “hard to break”. In a letter to the court Mr Sinclair stated he offended to purchase the methamphetamine to feed his addiction. While he has previously engaged with programmes with Odyssey House he relapsed due to a recent trauma. Mr Sinclair stated he was spending $200-$300 a day on methamphetamine.
[36] It is clear the sentencing Judge was aware of these factors in his sentencing. However, given the evidence that methamphetamine drove his offending and that his addiction was linked to his background and past trauma, I consider Mr Sinclair should have received a discount for these relevant factors. I consider a 10 per cent discount for personal mitigating factors was warranted.
24 King v Police, above n 22.
25 Renata v Police, above n 19.
26 Sentencing Act 2002 s 8(i).
27 Section 9(4)(a).
28 Zhang v R, above n 8, at [137]-[138].
[37] I do not, however, consider Mr Sinclair has reached the threshold where an independent discount for remorse was warranted. As ruled by the sentencing Judge:29
While saying he regretted his actions, the probation officer opined that there was a lack of emotional component which would identify Mr Sinclair as being remorseful. The probation officer says there is no evidence of empathy towards the victims of his offending, even though he had been in custody for several months at the time the report was written and had had time to reflect on the impact of his offending on the victims.
Guilty plea discount
[38] While no issue was taken with the guilty plea discount, I consider it is relevant to the question of whether the end sentence was within range. Given the relatively late entry of a guilty plea, I consider a 20 per cent discount on the starting point would have been appropriate. However, the Judge gave a discount of 14 months. If this is taken as a percentage of the starting point, following the sentencing methodology in Moses, it represents a discount for a guilty plea of 33 per cent.30 That is well beyond the available range confirmed in Hessell.31
Overall end sentence
[39] While I consider the Judge should have applied a discount for personal mitigating factors, and I would have applied a discount of 10 per cent, I must take into account the particularly generous discount for Mr Sinclair’s guilty plea, as the question on appeal is whether the end sentence is manifestly excessive. Using the Moses methodology, if I uplift the sentence of three years six months by 12 months for prior convictions (or 28.6 per cent) as the Judge did, but then reduce it by 30 per cent (being the 10 per cent discount for personal factors and 20 per cent for guilty plea), there would be a reduction on the starting point sentence of three years six months of
1.4 per cent, or just over two weeks.
[40] I am satisfied that the difference between this sentence and the sentence imposed is not sufficiently material to warrant intervention by this Court and the end sentence was not manifestly excessive.
29 Police v Sinclair, above n 1, at [6].
30 Moses v R [2020] NZCA 276, (2020) 29 CRNZ 381.
31 Hessell v R, above n 9, at [75].
[41]Accordingly, the appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
C Nolan, Barrister, Christchurch
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