Skipper v Police
[2012] NZHC 783
•26 April 2012
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2012-441-6 [2012] NZHC 783
MICHAEL MONTY SKIPPER
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2012
Counsel: MJ Phelps for Appellant
CR Walker for Respondent
Judgment: 26 April 2012
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 26 April 2012 at 4:20 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
MJ Phelps, Barrister, Snell AJS, Hastings: [email protected]
CR Walker, Elvidge & Partners, Napier: [email protected]
SKIPPER V NEW ZEALAND POLICE HC NAP CRI-2012-441-6 [26 April 2012]
[1] Michael Monty Skipper has appealed against an effective sentence of three years nine months' imprisonment imposed on him by Judge Rea in the District Court at Hastings on 1 February 2012, following his guilty pleas to two charges of burglary, three charges of interfering with a motor vehicle, one charge of unlawfully taking a motor vehicle and one charge under the Sentencing Act 2002 (“the Act”) of breaching release conditions.
[2] He also appeals against the imposition by the Judge, under s 86 of the Act, of a minimum period of imprisonment of two years four months.
Background
[3] The convictions arose from a spate of offending in late 2011. On one occasion, Mr Skipper forced his way through the rear window of a liquor store, using tools brought for the purpose. He took two bottles of whiskey and cartons of RTDs, before dropping the alcohol when he was seen by a member of the public.
[4] Later that morning he attempted to gain entry to a Honda vehicle by smashing the rear driver’s side window, fleeing the scene immediately but intending to return to steal the car.
[5] On another occasion, Mr Skipper forced his way into a school to which he had close connections, including being a former pupil, again using tools brought for the purpose. Once inside, he jemmied open a number of doors looking for electronic equipment. Laptops, computer screens, Apple iBooks and other computer equipment to the value of $40,000 were taken and more than $8,000 worth of damage was caused during the burglary. Mr Skipper then attempted to use a motor vehicle he found at the school to transport the stolen equipment away. The property was sold for $2,500.
[6] By any measure, this was a serious burglary which not only caused
considerable damage to the school’s property but also must have involved
considerable disruption through the loss of a considerable amount of computer equipment, and distress to the pupils.
[7] All of the offending was committed while the appellant was subject to prison release conditions, having been sentenced to a term of imprisonment for aggravated robbery. The breach was the appellant’s failure to report to his probation officer as required.
[8] Although he initially denied involvement in any of the offending when apprehended by the Police, the appellant pleaded guilty to all charges at an early stage.
The District Court Judge’s approach to sentencing
[9] After setting out the facts of what he described as “appalling” offending, the Judge took the burglary of the school as the lead charge. He adopted a starting point of three and a half years’ imprisonment, noting the large amount of damage caused, the value of the equipment stolen, and the likely emotional harm caused to the pupils of the school. Taking into account the other offending to which the appellant had pleaded guilty, the Judge applied an uplift of 18 months to reach a global starting point of five years’ imprisonment.
[10] In considering personal factors relevant to the appellant, the Judge concluded that it would not be appropriate to impose a further uplift to reflect the appellant’s criminal record and that he had committed the offences while subject to release conditions. The Judge then applied a 25 percent discount on account of Mr Skipper’s early guilty plea, arriving at an end sentence of three years’ and nine months imprisonment for the burglary of the school. Concurrent lesser sentences were imposed on the remaining charges, including 18 months’ imprisonment on the burglary of the liquor store and nine months’ imprisonment on each of the other charges. The Judge noted that there was no prospect of reparation being paid.
[11] The Judge then said:1
[19] This is a case where I consider that s 86 of the Sentencing Act 2002 applies and that a minimum non-parole period needs to be imposed upon you. I consider that it is necessary for the protection of the community and that is evidenced by the nature of this offending committed while you were on release conditions, and I also think it is needed to bring home to you and others that if you are engaged in this sort of activity at the level that you have, that there is a price to pay for it.
[20] I consider that the minimum non-parole period to be imposed on the
burglary of the school is two years and four months’ imprisonment.
The effect of the order under s 86(1) of the Act was to increase, from 15 months to
28 months, the period of imprisonment which the appellant must serve before he becomes eligible for parole. The minimum period imposed is only two months less than the longest minimum period available to the Judge.2
The appellant’s submissions on appeal
[12] For the appellant, Mr Phelps argued:
(a) that the starting point of three years six months’ imprisonment on the
lead burglary charge was too high;
(b)that an unnecessary uplift was imposed by the Judge in respect of the burglary charges; and
(c) that a minimum period of imprisonment should not have been imposed.
[13] As to the starting point, Mr Phelps argued that the authorities discussed by the Court of Appeal in R v Harrison3 indicated that a starting point of two to two- and-a-half years’ imprisonment would have been more appropriate, and that any
uplift should not have exceeded 12 months.
1 Police v Skipper DC Hastings CRI-2011-020-4063 1 February 2012.
2 Sentencing Act 2002, s 86(4).
3 R v Harrison [2011] NZCA 80.
[14] Mr Phelps submitted that the appellant’s youth (he was aged 21 at the time of the offending); his motivation to change; and the acceptance of responsibility, all indicated that a minimum period of imprisonment was not appropriate. He pointed out that the appellant is not a recidivist offender and argued that the offending was not sufficiently serious to meet the criteria in s 86(2) of the Act.
Submissions on behalf of the Police
[15] For the Crown, Mr Walker described the burglary as a very serious offence of its type, arguing that it was devastating to the local community, particularly its young people, and that the appellant’s connections to the school were an aggravating feature. He noted the appellant’s inability to pay reparation and submitted that the other offending which caused loss and disruption to five other victims required an uplift. He also submitted that an uplift was justified by the commission of the offending on parole following imprisonment for a serious offence. Mr Walker submitted also that the cases cited by the appellant supported the approach taken by the District Court Judge to the imposition of the end sentence.
[16] As to the appeal against the imposition of a minimum term, Mr Walker submitted that it was clear that the appellant had been engaged in a persistent course of criminal behaviour since March 2009, as follows:
(a) the appellant offended on 29 March 2009 and was sentenced seven weeks later on 21 May 2009;
(b) five weeks later he offended again and was sentenced on
23 July 2009;
(c) five weeks later he offended again and was sentenced on
16 September 2009;
(d)three weeks and five weeks later he offended again, two weeks later breached bail and was sentenced on 24 November 2009;
(e) whilst on bail on 16 November 2009 he offended again and was sentenced on 15 February 2010;
(f) four weeks later he breaches his sentence of community work and was sentenced on 22 April 2011;
(g) three weeks later he breached community work again;
(h)a month later he committed an aggravated robbery for which he was sentenced on 10 September 2010;
(i) he was released on parole on 6 April 2011; and
(j) whilst on parole conditions he then offended on 24 October,
16 November, 20 November and 30 November 2011.
[17] In Mr Walker’s submission, the minimum period imposed was necessary to give adequate recognition to the need for accountability, denunciation, and deterrence. He emphasised that the persistent offending by the appellant over the past three years demonstrated the need for community protection.4
This Court’s approach on appeal
[18] The general approach to appeals against sentence has been to treat them as an appeal against a discretion. It has been held that sentencing should not be approached afresh on appeal and that:5
[T]he Supreme Court intended to exclude appeals against the exercise of discretions from the approach enunciated in [Austin Nichols & Co Inc v Stichting Lodestar].6 In those circumstances, the orthodox and time- honoured approach to appeals against discretionary decisions remains intact.
[19] On this approach, the principles enunciated in May v May7 continue to apply.
4 Sentencing Act 2002, s 86(2)(d).
5 D v Police [2008] BCL 954 at [39].
6 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141; (2008) 8
NZBLC 102,172 (SCNZ)].
7 May v May [1982] 1 NZFLR 165
[20] As the Court observed in R v Kingi:8
In the end ... it may not make much difference how the approach is characterised; an appellate court will interfere if satisfied that the lower court has erred in its approach and produced an outcome which falls outside the range of sentences, or the type of sentence, which was properly available.
Sentencing for burglary
[21] Guidance on burglary sentencing has been provided by a full bench of this Court in Senior v Police9 and by the Court of Appeal in R v Columbus.10 In Senior, the Court described three categories of burglar:
(a) the first time burglar;
(b) the recidivist burglar; and
(c) the spree burglar.
[22] Although the guidance on sentencing levels is very general, Senior does suggest that a starting point of three years’ imprisonment, before uplift for prior offending, is high for an offender falling between categories one and two, which is where the offending put this appellant. Senior v Police indicates that a starting point of four years’ imprisonment is high for a recidivist burglar, and that takes into account prior offending.
[23] In R v Columbus it was said that sentencing for burglary should follow the normal approach:11
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.
8 R v Kingi HC Auckland CRI-2011-404-255, 17 October 2011.
9 Senior v Police (2000) 18 CRNZ 340
10 R v Columbus [2008] NZCA 19211 At [13].
Relevant cases
[24] In Harrison,12 referred to by the appellant, the Court of Appeal upheld a starting point of four years and a final sentence of three years eight months’ imprisonment for four burglaries involving property worth some $66,000 taken from residential homes.
[25] The Court made reference to a number of other cases which the appellant relies on as justifying a lower starting point in the instant case.
[26] Swinburne v R13 involved four burglaries of homes and property valued at
$13,500. The Court of Appeal upheld a final sentence of two years eight months, finding that the starting point of three years six months’ imprisonment was justified.
[27] In Marsh v R14 three residential burglaries, and one attempted burglary, committed while subject to release conditions, had involved property valued at over
$90,000. An appeal against a sentence of three years and nine months was dismissed, the Court finding the starting point of five years’ imprisonment to be “well within the range available”.
[28] In R v Sherlock15 property to the value of $45,000 was stolen from three residential properties two months after S had been released from prison. The Court rejected a submission that a starting point of four years was too high, noting that they were very serious burglaries committed immediately after a period of imprisonment.
Discussion of end sentence
[29] I am not persuaded that Harrison and the cases cited in it provide assistance to the appellant. The starting point of three years six months’ imprisonment imposed on the conviction for burglary of the school is in line with that imposed in Swinburne
where the value of the property stolen was significantly less. That starting point is
12 At above.
13 Swinburne v R [2010] NZCA 568.
14 Marsh v R [2010] NZCA 445.
15 R v Sherlock [2008] NZCA 555
lower than those adopted in Sherlock and Marsh, and in Harrison itself, where the value of the property involved was somewhat higher. I do not accept Mr Phelps’s submission that the property stolen did not have a high monetary value; $40,000 is a significant amount in anyone’s terms and a substantial amount for a school.
[30] I consider also that the burglary of a school, involving the theft of valuable equipment and the causing of considerable damage, can be likened in terms of emotional impact on victims to the burglary of a private home. While there was no risk of confrontation with inhabitants in this case, a school is a place to which pupils and staff have a strong personal attachment; it is a place which should be a safe haven for children. The sense of intrusion and violation is far greater when a school is burgled than when ordinary commercial premises are involved. The offending is more serious on that account, and the Judge rightly gave that aspect some prominence in his reasoning.
[31] I agree with the District Court Judge, therefore, that a starting point of three years six months’ was appropriate. I also consider the Judge was entitled to uplift the sentence to reflect the distinct and quite serious separate offending with the result that, in my view, the global starting point of five years’ imprisonment was an appropriate reflection of the seriousness of the offending overall.
[32] The five years’ global starting point is also justifiable when it is considered that the Judge did not impose any additional uplift on account of the appellant’s previous conviction history or the fact that he was subject to prison release conditions at the time of his offending.
[33] The District Court Judge made no reference to any other personal circumstances which might have been regarded as either mitigating or aggravating factors in determining the appropriate end sentence. The appellant was assessed by the probation officer as presenting a high risk of re-offending. The probation officer also noted that the appellant’s offending appeared to be increasing in seriousness.
[34] The appellant was aged 21 years 10 months at the time of his offending, but the Judge did not refer to his age or make any special allowance for the appellant’s relative youthfulness. As the Court of Appeal of Appeal said in Churchward v R:16
[77] Youth has been held to be relevant to sentencing in the following ways: (a) There are age-related neurological differences between young people
and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including
peer pressure) and may be more impulsive than adults.
(b) The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
(c) Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
[35] But the youth of an offender who is being sentenced for serious offending does not necessarily result in a discount on account of that factor alone. The Court of Appeal said in Pouwhare v R17 that:
[96] ... the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person's part in it, anything aggravating and otherwise mitigating must also be weighed.
[36] The probation officer saw the appellant’s youth as adding to the risk of re- offending, because of his gang associations and the apparent adverse influences from the Mongrel Mob and the appellant’s desire to be accepted by his associates. Nevertheless, it was also considered that the appellant would be susceptible to appropriate psychological interventions, alcohol and drug counselling, and a Tikanga Maori programme.
[37] On balance, I do not think any reduction in the end sentence can be justified on account of the appellant’s youth. I do regard that factor, however, as being relevant to the question of whether a minimum period of imprisonment was appropriate and, if so, for what term.
[38] For these reasons, I consider the end sentence of three years nine months’ imprisonment, after allowing for the guilty pleas, was within the range available to the Judge.
[39] In order to succeed in the appeal, the appellant is required to demonstrate that the end sentence imposed was manifestly excessive, and he has failed to do so.
Minimum period of imprisonment
[40] Pursuant to s 86(1) of the Act, the Court is empowered to impose a minimum period of imprisonment of imprisonment if it is satisfied that the period otherwise applicable under s 84(1) of the Parole Act 2002 is insufficient for all or any of the following purposes:
(a) holding the offender accountable for the harm done to the victim and the community by the offending;
(b) denouncing the conduct in which the offender was involved;
(c) deterring the offender or other persons from committing the same or a similar offence;
(d) protecting the community from the offender.18
[41] By virtue of s 86(4), the longest minimum period which can be imposed is the lesser of 10 years’ imprisonment or two thirds of the final sentence.
[42] In R v Taueki the Court noted:19
The question before the Court is whether serving one third of the nominal sentence is insufficient for all or any of those four purposes [in s 86(2) of the Act]. The Court must focus on those purposes when determining whether to impose a minimum period of imprisonment. The principles in s 8 and the aggravating and mitigating factors in s 9 are applicable only to the extent that they are relevant to those four purposes. For example, as the Court noted
in Walsh20 at [26] - [28], a guilty plea may be relevant to the deterrence purpose (if the plea demonstrates insight into the offending) but may have little relevance to the community protection purpose.
[43] In imposing the minimum period, the District Court Judge addressed the issues of deterrence (both specific and general) and community protection. Had Judge Rea not imposed a minimum period, the appellant would have been eligible for parole after serving 15 months of his sentence. The Judge concluded that eligibility for parole after that period would be insufficient in terms of protection and deterrence, and imposed a non-parole period of nearly two thirds of the sentence (28 months).
[44] The issue on this aspect of the appeal is a matter of judgment and discretion and I am required to be satisfied that the Judge made an error. In looking at the matter in that way, I regard the following factors as being significant in assessing whether a minimum period of imprisonment should have been imposed:
(a) None of the broadly similar authorities cited above involved the imposition of an MPI. This is relevant, because it must be inferred that the need for general deterrence was regarded by the courts in those cases as being served by the statutory non-parole period.
(b) It would not be right to classify the appellant as a recidivist burglar.
Although I cannot fault the Judge’s reasons for specific deterrence being necessary (namely, that the appellant was on release conditions for aggravated robbery at the time), the fact that he is not a recidivist burglar lessens the need for personal deterrence.
[45] However, the question of whether the statutory non-parole period of
15 months’ imprisonment adequately addressed the need for community protection was squarely before the District Court Judge in this case. The appellant had been offending on a regular basis since 2009, and on a scale of increasing seriousness, including aggravated robbery. He was no stranger to imprisonment but did not seem
to have learned anything positive from the experience, or from the imposition of community-based sentences on earlier occasions.
[46] Having regard to the offending history and the nature of the offending in this case, I am unable to say, after careful reflection, that the sentencing Judge was wrong to conclude that an additional non-parole period was justified in the interests of the community.
[47] But I consider that the Judge erred in not taking account of the appellant’s youth in determining the length of the minimum term. This was not impulsive offending of the kind which I considered should be given some acknowledgement in another appeal I heard on the same day, and on which the judgment is released contemporaneously with this.21 But there was good evidence before the Court that Mr Skipper has come under the adverse of influences of a gang notorious for its involvement in criminal activity. There is a developing scientific basis for concluding that the age-related neurological differences between young people and
mature adults justify imposing reduced sentences on account of the influence of peer pressure, the crushing effect of imprisonment on young people, and the capacity of younger offenders for rehabilitation, as described by the Court of Appeal in Churchward v R.22 At the age of 22 years, the appellant is still some four or five years from full maturity.
[48] For this reason, I consider the Judge’s failure to consider the appellant’s youth in imposing a minimum period of imprisonment which was almost double that which would ordinarily have applied, and only two months short of the 30 months available to the Judge under s 86(4) of the Act, resulted in a decision which was too harsh.
[49] I have concluded that a minimum period of approximately half the end sentence of 45 months would achieve the right balance between the community’s need for protection, and the appellant’s personal interests.
Decision
[50] In light of these factors, the appeal is allowed in part. The sentences of imprisonment are confirmed, but the order under s 86(1) of the Act imposing a minimum period is varied by revoking the 28 months ordered and imposing a minimum period of imprisonment of one year 10 months.
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Toogood J
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