Smith v Police

[2023] NZHC 3829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-569

[2023] NZHC 3829

BETWEEN

ROMEO SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 December 2023

Appearances:

M J Hamlin for appellant

M V Kilkelly for respondent

Date of judgment:

20 December 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 20 December 2023 at 3.30pm.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Marek Hamlin, Barrister, Auckland Meredith Connell, Auckland

SMITH v POLICE [2023] NZHC 3829 [20 December 2023]

[1]    Romeo Smith appeals against Judge J Bergseng’s 20 October 2023 sentencing of him in the District Court at Auckland to three years and two months’ imprisonment.1

Background

[2]    Mr Smith pleaded guilty to 12 charges of various offending, ranging from intentional damage and domestic and commercial burglaries to unlawfully getting into and using vehicles, breach of parole and then dangerous driving and failing to stop, on the last occasion also being in possession of a firearm.2

[3]    All Mr Smith’s present offending occurred while on bail (except for the intentional damage, which occurred while in custody on sentence and is the subject of a 10-month indicated sentence starting point).3

[4]    Mr Smith also has an extensive criminal history, of nearly 60 convictions in the preceding decade: six for robbery or aggravated robbery; six for burglary; and 17 for similar vehicle offending. He has received relatively lengthy sentences accordingly: up to just short of three years’ imprisonment on robbery charges; a few months short of two years on burglaries; and one year on vehicle charges.

Judgment under appeal

[5]    The Judge calculated discrete sentences of imprisonment on each charge, “all up to 70 months”.4 He discounted that starting point by 25 per cent for contributing factors of addiction, poverty and violence in Mr Smith’s background, and a further 25 per cent for Mr Smith’s guilty pleas, to 35 months.5 He then applied a six-month uplift

1      Police v Smith [2023] NZDC 24418.

2      Unlawfully uses a vehicle (Crimes Act 1961, s 226(1): maximum penalty, seven years’ imprisonment); unlawfully gets into a vehicle (x 4) (s 226(2): maximum penalty, two years’ imprisonment); burglary (x 2) (s 231(1)(a): maximum penalty, ten years imprisonment); intentional damage (s 269(2)(a): maximum penalty, seven years’ imprisonment); unlawfully possessing a firearm (Arms Act 1983, s 45(1): maximum penalty, four years’ imprisonment); breaching release conditions (Sentencing Act 2002, s 96(1): maximum penalty, one year’s imprisonment); dangerous driving (Land Transport Act 1998, s 35(1)(b): maximum penalty, three months’ imprisonment); failing to stop for red and blue flashing lights (ss 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2): maximum penalty, $10,000 fine)

3      Police v Smith DC North Shore CRI-2021-044-3012, 6 April 2022 (Notes of Judge A M Fitzgibbon on Sentencing Indication).

4      Police v Smith, above n 1, at [38]–[42]

5      At [43]–[45].

for Mr Smith’s previous convictions, but misapplied it to a 32-month base for an end sentence of three years and two months’ imprisonment.6

[6]    For Mr Smith, Marek Hamlin contends the Judge’s ‘misapplication’ has the same result as appropriately consecutive percentage uplifts and discounts,7 but argues the Judge’s various starting points were excessive, and the Judge failed to have regard for the totality of Mr Smith’s cumulative sentence. Rather Mr Hamlin contends for starting point of some 57 months, resulting in a discounted end sentence of two years, four months and two weeks’ imprisonment.

[7]    For the prosecution, Michael Kilkelly argues,  from  a  26-month  base  for Mr Smith’s burglary convictions, to illustrate the Judge’s approach met totality considerations in establishing his starting point, appropriately uplifted for Mr Smith’s prior offending (and including a three-month arithmetical error in Mr Smith’s favour). No contest is made of the Judge’s 50 per cent total discount.

Approach on appeal

[8]    I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.8 In any other case, I must dismiss the appeal.9 The measure of error is the sentence be “manifestly excessive”; a principle “well-engrained” in this Court’s approach to sentencing appeals.10 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.11

Discussion

[9]    I have some resistance to assessing ‘manifest excess’ on an appeal against a concurrent sentence for multiple offending by slicing and dicing the Judge’s

6 At [47].

7      Despite my discussion with counsel at the hearing, the Judge did not err. See Mo’unga v R [2023] NZHC 1967 at [27] and following.

8      Criminal Procedure Act 2011, s 250(2).

9      Section 250(3).

10     McCaslin-Whitehead v R [2023] NZCA 259 at [27], affirming Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

11     At [28], citing Tutakangahau v R, above n 10, at [36].

cumulative starting points. The better approach is to assess the Judge’s sentence on the lead offending in its overall context of Mr Smith’s offending.12

[10]   Burglary has a maximum penalty of ten years’ imprisonment. It arises in circumstances too varied to enable any guideline judgment. But “[d]welling house burglaries at the relatively minor end of the scale” offered a range from “approximately 18 months’ to two years and six months’ imprisonment”.13

[11]   Here, the lead offending was Mr Smith’s forced entry with another into a domestic garage in the late afternoon to steal a motorbike, using tools brought with him and attracting a neighbour’s attention. If it was not directly into a domestic residence or at night, neither was it without other aggravating factors of associates, planning and intervention. That is enough to fall toward the upper part of the range,14 at say two years and three months (or 27 months).

[12]   Further, the lead offending (including the other burglary of commercial premises to steal spirits) is Mr Smith’s return to relatively serious property offending,15 the potential seriousness illustrated by the firearms charge, of a loaded sawn-off shotgun disposed of during a police chase of him and a co-defendant in a vehicle.16 The vehicle charges have similarity to the burglary charges in Mr Smith’s breaking into cars, and in one instance to use it in other offending.17

[13]   To digress briefly, as 30-month starting points thus easily are available for each the two burglaries together, firearms, and vehicle offending — in total, 90 months — the Judge’s 70-month accumulation is not objectionable in itself. If the accumulation is to suggest totality has not been given its due, as the Judge’s unalloyed incorporation of the sentencing indication may indicate, there also are indications elsewhere he constrained himself to “the minimum” he could for uplift on prior convictions.18

12     Jane v R (1996) 14 CRNZ 101 (CA) at 106.

13     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] (footnotes omitted).

14     Stepanicic v R [2015] NZCA 211 at [9].

15     R v Southon (2003) 20 CRNZ 104 (CA) at [12].

16     Campbell v R [2022] NZCA 579 at [18].

17     Singh v R [2011] NZCA 139 at [11].

18     Police v Smith, above n 1, at [46].

[14]   Returning to the sentencing at hand, a 24-month uplift for the remaining offending19 — comprising eight months for the additional burglary and intentional damage,20 10 months for firearms possession,21 and six months for the vehicle offending,22 — would catch the totality of the present offending. And a further six-month uplift should apply in relation to Mr Smith’s continued burglary and vehicle offending and reoffending while on bail and parole, prior sentences plainly not having their desired deterrent value (but consistently with the Judge’s intention to keep that uplift to a minimum).23

[15]   That brings the starting point up to 57 months (or four years and nine months). Application then of the Judge’s discount would yield an end sentence of two years and five months’ imprisonment (rounded up). The Judge’s three years and two months’ end sentence — being a full third more — thus is manifestly excessive.

Result

[16]   The appeal is allowed. Mr Smith’s sentence of three years and two months’ imprisonment is quashed, and replaced with a sentence of two years and five months’ imprisonment.

—Jagose J

19   Kaihau v R [2015] NZCA 40 at [7], upholding uplift of 18 months to a 30-months’ starting point on burglary for eight remaining charges of theft and one each receiving property and interfering with vehicle. Mr Smith’s additional charges are more serious.

20 Taylor v R [2021] NZCA 606 at [43], where a six-month uplift was imposed for an additional burglary, and here accounting also for the intentional damage conviction, the subject of the 10-month sentencing indication.

21 Mills v R [2016] NZCA 245 at [18], noting “this Court has indicated that uplifts of 12 to 18 months are appropriate for firearms offending associated with drug dealing”, citing R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; and Haggie v R [2011] NZCA 221 at [23]. Mr Smith’s lesser uplift reflects the absence of drug dealing and totality, but nonetheless generic seriousness of firearms offending: Devlyn v R [2013] NZCA 462 at [17].

22 Waiwai v R [2012] NZCA 251 at [14], applying a four-month uplift for unlawfully gets into vehicle and dangerous driving. Mr Smith’s additional vehicle offending warrants a higher uplift.

23 R v Columbus [2008] NZCA 192 at [17]–[18]; Skipper v R [2011] NZCA 250 at [27]. Mr Smith’s recidivism is not quite yet at a level as may have justified more significant uplift.