Snowden v Police HC Hamilton CRI 2010-419-52
[2010] NZHC 1225
•15 July 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2010-419-52
KERI GEORGE SNOWDEN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 6 July 2010
Appearances: G A Walsh for the Appellant
J M O'Sullivan for the Respondent
Judgment: 15 July 2010
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 15 July 2010
At 1.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244
Counsel: G A Walsh, PO Box 1322, Hamilton 3240
SNOWDEN V POLICE HC HAM CRI-2010-419-52 15 July 2010
[1] Mr Snowden was sentenced by Judge MacDonald in the District Court on
18 May 2010 to a total of two years and two months imprisonment in relation to seven charges. In brief, these involved:
a) An incident on 14 February 2010 when the appellant approached the victim for a cigarette and punched him when the victim refused to comply. The police were called and in the course of being transported to the police station, the appellant attempted to bite one of the constables (resulting in a charge under s 196 of the Crimes Act for assault; a charge of resisting a police officer; and a charge of assaulting police);
b)A burglary on 23 March 2010 involving forced entry into a private home. The total value of property stolen was around $10,800. In the process, Mr Snowden also dropped a cigarette butt on the carpet, causing burning and the risk of further damage; and
c) Breaches of release conditions in February 2010 and twice in March
2010.
[2] The maximum available sentences for this offending were:
a) Burglary (x 1) : ten years imprisonment;
b) Assault (x 1): one years imprisonment;
c) Resisting arrest (x 1): three months imprisonment;
d) Assaulting a police officer (x 1): three months imprisonment; and
e) Breach of release conditions (x 3): 12 months imprisonment/$2000 fine.
[3] Mr Snowden has some 116 previous convictions over the last 10 years, including a number of previous convictions for dishonesty offences: 33 for
shoplifting, five for burglary, five for receiving, two for theft, two for theft ex-car, two for robbery, two for conversion and one for possessing the instruments for conversion.
Sentencing in the District Court
[4] Burglary was taken as the lead offence for which Judge MacDonald took a starting point of two years, uplifted by six months for Mr Snowden’s previous convictions and the fact that the appellant offended whilst on bail. A discount of one third was then given for Mr Snowden’s guilty plea, resulting in a one year eight months’ sentence of imprisonment on the lead charge.
[5] Judge MacDonald held that cumulative sentences were largely appropriate for the remainder of the offending. Three months imprisonment was imposed for the cigarette assault incident; two months imprisonment for each charge of resisting arrest and assaulting the constable; and three months imprisonment for each charge of breaching release conditions (these to be served concurrently).
[6] The final sentence imposed by Judge MacDonald was two years and two months imprisonment, although that appears to be somewhat less than that arrived at by totalling the cumulative terms I have referred to above.
Grounds for appeal
[7] Mr Walsh submitted that the sentence imposed was manifestly excessive because:
a) The starting point on the burglary charge was too high;
b) There was double counting in the construction of the sentence; and
c) Although cumulative sentences were appropriate in the circumstances, in combination they contravened the totality principle.
[8] As I have already noted the starting point adopted by Judge Macdonald was two years for the burglary offence, uplifted by six months for Mr Snowden’s previous convictions and the fact that the appellant offended whilst on bail. Mr Walsh said that this was significantly out of line with the starting points found by the Court of Appeal to be appropriate in R v Columbus[1]and R v Stevens.[2]He said Mr Columbus’s relevant prior offending was more serious than Mr Snowden’s.
[1] R v Columbus [2008] NZCA 192.
[2] R v Stevens [2009] NZCA 190.
[9] In this respect, however, I agree with the submissions made by Ms Cameron for the Crown who referred to French J’s observations in Sunnex v Police[3] in which she noted that the Court of Appeal has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so variable. French J said that it follows that inevitably there will be variations, sometimes significant ones, in sentences which in turn will be reflected in decisions
of the Divisional Court of the Court of Appeal.
[3] Sunnex v Police HC Christchurch CRI-2010-409-43, 17 June 2001 at [7].
[10] In terms of the continuing applicability of the High Court’s decision in Senior v Police[4] (upon which Mr Walsh sought to rely to support the submission that Mr Snowden had an insufficient number of previous convictions to warrant a starting point of over two years) Ms Cameron also referred to R v Rohloff [5] where the Court of Appeal said at [16]:
What Senior does highlight is that the length of any sentence to be imposed in cases of recidivist burglary will largely depend upon the number of previous convictions, the number of offences for which the offender is now appearing for sentence, and the presence of aggravating and mitigating factors. A significant factor remains the protection of the public.
[4] Senior v Police (2000) 18 CRNZ 340 (HC).
[5] R v Rohloff CA193/03, 24 September 2003.
[11] Although Senior remains useful in a number of respects, as French J noted at [8] of Sunnex, its approach to the sentencing of recidivist burglars has subsequently been somewhat modified. This is plainly a reference to the Court of Appeal’s
decision in Columbus[6], where the Court of Appeal noted that the Senior approach to sentencing of recidivist burglars had been to adopt a starting point that amalgamated the seriousness of the offending with the previous convictions of the offender. It went on to say at [13] – [15] that:
[6] R v Columbus [2008] NZCA 192.
[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.
[12] As observed in Sunnex at [9], the effect of the change to sentencing methodology signalled in Columbus
... is to reduce the starting point levels because previous convictions are no longer to be factored into that assessment, or at least not to the same extent as they once were. However, previous convictions nevertheless continue to be highly relevant.
I am very confident that had the Court of Appeal intended to rule that end sentences were to be reduced for recidivist burglars or intended to change the acceptable range, they would have said so.
[14] It is instructive to consider how the Taueki methodology was applied in Columbus. There, a starting point of 12 months imprisonment was adopted for the circumstances of the offending itself, being a burglary “at the minor end of the scale”, involving an opportunistic forced entry into a garage where a bike and some tools were taken. The total property loss and damage was several hundred dollars. An uplift of six months was taken for a separate theft of a lawnmower and petrol and possession of a cannabis pipe and leaf, these offences being committed while on bail. For the previous history (involving 89 previous convictions, of which 13 were for burglary and 34 for property related offences) a further uplift of 12 months imprisonment was imposed. The nature and extent of the history of dishonesty was held to be relevant to the burglary charge particularly because it revealed that previous sentences had not served to deter the offender and the community required protection from him.
[15] The starting point was therefore (contrary to Mr Walsh’s submission) two and a half years imprisonment on the lead burglary offence in relation to the garage. After mitigating factors were deducted the appropriate end sentence was one year and 10 months. Other sentences were imposed concurrently.
[16] Against that background, and applying a Taueki approach, I am of the view that the starting point adopted by Judge Macdonald was well within the range that was open to him. By contrast with both Columbus and Stevens the burglary here was of a private home. Burglary of a domestic residence has long been considered a significant aggravating feature at sentencing for the reasons explained in Senior at
344:
Most people ... attach importance to the privacy and security of their own home. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; ...the
offence is not [less] serious if the victim returns to an empty house during the daytime to find that it has been burgled.
[17] This aggravating feature by itself would in my view warrant a starting point of at least 18 months on the burglary charge and an uplift for Mr Snowden’s not insignificant previous dishonesty convictions and the fact of offending while on bail might reasonably increase that by a further 12 months. In that respect I note that (as in Columbus) Judge Macdonald quite correctly specifically referred to the apparent failure of previous sentences to deter Mr Snowden and the need to protect the community: (at [11]. Such an analysis yields a result that is precisely the same as the two and a half year starting point adopted by Judge Macdonald.
[18] To the extent that any further fortification of this conclusion is required I simply note that Judge Macdonald’s starting point is also consistent with that adopted in other similar cases, such as Cooper v Police[7] and Tawharu v Police.[8]
[7] Cooper v Police HC Auckland CRI-2009-404-261, 16 November 2009.
[8] Tawharu v Police HC Palmerston North CRI-2004-454-1, 6 April 2005
[19] A testing of the starting point adopted by Judge Macdonald against a Taueki/Columbus analysis necessarily addresses any concern about double counting in relation to Mr Snowden’s previous convictions/recidivism. However the focus of Mr Walsh’s submissions in this respect was on the fact that Judge Macdonald uplifted the starting point for the fact that Mr Snowden offended while on bail and also imposed a cumulative sentence in that respect.
[20] While it is apparent from the learned Judge’s sentencing notes at [12] – [14] that he may have done so, it seems that the six month uplift also encompassed Mr Snowden’s previous convictions. As I have said, this uplift comprised part of a starting point with which no real argument can be made. Once that point is reached it seems unlikely that the additional cumulative three month sentence then imposed for the breach renders the final result manifestly excessive. However I prefer to deal conclusively with that issue by analysing the appropriateness of the final sentence imposed in light of the totality of Mr Snowden’s offending. This was, in any event, Mr Walsh’s third ground of appeal.
[21] On the basis that Judge Macdonald’s starting point of two and a half years was within the range that was open to him, the question is whether the final sentence of two years and two months was similarly justifiable by reference to the totality of Mr Snowden’s offending, taking into account its overall gravity.
[22] As I have said, it was accepted in principle by Mr Walsh that cumulative sentences were appropriate for the two separate assaults and the resisting arrest. Nor did he take specific issue with the discrete sentences imposed in each respect or with the fact that Judge Macdonald applied the discount for Mr Snowden’s guilty pleas only to the starting point for the lead burglary offence, not the starting (and end) points for each of the cumulative sentences. That said, however, it appears that the guilty pleas were, as Ms Cameron put it, a “mixed bag” in terms of their timing and there certainly does not seem to be a basis for applying the one third discount across the board.
[23] In the end I simply do not consider it can be said that the end sentence imposed by Judge Macdonald was clearly excessive, taking into account the gravity of Mr Snowden’s offending as a whole. I was referred to the photograph of the victim of the first assault. Mr Snowden struck him in the face. It was not a minor matter. As I have said, it also appears that Judge Macdonald’s arithmetic (in terms of the addition of the cumulative sentences to the discounted starting point on the burglary charge) in fact favoured Mr Snowden by some four months.
[24] Lastly, I note that as well as Mr Snowden’s long history of offending there is a pattern of his disregarding rehabilitative sentences or release conditions. This serves to underscore Judge Macdonald’s view that the need to protect the community is an important consideration here.
[25] The appeal is dismissed accordingly.
Rebecca Ellis J
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