Stephens v R HC Napier CRI-2011-441-31

[2011] NZHC 1258

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-31

KURT RONALD STEPHENS

Appellant

v

THE QUEEN

Respondent

Hearing:         28 September 2011

Counsel:         J G Krebs for the Appellant

J Lucas for the Respondent

Judgment:      28 September 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr J G Krebs, Barrister, Napier

Mr J Lucas, Elvidge & Partners, Office of the Crown Solicitor, Napier

STEPHENS V R HC NAP CRI-2011-441-31 28 September 2011

[1]      Mr Stephens appeals against sentences imposed in the District Court for one offence of burglary and one offence of unlawfully getting into a motor vehicle. Cumulative sentences were imposed resulting in an effective sentence of two years and two months imprisonment.

[2]      The appeal is on the grounds that the sentence is manifestly excessive and that there was an error by the Judge in taking into account information not known to the appellant.  I will explain the latter point in due course.

The facts

[3]      On 8 February 2011 a Mazda double-cab trade vehicle was stolen from the premises of a company in Gisborne.  The next day the appellant, and three others, went in this vehicle to a residential property in Napier.  This was during the day on a week day.  The vehicle was driven to the back of the house.  A co-offender broke open the back door causing damage.  The three other co-offenders – other than the appellant – went into the house and began taking items out of it.   The appellant directly assisted by picking up a set of speakers that were put at a door.  Property valued at about $4,000 was taken including a large television screen, jewellery, the speakers, clothing and other items.

[4]      A neighbour alerted the police.  The vehicle was pulled over by police and was then driven away by a co-offender in circumstances which are not relevant to the appellant’s appeal.  When the vehicle was eventually stopped an imitation pistol and a roll of masking tape were found in the vehicle. The stolen property was recovered.

District Court sentencing

[5]      The appellant and his co-offenders were sentenced on the same day, 1 July

2011.  The appellant did not turn up on time because there were transport delays. For this reason he was sentenced later in the day.  (I note that there is no relevant criticism of the appellant for failing to be at  Court at the appointed  time.)    In sentencing the appellant, the Judge relied on the comments he had already made in

sentencing the co-offenders and made further observations relating specifically to the appellant. There are therefore two sentencing notes relating to the appellant.[1]

[1] R v Hemaloto and Ors DC Napier, CRI-2011-041-452, 1 July 2011 (the co-offenders) and R v Stephens DC Napier, CRI-2011-041-1104, 1 July 2011 (the further notes relating specifically to Mr Stephens).

[6]      In sentencing the co-offenders the Judge noted, for the purposes of assessing a starting point for the burglary, the decisions in Senior v Police,[2] R v Southon,[3] R v Columbus[4] and Snowden v Police.[5]

[2] Senior v Police (2000) 18 CRNZ 340 (Full Court of the High Court).

[3] R v Southon (2003) 20 CRNZ 104 (CA).

[4] R v Columbus [2008] NZCA 192, CA608/07, 27 June 2008.

[5] Snowden v Police HC Hamilton, CRI-2010-419-52, 15 July 2010, Ellis J.

[7]      The Judge then referred to the Crown submissions on sentencing, made with particular reference to Snowden, that burglary involving forced entry of a private residence would normally attract a starting point of “no less than” 18 months imprisonment.

[8]      Mr  Lucas  advised  me  this  morning  that  the  specific  submission  in  the Crown’s written submission in the District Court was that the starting point should be two years for the totality of the offending.

[9]      Nevertheless, it  appears that the Judge accepted that the starting point  –

assessed as a “true” starting point for the burglary alone – would have been around

18 months imprisonment were it not for another matter he referred to.   It is this matter  which  gives  rise  to  the  appellant’s  contention  that  information  was erroneously taken into account by the Judge or, putting it more properly, taken into account by the Judge in a way which in the end was unfair to the appellant.

[10]     Immediately following reference to the 18 month starting point the Judge referred to an affidavit that had been provided by a police officer for the purpose of sentencing that had taken place in the District Court at Napier approximately a week earlier.  The same Judge had been dealing with the sentence approximately a week

earlier.   This is an affidavit of Inspector Dewhirst who is the manager of police

intelligence for the Eastern District.   The affidavit was filed in R v Andrews and

Edmonds.[6]   In this affidavit Inspector Dewhirst said:

Eastern District has the second highest rate (after Auckland City) of dwelling burglary by population in New Zealand.  The rates of dwelling burglary in this district are three times that of Southern and Tasman policing districts and double that of Wellington.  The rates of dwelling burglary in the Hawkes Bay follow these trends and are some of the highest in the country.

[6] R v Andrews and Edmonds DC Napier, CRI-2009-020-003923, 24 June 2011, Judge Adeane.

[11]     There is reference to 2,000 recorded dwelling burglaries responded to by Hawkes Bay Police in the preceding 12 months with a statement that “the true level of dwelling burglary is thought to be significantly higher”.  The only other figures referred to are the theft of 1,000 laptop and wide-screen televisions reported to Eastern District Police in 2010, with the majority being from dwelling burglaries.

[12]     Inspector Dewhirst also said:

Experience has shown that the majority of burglaries are committed by a small number of recidivist burglars.   Most of the property stolen by these offenders is on-sold to receivers to fund drug or lifestyle needs.

An active but fluid local stolen property market exists. …

…

Dwelling burglary is more prevalent during daytime with weekdays targeted when home owners and residents are away at work.  Dwelling burglary also follows  seasonal  trends  with  a  significant  increase  in  recorded  offences during winter months.

[13]     The Judge, in his sentencing comments to the co-offenders, summarised part of Inspector Dewhirst’s statements which I have quoted above.  The Judge then said, in reference to submissions from the Crown on the sentencing of the appellant’s co- offenders:

[7]       … The Crown also points out (see R v Andrews & Edmonds) a number of common features to 27 recent dwelling burglaries which indicate that they are committed during work hours in back sections.  While honest householders are out of their homes working, burglars go to work at their career, breaking into these homes.   So you will see that there is a certain tension between the submissions made, not only by defence but to some extent by the Crown, and the view which this Court is now constrained to take in relation to the epidemic of burglaries of dwelling houses which is afflicting this district.

[8]       In my view, the correct starting point for this burglary is two and a half years’ imprisonment. …

[14]     In his further or supplementary comments on sentencing the appellant, the

Judge said, at the outset:

[1]       Mr Stephens, you have appeared late for sentencing as one of four involved in the same offence.   I have already made extensive sentencing comments to those others and my comments to you now will take the form of an addendum to the sentencing remarks made to them.  In most respects, what I had to say earlier applies to you also. You are well aware of the crime for which you are here.  A vehicle was stolen from Gisborne, was shortly in Hawke’s Bay and was here used to carry out a dwelling house burglary.  I have already said a good deal about the dwelling house burglary in question and the similarities it bears to other dwelling house burglaries which are presently endemic in Hawke’s Bay, the evidence of a criminal intelligence officer of the police has been taken into account.

[15]     Following  reference  to  the  extent  of  the  appellant’s  involvement  in  the

offending the Judge then said:

[3]       I adopted a starting point of two and a half years’ imprisonment for the offending so far as the four participants were concerned.   The Crown cannot and does not attempt to refute your claim that you played a lesser role.   Your counsel has no doubt given you good advice as to just what degree of participation constitutes complicity in criminal offending.   You were well and truly within those boundaries.

[4]       I adopt a starting point of two years’ imprisonment for the burglary and of nine months’ imprisonment for unlawfully getting into the motor vehicle. …

[16]     In sentencing the other offenders the Judge discussed the question whether the sentences should be concurrent or cumulative.  He said:

[8]       ...   I also have regard to the provisions of Sentencing Act which require that separate offending be dealt with separately and that cumulative sentences are involved.  If one or more of you were involved in stealing this vehicle and bringing it from Gisborne for the purpose of this criminal exercise, then the burglary offending and the starting point for it is significantly  aggravated  for  premediation.    If,  on  the  other  hand,  you maintain that you were “just going for a ride”, we do not know when you got in the vehicle, then of course it becomes entirely separate in character from the burglary.

[9]       This vehicle was stolen from Gisborne, 100 kilometres north of your domicile Waiwai, and in less than 24 hours was found 220 kms to the South involved in a daytime back-section burglary.  By this time all three of you and Stevens [sic] were aboard in a joint enterprise.   The innocuous trade- vehicle was ideally suited to a planned burglary adventure into a rear section

in a built-up area.  There is a clear inference of planning and premeditation available and I allow it.  Conversely I reject the claim that any one of you was just along for the ride.   In my view the vehicle matter it justifies a cumulative starting point of nine months’ imprisonment.   It should not be forgotten by any of you that, in addition to the people whose home you burgled, a hard working Gisborne tradesman went to his workplace and found that an essential tool of his business had been taken.   That, on my assessment, was because three burglars who intended to commit a professional burglary, had taken his tools and used them as theirs.  There is every reason why a cumulative sentence should be imposed for this aspect of the case.

[17]     In the further sentencing remarks to the appellant the Judge said that the appellant was entitled to the same discount as the other offenders, being “in the order of 20%”.   He concluded, as with the other offenders, that the sentences should be cumulative.   The discount was applied to each starting point, resulting in an end sentence of 19 months for the burglary and seven months for unlawfully getting into the motor vehicle – an overall total, as earlier indicated, of two years two months.

[18]     The  Judge  considered  whether  there  should  be  an  uplift  for  previous offending.  He said:

[4]       … You have a criminal history involving all sorts of offending but only limited burglary offending. You are, nevertheless, clearly dishonest and have committed criminal offending over a long period.   An uplift is not required in your case and accordingly the end sentence is one of two years and two months’ imprisonment …

The  Judge  had  referred  to  some  other  matters  immediately  prior  to  these observations leading to his conclusion.

[19]     The appellant, who is now aged 28, has 36 previous convictions dating back to March 2004.  Most of these are for unrelated offending at a relatively low level. There is a conviction in September 2005 for unlawfully being in a building and a conviction in July 2004 for burglary.   The burglary resulted in a sentence of supervision for nine months.  There is also a conviction for theft in May 2004 and convictions for three counts of receiving in September 2005.

[20]     The offences subject to this appeal occurred while the appellant was serving a sentence of supervision and a sentence of community work. This is a matter that was

not noted by the Judge.   The appellant also has some convictions for failure to comply with community based sentences.

The appeal

[21]     On this appeal Mr Krebs submitted that the Judge should not have taken account of Inspector Dewhirst’s affidavit in the circumstances that applied to the sentencing of the appellant.   Mr Krebs’ submissions in this regard are admirably succinct and it is convenient simply to reproduce them:

5.His Honour was greatly influenced in his sentencing decision by an affidavit filed in other proceedings by Inspector Dewhirst of the Napier Police.

6.That affidavit was not provided to counsel for Mr Stephens and was not referred to counsel by the court.

7.No opportunity was given to consider or test the conclusions reached by Inspector Dewhirst.  Nor were submissions able to be advanced in that regard.

8.In  that  respect  His  Honour  was  influenced  by  and  considered  a matter  in  circumstances where  unfairness  has  arisen  through  the inability of counsel to make submissions on the matter.

9.While not specifically saying so His Honour appears to have been drawn into an assumption that the offenders in this case including Mr Stephens were also the offenders in other similar offending as described by Inspector Dewhirst.

10.Such an assumption was unavailable, was inappropriate and was not put to counsel or to Mr Stephens as an aggravating factor.

[22]     Mr Krebs, who appeared for the appellant on this appeal, also appeared for the appellant in the District Court, but did not represent any of the other offenders and was not in Court when they were being sentenced earlier in the day.

[23]     As is apparent from what I said earlier, Inspector Dewhirst’s affidavit had been filed for sentencing of other offenders unconnected with the sentencing of the appellant.  I accept the consequences of the Judge’s reliance on the affidavit are as stated in paragraphs 7 and 8 of Mr Krebs’ submission.   Mr Lucas, for the Crown, questioned  what  challenge  could  have been  made to  Inspector  Dewhirst.   With respect, that does not answer the unfairness that arose from the fact that the matter

simply was not put to the appellant.  I also accept the thrust of the submission for the appellant in paragraphs 9 and 10 of Mr Krebs’ written submission.  This is borne out by observations the Judge made when sentencing the other offenders.

[24]     There are some further considerations in relation to Inspector  Dewhirst’s affidavit.  For the respondent, Mr Lucas submitted that, aside from the question of adequate notice to the appellant (although Mr Lucas did not quite put it that way), the Judge was entitled to rely on Inspector Dewhirst’s affidavit.  More broadly, Mr Lucas submitted that the Court “is entitled to take into account as an aggravating feature of the offending the prevalence of offending in the local area”.   Mr Lucas

referred to O’Hanlon v R.[7]     Priestley J’s observations at [10]-[11] provide some

support for Mr Lucas’ submission.  However, Priestley J referred to District Courts taking account of prevalent offending “in a measured and principled way”.  The need for this to be done in a “measured and principled way” was given emphasis by the Court of Appeal in Christofides v R.[8]    Mr Lucas appropriately referred me to this decision.  I refer, in particular, to paragraphs [13]-[17] of Christofides.

[7] O’Hanlon v R HC New Plymouth, CRI-2009-443-26, 18 December 2009, Priestley J.

[8] Christofides v R [2011] NZCA 126, CA494/2010, 1 April 2010 at [13]-[17].

[25]     On this appeal I am not able to express any firm conclusion on the question as to whether Inspector Dewhirst’s affidavit provides sufficient information.  This is for the reason advanced by Mr Krebs in support of the appeal – it simply has not been tested on behalf of the appellant.  Subject to that important caveat, I do note that the affidavit does appear to lack the detail, and particularisation, which the Court of Appeal in essence said is required for these purposes.  On this appeal there is the added  complication  that  the  Judge  does  appear  to  have  been  influenced  by  an apparent connection between the appellant’s offending and the types of offending referred to by Inspector Dewhirst. That is to say, the Judge appears to have accepted, at least to an extent, that this appellant was amongst, or at least associated with, the “small number of recidivist burglars” that Inspector Dewhirst said were responsible for the majority of burglaries which had led to the high number of burglaries in the

Eastern District. This is a matter not tested on behalf of the appellant.

[26]     On an appeal against sentence, as has been noted on many occasions, the end consideration is whether the final sentence imposed is manifestly excessive, irrespective of the methodology by which that sentence is arrived at.   This was acknowledged by Mr Krebs at the outset of his submissions.   I bear that fully in mind.  However, because of the matters I have referred to arising out of the Judge’s reliance on Inspector Dewhirst’s affidavit, and the conclusions he drew from it, I consider the appropriate approach on this appeal is to assess the sentence de novo, before then considering whether the sentence that was imposed is manifestly excessive when weighed against the sentence arrived at by approaching the matter afresh.

[27]     The Judge, at least implicitly, appeared to accept that the appropriate starting point for the burglary would have been around 18 months imprisonment.   On the appeal Mr Krebs submitted that this was an appropriate starting point.   I note his advice that he had submitted, in the District Court, that the starting point should be

12 months imprisonment.   I have taken full account of Mr Lucas’ submissions in respect of the gravity of this burglary offence.   Mr Lucas also submitted that the Judge would have been entirely justified in not differentiating between Mr Stephens and his co-offenders.  I will come back to that second point as necessary.  Assessing the matter overall, however, I do consider that the appropriate starting point on this appeal for this appellant for the burglary is 18 months imprisonment.  In referring to this as a starting point I am referring to all matters relating to this particular burglary as committed by this appellant.   That necessarily involved some weighing of his degree of culpability compared with that of the others.  I am satisfied that the starting point for the appellant must be assessed on the basis that he was, to an extent, less culpable.

[28]     There is then a question whether the starting point should be increased to take account of the other offence – unlawfully getting into the car – or whether there should be a cumulative sentence for that offence.   I understand the Judge’s observations based on the uncertainty as to when each of the offenders got into the car.  The appellant said that he knew the vehicle was stolen and he got into the car because it was being driven to Napier and he wanted to visit his brother in Napier.

[29]     There can be different approaches to the application of s 84 of the Sentencing Act, relating to cumulative and concurrent sentences, without either approach being wrong in principle.  And in the end it may not make a great deal of difference.  On this appeal, and assessing the matter de novo, I do consider that the appropriate course is to impose a concurrent sentence for unlawfully getting into the vehicle and uplift the starting point for the burglary.   The uplift cannot be much.  And if this offence had been considered in isolation I do consider that the starting point would properly have been a non-custodial sentence.  Assessing unlawfully getting into the motor vehicle in isolation – which is essentially what is required if it is to be a cumulative sentence – could not, with respect, have justified a starting point of nine months imprisonment.

[30]     There should be a further uplift for the fact that this offending occurred when the appellant was subject to the sentences of supervision and community work. Some uplift for the previous offending might also have been justified, but in view of the fact that the Judge did not impose an uplift for the previous offences I consider it inappropriate for me to do so on this appeal.   The uplift for the offending while subject to the supervision order and the community work sentence, and for the other offence, in my judgment should be two months.

[31]     A discount for the guilty pleas of 20% is justified, as allowed by the Judge. This produces an end sentence of 16 months imprisonment.  This compares with the District Court sentence totalling 26 months.   This indicates that the District Court sentence was, with due respect to the learned Judge, manifestly excessive for this offender.

[32]     Mr Krebs had originally submitted that, with a sentence of less than two years imprisonment, home detention could be considered.   That submission was withdrawn and the matter does not need to be further considered.

Result

[33]     The  appeal  is  allowed.    The  sentence  imposed  in  the  District  Court  is quashed.   There will be substituted sentences of 16 months imprisonment for the

burglary and one month imprisonment for unlawfully getting into the vehicle with

those sentences to be concurrent.

Peter Woodhouse J