Terore v Police HC Whangarei CRI 2009-088-3650

[2010] NZHC 2240

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2009-088-003650

BETWEEN  SHANE MARK TERORE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 December 2010

Appearances: C Muston for Appellant

M Smith and M Jarman-Taylor for Crown

Judgment:      13 December 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            C Muston, Whangarei

TERORE V NEW ZEALAND POLICE HC WHA CRI-2009-088-003650 13 December 2010

[1]      On 2 November 2010 in the District Court at Whangarei Judge McDonald sentenced the appellant to two years’ imprisonment on one count of burglary.   In addition, and on a cumulative basis, the Judge imposed a further term of imprisonment of 16 months on the charge of refusing to permit a blood specimen to be taken.  In total the Judge imposed a sentence of three years four months.

[2]      The  appellant  appeals  against  that  sentence  on  the  grounds  that  it  is manifestly excessive.

Background

[3]      The appellant had pleaded not guilty to the charge of burglary but had been found guilty following a defended hearing.  The brief facts to that offence are that late in the afternoon on 10 April 2009 he had entered an address in Ruakaka.  He had entered and gone into the master bedroom of the house, removed a purse from inside a handbag and taken $5.00 in coins and an eft-pos receipt from the purse before leaving  the  house  via  the  bedroom  window.    He  was  found  outside  the  main bedroom window and spoken to.  In explanation he said he wanted to use the toilet, had knocked on the door, and as no-one had answered, he had walked into the shrubbery by the house to relieve himself.  The cash was not recovered but the eft- pos receipt was located outside on the ground near him.

[4]      While on bail and awaiting a hearing on the burglary charge, the second offence was committed.  On 29 July 2009 he reversed the car he was driving out of a car park and into the front of another vehicle causing minor damage.   The police were called.  When the appellant was spoken to he showed signs of having recently had alcohol.   Breath test procedures were carried out.   The appellant refused to supply a sample of breath for analysis.   The blood alcohol procedures were then carried out.  Again the appellant refused the request for a sample of blood to be taken for the purposes of analysis.  He said he could not provide a breath sample because of asthma and he did not like needles.

[5]      While being processed the appellant removed his belt and threw it towards the constable.  The buckle of the belt apparently glanced the constable, which led to a separate charge of assaulting a police officer.

[6]      Although the appellant initially entered a not guilty plea to this offending, he subsequently changed that and pleaded guilty to the refusing and assault.

[7]      The appellant has a substantial number of previous convictions, including five burglary convictions and a number of convictions for being unlawfully on a property  and  attempted  burglary.    He  also  has  seven  previous  convictions  for refusing to provide a blood sample, and in addition 16 previous convictions for driving whilst disqualified and eight for excess breath or blood alcohol, the most recent for which was in December 2001, a refusal.  He was suspended from driving indefinitely in 2001.  In total he has over 150 prior offences of various kinds.

The Judge’s decision

[8]      The Judge took the burglary as the lead offence burglary.  He referred to the authorities of Senior v Police[1]  and Police v Columbus[2]  noting the caution against double  counting.    Taking  account  of  the  appellant’s  previous  convictions  for burglary, the Judge took a starting point of 18 months as appropriate for that offence and uplifted it then for six months for the appellant’s other offending.   For the refusing the Judge noted there were 16 previous drink driving or refusing convictions

[1] Senior v Police (2000) 18 CRNZ 340.

[2] Police v Columbus [2008] NZCA 192.

and considered that a maximum sentence of two years was appropriate but provided a discount for the plea and having regard to totality considered the minimum that could be imposed for the additional offending was 16 months.  The Judge considered the assault to be minor and part and parcel of the refusing offending.  It seems he imposed a sentence of one month concurrent for that.

[9]      As  the  Judge  considered  the  refusing  to  be  a  quite  separate  offence  he imposed that sentence cumulatively on the burglary sentence.

[10]     In support of the appeal Mr Muston submitted that the sentence was clearly excessive because:

[1]      the start point taken for the burglary was too high;

[2]      the Judge had failed to make allowance for mitigating factors;  and

[3]      the totality principle was applied in part only.

[11]     Mr Muston also provided a letter from the appellant to the Court written specifically for the purposes of this appeal.  I have taken the opportunity to read that letter and as Mr Muston has observed it does show some positive features from the appellant’s  point  of  view  in  that  there  now  seems  to  be  an  acceptance  of  his offending  and  perhaps  some  insight  into  his  position.    To  the  extent  the  letter traverses a number of his personal circumstances they were largely referred to by the author of the pre-sentence report.

Decision

[12]     The last point referred to by Mr Muston in support of the appeal, the totality point, can be dealt with shortly.  Mr Muston submitted that the Judge only applied the totality principle to the sentence of refusing to supply rather than applying it overall as he was required to do in terms of the Sentencing Act.   However, after noting that a maximum sentence of two years was appropriate for the refusing and related assault, he then went on to say:

but I must give you some discount for your plea and I must look at the totality of the sentence that I am to impose upon you.  I must have regard to what Parliament said of imposing the least restrictive outcome.  In my view, the absolute minimum that I can impose upon you for that is 16 months.  It is offending which is quite separate to the burglary and so must be cumulative.

[13]     So having started at two years for the refusing the Judge only added in effect

16 months to the burglary to take account of that further offending, after taking

account of the guilty plea.   The Judge therefore reduced the starting point for the refusing from 24 months to 16 months, a reduction of a third.  Given the stage at which the guilty plea was entered in this case, a reduction of no more than 15 to 20 per cent would be applicable for the guilty plea.  It seems clear in my judgment that the Judge reduced the additional four months to take account of the totality of the overall  sentence.    I  am  satisfied  that  the Judge  properly took  into  account  the principle of the need to fix a total sentence, having regard to the sentences being imposed for both the burglary and the refusing offences.

[14]     The principal basis for the appeal is that the starting point of 18 months for the burglary was too high, and the uplift of six months to take account of previous convictions leading to a sentence of two years for burglary effectively involved double counting.  The Judge approached the sentencing exercise for the burglary on the basis of the approach that has been followed by Courts since Senior v Police taking into account the previous convictions when fixing the appropriate start for the sentence.

[15]     Following the Court of Appeal decision in R v Taueki the orthodox approach to sentencing generally is for the starting point to identify the culpability inherent in the offending by reference to the circumstances of the offending itself rather than personal circumstances of the offending.[3]

[3] R v Taueki [2005] 3 NZLR 372 at [42]–[44].

[16]     The Court of Appeal has also noted in R v Lowe[4] and R v Columbus[5] that in sentencing for burglary where there are previous convictions the Court frequently takes the prior history into account in fixing the actual starting point.   But in Columbus the Court of Appeal suggested that in sentencing for burglary as with other sentences, the circumstances of the offending should predominate when fixing the starting point.[6]

[4] R v Lowe CA62/05, 4 July 2005.

[5] R v Columbus [2008] NZCA 192.

[6] At [14].

[17]     As the Court of Appeal noted in Columbus sentencing Judges must 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.

[18]     At the end of the day, however, as Mr Muston properly accepted, the ultimate question for this Court remains whether or not the end sentence imposed in this case is clearly excessive in terms of the relevant offending and the appellant’s personal aggravating and mitigating factors.

[19]     To test whether the sentence is clearly excessive I propose to consider the matter afresh in light of the Taueki approach and relevant authorities of the Court of Appeal.   The Judge was undoubtedly correct to treat the two separate sets of offending  differently and  to  impose  a  cumulative  sentence  bearing  in  mind  the provisions of s 84 of the Sentencing Act.  The offending in this case was different in kind and occurred on two separate occasions.

[20]     There is some force in Mr Muston’s submission that the burglary in this case was  towards  the  lower  end  of  the  scale.    In  Columbus  itself  the  burglary  was relatively  minor.    Mr  Columbus  had  forced  open  a  garage  door  and  stolen  a mountain bike, and some gardening tools and a tool box.   The Court of Appeal considered that despite the effect on the victim the circumstances of the burglary would not themselves justify a starting point of more than one year’s imprisonment. However in this case, while the value of the property taken by the present appellant was less, his actions were more intrusive in that he went into a bedroom of a home and went through a purse.  As Mr Smith submitted, it is not the value of the item stolen that is a significant aspect of the offending.  It is the breaking and entering the property, in this case a home, and the intrusion into a bedroom, that is a serious feature.

[21]     As the Court of Appeal observed in R v Southon:[7]

The seriousness of burglary is not to be underrated.  Although the nature and risks of intrusion into private dwellings are obvious, with their sinister implications for privacy and their potential for grave offences against the person, such risks are not entirely absent in the case of the burglary of commercial premises.

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

[22]     The Court of Appeal have recognised the invasive nature of burglaries and the risks that they impose when private dwellings are broken into.

[23]     So I take as a start point one year for the offence itself in this case.

[24]     There  is  then,  however,  the  need  to  take  into  account  the  appellant’s appalling record for other burglary and dishonesty offences.  While there has been a break in that offending, the appellant has five previous convictions for burglary and, as noted, a significant number for unlawfully being on premises and a number of other dishonesty offences, including convictions for dishonesty offences, including receiving, theft, and shoplifting.

[25]     Mr Muston sought to suggest that it was relevant a number of years had passed  since  the  last  offending.     In  2006  the  appellant  was  sentenced  to imprisonment for two years for burglary.  I note that in Columbus itself the Court of Appeal accepted an uplift of one year’s imprisonment was appropriate for Mr Columbus’ previous offending.   He had 13 previous convictions for burglary and another 34 for property related offences.  His most recent sentence to imprisonment was in 2003, some five years prior to the sentence that was under consideration by the Court of Appeal in that case.

[26]     I also note that in the case of R v Stevens another Court of Appeal decision, the appellant had 60 previous dishonesty offences, including three previous convictions for burglary, the last of which was in 1997 over 10 years before the sentence under appeal and the Court of Appeal in that case confirmed an addition of

12 months’ imprisonment to the starting point was within range.[8]

[8] R v Stevens [2009] NZCA 190.

[27]     In R v Popo, on a different issue, the Court of Appeal confirmed that taking a person’s relevant convictions into account was not to punish them twice but rather was necessary if it showed a predilection to commit a particular type of offence, in which case it was the duty of the Court, for the protection of the public, to take them

into consideration and lengthen the period of imprisonment accordingly.[9]    The principle is now recognised by s 9(1)(j) of the Sentencing Act.

[9] R v Popo [2009] NZCA 447 at [26] – [27].

[28]     Mr Muston sought to rely on the cases of Marra v Police[10]  and Wairau v Police.[11]    However, Marra is not particularly relevant.  Mr Marra was for sentence for his first conviction for burglary with his only previous criminal conviction for driving with excess breath alcohol.  He was also a relatively young man, not 40 as

the appellant was at the time of his offending.  In Wairau the Judge re-analysed the sentencing exercise but ultimately concluded a sentence of imprisonment for four and a half years, the construction of which included four years’ imprisonment for burglary, could not be criticised.

[10] Marra v Police HC Hamilton CRI-2008-419-000005, 26 February 2008.

[11] Wairau v NZ Police HC Invercargill CRI-2008-425-000014, 5 August 2008.

[29]     I conclude that an uplift of one year was appropriate in this case for the previous burglary and dishonesty offending and a sentence of two years for the burglary itself was open to the Judge.

[30]     I turn to the refusing to provide a blood specimen, which includes the minor aggravating feature of throwing the belt towards the constable.  It was accepted the constable was not injured and like the District Court Judge I do not place much weight on this aspect of the matter.  The maximum penalty for the offence is two years’ imprisonment.  A start point of 12 to 15 months for such offending in this case would  be  appropriate.    However,  again  to  that  start  point  must  be  added  the additional aggravating features personal to the appellant in relation to that quite separate offending.  Again they include the number of previous convictions for drink driving and refusing offences.   As the Judge noted the appellant has 16 previous convictions for excess breath, excess blood and refusing a blood sample.  The most recent was 2001.   A further aggravating feature of the offending is that it was committed whilst on bail in relation to the burglary.   In all the circumstances a further uplift of nine to 12 months for the previous convictions and the offending whilst on bail would have been open to the Judge.   This would have supported a sentence, before taking account of personal mitigating factors and the totality principle, of two years on the refusing charge.   The particularly relevant, personal

mitigating factor for the appellant is his plea of guilty to the refusing and assault charge.  However, that was only entered after a number of appearances (six or seven) and after the matter was allocated a fixture.   The charge itself is straightforward. The appellant should have been in a position to accept his responsibility for it at a much earlier date.   He was first before the Court on 4 August 2009 but did not ultimately pleaded guilty until 28 June 2010.   In the circumstances a discount of about 15 per cent would have been appropriate.   That would have reduced the sentence to about 20 months.

[31]     I do not overlook the factors Mr Muston referred to in support of mitigation other than the guilty plea.   Mr Muston emphasised the positive probation report which suggested a form of community based sentence might be appropriate and noted the care the appellant had provided Mr Jane.  Mr Muston also suggested the Judge did not specifically refer to s 16 of the Sentencing Act.  However, with respect to those submissions, the recommendation of the pre-sentence report of community detention was unrealistic in this case given the combined offending.   Given the appellant’s background and offending a non-custodial sentence was simply never an option.

[32]     In relation to other mitigating factors, namely the positive steps the appellant has taken since his last release from prison, regrettably they can be given little weight  when  the  offending  in  this  case  suggests  that  he  has  fallen  back  into offending, not just in relation to burglary but also in relation to drink driving and refusing to supply blood.

[33]     I am also satisfied that the Judge did direct himself to the purposes and principles of the Sentencing Act.   He referred to them at an early stage of his submissions and he also noted the need to impose the least restrictive outcome.  In a busy District Court sentencing list the Judge was not required to go further and itemise each of the particular purposes and principles or to discount the pre- sentencing report in this case when it was obvious that a sentence of imprisonment was required.  I am satisfied the Judge paid the purposes and principles of the Act appropriate consideration.

Result

[34]     That then leads on my analysis, to a combined sentence of 44 months or three years eight months.  Having regard to the need for the Court to consider the totality principle that would be too much and could be seen as harsh.

[35]     It is a matter of judgment.  Different Judges might reduce such a sentence to take account of the totality by four to six months.   In this case Judge McDonald reduced it by four months.  That leaves me to conclude that the ultimate end sentence imposed by the Judge of three years four months is within range.

[36]     Having gone through the exercise of recalculating the sentence imposed on the appellant I conclude the sentence imposed in this case cannot be said to be clearly excessive.

[37]     The appeal is dismissed.

Venning J