Thomas v Police

[2020] NZHC 273

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-45

[2020] NZHC 273

BETWEEN

JUAN THOMAS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

25 February 2020

Appearances:

Appellant on own behalf

R Annandale for the Respondent

Judgment:

25 February 2020

ORAL JUDGMENT OF GORDON J

Solicitors:           Crown Solicitor, Whangarei Copy To:  Appellant

THOMAS v POLICE [2020] NZHC 273 [25 February 2020]

Introduction

[1]    The appellant, Juan Thomas, was sentenced to eight months’ home detention following conviction on two counts of assault by male on female1 (three months’ home detention) and three charges of burglary (five months’ home detention).2 He was convicted and discharged on a count of breach of community work, which had since been completed. Reparations of $1,050.00 were ordered to be paid to the victims of the burglaries.

[2]    He now appeals against sentence on the grounds the sentence was manifestly excessive because the judge did not give sufficient weight to the period on EM bail and time in custody.

Factual background

[3]    On the morning of 19 May 2018, Mr Thomas was at home with his then partner. At 9.10am, the police received a call from a concerned resident regarding a domestic incident occurring at  Mr  Thomas’ address.  During  the  course  of  this  incident, Mr Thomas was seen outside the house acting in an aggressive manner towards his partner, causing her to run away. Mr Thomas and his partner returned to the house together but she was later found by police in a distressed state cowering in the house. She had dried blood around her mouth and, following examination, was found to have a cut lip and bruising to her face, legs and arms.

[4]    Mr Thomas was arrested and granted bail. A condition of his bail was that he was not to have contact with the complainant. On 18 August 2018, Mr Thomas was at her home. He had been showering and asked her to give him her phone so he could use it. She refused to do so and reminded him that he was not permitted to be at her house. Mr Thomas backed the complainant into a bedroom and blocked the exit. He threw an object against the wall before taking her by the neck and shoulders and pressing her to the  ground.  She  received  scratches  to  her  neck  and  shoulder.  Mr Thomas stood over her while she tried to protect herself. A third party at the house

1      Crimes Act 1961, s 194(b): maximum penalty of two years’ imprisonment.

2      Crimes Act 1961, s 231(1)(a): maximum penalty of 10 years’ imprisonment.

intervened to stop the incident and Mr Thomas left the house. The complainant considered a protection order at this point but one was not pursued.

[5]    The burglaries occurred on 1 August 2018 while Mr Thomas was on bail for the first assault and before the second assault. Along with two others, Mr Thomas burgled three properties. None of the victims know Mr Thomas. A trailer was removed from the first, a number of power tools and other equipment from the second (including a leaf blower and safety equipment) and power tools and other equipment from the third (including a lawnmower, line trimmer and petrol containers). This equipment was loaded into the stolen trailer and taken to Mr Thomas’ then residence. In the course of responding to the domestic incident on 18 August 2018, the police located stolen property at Mr Thomas’ address.

District Court decision

[6]    On 3 December 2019, Mr Thomas was sentenced in the Whangarei District Court.3 There was some confusion as to whether he had received a sentence indication, but he was sentenced partly by reference to a sentence indication received by his co-offenders.

[7]    Judge McDonald outlined the background facts, as above, and considered the victim impact reports given by the burglary victims. The Judge considered the first assault event was at the lower end of the scale. The incident involved pushing and the complainant was left with a cut lip. The second assault event was more serious because it involved a breach of Mr Thomas’ bail conditions, grabbing the complainant, throwing her to the ground and standing over her. The offending only stopped through the intervention of a third party. In respect of that assault a starting point of six months imprisonment was considered appropriate by the Judge.

[8]    As to the burglaries, the Judge described them as planned, especially as the trailer was taken first to facilitate the subsequent burglaries. The Judge set a starting point of 18 months imprisonment based on a sentencing indication which could not be

3      Police v Thomas [2019] NZDC 24402.

found on the file, but which Mr Thomas said he had received.4 The Judge also had regard to the sentencing of the other defendants.

[9]    The Judge noted that Mr Thomas had been the subject of three pre-sentence reports. The first two recommended a sentence of imprisonment. However, due to the passage of  time  between  his  first  appearance  and  the  sentencing  hearing, Mr Thomas had not only completed a number of activities which indicated genuine remorse, he had also become a father in that time. The Judge observed his living environment was more stable. The pre-sentence report now recommended home detention and the Judge adopted that recommendation.

[10]The Judge adjusted the starting point in the following manner:

(a)No uplift for previous convictions;

(b)Deduction of 20 per cent for Mr Thomas’ guilty plea because the plea was “reasonably late” in time;5

(c)Deduction of 10 per cent was justified for the restrictive bail conditions;

(d)Unspecified deduction for youth (which was, based on the final sentence, seemingly in the region of one third on each starting point).

[11]The Judge imposed the following sentences:6

(a)For the two assault charges, three months’ home detention;

(b)For the two burglary charges, five months’ home detention to be served cumulatively (i.e. a total of 8 months’ home detention);

(c)Reparations of $1,050.00 to the burglary victims.7

4 At [13].

5 At [16].

6 At [17].

7 At [18].

Submissions

[12]   Mr Thomas’ single ground of appeal is that the sentence was manifestly excessive. His notice of appeal specified “that the judge didn’t give sufficient weight to the 11 months on electronic bail + time in custody”. Today Mr Thomas appeared on his own behalf and addressed the Court on that issue.

[13]   The  Crown  has  filed  written  submissions   opposing   the   appeal   and  Mr Annandale appears today on behalf of the Crown. He submits that the sentence imposed was within the range of sentences available and could be considered reasonable. Mr Annandale notes that reports received in the District Court indicated that a custodial term was appropriate. Mr Annandale submits an appropriate starting point of six months’ imprisonment for the assaults plus 18 months for the burglary (including uplift for breach of conditions), and then reductions for guilty pleas, restrictive bail, and youth (of around one third) equate to 16 months of imprisonment. As such, eight months of home detention is well within the appropriate range.

Approach to appeals against sentence

[14]   Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal if it is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.

[15]   In determining whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.8 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.9 The focus is on the end result rather than the process by which the sentence was reached.10

Discussion

[16]   The process used in the District Court sentencing is not easily followed mathematically. The Judge set a six month starting point on the assault charges and 18 month on the burglaries, deducted 20 per cent for guilty pleas alongside 10 per cent

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

9      At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [10].

10     Tutakangahau v R, above n 8, at [36].

for restrictive bail terms and “something for your youth”. As noted, this latter discount was seemingly in the region of one third. Given the youth discount was not specified, it is difficult to tell whether any adjustment was made in substituting a sentence of home detention for one of imprisonment.

Setting the starting point in male assaults female cases

[17]   The Court of Appeal discussed the starting point for sentence on a charge of male assaults female in Wallace v R.11 The decision notes that there is no tariff decision on this type of offending and the determination of a starting point depends on the particular circumstances of the assault.

[18]   In R v Reihana the Court of Appeal considered a relatively serious instance of male assaults female offending. The appellant entered the complainant’s home and, in anger, punched her unexpectedly. The Court of Appeal decided this offending justified a sentence of five months’ imprisonment with leave to apply for home detention where the appellant had no prior convictions for violence.12

[19]   In Nixon v R an appellant told a female resident to leave the premises, then grabbed her by her top and pushed her out the door causing her to fall onto concrete, where he kicked her three times, causing bruising and requiring her to use crutches for six days.13 The Court of Appeal upheld a sentence of 12 months’ imprisonment, although the Court described it as “firm”.14

[20]   In Puata v Police an appellant pleaded guilty, accepting a set of facts in which he was asked to leave during an argument with his sister (at his home address), then pushed her multiple times, causing her to stumble, and then struck her in the face and head several times, causing her to fall.15 He continued to act aggressively, and she hit him with a ceramic pot and barricaded herself in another room with her children. The High Court considered a starting point of six months’ imprisonment was appropriate.16

11     Wallace v R [2012] NZCA 546.

12     R v Reihana CA143/03, 3 July 2003 at [45].

13     Nixon v R CA87/01, 19 June 2001.

14 At [26].

15     Puata v Police [2016] NZHC 1323.

16 At [18].

[21]   I consider that indicating a starting point of six  months’ imprisonment for  Mr Thomas’ offending was not excessive. There were two assaults. The second in particular involved intimidating behaviour, with Mr Thomas remaining present despite a bail condition and the victim’s requests that he leave, and pressing her to the ground by the neck. I consider this was a similar level of  severity to  the  offending  in Puata v Police, taking account of the fact the second offending occurred during a breach of a bail condition resulting from similar offending.

Setting the starting point in burglary cases

[22]   There is no guideline decision for burglary offending. As noted by this Court, choosing a starting point for a burglary sentence is perplexing.17 And the Court of Appeal has specifically declined to provide sentencing tariffs for this offending.18 The range of circumstances in which a burglary can be committed are too varied — it can range from “well planned and executed heists of valuable property to the opportunistic taking of a low value item by entry through an open window or unlocked door”.19

[23]   In Senior v Police, the Full Court of the High Court identified three categories of burglars: the first-time burglar, recidivist burglar and spree burglar.20 However, in R v Southon, it was noted that the analysis of sentencing patterns provided in Senior should not be regarded as providing indicative sentencing levels for recidivist burglars.21 Senior appears to imply that the starting point should be fixed by reference not only to the current offence but also to the offender’s previous history.22 However, this is contrary to the normal methodology for fixing a starting point, which is to determine the sentence appropriate for the offending, prior to considering aggravating and mitigating factors relevant to the offender. Thus, as the Court of Appeal noted, in sentencing for burglary, as for other offences, the circumstances of the offending predominate when fixing the starting point.23

17     Blissett v Police [2013] NZHC 156 at [27].

18     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

19     Blissett v Police, above n 17, at [27].

20     Senior v Police (2000) 18 CRNZ 340 (HC) at [25].

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

22     Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SAC10.01].

23     R v Columbus [2008] NZCA 192 at [14].

[24]   In assessing the criminality of the particular offending, relevant considerations include:24

(a)the degree of planning and sophistication;

(b)the nature of the premises entered;

(c)the kind and value of property stolen;

(d)damage done;

(e)the impact and potential impact upon occupants or owners of the property entered; and

(f)the extent of the offending, where multiple burglaries are involved.

[25]In Arahanga v R the Court of Appeal stated:25

[B]urglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

(footnotes omitted)

[26]   In Gray v Police the appellant pleaded guilty to charges of burglary, receiving, theft and failure to answer bail, each arising from discrete incidents.26 The burglary involved squeezing through a gap in the property’s fence with an associate, opening the sliding door of a work van parked there, and stealing power tools worth approximately $5,500. Mr Gray also stole a mountain bike valued at $899 from another property. In that case this Court considered an appropriate starting point was 12 months’ imprisonment, on the basis that the offending was opportunistic and unplanned but still involved an associate and $5,500 in value taken and not

24     R v Nguyen CA110/01, 2 July 2001 at [17]; and Luke v Police [2013] NZHC 3175 at [13]–[14].

25     Arahanga v R, above n 18.

26     Gray v Police [2018] NZHC 3245.

recovered.27 Also somewhat mitigating was that Mr Gray did not enter the domestic dwelling house.

[27]   In R v Columbus an appellant had pleaded guilty to one charge of burglary, two charges of theft, one charge of possession of cannabis and one charge of possession of a pipe.28 He had forced open the vehicle access door of a garage at a residential property, causing damage. He then stole a mountain bike, gardening tools and a tool box. The Court of Appeal described the burglary as “at the minor end of the scale”, and as spontaneous because the defendant wanted money.29 While the owner suffered a sense of emotional violation and limitation of loss, an appropriate starting point was not more than one year’s imprisonment.30

[28]   In Blissett v Police an appellant had been convicted of charges of burglary, receiving and possession of a glass pipe for the purpose of consuming methamphetamine.31 He entered the outside area of a domestic dwelling during the daytime and attempted to force open a window. When the window broke, he left the scene. A few weeks later, again during the daytime, the defendant and an associate had broken into a domestic residence and took personal property, including a camera and items of jewellery, with a total value of $2,000. The High Court considered the timing and relatively low value of items taken placed the burglary at the low end of the scale.32 The involvement of an accomplice and some planning were aggravating, as was the damaging of property inside the premises and that property was not recovered.33 The Court considered the offending more serious than in Columbus, with a starting point between 16 and 18 months’ imprisonment being appropriate – the Court settled on 17 months.34

[29]   In Marsh v R the appellant and two accomplices drove to a property, forced open the doors and entered the house.35 Once inside, $90,000 of property was

27 At [37].

28     R v Columbus [2008] NZCA 192.

29 At [16].

30 At [16].

31     Blissett v Police [2013] NZHC 156.

32 At [37].

33 At [37].

34 At [45].

35     Marsh v Police [2010] NZCA 445.

removed and loaded into a car. A co-offender also stole a car from the garage. Next he walked to another property intending to burgle it but was confronted by the owner and left. He then broke into the neighbouring property that night through the garage, stealing a television set and an iPod valued at $2,820. On a third occasion he burgled another property by forcing open the doors, removing a television and computer outside, where he waited for an accomplice to pick him up, but was apprehended by police. Regarding the first offending, the Court considered Mr Marsh was the lead offender, who had a long history of offending and was on parole at the time of the first offence.36 This justified the initial starting point of three and a half years’ imprisonment.37 Alongside the other burglaries, committed while on bail, an uplifted starting point of five years’ imprisonment was fully appropriate.38 The accomplice in the first offending was given a starting point of two years and three months’ imprisonment, on the basis that he was not a serial offender and was not the lead offender but simply loaded the car with stolen goods.39

[30]   In Rigby v R the appellant pleaded guilty to two charges of burglary, three charges of dishonest use of a document, two charges of theft and one charge of failure to answer bail.40 The first burglary involved entering a private dwelling through a bedroom window and taking jewellery estimated to have a value of $15,000 and other items including clothing, shoes and a watch collectively worth around $1,000. The second burglary involved the appellant and two co-defendants arriving at a property, with two of them removing a number of pairs of shoes to their car (where the third kept watch), and then re-entering the property, at which point the occupiers arrived home and confronted them, causing Ms Rigby and her co-offender to flee. The Court considered a starting point of two years and four months’ imprisonment was appropriate on the burglary charges.41

[31]   In terms of the type of offending, Mr Thomas’ offending appears to be of moderate severity. There were three burglaries of addresses that appear to have been

36 At [11].

37 At [10].

38 At [13].

39 At [10].

40     Rigby v R [2018] NZHC 478.

41 At [24].

targeted beforehand while Mr Thomas was on bail for a different offence. Mr Thomas was one of three burglars. They entered private property and took items which had some financial value, and at least the loss of the trailer was was significant for its owner. The use of the trailer stolen at the first premises indicates some measure of planning. I note that the burglars did not enter the actual residences of the three locations, and only stole property from behind one house and the garages of two others. However, it is aggravating that the burglars continued, going to a third address, after having been spotted at the second.

[32]   I consider this offending was notably more serious than that in Gray and Columbus, less serious than Marsh and somewhat similar in severity to Blissett. While the particular facts are distinct, the level of severity is somewhat analogous. The offending is more serious, in that it occurred at night and involved two accomplices as well as progressing across three different residences. Like Blissett it involved some measure of forward planning. Unlike in Blissett there was no entry of the actual dwellinghouse – though the burglaries were around the residences and in the garage, sufficient to awaken one of the victims. For a run of three burglaries I consider that 18 months’ imprisonment was within the range available to the Judge.

Personal features of the appellant

[33]   Judge McDonald indicated an intention to give Mr Thomas home detention based on the final pre-sentence report. As already noted, the Judge made deductions of 20 per cent for the guilty plea, despite it coming “reasonably late”, 10 per cent for restrictive bail terms, and “something for youth”.42 He then imposed final sentences of three months’ home detention on the assault charges and five months’ home detention cumulative on the two burglaries, alongside the reparations which were not challenged. As I have already indicated, it is not clear whether this final substitution involved reducing the totals he had reached.

[34]   The only discount directly challenged in the appellant’s appeal is the 10 per cent for restrictive bail, which Mr Thomas says should have been higher to reflect  11 months split between EM bail and time in custody. The Court of Appeal in

42     Police v Thomas, above n 3, at [16].

R v Chea confirmed that there is no strict rule or mathematical formula for the level of discount to be granted for time spent on EM bail.43 In R v R the Court of Appeal said that, where 12 months was spent complying with EM bail on very restrictive conditions a discount of four to six months was potentially available – though in that case adjusting accordingly would have still amounted to tinkering, as the imposed sentence was within the acceptable range, albeit at the upper end.44

[35]   In my view, that is the case here. The Judge reached a final sentence of home detention having taken into account time spent on restrictive bail terms. I do not consider it could be said a sentence of eight months’ home detention, arising from charges of some seriousness, is manifestly excessive.

[36]   Once it has been deemed appropriate to impose a sentence of imprisonment of less than 24 months a Judge exercises a discretion as to whether it’s appropriate to substitute that sentence for one of home detention. There is no mathematical approach to imposing a sentence of home detention either. Determining the length of a term requires an evaluative assessment of all the circumstances relevant to the offender and consistent with the purposes and principles of the Sentencing Act 2000. That is inherently a somewhat discretionary exercise based on the assessment made by the Court.

[37]   While it might have been available to the District Court Judge to impose a slightly lesser sentence, I do not consider it can be said that the sentence of eight months’ home detention imposed was outside the available range.

Result

[38]The appeal is dismissed.

Gordon J

43     R v Chea [2016] NZCA 207 at [110].

44     R v R [2017] NZCA 210 at [14].