Thomas v Police

[2016] NZHC 2739

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-109

CRI-2016-409-110 [2016] NZHC 2739

BETWEEN

JAMES BARRY THOMAS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 November 2016
Appearances:	J Lucas and C Lee for Appellant D J Matthews for Crown
Judgment:	15 November 2016

ORAL JUDGMENT OF DUNNINGHAM J

[1]      The appellant, Mr Thomas, pleaded guilty to a number of charges arising out of three distinct series of events.   On the evening of 18 April 2016 he burgled a residential property and stole $950 worth of electronic goods.  On 23 May 2016 he used a stolen  credit  card  to  acquire $400  worth  of goods  from  various  service stations.  On 27 May 2016 he drove dangerously while attempting to evade police. He was subsequently charged with, and pleaded guilty to, one charge of burglary, four charges of dishonestly using a document, and one charge of dangerous driving.

[2]      He was sentenced by Judge Couch in a decision dated 14 September 2016 to a term of two years 11 months’ imprisonment.1   He appeals his sentence on the basis

that it is manifestly excessive.

1      Police v Thomas [2016] NZDC 18009. The appellant was also disqualified from driving for eight months.

The District Court decision

[3]      In the District Court the Judge took the offence of burglary as the lead charge. He expressed the view that the burglary was a “well-organised burglary for personal gain”.  He took a starting point of two years’ imprisonment which was then uplifted by three months to reflect the fact that the burglary involved Mr Thomas’ “unlawful presence in a dwelling house”.   An uplift of nine months was then added for the appellant’s criminal history and a further nine months for the charges of dishonestly using a document.   This led to an end sentence of three years nine months’ imprisonment.   The Judge identified the only mitigating factor as the appellant’s guilty pleas and he then reduced the sentence by 10 months to reach an end sentence of two years 11 months’ imprisonment.  In respect of the dangerous driving charge, the appellant was sentenced to one month imprisonment to be served concurrently and was disqualified from holding or obtaining a drivers licence for eight months.

Grounds of appeal

[4]      Mr Thomas’ primary ground for appeal is that the effective starting point adopted by the Judge for the charge of burglary was too high.  He also says that the Judge erred by failing to apply a discount for the expressed remorse.

Principles on appeal

[5]      The appeal is brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.   Specifically, this Court must allow an appeal against sentence if it is satisfied there has been an error in the imposition of that sentence, including where the sentence is manifestly excessive,

and that in the event, a different sentence should be imposed.2

[6]      However,  if  the  sentence  under  appeal  may be  properly justified  having regard to the relevant sentencing principles, it is not the place of this  Court to intervene  and  substitute  its  own  views  for  those  of  the  sentencing  Judge.    As

Toogood J said in Larkin v Ministry of Development:3

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Larkin v Ministry of Development [2015] NZHC 680 at [26].

The High Court will not intervene where the sentence is within the range that can  properly  be justified by  accepted  sentencing  principles.    Whether  a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[7]      The focus on most appeals is thus on the end sentence.  In Tutakangahau v R, the Court of Appeal held that: 4

…the focus is on the sentence imposed rather than the process by which the sentence is reached.   That encapsulation of the position will no doubt represent the position in the vast majority of cases.

Was the starting point too high?

[8]      Dealing with the first ground of appeal, the appellant says that a sentence of

16 to 18 months was warranted for the lead charge of burglary having regard to comparable cases.  In response to the decision in Arahanga v R, referred to by the respondent,  which  suggests  a  range  of  18  to  30  months’  imprisonment  for  a residential burglary, 5 the appellant points out that this is not a tariff case.  Instead, he referred to a range of cases that suggested that a starting point of 16 to 18 months would be appropriate.

[9]      In particular, the appellant’s submissions referred to a number of cases which were  summarised  in  Newton6   and  Paul,7   to  say  that  a  starting  point  of  16  to

18 months was justified.   In particular, it was submitted that the most comparable cases to the appellant’s offending were Borthwick,8 where there was a starting point of 15 to 18 months for the first burglary, Newton,9 where there was a starting point of

15 months, Marsters,10  where there was a starting of 16 months for all offending,

and Tairi,11  where there was a starting point of 15 months.  It was also pointed out that  cases  such  as  McFall,12    where  there  was  a  21  months  starting  point,

Stepanicic,13 where there was a two year starting point and Povey,14 where there was

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

6      Newton v Police [2012] NZHC 2829.

7      Paul v Police [2015] NZHC 2583.

8      Borthwick v Police [2014] NZHC 2772.

9      Newton v Police, above n 6.

10     Marsters v Police [2014] NZHC 3273.

11     Tairi v Police [2015] NZHC 187.

12     McFall v Police [2015] NZHC 2095.

13     Stepanicic v R [2015] NZCA 211.

a two year starting point, were all more serious burglary offending than in the present case.  For example, McFall and Stepanicic involved two burglaries close in time, and Povey involved two offenders and there was the presence of a spear gun.

[10]     It was also noted by Ms Lee, for the appellant, that the factors identified in Senior,15 as aggravating features of the offending were largely absent in this case.  In particular, there was no danger to occupiers because the occupiers were not at home, there was no targeting behaviour, there was no destruction or vandalism, the items stolen were not a particularly high monetary or sentimental value, and there was no offending whilst on bail.

[11]     Ms Lee also suggested that the District Court Judge overstated matters to say this  was  a  well  organised  burglary.     In  her  submission,  it  was  a  relatively opportunistic burglary where the burglar got access through an unlocked window.

[12]     The  respondent  says  that  the  effective  starting  point  of  two  years  three months is within range having regard to the range referred to in Arahanga, but, in any event, the end sentence is not excessive, taking into account generosity in other parts of the sentencing exercise.  For example, Mr Matthews suggested that the uplift for previous burglaries could have been in the order of 12 months.  The appellant also had the benefit of the sentence for the dangerous driving being imposed concurrently rather than cumulatively in the sentencing exercise.

[13]     Having considered these submissions, I agree that the effective starting point of two years and three months is out of step with comparable cases and consider that a starting point of 18 months is indicated by comparison with cases with a similar range of aggravating features.   The issue then is whether, in the balance of the sentencing exercise, I would still get to approximately the same point, in which case,

I would not disturb the sentence.

14     R v Povey [2009] NZCA 362.

15     Senior v Police (2000) 18 CRNZ 340 (HC).

[14]     In terms of the uplift for previous offending, I do consider that Mr Thomas is a recidivist burglar.16    The uplift of nine months for this offending is, in my view, proportionate when I consider the 18 months starting point for this burglary which I have considered appropriate.

[15]     No challenge is taken to the nine months’ uplift for the further dishonesty offending  of  using  a  document.    While  it  would  of  course  have  been  quite appropriate to add two  months cumulatively on this sentence for the dangerous driving, rather than concurrently, I see no need to disturb the Judge’s decision on this.

[16]     This brings me to the final issue of whether there needs to be a further discount  for the expressed  remorse.    In  this  regard,  Ms  Lee took  me carefully through the pre-sentence reports which stated that Mr Thomas felt bad and guilty when he heard that the victims of the offending were elderly.  They also confirmed he had written apology letters to the victims and Mr Thomas was endeavouring to address his long term drug abuse issues.  The appellant’s submission was that this demonstrated remorse did entitle Mr Thomas to a further discount.

[17]     In  response, Mr Matthews  stated  that  there was  no  tangible evidence  of remorse beyond that implicit in the early guilty plea and the Judge was entitled to treat the appellant’s expressed remorse and desire for rehabilitation with a degree of scepticism.  He noted that Mr Thomas had been seen by CADS in 2003, 2005, 2006 and by the Christchurch Opioid Recovery Service in 2007 and yet had continued to offend.  Furthermore, despite his self-referral to the Christchurch Opioid Recovery Service  in  April  this  year,  he  continued  to  offend  in  April  and  May.    In  his submission these were matters for the discretion of the District Court Judge and there

was no error in declining to allow any further credit for these factors.

16     The  Judge  recorded  that  the  appellant  had  22  previous  convictions  for  burglary  and

23 convictions for dishonestly using a document.  While the appellant said the totals should be

19 and 18 convictions respectively it does not, in my view, materially offset the justification for an uplift.

[18]     In my view, notwithstanding the recorded expressions of remorse, this is not a matter where I would be prepared to disturb the District Court Judge’s finding.  He was entitled to be sceptical about whether the remorse stated on this occasion would translate into any real genuine attempts by the appellant to end his offending and I am not prepared to apply a further discount on that factor.

[19]     That leads me to a conclusion where I have determined that an 18 month starting point would be appropriate.  I would apply the same uplifts to that starting point which takes me to a total sentence of 36 months.   Applying a 25 per cent discount of nine months for the guilty pleas takes me to a sentence of 27 months, which is an end sentence of two years three months for the charges of burglary and dishonestly using a document.  That is some margin less than the sentence imposed, and therefore it is appropriate to substitute the lesser sentence on these charges.

[20]     Accordingly, the appeal is allowed.  The sentence of two years 11 months’ imprisonment   is   quashed   and   a  sentence  of   two   years  and   three   months’ imprisonment  is  substituted on  the  charges  of  burglary and  dishonestly using a document. The sentence for dangerous driving remains, of course, untouched.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch