Tito v Police

[2014] NZHC 3283

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-000028 [2014] NZHC 3283

BRUCE-JUNIOR TITO

v

NEW ZEALAND POLICE

Hearing:	15 December 2014
Appearances:	J C Hannam for the Appellant M C Sweetman for the Crown
Judgment:	17 December 2014

JUDGMENT OF THOMAS J

This judgment was delivered by me on 17 December 2014 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Hannam & Co. Lawyers, New Plymouth. C&M Legal, New Plymouth.

TITO v NEW ZEALAND POLICE [2014] NZHC 3283 [17 December 2014]

Introduction

[1]      On 9 September 2014, following a sentencing indication, Mr Tito pleaded guilty  to  one  charge  of    unlawfully taking  a  motor  vehicle  and  one  charge  of burglary.   He had also previously pleaded guilty to one charge of breaching community work.  He accepted the sentencing indication and was sentenced to two years and three months' imprisonment.

[2]      Mr Tito was sentenced without the benefit of a pre-sentence report.  No issue was taken with that, his counsel explaining that Mr Tito was in custody and felt he had no choice.

[3]      Although it was not referred to by either counsel at the appeal it is evident that the sentencing also incorporated a charge of shoplifting referred to at paragraph

2 of the Judge’s sentencing remarks and in respect of which a concurrent sentence of

one month’s imprisonment was imposed.

Relevant facts

[4]      On the evening of 14 July 2014, Mr Tito and two associates broke into a residential property.  The group took a number of items, to the value of $6,625 from the house.   During the burglary the owner of the house was asleep in the master bedroom.

[5]      The group attempted to leave in the car they had brought, but ran out of petrol.  They therefore took a petrol can from a nearby property to try and refill the car.  When this failed, they returned to the original house and stole a car valued at around $40,000.

[6]      The Judge took burglary as the lead offence.   His Honour accepted that a starting point of eighteen months' to two and a half years' imprisonment would normally be appropriate for this kind of offending.  However, the Judge set a starting point of three years, having regard to the totality of the offending and to Mr Tito's history of dishonesty related offending.   The Judge also noted that this included

taking into account the earlier charge of breach of community work and the fines which were to be commuted.

[7]      The only discount  available to  Mr Tito  was  for his  guilty plea,  and  the sentence was reduced by nine months to account for this.  The final sentence applied was therefore two years and nine months' imprisonment, consistent with the sentence indication which had been given.  The Judge also sentenced Mr Tito to concurrent sentences  of  eighteen  months'  and  six  weeks'  imprisonment  for  taking  a  motor vehicle and breach of community work respectively.

Submissions

Appellant

[8]      The appellant submits that the judge erred in applying totality and that the sentence was manifestly excessive.

[9]      Counsel for the appellant says that Mr Tito's sentence is significantly out of step with his co-offenders.  One co-offender was sentenced to 300 hours community work while the other is currently a resident at a treatment centre.   The relevant decisions have not been provided.

[10]     The appellant also submits that the starting point was too high having regard to other comparable cases.

[11]     Finally, counsel for the appellant submits that the Judge's approach to totality was wrong and in particular, that the concurrent sentences given by the Judge are too high.

Respondent

[12]     The respondent submits that the starting point was appropriate, taking into account all the circumstances of the offending and is consistent with the decision of

the Court of Appeal in Arahanga v R.1

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

Approach to appeal

[13]     Section 250 of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)      for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[14]     In any other case, the Court must dismiss the appeal.2 =

[15]     Section 250 confirms the approach taken by the courts under the former

Summary Proceedings Act 1957.3 This approach was set out in R v Shipton:4

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[16]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Analysis

[17]     There is no tariff case for burglary as the range of circumstances in which the offence can be committed is so varied.5

2      Criminal Procedure Act 2011, s 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].

4      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

5      Aranhanga v R, above n 1, at [78].

[18]     Senior v Police is a guideline judgment of the full bench of the High Court for burglary offending where three categories of burglary were set out: 6

(a)       Category 1: First time burglary.

(i)Depending on aggravating and mitigating factors, a prison sentence may be imposed although frequently this is not the case.

(b)      Category 2: Recidivist burglary.

(i)Length of sentence depends on previous convictions, number of offences for which the offender appears for sentence and presence of aggravating and mitigating factors.

(ii)      The offender is unlikely to receive a sentence exceeding three

years’ imprisonment.

(c)       Category 3: Spree burglary.

(i)This category applies to a burglar who appears for sentence on a large number of burglaries all committed within a short space of time.

[19]     Senior v Police also set out a number of aggravating factors to be considered in assessing the seriousness of offending in burglary cases:7

(1)       Behaviour which involves actual danger to or confrontation with occupiers or the risk of such dangers and confrontation.  This factor will almost always be present with the burglary of a dwelling house particularly by night and it is of particular concern where the occupants of such a dwelling house are elderly, infirm or vulnerable.

(2)       Behaviour  which  is  likely  to  make  the  victim feel  targeted.  For instance repetitive burglaries of the same property and the theft of personal items.

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

7 At [19].

(3)       Wanton destruction of property and acts of vandalism.

(4)      The theft of items of high monetary or sentimental value. (5)          Sophisticated planning and execution.

(6)       Offending while on bail, while on parole or in close proximity to

Court appearances on other charges, particularly of burglary.

[20]     However,  it  is  important  to  use  caution  when  applying  Senior.    In  R  v Southon the Court of Appeal stated that Senior should not be “regarded as more than a very helpful analysis of historic sentencing patterns in this area”.8   As a result it is important to have due regard to similar cases in setting the starting point.   The comments of the Court of Appeal in Arahanga v R are also noteworthy in this case:9

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.

[21]     This is confirmed in several recent cases where similar sentences have been imposed.  In Schaumkel v R, the Court of Appeal upheld a starting point of two years and six months for breaking into a house during the day and being party to the theft of a motor vehicle.10   In that case, there was also a confrontation with the owner of the house when she arrived home during the burglary.  In Waiwai v R the Court of Appeal reduced a starting point of two years and six months' imprisonment to twenty

months for a daytime burglary with an uplift of four months for a previous theft of a motor vehicle.11   Finally, in Subritzky v R the Court of Appeal upheld a starting point of three years for an offender who broke into a residential property, taking into account a charge of converting a vehicle.12

[22]     In Ms Sweetman’s submission the offending in this case was elevated out of the relatively minor end of the scale by the number of factors identified by the Court of Appeal in Arahanga at paragraph 78. A consideration of those items led the Court

to uphold a starting point of four years’ imprisonment in that case.

8      R v Southon (2003) 20 CRNZ 104 (CA) at [13].

9      Arahanga v R, above n 1, at [78].

10     Schaumkel v R [2012] NZCA 569.

11     Waiwai v R [2012] NZCA 251.

12     Subritzky v R [2007] NZCA 75.

[23]     The  offending  must,  however,  be  placed  in  context  and  as  the  Court emphasised the range of circumstances in which burglary can be committed are so varied.13    Tellingly different in this case from Arahanga is the fact that one house only was burgled and, aside from the unlawful taking of a motor vehicle which is a separate charge, the value of items stolen although not minimal is certainly not at the upper end of the range.   More importantly, in Arahanga one of the offenders was armed with a carving knife and the violence of the offenders’ behaviour meant the risk of violence was highly relevant as an aggravating feature.

[24]     Having considered the facts and the other cases referred to, I am satisfied that

Mr Tito’s burglary was at the lower end of the spectrum.

[25]     Before settling on a starting point it is also relevant to consider the treatment of the co-offenders.  It is not in dispute that one co-offender was sentenced to 225 hours of community work on the burglary and 100 hours on the charge of unlawfully taking a motor vehicle.  It is fair to assume that the offender had no relevant prior convictions. The other offender is currently resident in a Mental Health Unit and has yet to be sentenced.

[26]     The issue of parity is a difficult one given the lack of information about the other offenders.  It is but one of the items to consider in the circumstances.

[27]     I am satisfied that a starting point of around 20 months’ imprisonment would

be appropriate for the burglary alone.

[28]     From this point, it is necessary to uplift the offending to take into account the taking of the car. An uplift of six months would be appropriate for this factor.

[29]     The  Judge  took  a  starting  point  of  36  months  to  incorporate  all  of  the offending.  There was also a charge of breach of community work before the Court. There was no application to cancel the community work sentence.  I note 80 hours were imposed on 22 October 2013 and the Judge had said that no hours were done.

In respect of that I would increase the sentence by two months and then a further

13     Aranhanga v R, above n 1, at [78].

increase of one month in respect of the shoplifting charge.   That brings the total sentence before considering credit for a guilty plea to 29 months.  Having considered the matter on a totality basis I am satisfied that is not excessive.

[30]     With a discount for a guilty plea the end sentence comes to 22 months’ imprisonment, as against the District Court Judge’s sentence of two years and three months (27 months).  I consider the District Court sentence manifestly excessive.

Reasons

[31]     For the reasons given the sentenced is quashed and replaced by a sentence of

22   months’  imprisonment   imposed   on   the   charge   of   burglary,   six   months concurrently on the charge of unlawfully taking a motor vehicle, one month concurrently in relation to the theft by shoplifting and six weeks concurrently in

respect of the breach of community work.

Thomas J