Walters v Police HC Auckland CRI-2011-419-000045

[2011] NZHC 939

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000045

MICHAEL WALTERS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 August 2011

Counsel:         S A McKenna for the Appellant

J E Tarrant for the Respondent

Judgment:      12 August 2011

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 12 August 2011 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     S A McKenna P O Box 19342 Hamilton 3244 for the Appellant

Solicitors:   Almao  Douch  P  O  Box  19173  (DX  GP20023)  Hamilton  3244  for  the

Respondent

WALTERS v POLICE HC HAM CRI-2011-419-000045 12 August 2011

[1]      Michael  Walters  pleaded  guilty  to  and  was  convicted  of  one  charge  of burglary and one charge of attempted burglary in the District Court at Hamilton. Though it is not made clear from the sentencing notes (which simply refer to a “sentence”  of  22  months’  imprisonment)  I  assume  that  he  was  sentenced  to concurrent sentences of 22 months’ imprisonment on each charge.  He appeals on the ground the sentences were manifestly excessive. The police oppose the appeal.

Facts

Burglary offence

[2]      On 2 February 2011, Mr Walters walked around a house in Tokoroa, trying the doors, and found the washhouse door open.  He went into the house, searched through it, and removed the following items:

(i)Brown Billabong backpack with chest strap, containing work rosters;

(ii)      Samsung MP3 player;

(iii)     Sony Cypershot digital camera and carry case; and

(iv)Three rings and a necklace from the jewellery box in the main bedroom.

[3]      He put items (ii) to (iv) into the brown Billabong backpack and left the address.

Attempted burglary

[4]      On 3 February 2011, Mr Walters went to an address in Rotorua, walked down the long driveway that is hidden from view from the road, and tried to open the garage door.

[5]      He saw a neighbour watching and headed off through other properties.  He changed his clothes, and was later located at the Waiariki Polytechnic.

Previous convictions

[6]      Mr Walters has an extensive criminal history, which dates to 1982.  The main offences appear to be breaching Court orders/release conditions and driving-related offences (including drink driving and driving whilst disqualified).    He has approximately 25 previous property-related crimes, including 15 charges of burglary or attempted burglary.  However, apart from two burglary offences for which he was sentenced  in  2010,  his  previous  burglary offending  was  in  2001,  when  he  was convicted of burglary (under $500) by day, with the bulk of the burglary offending occurring in 1995 and earlier.

[7]      The 2010 burglary offences occurred on 24 November 2010 and 6 December

2010.  Mr Walters was sentenced on those matters on 20 January 2011, which was shortly before he committed the offences that are the subject of the appeal.  In the case of each of these offences, they included  burglaries by day.   Two offences involved values of between $500 and $5,000 and the others involved values under

$500.

[8]      Mr Walters also has approximately nine cannabis-related charges.   He also has miscellaneous assault charges, including assaulting police, obstruction-type offences, wilful damage, trespass, and dishonesty offences.

[9]      He  has   received  a  range  of  sentences   for   this   offending,   including imprisonment, community work, periodic detention, disqualification from driving, and reparation.

District Court sentencing

[10]     The Judge noted that the pre-sentence report recommended only a short term of imprisonment.  Nonetheless, she considered that Mr Walters’ circumstances and extensive criminal history warranted a longer term of imprisonment.

[11]     The  Judge  described  the  offending  as  constituting  repeat  offending  that occurred while Mr Walters was serving a community work sentence for two earlier burglary convictions.  Further, those earlier burglaries were carried out whilst he was on release conditions for earlier offending (drink driving).

[12]     The Judge adopted a starting point of 20 months’ imprisonment.  In doing so, she took  into  account  Mr Walters’ continued  pattern of offending,  the fact  that personal   items   were   stolen,   and   that   he   seemed   “incapable   of   accepting responsibility” for his offending, or of being deterred.   The Judge also placed emphasis on the protection of the community.  She added eight months to the starting point to reflect the aggravating factor of Mr Walters having committed the offences while he was serving a community sentence.  She then allowed a discount for the guilty plea, which was entered at status hearing, thus bringing the end sentence to 22 months’ imprisonment.

[13]     Standard and special release conditions were to apply for six months after the sentence expiry date. The sentence of community work was cancelled.

[14]     Mr Walters submits that it is clear at [5] of the sentencing notes that his criminal history was treated as a principal component in fixing the starting point.  He submits that the Judge failed to note the low value of the goods taken, that this was opportunistic offending,  and that there was no  financial loss.   Further, that one offence was for attempted burglary.

[15]     Mr Walters submits that the 40 per cent uplift given for offending while on a community sentence was too high.

[16]     Regarding his criminal history, Mr Walters submits that apart from the two burglary offences in 2010, his previous offending for burglary was over 15 years old. After 1995, although there is the 2001 burglary offence, his offending is almost exclusively traffic related and it is submitted, therefore,  that it does not form a pattern or indicate that Mr Walters is unable to be deterred.  He accepts that the two burglaries in 2010 would be of concern to a court.

[17]     However, he notes that although the 2010 burglaries influenced the Judge, she did not have any information about those burglaries before her.  As part of her response to those offences, she cancelled the community-based sentences that were imposed for them.  Mr Walters submits that insofar as those two burglaries may have influenced her decision to arrive at the sentence of 22 months’ imprisonment, the Judge has erred as she did not have information about that offending before her. Mr Walters submits that without a summary of facts to inform her of the seriousness of the 2010 burglary offending, she should not have factored it into the sentence of

22 months’ imprisonment.

[18]     Mr Walters submits that the correct approach would have been to adopt a starting point of no more than 10 months’ imprisonment for the two offences in

2011, on the ground they were spontaneous and opportunistic, and no harm was caused to the victim; then to give a slight uplift of four months, taking into account criminal history, and another five months to reflect the fact there was offending while on a community sentence.   On that approach, allowing for a 20 per cent reduction for a guilty plea (which is the level of discount given by the Judge), the result is a final sentence of 15 months’ imprisonment.  Mr Walters submits that when this is compared to the sentence of 22 months’ imprisonment that was imposed, that sentence is shown to be manifestly excessive.

[19]     The police submit that the sentence is within the range of available sentences. Relying on R  v Peters  CA12/03, 14 May 2003, they submit that any errors in sentencing methodology are of no concern if the final end point sentence is within the range of available sentences.   They submit that for someone with Mr Walters’ criminal history of offending, and especially since the offences in 2011 happened so soon  after  burglary  offending  in  2010,  the  sentence  was  one  that  was  clearly available to the Judge to impose.

Discussion

[20]     On appeal, the Court’s focus is on the end sentence rather than its component parts and the means by which the Judge arrived at the sentence; however, an evaluation of the process the Judge reached to arrive at the end sentence can assist

the Court in forming a view on whether that sentence is manifestly excessive: see R v Columbus [2008] NZCA 192 at [11]. Secondly, sentencing on burglary offences does not always follow the approach set out in R v Taueki [2005] 3 NZLR 372: see Columbus at [12].

[21]     With  burglary  sentencing,  the  approach  has  been  to  take  the  offender’s criminal history into account when setting a starting point.  Despite prior dishonesty offending not being part of the circumstances of the offending, it is drawn into the starting point assessment by virtue of its relevance in assessing the degree of the offender’s culpability within the gravity of the particular offending: see R v Lowe (A62/05, 4 July 2005 at [3]).   This means that a starting point that includes the offender’s  prior  criminal  dishonesty  (the  Lowe  approach)  will  be  higher  than  a starting point that follows the Taueki approach.

[22]     However, on the Taueki approach the starting point would be uplifted to take into account an offender’s criminal history as an aggravating feature related to the offender.  Thus, the outcome on either the Lowe or the Taueki approach may be the same.  The concern would be if a Judge adopted a starting point based on the Lowe approach, and to this added an uplift to take account of the offender’s criminal history, as is done on the Taueki approach.  This would result in a double counting of the offender’s criminal history.

[23]     There has been no double counting here.   The Judge’s starting point of 20 months’ imprisonment reflects her view of Mr Walters’ prior criminal dishonesty offending, as well as the circumstances of the particular offending.

[24]     When it comes to assessing whether the Judge has adopted too high a starting point, Mr Walters’ two burglary offences in 2010 are relevant.   I consider that the other 15 burglary or attempted burglary offences, with all but one of them being

1995 or earlier, are less relevant as they are more than 15 years old.  Mr Walters has not repeatedly and regularly committed burglary offences over the years.   In this regard, I consider that the comments of the Court of Appeal in Columbus at [15] are apposite:

Sentencing Judges must, however, 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: R v Ward [1976] 1NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.

[25]     The gap between the burglary offending in 2010 and the earlier burglary offending shows that Mr Walters is not a persistent burglar.   Clearly, something happened in 2010 to trigger a recommencement of this type of offending.  Whatever that may have been, it has not been clearly identified for me.  However, I note that in July 2010, he was released from prison having served sentences of imprisonment for driving offences and was unable to obtain employment.  This may have weakened the resolve that had previously caused him to desist from burglary offending.

[26]   Columbus says that the sentencing judge’s principal inquiry is into the relationship between the crime and the persistent offending.  Here the prior offending has been intermittent.  There is no evidence to suggest that Mr Walters has what was described  in  Columbus  at  [19]  as  a  “professional  disposition  to  burglary”. Mr Walters has demonstrated that he can refrain from committing this offence.   I consider that account needs to be taken of this.  Further, the actual offending in this case was at the minor end of the scale and one of the offences was an attempt at burglary.

[27]     In Columbus, where the actual offending was described as being at the minor end  of the scale,  the Court  of Appeal  considered  that  the circumstances  of the burglary would justify a starting point of no more than one years’ imprisonment.  I consider that Mr Walters’ offending is very similar to the offending in Columbus.  I consider, therefore, that for the actual offending, a starting point of 12 months’ imprisonment would have also been appropriate here.  There would then need to be an uplift to take into account Mr Walters’ previous offending.

[28]     In Columbus, the uplift to reflect previous criminal history was a further one year’s imprisonment.  However, Mr Columbus had a total of 89 previous convictions of which 13 were for burglary and 34 for property-related offences.   He had been

sentenced to two years’ imprisonment for burglary in 2003.   The judgment on the appeal in Columbus was delivered on 27 June 2008.  Thus, there was approximately five years between the judgment and the imposition of the two years’ imprisonment for the prior burglary offending.

[29]     In Mr Walters’ case, he has 161 prior District Court convictions for a variety of offending.   His prior offending includes 15 convictions for burglary and 131 convictions for other offences involving dishonesty and property.  The 2001 burglary resulted in a sentence of two months’ imprisonment with leave to apply for home detention.   However, at the same time, he received a concurrent sentence of six months’ imprisonment on a charge of dangerous driving.  Thus, it cannot be assumed that the burglary offence in 2001 would necessarily have resulted in imprisonment if the other charge was absent.  On 30 January 1996, Mr Walters was sentenced to three years’ imprisonment for offending which included three burglary offences, each of which had been committed between June and November 1995.  Clearly, the burglary offending in 1995 was  the most serious  burglary offending prior to the present offences.

[30]     Whilst  their  rate  of  burglary  convictions  is  similar,  I  think  there  are differences  between  Mr Walters and  Mr  Columbus.    Mr Columbus  is  10  years younger than Mr Walters and had committed a serious burglary offence resulting in a significant sentence of imprisonment only five years prior to the appeal judgment. With  Mr  Walters,  the  gap  between  the  present  offending  and  prior  significant burglary offending is just over 15 years.  I consider, therefore, that any uplift to take into account Mr Walters’ previous offending would need to be less than the uplift adopted to recognise Mr Columbus’ previous offending.  I consider, therefore, that an uplift of somewhere between six to eight months’ imprisonment would have been appropriate.  This would bring the sentence to either 18 months’ imprisonment or 20 months’ imprisonment, depending on the uplift.  One of the possible outcomes is the same as the Judge’s starting point for the burglary offending.  It follows that up to this point in the sentencing process, the Judge, although she had arrived at the outcome by a different reasoning process, had reached a sentence which was within the range.

[31]     The Judge then added a further uplift of eight months’ imprisonment to take into account the fact the burglary offending occurred while Mr Walters was serving a community-based sentence for the burglary offending in 2010.

[32]     In Columbus, there was a further uplift to reflect multiple offences which Mr Columbus committed after the burglary and at a time when he was on bail for that  offence.    The  later  offences  were  theft  of  petrol  and  a  lawnmower,  and possession  of  a  cannabis  pipe  and  leaf.    The  Court  of Appeal  described  these offences as minor but due to the fact that they were committed while he was on bail for  the  burglary offence,  it  was  considered  that  a  further  uplift  of  six  months’ imprisonment was appropriate.

[33]     In Mr Walters’ case, the actual offending was committed while Mr Walters was serving community-based sentences for the 2010 burglaries.  In this regard, the offending is similar to offending while on bail.   However, there are no additional offences as there were with Mr Columbus.  Some adjustment, therefore, needs to be made.  I consider that any uplift to be applied to Mr Walters’ sentence should be less than the six months’ imprisonment uplift adopted in Columbus.   I consider that a more appropriate uplift would be four months’ imprisonment.  This means that the eight months’ uplift the sentencing Judge adopted for Mr Walters was excessive.

[34]     From a sentence of 28 months’ imprisonment, the Judge gave a discount of six months, bringing the end sentence to one of 22 months’ imprisonment.   The Judge did not identify the quantum of the discount.

[35]     The sentence I have arrived at is somewhere between 22 and 24 months’ imprisonment, before there is an adjustment for mitigating factors.    Mr Walters pleaded guilty at a status hearing.   Thus, he entered a guilty plea at an early opportunity and should receive full credit for that.   The six months’ discount the Judge gave for a guilty plea is close to a 25 per cent discount.  A full 25 per cent discount is likely to have resulted in a sentence of 21 months’ imprisonment.  I see no reason why Mr Walters should not have been given a full 25 per cent discount. A

25 per cent discount from either 22 or 24 months rounded up works out at 5.5 months (as calculated on 22 months) and six months (as calculated on 24 months).

When each possible sentence is rounded up, the end sentence comes to one of 18

months’ imprisonment, regardless of whether the discount is subtracted from 22 or

24 months.   When that sentence is compared to the end sentence of 22 months’ imprisonment that the Judge reached, I consider that the process she has adopted has resulted in her reaching a sentence that is manifestly excessive.   I consider the sentencing process went wrong through the uplift of eight months’ imprisonment to account for the offending while serving a community-based sentence.

[36]     The  Judge  also  cancelled  the  community-based  sentence  for  the  2010 burglary offending.   There was no application before her from the Department of Corrections to re-sentence Mr Walters.   She does not refer to it in her sentencing notes, and the police could not take this matter any further in the hearing before me. In the absence of an application to re-sentence for the 2010 offending and without knowing anything about the 2010 offending, it is not appropriate for me to consider how that offending might now be dealt with.

[37]     In reaching the current sentence, I have taken into account Mr Walters’ prior offending.  Thus, it is reflected in the sentence end point that I have reached.  At the hearing, I had raised with counsel the possibility of sending this matter back to the District Court for rehearing so that the 2010 offending could be properly considered and a fresh sentence imposed for that offending.  However, I now consider that the decision on the part of the Department of Corrections not to apply for re-sentencing on those offences is an indication that the offending was treated as minor.  I consider, therefore, that it can be left to rest.   Thus, I propose to deal with this appeal by allowing the appeal, setting aside the end sentence of 22 months’ imprisonment and imposing in its place a sentence of 18 months’ imprisonment.

[38]     The pre-sentence report identifies Mr Walters having a problem with alcohol. Special release conditions were recommended, including:

(i)To attend a psychological assessment and counselling to the satisfaction of the probation officer and the psychologist;

(ii)To attend any alcohol and drug programme/counselling or treatment to the satisfaction of the probation officer and the provider; and

(iii)     To attend and complete a Tikanga Mäori Programme.

[39]     The Judge imposed standard and special release conditions which were to apply for a term of six months beyond the sentence expiry date.  I am satisfied these standard  and  special  conditions  should  remain  in  force  in  accordance  with  the Judge’s directions.

Result

[40]     The appeal is allowed.  The sentence of 22 months’ imprisonment is set aside and substituted with a sentence of 18 months’ imprisonment.

Duffy J