Wharton v Police

[2017] NZHC 960

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

CRI-2017-463-13

[2017] NZHC 960

BETWEEN

CHARLES EDMOND WHARTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 May 2017
Appearances:	K Johnson (on instructions from R Plunket) for the Appellant AZM Shore for the Respondent
Judgment:	11 May 2017

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Ms K Johnson, Potts & Hodgson Ltd, Solicitors, Opotiki Ms R Plunket, Barrister, Whakatane

WHARTON v POLICE [2017] NZHC 960 [11 May 2017]

Ms AZM Shore, Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

[1]                  Mr Wharton appeals against a sentence of 12 months imprisonment for burglary.1

[2]                  The facts can be stated briefly. One night three associates of Mr Wharton, with whom he was that night spending some time, burgled a home where the residents were asleep. Mr Wharton had apparently discussed the possibility of a burglary with them but in the end did not go with his three associates. These people decided to go back the same night and on that occasion Mr Wharton went with them. The police summary of facts, to which Mr Wharton pleaded guilty, records that on this occasion – the second occasion – Mr Wharton simply waited outside the house at the door. One of his associates went in and then called another to go in. The fourth person acted as a look-out. Mr Wharton claimed he was heavily intoxicated.

The sentence

[3]                  In respect of the gravity of the offence Judge P G Mabey QC noted two matters. In relation to what Mr Wharton did the Judge said:

[4]                   … He chose not to partake in [the first burglary] but for reasons best known to Mr Wharton he engaged with them later and on the second occasion they went into the property he became involved in a burglary. His share of the reparation is reflected in the schedules which I have been provided. One to an insurance company of $1,039.17 and one directly to the owner of $325.

[4]The Judge also referred to the victim impact statement. He said:

[8]  … The victim impact statement is typical of those that have their  privacy breached and property taken. They live in fear and will continue to do so for some time. That is a human consequence of domestic burglary.

[5]        In respect of a starting point, the Judge noted that in Arahanga v R the Court of Appeal “indicated that a start point for a low-level domestic burglary is 18 months imprisonment”.2 It may assist to record at this point the full statement of the Court:3

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.⁴ Burglary of a domestic residence is a significant aggravating feature at sentencing due

1      Police v Wharton [2016] NZDC 26862.

2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189, (2012) 26 CRNZ 63.

3      Ibid, at [78]

4 As noted in Sunnex v Police HC Christchurch CRI-2010-409-43, 17 June 2001 at [7].

to the heightened risk of confrontation with the occupants.⁵ Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’⁶ to two years and six months’⁷ imprisonment.

[6]        The Judge concluded, following the reference to Arahanga, and noting Senior v Police,8 R v Columbus9 and R v Southon:10

[10] In all the circumstances and having regard to the contents of the pre- sentence report and giving credit for the guilty plea I consider that an appropriate sentence for the charge of burglary is 12 months’ imprisonment. That will be imposed cumulatively upon the two months for the breaches of community work.

[7]        In respect of personal factors and related matters the only other observation of the Judge, apart from what is implicit in his reference to the pre-sentence report, concerned the sentences of the co-defendants. The Judge said in this regard:

[5] Mr Hesketh tells me and the police sergeant confirms that the co- defendants all received community-based sentences. I am not sure what they are but I expect home detention. I know nothing of their previous history but I do know that Mr Wharton has previous convictions for aggravated robbery in 2006 and burglary in 2005. They are matters which are to a certain extent historic but nonetheless relevant.

[8]        It will assist to record or summarise some aspects of the pre-sentence report. The current charges were not considered an “escalation of Mr Wharton’s risk but a continuation of his sporadic offending”. The appellant was assessed “as having a medium risk of reoffending and harm to others”. The appellant claimed “… he should have walked away and not gone along with it, however got caught up in the adrenalin rush [and] admits at the time he was heavily intoxicated and does not remember everything that occurred that night. The report writer states: “He accepts responsibility for his part, and does not shift blame for his co-offenders, despite playing a lesser role in the offending [and] [a]lthough sorry for any harm he may have caused the victims, Mr Wharton lacked insight into the financial losses and emotional turmoil his victims

5      Senior v Police (2000) 18 CRNZ 340 (HC) at [19].

6      See Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012, Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009 and Police v Vincent DC Palmerston North CRI- 2008-054-4634, 21 April 2009.

7      See Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010 and Snowden v Police

HC Hamilton CRI-2010-419-52, 15 July 2010.

8      Senior v Police, above n 5.

9      R v Columbus [2008] NZCA 192.

10     R v Southon (2003) 20 CRNZ 104.

may be experiencing”. The appellant failed to provide any explanation for offending other than “I don’t know”.

[9]        The possibility of home detention was investigated. The advice to the Court was that an electronically monitored sentence was not available at the proposed address essentially for three reasons. The first was that one of the occupants, Mr Wharton’s father, was not available to be interviewed, as required under the Act. The second was gang connections to the property. The third was an assessment that Mr Wharton himself was not a suitable candidate for home detention. The report writer said:

Mr Wharton’s history of non-compliance provides evidence he does not have the ability to comply with the restrictive nature of an electronically monitored sentence and a sentence of home detention is likely to be setting him up to fail.

Submissions on appeal

[10]      Ms Johnson’s main submission was that the end sentence is manifestly excessive. She submitted that the starting point should have been one of 12 months, at most, with an end sentence of imprisonment of 8 months, if imprisonment was to be imposed. In a careful submission, Ms Johnson advanced a number of points in support of that first ground of appeal including the following. Perhaps at the heart of it was that Mr Wharton’s criminal culpability was low. As Ms Johnson put it, his culpability was “mere presence”. Second, there were the community based sentences imposed on the co-offenders, with all three of them having committed two burglaries. Third, Mr Wharton pleaded guilty at the earliest opportunity (and that is not in question) justifying a reduction of 25 per cent. Fourth, Mr Wharton, in addition to pleading guilty, indicated clearly that he accepted responsibility and he did not seek to deflect his responsibility on to his co-offenders. Ms Johnson acknowledged that the prior offences could not be ignored, but submitted that because they were historic an increase in the starting point was not justified because of them.

[11]      The second principal point on appeal was that home detention was not considered but it should have been imposed. In support, particular emphasis was placed on ss 16(1) and (2) of the Sentencing Act.

[12]      The essence of the submission of Ms Shore for the Crown was that there was no error by the Judge; the end sentence on any appropriate assessment is not excessive. Ms Shore also submitted that there was no error in not considering and then imposing home detention.

Evaluation

[13]      The notice of appeal was filed out of time. The respondent does not oppose leave for an appeal out of time. I am satisfied it should be granted and leave is granted accordingly.

[14]      An appeal against sentence is to be assessed under s 250 of the Criminal Procedure Act 2011. The Court must allow an appeal against sentence if satisfied that for any reason there is an error in the sentence and a different sentence should be imposed. The decisions on s 250 since the Act came into force make clear that the existing jurisprudence on appeals against sentence appeals remains and a critical enquiry is, irrespective of the process by which the end sentence was reached, whether the end sentence is manifestly excessive.

[15]      This requires, at least for this appeal, some assessment of the sentencing process, beginning with a starting point. A difficulty is that the Judge did not articulate a conventional Taueki staged assessment.11 Eighteen months imprisonment  appears to be the starting point adopted by the Judge. Leaving aside, for one moment, the fact that the Court of Appeal in Arahanga referred to a starting point for low-level domestic burglaries of between 18 months and 30 months, it is to be noted that the Court of Appeal can be taken to have been referring to a principal offender. Ms Johnson’s submission that Mr Wharton was not a principal offender is well taken in considerable measure. When addressing the gravity of his offending, his culpability can be described, to use Ms Johnson’s apt expression, as “mere presence”. And it may be inferred from some of the information that is available that, as a secondary party, Mr Wharton probably would not have provided much in the way of encouragement, and it is doubtful that any was required. The Judge did not discuss this. There is no

11     R v Taueki [2005] 3 NZLR 372 (CA).

indication that he assessed Mr Wharton’s culpability as less than that of those who went into the house and then stole property, not once but twice.

[16]      Assuming the Judge’s starting point was 18 months, and treating that as an appropriate starting point for a principal offender in respect of one burglary, it is arguable, as Ms Johnson submitted, that the starting point for Mr Wharton should properly have been substantially less and perhaps at around 12 months imprisonment. However, the matter does need to be assessed by considering the end sentence actually imposed with that weighed against the broader principles that can be applied. Given the range indicated in Arahanga, which is from 18 months as a starting point up to 30 months, even if the appropriate starting point for Mr Wharton might have been something under 18 months, it is difficult to assess an end sentence at around 12 months as being manifestly excessive.

[17]      Personal aggravating and mitigating factors do have to be taken into account. In broad measure these seem to cancel each other out. The previous convictions might have been taken into account to increase a starting point by a small amount. It does not appear that the Judge actually did that. He referred to the previous convictions only in the context of the sentences imposed on the co-offenders and seemingly as an indication that that may be why the sentences on the co-offenders were community based sentences. And as Ms Johnson acknowledged, there is real difficulty, in any event, in having any regard to the fact that the co-offenders got community based sentences, because nothing else is known about those sentences.12 The starting points for the most culpable of the offenders may have been in excess of 2 years, but with an end sentence of imprisonment of 2 years or slightly under and then personal circumstances warranting a sentence of home detention of 12 months.

[18]      The broad point is, and where I started, that the aggravating personal considerations, and in particular as summarised in the pre-sentence report, tend to counterbalance the mitigating personal circumstances.

[19]That leaves the credit Mr Wharton is entitled to for the guilty plea.

12     The PAC report recorded “Mr Wharton’s co-offenders are several years younger than himself”.

[20]      If an appropriate starting point is 12 months imprisonment, as Ms Johnson submitted, the end sentence on this analysis would be 9 months imprisonment. But there are distinct limits to this sort of exercise. If the starting point was 15 months, the end sentence after a reduction for the guilty plea would be 11 months. Ms Johnson referred to some other cases for the purpose of comparative sentences on the facts.13 As the Court’s have noted many times, comparisons between cases for this sort of offending tend not to be very helpful, but those and other cases indicate that the end sentence here, before an allowance for the guilty plea, might readily be around 15 months imprisonment.

[21]      All of this, which perhaps has taken the analysis on appeal beyond what is required, or justified, indicates that an end sentence of 12 months imprisonment was not manifestly excessive.

[22]      The remaining consideration is the appeal in respect of a home detention sentence.

[23]      There was no error by the Judge in not considering a sentence of home detention. A sentence of home detention was not possible given the home detention report, the relevant content of which I have already summarised. It can readily be inferred that the Judge made no reference to home detention for that reason.

[24]      A further consideration is that Mr Wharton was sentenced to 12 months imprisonment on 7 December 2016. In the normal course, and leaving aside the fact that there was a cumulative sentence of 2 months imprisonment for other offending, Mr Wharton would have been released on parole a few days ago. In broad terms there would be no practical utility in granting leave to apply for a sentence of home detention assuming a suitable report could now be obtained. However, the principal consideration against home detention is the first point I have discussed.

13     R v Columbus, above n 9; Herewini v Police [2015[ NZHC 2807; Moeroa v Police [2015] NZHC 2226.

Result

[25]      For all of these reasons I am satisfied that there was no error on the sentence for the burglary offence. The appeal is accordingly dismissed.

Woodhouse J