Whelan v Police HC Invercargill CRI 2010-425-40

[2010] NZHC 2451

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI  2010-425-40

BETWEEN  STEVEN MICHAEL WHELAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 December 2010

Counsel:         R Smith (on instructions from S Vidal) for Appellant

K Henry for Respondent

Judgment:      13 December 2010

ORAL JUDGMENT OF MILLER J

[1]     Mr Whelan appeals against his sentence of two years and two months imprisonment for a burglary spree in which he and a co-offender entered seven semi- rural homes and took more than $40,000 worth of property.

[2]      The spree occurred over four days in May.  The method was the same in each case.  The two men would drive to the house, check to ensure there was no one at home, and break in by smashing windows or forcing doors.  They then methodically took high end electronics, alcohol, jewellery and tools, which they sold.  They were soon apprehended, apparently because Mr Whelan foolishly used his own licence when he pawned some of the property.

[3]      Although he was not co-operative at first, Mr Whelan eventually admitted his role in the burglaries.  He put it down to financial desperation.

[4]      The pre-sentence report revealed that Mr Whelan, at the age of 24, has lived in Invercargill all his life and reported a good upbringing.  There is on file a heartfelt

STEVEN MICHAEL WHELAN v NEW ZEALAND POLICE HC INV CRI 2010-425-40 [14 December 2010]

letter from his mother pleading that he be given the psychological assistance he has needed all his life, pointing to the absence of a father figure and a history of ADD.  It is to be hoped that he does get the assistance he requires in prison.

[5]      The probation officer considered that he is at high risk of reoffending given his attitudes and choice of associates.   Alcohol has played a part in previous offending, but Mr Whelan maintains that it did not on this occasion.  He claims to be abstinent from alcohol.  If so, he is to be commended for that.  He does have a substantial criminal history, mostly relating to driving and alcohol, but there are convictions  for  shoplifting and  burglary in  2009  and  2006  respectively. Significantly, he had been convicted and sentenced to imprisonment, for driving offences and breach of home detention, and sentenced to imprisonment on 17 March

2010.  He was subject to release conditions at the time of the present burglaries.

[6]      An offer was made to pay reparation of $23,000, and Mr Whelan expressed willingness to participate in a restorative justice process.   One couple did attend a restorative justice conference on 2 October at the Invercargill Prison, and two other families expressed willingness to meet the offenders but could not do so at that time. The facilitator reported that although it was not the most positive conference she had facilitated, she did believe that Mr Whelan was sorry.  A number of victim impact statements were provided;  they spoke in convincing terms of the sense of violation and ongoing distress that typically results from this kind of offending.  Some of the property that was not recovered was irreplaceable.  The Judge declined to order reparation, noting that Mr Whelan has no means and no prospects of paying it.

[7]      The Judge accepted Ms Vidal’s submissions that he had a previous good work record, but he did not accept that there was genuinely remorseful.  There was a high risk of re-offending.  Having regard to the practical inability to make reparation and the prior convictions, coupled with an element of premeditation, he  took a starting point of three years and three months imprisonment.  He added four months for the fact that the offending occurred while Mr Whelan was on release conditions and to recognise that previous sentences have had little effect upon him.   In mitigation, he allowed a three month discount for the restorative justice process and the claimed remorse, and he allowed a further full one-third discount for the guilty

pleas.  The sentence of two years and two months imprisonment was imposed on one burglary which the Judge took as the lead offence, and on each of the others concurrent sentences of 12 months were imposed.

[8]      Mr Smith did not suggest that the starting point adopted was manifestly excessive.  These burglaries fit into the “spree” category.1   They are characterised by a number of aggravating features:  although the offenders checked that no one was at home, their behaviour did involve the risk of danger to or confrontation of occupiers; their behaviour made the victims feel targeted, because personal items were stolen; there was damage to the houses as entry was gained;  items of high monetary or sentimental value were stolen;  and there was some degree of planning.  The starting point is consistent with the authorities.  I refer by way of example to Wishnowsky v Police and Hauraki v Police.2

[9]      The only point that Mr Smith took on appeal, sensibly, was that the Court must ensure that previous convictions are not double counted when sentencing burglars.3    Counsel challenged the uplift of four months.   The Judge did refer to failure of deterrence, I accept, but he also emphasised that the offending occurred while subject to release conditions.  That alone justified the uplift of four months, in my opinion.  Further, this was a spree burglary rather than a case of recidivism, as he has only one previous conviction for burglary.  In any event, the uplift was modest.

[10]     The    question  for  an  appellate  Judge  is  whether  the  sentence  ultimately imposed was manifestly excessive.  I am satisfied that it was not.  I observe that the discount given for the guilty pleas was full, and the Judge was somewhat generous in giving a further discount for participation in a restorative justice process;   that certainly resulted in an offer of amends but it was, as the Judge noted, an empty

offer.

1   Senior v Police (2000) 18 CRNZ 340.

2   Wishnowsky v Police HC Palmerston North CRI-2009-454-26, 14 August 2009, Hauraki v Police

HC Whangarei CRI-2007-488-49, 6 September 2007.

3   R v Columbus [2008] NZCA 192.

[11]     The appeal is dismissed.

Miller J

Solicitors:

Southern Law, Invercargill for Appellant

Preston Russell Law, Invercargill for Respondent