Williams v Police
[2014] NZHC 2622
•24 October 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-488-39 [2014] NZHC 2622
BETWEEN JAYDENE WILLIAMS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 October 2014 Appearances:
PJ Kaye for Appellant
MB Smith for RespondentJudgment:
24 October 2014
JUDGMENT OF TOOGOOD
This judgment was delivered by me on 24 October 2014 at 11:00 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
WILLIAMS v NEW ZEALAND POLICE [2014] NZHC 2622 [24 October 2014]
Introduction
[1] Jaydene Leanne Rewa Williams has appealed against an effective end sentence of two years and four months’ imprisonment imposed upon her by Judge GD Harvey in the District Court at Whangarei on a number of charges of burglary and theft, and charges of escaping from custody, breaching an intensive supervision order and failing to answer bail. Ms Williams has amassed a very long list of previous convictions at the age of 29, and the offending itself was persistent. With his usual candour, Mr Kaye acknowledged that imprisonment was inevitable but the he submits on behalf of the appellant that that the effective term of imprisonment imposed was manifestly excessive.
[2] I have concluded that, in a complicated case, the Judge erred in aspects of his approach to the calculation of the appropriate sentences. I have also decided, however, that although a stern sentence was imposed, it was within the range available to the Judge assessed in accordance with a more conventional approach. I now explain why.
The facts
[3] The offending for which the appellant was sentenced occurred between June 2013 and April 2014. On 15 June 2013, the appellant stole a down jacket valued at $1,900 from Macpac in Hamilton. On 18 November 2013, the appellant entered a residential property after locating a spare key. She took a guitar valued at
$450 and the keys, leaving the property unlocked.
[4] On 9 March 2013, the appellant opened the passenger door of a parked vehicle and took a cell phone valued at $1,000. She appeared in the District Court on 17 March 2014 on the charge of theft from a motor vehicle and also on the November 2013 burglary charge and was remanded on bail subject to a 24-hour curfew. On 31 March 2014, however, the appellant went to the Warehouse in Whangarei and stole over $400 worth of baby clothing. When the Police went to her bail address on 3 April 2014, to arrest her for breach of bail, the appellant broke loose from a Police officer’s hold and ran away.
[5] On 5 April 2013, just two days later, the appellant and an associate gained access to a residential dwelling in Whangarei by forcing the lock on the front door. They removed a range of electronic goods from the property but, while still at the address, were disturbed by one of the residents returning home. The appellant said that they had just arrived at the address but the resident noticed that the front door was open and that the door frame had been smashed. When the resident confronted the appellant, she became angry and told him to move his car so she and her associate could leave. They then fled in a vehicle with $1,280 worth of equipment, leaving a flat screen television near the rear gate. The appellant was eventually located and arrested on 13 June 2014. The stolen property was not recovered.
The approach of the sentencing judge
[6] In sentencing the appellant on 22 August 2014, after traversing the facts, Judge Harvey noted that the appellant had simply ignored her obligations to comply with an order for intensive supervision and a sentence of community detention, and that she was to be sentenced for those breaches and re-sentenced on the offence for which intensive supervision had been imposed.
[7] The Judge summarised the appellant’s ‘sorry’ history of prior offending, referring to ten previous convictions for shoplifting and four previous convictions for burglary, together with what he described as ‘numerous breaches of community work orders, breaches of supervision, a breach of intensive supervision, breaches of bail, a and a breach of community detention.’ He concluded, unsurprisingly, that the appellant simply did not comply with community-based sentences.
[8] The Judge observed that the writer of the pre-sentence report described the appellant as representing a high risk of re-offending with a medium risk of harm to others, but the Judge considered that the risk of harm to the community was high. He noted that burglary was not a victimless crime because it causes a great deal of stress and grief. He rejected the possibility of leniency being extended to the appellant, notwithstanding that she appeared to have taken responsibility for her offending. The Judge said that while prior sentences of imprisonment had not dissuaded the appellant from further offending, rehabilitative sentences had also
failed because she simply ignored them. The Judge considered that the time had come for the Court to make it clear to the appellant that if she was going to continue to behave as she had, she would serve longer and longer terms of imprisonment.
[9] Judge Harvey took a starting point for the two burglaries, taking into account the appellant’s previous history and all of the other dishonesty offences, of “somewhere in the vicinity of three years”. He then said he would step back from that but that the appellant needed to understand that next time she would “not be so lucky”. He did not say just what he meant by stepping back but sentenced the appellant to two years’ imprisonment on each of the burglary charges, apparently concurrently. He then added a cumulative sentence of two months’ imprisonment for escaping from custody and a further cumulative period of two months’ imprisonment on the review of the sentence of intensive supervision. The Judge then imposed concurrent sentences on the remaining charges as follows: for breach of intensive supervision, one month’s imprisonment; for the theft of the baby clothes, two months’ imprisonment; for the theft of the iPhone from the vehicle, two months’ imprisonment; for the theft of the down jacket, two months’ imprisonment; and for the breach of bail, one month’s imprisonment.
[10] As I say, this produced an effective end sentence of two years four months’
imprisonment.
Submissions on appeal
[11] I have said already that Mr Kaye took a realistic position in conceding that a sentence of imprisonment could not be avoided. But counsel argued that the starting point adopted by the Judge was too high and that a total effective sentence of 12 to
16 months would have been appropriate to mark the offending but recognise the appellant’s remorse and intention to rehabilitate herself. On the sentence for escaping and the review of intensive supervision, Mr Kaye submitted that concurrent rather than cumulative sentences should have been imposed.
Required approach on appeal
[12] A sentencing appeal under s 250(2) of the Criminal Procedure Act 2011 must be allowed if, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.1 The statutory provision reflects the approach previously taken by the courts under the Summary Proceedings Act 1957,2 and the setting aside of a sentence on the basis that it is manifestly excessive is a ‘well-ingrained’ approach.3
[13] The High Court will not intervene, however, where the sentence is within a range that can properly be justified by accepted sentencing principles. In deciding whether a sentence is manifestly excessive the focus is principally on the effective end sentence rather than the process by which the sentence is reached.4 Whether the District Court Judge made an error in this case which requires correction may be tested by adopting what is now well established as a more conventional approach than that which he took.
[14] The Judge’s somewhat unorthodox approach to dealing with the numerous charges to which the appellant had pleaded guilty may be explained by the complexity of the task which stemmed from the number and differing nature of the offences, and the appellant’s poor offending history. Some of the dishonesty was petty and some of it more serious; there were charges involving breaches of court orders; and there was a need to re-sentence the appellant on one charge. It would be unreasonable to criticise the Judge who, in a busy District Court sentencing list, would not have had the time available to an appellate court to reflect on these matters.
Conventional sentencing approach
[15] Where there are multiple charges, a sentencing court usually begins by determining an appropriate starting point for the lead offence which reflects the
1 Criminal Procedure Act 2011, s 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
3 At [33], [35].
4 Ripia v R [2011] NZCA 101 at [15].
seriousness and circumstances of the offence, having regard to both aggravating and mitigating factors. The court then applies any increase or decrease which may be justified by aggravating or mitigating personal factors, including demonstrable genuine remorse and, finally, allows an appropriate discount for a guilty plea, depending on the time at which and the circumstances in which the plea was
entered.5 The appropriate sentence or sentences for other offending is or are
determined following the same approach, but the court must make any adjustments necessary (usually to the penalty on the lead offence) to ensure that the effective overall sentence properly reflects the seriousness of the totality the offending.6
The burglary charges
[16] The lead offence here is the burglary on 5 April 2014 which was committed while the appellant was on bail, resulted in a loss of nearly $1,300 worth of property, and involved a confrontation between the appellant and one of the victims.
[17] Because of the infinite variety of circumstances in which burglaries occur there is no tariff decision. In R v Nguyen7 the Court of Appeal considered that the range of factors which relate to the criminality of the offending in burglary cases include the degree of planning and sophistication in the offending; the nature of the premises entered; the kind and value of property stolen; any damage done; the impact upon the owners of the property; and the extent of the offending where multiple burglaries are involved. In Arahanga v R8 the Court of Appeal said that burglary of a domestic residence was a significant aggravating feature due to the heightened risk of confrontation with the occupants. 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. The aggressiveness of the appellant during the confrontation with the returning resident, which could have had serious consequences, is an aggravating factor, as is the fact that the appellant was on
bail facing the earlier charge of burglary at the time of this offence and had escaped
5 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 (SC);
R v Clifford [2012] 1 NZLR 23 (CA).
6 Sentencing Act 2002, s 85.
7 R v Nguyen CA110/01, 2 July 2001 at [17].
8 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
from Police custody only two days earlier. That leads to the conclusion that a starting point of not less than two years’ imprisonment is appropriate for that offence.
[18] The November 2013 burglary, also of a residential dwelling, should be placed at the lower end of the scale, for which a sentence of around 12 months’ imprisonment would be appropriate. However, a total sentence of three years’ imprisonment for the two burglaries would be too harsh, in my view, so starting points of two years and six months’ imprisonment should have been adopted, concurrently, for the two burglaries.
[19] Although it is not uncommon in burglary sentencing for a prior history of burglaries to be taken into account in setting the starting point, I think it would be better in this case to add an uplift of two months, not to punish Ms Williams again for her earlier offending, but to reflect the fact that a sterner sentence is necessary as a deterrent. That would result in concurrent sentences of two years and eight months’ imprisonment for the burglary charges.
[20] Mr Kaye urged on me that lower sentences of imprisonment would have the same salutary effect as the sentences imposed but give adequate recognition to the appellant’s remorse and her apparent determination to rehabilitate herself, as indicated in the probation report. I note also that Ms Williams repaid $450 to the owner of the guitar stolen in the first burglary and offered to pay reparation for the other offending at a rate of $50 per week. Those are encouraging signs and I would take them into account by reducing the sentences for the burglary by four months to two years and four months’ imprisonment.
The theft charges
[21] The sentences to be imposed for the theft charges should reflect that separate and different offending. Bearing in mind the nature of the offending and the appellant’s lengthy history of shoplifting, but taking account of the totality principle, I consider that on each of the three charges of theft the appellant should have been sentenced to cumulative terms of one month’s imprisonment.
[22] Adding three months’ imprisonment for the theft charges to the appropriate sentences for the burglaries would result in a total of two years and seven months’ imprisonment for the offences involving dishonesty.
The other offending
[23] As a substituted sentence for the cancelled sentence of intensive supervision and on the charges of escaping from custody and failing to answer bail, cumulative sentences of one month’s imprisonment on each are appropriate, again bearing in mind the totality principle.
Looking at the total effective sentence and giving the plea discount
[24] The total effective end sentence before the plea discount, therefore, would be two years and 10 months’ imprisonment.
[25] When Judge Harvey said he would ‘step back’ in fixing the sentences on the burglary charges he did not apply an express discount for the guilty pleas in accordance with the approach required by the Supreme Court’s judgment in Hessell9 but it is clear he gave the appellant an allowance both for her pleas and adopted a totality approach. The guilty pleas were entered reasonably early if not always at the first available opportunity but, in the circumstances, I would apply a full 25 percent
discount to produce a final effective end sentence for all offending of just under two
years and two months’ imprisonment.
Should any errors result in a different sentence?
[26] I accept that Judge Harvey erred in some aspects of his approach, but by a more conventional and transparent route I would have ended up not far below the overall sentence determined by the District Court Judge. To succeed in this appeal, Ms Williams needs to satisfy me that the Judge’s errors resulted in a sentence that
was manifestly excessive. Although the sentence imposed was a stern one, I am
9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
unable to say it was outside the range available to the Judge so as to justify interference by this Court.
Result
[27] It follows that I am not satisfied of the second limb of s 250(2) of the Criminal Procedure Act, namely that a different sentence or sentences should be imposed. I dismiss the appeal.
……………………………
Toogood J
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