Williams v Police HC Napier CRI 2010-441-12

[2010] NZHC 1054

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-12

BETWEEN  DAVID WILLIAMS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 June 2010

Counsel:         S Jefferson for Appellant

S Manning for Respondent

Judgment:      11 June 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr   Williams   appeals   against   his   combined   sentence   of   16   months imprisonment imposed on one charge of burglary (12 months) and one charge of theft (four months cumulative).  He maintains that the starting point for the burglary was too high and the overall sentence violates the totality principle and is manifestly excessive.

[2]      The summary of facts recorded that on 15 October 2009 he was drinking with associates and they walked to a neighbouring orchard.  There they started a machine called a Hydralada and rode it around the orchard.  They then approached a building on the property and forced a door using a screwdriver.  They removed miscellaneous items such as a chainsaw helmet, a toaster and a sandwich maker.  They forced locks securing two caravans on the property and searched them, finding nothing of value to

steal.  Damage of $300 was caused.

DAVID WILLIAMS V NEW ZEALAND POLICE HC NAP CRI 2010-441-12  11 June 2010

[3]      The group then approached several large containers on the orchard and turned on the taps, emptying liquid fertiliser.  The value of the liquid lost was $2,000.  They jumped on top of the containers, damaging them, and damaged the lock to a small shed, causing damage of $500.  The loss of the fertiliser resulted in the theft charge.

[4]      Mr Williams is 19 and resides in Flaxmere.  He explained that he was very intoxicated at the time and had no memory of events.   He has what the Judge accurately described as a recent busy history of offending, including robbery, burglary, shoplifting, theft, unlawfully taking a motor vehicle and common assault. There are also convictions for failure to answer police bail, breach of community work, breach of community detention, and breach of conditions of supervision.  All of these offences were committed since November 2007.

[5]      At the time of the offence, he was on community detention, the terms of which he breached by violating his curfew during the offences.

[6]      The Judge noted that while the offending might have as much to do with vandalism as burglary or theft, there were many aggravating features including the previous convictions and the fact that he was on community detention at the time. He had recently been convicted of breaching his community detention and put on a final warning, and he was only two months into a community detention sentence when he committed the present offences.   His response to community detention, apart from this episode, was said to have been erratic and casual.   He had $2,500 worth of arrears in reparation owing, and was making no proper effort to address that.   Restorative justice had been arranged with the victims’ co-operation, but as soon as the opportunity to carry through arose he simply defaulted.

[7]      Referring to Columbus v R, the Judge found that the least starting point that could be fixed was one of 18 months imprisonment.[1]   In setting that starting point, he appears to have taken into account the personal aggravating factors, apart from the fact  that  the  offence  was  committed  on  community detention  and  in  breach  of community detention conditions for which he added nothing.   The Judge further adopted a starting point of six months imprisonment for the theft, treating it as an

entirely separate matter.  Accordingly, the cumulative starting point was 24 months. From that was deducted a one-third discount for the guilty plea.  Reparation was also ordered, more in hope than expectation, the Judge having found that Mr Williams is no real position to pay it.

[1] Columbus v R CA608/2007, 27 June 2008

[8]      On appeal, Mr Jefferson notes that the burglary was of an outbuilding and could be characterised as vandalism as much as burglary.  The intrinsic nature and gravity of the burglary warranted a starting point of perhaps six months imprisonment, and the appellant (Mr Williams) is not a recidivist burglar.  Any uplift for previous convictions would be modest, around three months.   A cumulative sentence is available for the theft, but six months, although appropriate on a stand- alone basis, was an excessive starting point when the totality principle is applied.  A total  sentence  of  12  months  imprisonment  would  have  been  appropriate.    He accepted that imprisonment was a proper result, indeed inevitable, having regard to Mr Williams’ history of noncompliance with community-based sentences.

[9]      This case, overall, is somewhat more serious than Columbus, in which the Court of Appeal held that a starting point of  one  year’s imprisonment was the maximum that could be justified for a burglary.  Although this burglary was at the minor end of the scale, it undoubtedly was burglary and not simply vandalism.  The outbuilding and caravans were entered forcibly for the purpose of stealing anything of value.   The offenders were persistent and significant damage was done.   The vandalism really served as an aggravating feature of the burglary.  It is not disputed that the Judge was entitled to impose a cumulative sentence for the theft, although totality had to be applied.  A significant uplift was justified by the recent history of relevant offending, and the Judge might have increased the sentence for the fact he was on community detention at the time.

[10]     As I have said, Mr Jefferson did not dispute that, standing alone, a starting point of six months for the theft was justified.  The property stolen was valuable, and of course it was not recovered.   A parallel can be drawn with Tawharu v New Zealand Police.[2]

[2] Tawharu v New Zealand Police HC Palmerston North, BC200560294, 6 April 2005.

[11]     The sentence was salutary but it cannot be said that Mr Williams failed to earn the emphasis on accountability and deterrence.   He may not be a recidivist burglar,  but  he  is  a  frequent  offender  who  has  refused  to  comply  with  the community-based sentences offered him in the past.

[12]     A starting point of 15 months for the burglary was justified, and the personal aggravating factors and the theft together justified the uplift to 24 months.   The Judge took a less orthodox approach than this, but he did not double count any of the relevant factors.  The only mitigating factor was the guilty plea.

[13]     Mr Williams is young but youth does not always imply good prospects of rehabilitation.  No allowance could be made for the reparation given the unlikelihood that it would be paid, and he had been offered the opportunity of restorative justice but very foolishly failed to seize it.  I acknowledge the presence in Court today of his grandparents who have supported him.   I regret, however, that Mr Williams has really written his own sentence.  The sentence imposed on him was not manifestly excessive.  It can only be hoped that the experience of imprisonment will lead him to come to his senses.

[14]     The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Napier for Respondent