Wilson v Police
[2015] NZHC 1830
•5 August 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2015-483-17 [2015] NZHC 1830
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of an appeal against sentence pursuant to s
244 of the Criminal Procedure Act 2011BETWEEN
RAUKAWA TEINA WILSON Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 July 2015 Counsel:
S J Burlace for Appellant
N A Refoy-Butler for RespondentJudgment:
5 August 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] Mr Wilson pleaded guilty to one charge of burglary. He was sentenced by Judge Roberts in the District Court at Whanganui on 29 June this year to an end sentence of 15 months’ imprisonment.1 Mr Wilson now appeals that sentence as being manifestly excessive.
[2] Mr Wilson argues that an end sentence of 13 months’ imprisonment, converted to six months’ home detention, is the appropriate sentencing outcome. Given the one month he has already spent in prison, Mr Wilson further argues that
that period of six months should be reduced to four months.
1 New Zealand Police v Wilson [2015] NZDC 12925.
WILSON v NEW ZEALAND POLICE [2015] NZHC 1830 [4 August 2015]
Facts
[3] In the early evening of 10 March 2015 Mr Wilson, in an intoxicated state, walked to the front door of a house, knocked and waited for a response. A CCTV camera recorded him looking up, and waving as though to acknowledge the camera.
[4] Mr Wilson then climbed over a side fence and went to the back of the house. He picked up a brick and attempted to smash a window unsuccessfully. He then moved to the side of the house and succeeded in breaking a window using the same brick. He opened that window and climbed into the house.
[5] Inside the house he moved through a number of rooms, collecting items including a PlayStation 3, several games, food from the freezer, cameras and a cellphone. Whilst removing the PlayStation he smashed a large flat screen television and ripped gib board from the walls. He put all the items he had taken into a washing basket, placed a guitar belonging to the victim over his shoulder and left the property by the front door.
[6] When spoken to by the police, Mr Wilson said he was extremely intoxicated and high on synthetic cannabis at the time and could not really remember what he had done.
[7] Mr Wilson is 29 years old and has a reasonably lengthy criminal and traffic conviction history. He has, however, only offended on one occasion (wilful damage
– reparation of $350 ordered) since August 2008. Up until then Mr Wilson had, by my calculation, some 43 convictions, including six as an adult for burglaries committed between November 2005 and October 2007.
[8] The owner and occupier of the house that Mr Wilson burgled commented in his victim impact statement that it was the fifth time he had been burgled at that house. He said he was sick and tired of coming home to burglaries and that he would like to be able to live in peace and safety, without having to deal with that ongoing reality.
[9] In Mr Wilson’s pre-sentence report, the Department of Corrections assessed him as being of high risk of reoffending and a moderate risk of harm to others. Mr Wilson was, however, sorry for his offending and had returned all the items he had stolen except the food and the cellphone. The report also noted that Mr Wilson’s offending had, more recently, become less frequent. Mr Wilson put that down to the positive impact on his life of his role in caring for his children, aged eleven, four, three and one. The Department recommended a dual sentence of intensive supervision and community work. Mr Wilson’s address, whilst technically feasible, was not considered suitable for home detention due to the presence of his sister-in- law. The report writer also recorded concerns about Mr Wilson being able to desist from alcohol and drug use whilst undertaking an electronically monitored sentence.
The challenged sentencing decision
[10] The Judge set a starting point sentence of one year and 10 months, noting:
(a) that Mr Wilson had burgled a residential dwelling, where the risk of confrontation with occupants was high;
(b)that Mr Wilson’s victim felt targeted – given the five prior burglaries he had suffered;
(c) the damage Mr Wilson caused;
(d) that in terms of the High Court decision in Senior v Police,2
Mr Wilson’s offending and previous convictions classified him as a recidivist burglar for whom a “category 2 placement” was appropriate; and
(e) that in Arahanga v R the Court of Appeal had said that house burglaries were invariably met with prison sentences of between
18 months and two and a half years.3
2 Senior v Police [2000] 18 CRNZ 340 (HC).
3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
[11] The Judge increased that starting point by four months on account of Mr Wilson’s previous convictions. He then allowed a discount of two months to reflect “compliance on bail”, six months as a credit for Mr Wilson’s guilty plea and a further three months for the break in Mr Wilson’s offending. That brought Mr Wilson’s sentence to one year and three months’ imprisonment. The Judge commented that this was the lower end of a sentencing indication given by another Judge.
[12] The Judge declined home detention. He did so on account of the following considerations:
(a) Mr Wilson’s status as a repeat offender;
(b)home detention would not sufficiently recognise the principles of denunciation and deterrence;
(c) Mr Wilson’s long-term issues with alcohol and drugs, which the Judge did not think Mr Wilson could deal with during a lengthy period of home detention; and
(d) the difficulties Corrections had with the proposed EM bail address.
Appeal
[13] For Mr Wilson, Ms Burlace based this appeal on five propositions:
(a) the Judge had given insufficient weight to the seven years that had passed since Mr Wilson had previously been convicted of burglary;
(b)the Judge had taken into account irrelevant factors, in particular that the owner of the house Mr Wilson burgled had been burgled five times before;
(c) the concerns expressed with regards to the proposed EM bail address were either not correct at the time or, now, no longer relevant;
(d)the Judge was wrong to consider that Mr Wilson’s alcohol and drug use problems would cause compliance issues during a sentence of home detention; and
(e) the Judge had wrongly been under the impression that, previously, a sentencing indication of 15 to 18 months imprisonment had been given.
[14] Ms Burlace accepted that Mr Wilson’s previous offending was an aggravating factor. But she emphasised Mr Wilson’s cooperation with the police and his remorse. He had handed himself into the police station, entered an early guilty plea, and assisted with the recovery of all of the stolen items, except for food eaten and a cellphone that was lost. He had been, moreover, on bail for three and a half months without issue, and had acknowledged and was keen to address his alcohol and drug dependency issues.
[15] Ms Burlace submitted that the appropriate starting point sentence was one of
16 months’ imprisonment. An appropriate uplift for Mr Wilson’s previous offending would be two months. Allowing a one-month discount for remorse, and 25 per cent discount for Mr Wilson’s guilty plea, brought the end sentence to one of 13 months. Arguing that home detention was the appropriate outcome, and recognising the time Mr Wilson has already spent in custody, Mr Wilson’s appeal should be allowed and a sentence of four months’ home detention substituted.
[16] For the police, Ms Refoy-Butler’s submission focused on the fact that this was the burglary of a dwelling house, and the observation of the Court of Appeal in Arahanga that 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.4 Ms Refoy-Butler characterised the offending as having occurred at night (6.55 pm) and noted the damage that had been caused. On that basis, her argument was that the starting point of one year and 10 months adopted by the Judge could not be considered out of range.
[17] The Judge had taken account of the gap in offending, reflected both in the limited uplift for the previous offending and the additional three months discount allowed. Mr Wilson had to take his victim as he found him, and therefore it could not be said that the Judge had placed too much weight on the effect Mr Wilson’s offending had had on his victim.
[18] The Judge’s concern with the proposed address was due to the fact that Mr Wilson’s sister-in-law, who was seen by the Department of Corrections as a negative influence, had only moved out a day before sentencing. The Judge was not persuaded that was a permanent arrangement, and was properly concerned at the implications of the sister-in-law returning. At the same time, however, that had only played a minor part in the Judge’s decision. Mr Wilson clearly had alcohol and cannabis issues. The Judge’s concern at the implication of those issues, if Mr Wilson was sentenced to home detention, were well-placed.
[19] Whilst the Judge would appear to have misunderstood Judge Cameron’s reference to the police’s submitted sentencing range as a sentence indication, that did not mean he had arrived at a manifestly excessive end-point sentence himself. Home detention would not give effect to the principles of denunciation and deterrence, particularly given Mr Wilson’s criminal history of burglary offending. Mr Wilson’s alcohol and drug issues taken alone suggested that such a sentence would not be appropriate. Accordingly, this appeal should be dismissed.
Analysis
[20] Sentencing for burglary offending is difficult.
[21] In Arahanga,5 the Court of Appeal noted that it had deliberately not set the tariff for burglary because the range of circumstances in which the offence can be committed was so varied. In that case, the Court of Appeal did not say that house burglaries were invariably met with prison sentences of between 18 months and two and a half years, as the Judge commented. Rather, the observation was that dwelling
house burglaries at the relatively minor end of the scale tend to attract starting point sentences in that range.
[22] Senior v Police, which the Judge relied on, is not a tariff decision. Nor, in my view, was the Judge correct to categorise Mr Wilson as a recidivist burglar. In Senior the term “recidivist burglary – category 2” was used to describe a class of burglary offending where, because of the repetitive nature of the offending, the protection of the public was a significant factor. The High Court there said that the typical case in the category was likely to involve a burglar who had appeared on previous occasions, who had perhaps 20 or 30 previous convictions for burglary, and who was appearing for sentence on only one or a limited number of offences. Such a burglar would likely be a professional burglar, in the sense of being someone who burgles and steals for a living and often enough to sustain a drug habit at what might be regarded as a subsistence level. The Court identified a number of previous cases which it considered fell within that category, and noted that the maximum sentence imposed in those cases was three years. The Court said further that, in its view, a recidivist burglar who pleaded guilty to a single offence, or even two or three offences, was unlikely to receive a sentence which exceeded three years.
[23] Mr Wilson has six previous burglary convictions, over a two year period. His previous most recent burglary offending occurred in October 2007. Given both the comparatively limited number of Mr Wilson’s previous offences, and that gap in time, in my view the Judge was wrong to categorise him as a recidivist burglar. It is also important to note that at the time of Senior, starting point sentence ranges were often fixed to include the aggravating factor of recidivist or previous offending. Since Taueki, the correct approach is to have regard to that as an aggravating factor. It is not clear to me that the Judge considered the comments of the High Court in Senior in that light. Given the Judge’s reliance on Senior, the uplift for Mr Wilson’s previous convictions as an aggravating factor potentially involved double counting.
[24] I am also concerned that in regarding the fact that Mr Wilson’s victim had been burgled on five previous occasions as an aggravating factor, the Judge may have in effect held Mr Wilson responsible for the activities of other offenders.
[25] The Judge’s sentencing methodology was a little unorthodox. He did not, as the Supreme Court has said is the correct approach, calculate Mr Wilson’s guilty plea discount as the final point in his sentencing exercise. Rather, from his two year and two month starting point, having allowed a two month discount for “compliance on bail” and a six month guilty plea discount (25 per cent of 24 months) he then allowed a further three months discount, as noted, for the break in Mr Wilson’s offending. In my view, that break is not so much a mitigating factor, but an important element in determining whether Mr Wilson was properly categorised as a recidivist burglar, and whether the starting point sentence (if calculated by reference to Senior) and/or the four month uplift for previous offending were appropriate.
[26] In my view, in assessing the criminality of Mr Wilson’s burglary offending as a first step, the significant factors are that this was the burglary of a residential property, the value of the property taken and the damage caused. It was not, however, offending at night: 5.00 to 7.00 pm in March is still daylight. Moreover, and though of little credit to Mr Wilson, the presence of the CCTV camera and the absence of any response from within the house to Mr Wilson’s presence meant that it was unlikely that the house was occupied. Having regard to those factors, I think a starting point sentence of 18 months would have been appropriate.
[27] Whilst recognising that Mr Wilson is not a recidivist burglar, the question then becomes whether there should be an uplift for his previous offending. Given the gap of seven and a half years, I think that any uplift should be modest. In my view, the period of two months identified by Ms Burlace would be an appropriate one. That would result in a starting point sentence, before consideration of mitigating factors personal to Mr Wilson, of between 17 and 20 months. I think it is appropriate to give credit for Mr Wilson’s remorse, the fact that he gave himself up to the police (although given the CCTV record that may not have been a major concession) and that almost all the stolen property was returned by him. My assessment is that a discount on account of those matters of three months would be appropriate. The sentencing range I arrive at, therefore, before allowing a discount for Mr Wilson’s guilty plea is one of 17 months. A 25 per cent discount on account of Mr Wilson’s guilty plea results in a sentence of 13 months’ imprisonment.
[28] The question becomes whether home detention is an appropriate sentence for Mr Wilson. I note first that Mr Wilson’s sister-in-law no longer lives at the address of Mr Wilson and his partner. I am therefore satisfied that this matter no longer counts against home detention.
[29] The real question for me is the significance of Mr Wilson’s alcohol and drug issues with the appropriateness of the sentence. In his pre-sentence report, the Department of Corrections observed under the heading “lifestyle” that Mr Wilson is unemployed. Despite having a positive daily routine which involves taking care of his children, he also appears to spend the bulk of his day visiting friends and family, being involved in leisure activities such as fishing, as well as drinking and/or smoking cannabis.
[30] The lack of lifestyle balance and structure is identified as contributing to his offending.
[31] At the same time, I note that whilst on bail for this offending, Mr Wilson would appear to have complied with all bail terms, including a 24 hour curfew and conditions not to possess or consume alcohol or non-prescription drugs or synthetic cannabis.
[32] In his sentencing exercise, the Judge recognised that compliance as a mitigating factor personal to Mr Wilson. I think it is also an indicator that Mr Wilson is committed to addressing his drinking and drug problem, and that home detention subject to appropriate conditions is therefore, in his case, an appropriate sentence.
[33] I therefore quash Mr Wilson’s sentence of 15 months’ imprisonment and substitute it with a sentence of six months’ home detention. The home detention address is to be 117 Cornfoot Street, Whanganui. The standard conditions on release and during the period of home detention will apply. Additionally, Mr Wilson is subject to the condition that he is not to consume alcohol or any unlawful or
non-prescription drugs. Mr Wilson is also to attend and undertake such courses or treatment for alcohol and drug use as his probation officer determines.
“Clifford J”
Solicitors:
Debbie Goodlet, Whanganui for Appellant
Crown Solicitor, Whanganui for Respondent