Wilson v Police HC Nelson CRI 2010-442-17

[2010] NZHC 1258

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2010-442-17

AARON SHANE MARCUS WILSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 July 2010

Counsel:         A Heward for Appellant

C P Stevenson for Respondent

Judgment:      20 July 2010

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      Mr Wilson was sentenced to eight months’ imprisonment on two charges of burglary as well as five charges of using a document for pecuniary advantage.  He says this sentence was manifestly excessive and was wrongly, in part, based on

alleged offending he had not been convicted of.

AARON SHANE MARCUS WILSON V NEW ZEALAND POLICE HC NEL CRI 2010-442-17  20 July 2010

Facts

[2]      The first burglary charge occurred in April 2010.  The appellant and another person broke into a residence near Nelson.   They used a tool to manoeuvre an en suite window open and climbed in to the premises.  They took a laptop computer, a camera, some perfume, a watch, meat, a blanket and a credit card.  The total value of the property stolen was some $4,907.50.

[3]      Less than a week later the appellant and another person broke into a house in Stoke at Nelson.  The appellant and his accomplice took property and stacked it at the bottom of the stairs of the house.  They were then disturbed by a 16 year old girl and her mother who had returned home.   The appellant and his associate fled the property taking a credit card, a video camera, a play station, an iPod and $300 in Australian currency with a total value of $1,558.00.

[4]      The appellant and his associate then over the following few days used the stolen credit card to purchase food, clothing and electronic items to the value of almost $2,000.

[5]      The District Court Judge at sentencing noted that the appellant had a number of previous convictions but none were especially serious.  The Judge was concerned that after the appellant had been bailed on these charges it was alleged that he had committed a further burglary on 10 June 2010.   He had been refused bail on that charge because the allegation was that he had offended while on bail.   The Judge took the chance to review the strength of the new burglary charge and concluded that the circumstantial evidence on that charge was compelling and said “in my view nothing  short  of  a  prison  sentence  was  appropriate”  for  this  offending.    He considered that an appropriate starting point was 12 months’ imprisonment.   He deducted a full one third for an early guilty plea reducing the final sentence to eight months’ imprisonment.

[6]      The Judge said he did not consider this was an appropriate case for home detention, community detention or intensive supervision given the “continued offending on bail”.   He imposed an order for reparation essentially for half of the

reparation sought and ordered that there be a post imprisonment supervision for six months.

[7]      There  are  now  two  grounds  of  appeal.    Firstly,  the  sentence  was  either manifestly excessive or based on a wrong principle in that the Judge inappropriately took into account the fact that the appellant was alleged to have been involved in a subsequent burglary.  Secondly, disparity.  The appellant said there was no reason why he should not have been dealt with in a way similar to his co offender who was sentenced to home detention for the burglaries and fraud.

[8]      Firstly,  as  to  the  influence  the  subsequent  charge  had  on  the  Judge’s sentencing.  It does appear from the sentencing remarks that the Judge considered his hands were somewhat tied as to the ultimate sentence given the appellant had been refused bail on the subsequent charge of burglary.   The Judge thought he could hardly impose a community based sentence when the appellant had been remanded in custody.  However as it now turns out the police have withdrawn this charge of burglary.  Accordingly, the position the appellant finds himself in has rather changed from the District Court sentencing.  In those circumstances it is appropriate for me to invoke  s 121(3)(b)  of  the  Summary  Proceedings  Act 1957  and  reconsider  the appropriate sentence.  There are now substantial facts relating to the circumstances of the sentencing that were not before the District Court.  The appropriate course, as I have said, therefore, is to quash the sentence imposed in the District Court and for me to reconsider sentencing.

[9]      Firstly dealing with the facts.  These were two burglaries and five counts of using a credit card.   The burglaries were of residential premises.   Burglars of residential premises can generally expect a sentence of imprisonment.  The violation of a home is a serious crime.   It is made more serious by the prospect of a confrontation between the burglar and the victims.   So often this Court has been faced with cases involving serious injury or even death to home owners when such confrontation occurs.  I repeat burglaries of residential premises are serious invasions of the privacy of occupiers and ordinarily prison sentences will follow.   I begin therefore with the proposition that these two house burglaries justify a prison sentence.

[10]     In  this  case  there  is  significant  mitigation.    Firstly the  appellant  himself surrendered to the police.   He identified his involvement in the burglaries and identified his co offender.   Secondly, he has offered to make reparation for the unrecovered property.   Thirdly, he pleaded guilty at the first opportunity.   And finally, his co offender who has similar previous convictions to the appellant has been sentenced to either nine or ten months’ home detention, the exact term remaining somewhat uncertain.

[11]     I take into account that the appellant does have some previous convictions for dishonesty and in more recent times drink driving.   I am satisfied that ordinarily the proper starting point for such offending would be in the region of 15 to 18 months’ imprisonment.  I accept that in the circumstances the appellant would be entitled to at least one third and probably a 40% discount in the start sentence to reflect mitigation.  This would take into account not only his immediate guilty plea but also the fact that he surrendered to the police and assisted the police in identifying his co offender.

[12]     I do not see any reason why a sentence of home detention should not be imposed in the circumstances.   It equates with the sentence given his co offender. The appellant is still a relatively young man at 21 years of age.  Given the special mitigation  relevant  to  Mr Wilson  his  sentence  of  home  detention  is  properly somewhat shorter than his co accused.

[13]     On the burglary and using a document charges he will be sentenced to a total of six months’ home detention with standard conditions together with special conditions:

a)       firstly, that he report to Community Corrections immediately after sentencing and then travel directly to 46 Allport Place, Stoke to await the arrival of the probation officer;

b)secondly, that he reside within that address and not move without the prior approval of the officer;

c)       thirdly, he not purchase, possess or assume alcohol or illicit drugs during the duration of the home detention;

d)       fourthly, he report to the probation officer as directed;

e)      finally, he undertake and complete any remaining rehabilitative programme, counselling, treatment and maintenance or follow up programme as directed by the probation officer.

[14]     Finally, the reparation orders remain unaffected by this order.    I note the appellant now has an offer of employment.

Ronald Young J

Solicitors:

A Heward, Oceanlaw New Zealand, PO Box 921, Nelson 7040, email: alan[email protected]

C P Stevenson, Barrister, Nelson