Wilson v R

[2012] NZHC 65

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000445 [2012] NZHC 65

MARIO PEPE WILSON

Appellant

v

THE QUEEN

Hearing:         2 February 2012

Appearances: V Heather for the Appellant

N Wilde for the Crown

Judgment:      7 February 2012 at 3:30 PM

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 7 February 2012 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

V Heather:  [email protected]

N Wilde:  [email protected]

WILSON V R HC AK CRI 2011-404-000445 7 February 2012

[1]      The appellant, Mr Wilson, appeals against a sentence imposed by His Honour

Judge McKegg in the District Court on 8 November 2011.

[2]      The appellant had pleaded guilty on 4 August 2011 to a charge of burglary contrary to s 231(1)(a) of the Crimes Act 1961, and a charge of breaking post-release conditions imposed on an earlier sentence.  On 8 November 2011, he was sentenced to a term of 15 months’ imprisonment in respect of the burglary offence.

Background Facts

[3]      At 9.25 pm on 14 June 2011, the appellant entered a residential dwelling in Takanini through a second-storey bedroom window.   A female was asleep in the bedroom.   She was  woken by the sound of the appellant  climbing through  the window.  She got out of bed, turned on the light, and found the appellant standing in her room.  She told him to get out of the house.  The appellant then climbed back out of the window, and left the dwelling.

[4]      The appellant’s fingerprints were found at the scene, and he was subsequently arrested and charged.  He entered a guilty plea on 4 November 2011 to the charge of burglary, and was remanded into custody until 8 November 2011 for sentencing.

[5]      The   appellant   has   a   lengthy   criminal   record,   including   11   previous convictions for burglary.

District Court Judge’s Decision

[6]      Judge McKegg in the District Court at Papakura noted that the offending occurred at night, and that the appellant had chosen to burgle a domestic residence. He noted that there was a woman in the house at the time, that she was alone and that she awoke to find the appellant in her bedroom.   The Judge observed that the appellant should not be under any misapprehension as to the seriousness of his offending.

[7]      Judge McKegg acknowledged that the appellant did leave the property when he was told to do so, and that he subsequently entered a plea of guilty.  He also noted that the appellant had  only recently been released from  custody  after serving a sentence for another recent burglary, and that he was in breach of his release conditions  at  the  time  that  he  committed  the  offence.    He  considered  that  the appellant could be described as a ―spree burglar‖, and that the circumstances of the offending placed the appellant in a situation where a more serious sentence should be imposed.

[8]      Judge McKegg adopted a starting point of 20 months’ imprisonment.   He deducted five months to acknowledge the appellant’s guilty plea.  On the charge of burglary, he sentenced the appellant to 15 months’ imprisonment.  On the charge of breach of release conditions, he was sentenced to three months’ imprisonment, to be served concurrently.   The Judge also put in place certain conditions to come into effect when the appellant is released from prison.

Submissions

[9]      Mr Heather, on behalf of the appellant, submitted that the sentence imposed by Judge McKegg was manifestly excessive.  He argued that the appropriate starting point should have been in the vicinity of ―less than 12 months’ imprisonment‖, although he acknowledged that an uplift was required to reflect the appellant’s previous convictions for burglary and other dishonesty offences.  He accepted that an uplift of six to eight months’ imprisonment would have been appropriate.

[10]     Mr  Heather  submitted  that  the  District Court  Judge  failed  to  adequately assess the criminality of the offending when he was assessing the appropriate starting point.   He acknowledged that the offending involved entry into a dwelling house, and that it occurred at night.   Nevertheless, he argued that the offending did not require a high level of intelligence, and that it was not sophisticated.  He submitted that it was more opportunistic than premeditated, that the appellant left immediately when asked to do so, and that nothing was taken.  He submitted that the offending was low level offending of this type, and that the appellant could not properly be described as a ―spree burglar‖.

[11]     Ms Wilde for the respondent submitted that the sentence was within range, and that the appeal should be dismissed.  She referred to the approach to sentence appeals discussed by the Court of Appeal in R v Shipton.1    She cited a number of decisions, and submitted that the starting point adopted by the District Court Judge was within the range available having regard to the seriousness of the offence, and the appellant’s  previous  convictions  for burglary.   She argued  that  the sentence imposed was not manifestly excessive, that Judge McKegg did not err in principle on the basis of the materials before him and that he imposed a sentence within the

available range.

Analysis

[12]     This is an appeal against sentence under s 115 of the Summary Proceedings Act 1957.   Section 121 of that Act confers power on the Court to determine such appeals.  Relevantly, it provides as follows:

121     High Court to hear and determine appeal

(1)       The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

…

(3)     In the case of an appeal against sentence, the High Court may—

(a)      confirm the sentence; or

(b)       if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or  if  the  High  Court  is  satisfied  that  substantial  facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)        quash  the  sentence  and  either  pass  such  other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing

1      R v Shipton [2007] 2 NZLR 218 (CA).

sentence   could   have   dealt   with   him   on   the conviction; or

(ii)      quash  any  invalid  part  of  the  sentence  that  is severable from the residue; or

(iii)     vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

…

(6)     In any case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.

(7)       Subject to the provisions of section 144, the decision of the High

Court on any general appeal shall be final.

(Emphasis added)

[13]     It is trite law that this Court should not interfere with a sentence imposed by a District Court  Judge  unless  the  sentence  is  manifestly  excessive  or  wrong  in principle.2    In particular, the Court should not substitute its own opinion for that of the  sentencing judge.3      It  can  interfere if  the sentence  imposed was  manifestly excessive.    Whether  a  sentence  is  manifestly  excessive  is  to  be  considered  by

reference to the sentence imposed, rather than the process by which the sentence was reached.4  As the Court of Appeal observed in R v Shipton:5

The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer.  There must be an error vitiating the exercise of the original sentencing discretion.  In short, this Court must proceed on an ―error principle‖.

[14]     Against that background, I now turn to consider this appeal.

[15]     Here, there is no suggestion that Judge McKegg lacked jurisdiction, or that substantial facts relating to the offending or the appellant’s character or personal history were not before the Court, or that the facts were not substantially as placed before or found by the Court.  It follows that the appeal should only be allowed if the

sentence imposed was manifestly excessive, inadequate or inappropriate.

2      See R v Brooks [1950] NZLR 658 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.

3      Wells v Police [1987] 2 NZLR 560 (HC) at 565.

4      R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].

5      R v Shipton, above n 1, at [138].

[16]     The offence here in issue is burglary.   Burglary is rightly regarded as a serious offence.6    While there is no tariff decision for the offence, the decisions of the Court of Appeal in R v Columbus,7 and of a full High Court in Senior v Police,8 are often referred to in this context.  There are passages in Senior, for example, at [17] and [23] that suggest that it is a tariff decision.   The case however does not provide sentencing bands, and the Court of Appeal in Southon has made it clear that

Senior is not a tariff case, but rather, a useful discussion of historical sentencing patterns.9

[17]     A sentencing Judge dealing with the offence of burglary is required to fix a starting point identifying the culpability inherent in the offending by reference to its circumstances.  It is the intrinsic nature and gravity of the offence charged that are the primary considerations.   The circumstances of the offending predominate in fixing the starting point.10

[18]     Here, the following circumstances are relevant:

(a)       The property burgled by the appellant  was  a residential  dwelling.

This  distinguishes  the  present  case  from  Columbus,  where  the burglary was of a garage.

(b)Because  the  premise  was  a  residential  dwelling,  there  was  a heightened risk of confrontation with the occupiers.  The fact that the appellant was prepared to run that risk is an aggravating feature of the offending. There was a clear invasion of privacy.

(c)      Here, the premise was occupied. The occupier was a female.  She was in bed at the time.  She was awoken when the defendant broke into her bedroom.   I have read the Victim Impact Statement prepared by the woman, and note that the appellant’s actions had a significant

effect on her, on her husband, and on her family.

6      R v Southon (2003) 20 CRNZ 104 (CA) at [12].

7      R v Columbus [2008] NZCA 192.

8      Senior v Police (2000)18 CRNZ 340 (HC).

9      R v Southon, above n 6, at [13].

10     R v Columbus, above n 7, at [13].

(d)There was an unlawful entry into the dwelling house.   That is an aggravating feature that can be taken into account pursuant to the Sentencing Act.11

(e)      The offending occurred at night.  This feature aggravates the distress that the victim will have suffered.

(f)      The offending occurred just after the appellant had been released from custody for a recent burglary.   The appellant was in breach of his release conditions at the time he committed the offence.

[19]     I have considered the authorities referred to by Mr Heather and in particular, the decision of Asher J in Monsall v Police.12     In that case, a 20 year-old male burgled a residential facility for people undergoing drug and alcohol counselling.  He entered the property by kicking a window open.  He then opened the front door to an office through a window, causing damage.   He spent some time in the premises, using an office computer to access pornography, and stole only a minor item, a $3

Sharpie pen.  The offender had 24 prior appearances for burglary.  The starting point was set at ―about one year’s imprisonment‖, given the lack of premeditation, the minimal damage caused when breaking in, the small value of the item taken and the lack of distress or inconvenience caused. The sentence was then uplifted by one year for the offender’s previous convictions, and then discounted by one third to reflect the  offender’s  guilty plea.    The  total  sentence  imposed  was  one  year  and  four months’ imprisonment.

[20]     In my view, Monsall is not directly comparable.  In that case, the premise was not a domestic residence and the offender did not cause distress or inconvenience to anybody at the premises.

[21]     In my view, a rather more helpful authority is the decision of French J in

Dudley v Police.13   In that case, the offender entered a private dwelling in the early

11     Sentencing Act 2002, s 9(1)(b).

12     Monsall v Police HC Tauranga CRI 2009-087-134, 19 August 2009.

13     Dudley v Police HC Christchurch CRI 2009-409-000001, 26 February 2009; see also Hetariki v

Police HC Christchurch CRI 2011-409-000117, 6 December 2011.

hours of the morning, and stole CDs, shoes, a wooden elephant, two watches, keys and a camera.   The offender was disturbed by the occupier and the police were called.    French  J  considered  that  18  months’ imprisonment  was  an  appropriate starting point,  given aggravating features  such  as  the effect  on  the victims,  the invasion of privacy, and the fact that the burglary occurred at night.  The offender was subject to release conditions at the time of the offending.  The Judge deducted six months on account of an early guilty plea, a letter of apology, and rehabilitation efforts. The final sentence was one of 12 months’ imprisonment.

[22]     I also note a decision given in the District Court – Police v Vincent,14 where the offender entered a sleep-out at the rear of a garage via an unsecured door at

4.30am. A 15 year-old female was sleeping inside.  The offender woke the girl, who screamed for her father.  The offender immediately left.  The victim was emotionally traumatised by the incident.   The sentencing Judge, Judge JA Binns,  adopted a starting point of 18 months’ imprisonment, and allowed the offender a six-month discount for an early guilty plea.  The final sentence imposed was one of 12 months’ imprisonment.

[23]     In my view, both of these cases bear rather greater factual similarity to the current case than Monsall.

[24]     Judge McKegg adopted a starting point of 20 months.  Viewed in isolation, that starting point was, in my view, a little high. A starting point, strictly so called, of

18 months or thereabouts would have been more appropriate.

[25]     Judge McKegg did not expressly set out his starting point for the offending itself, taking into account its aggravating features.  Rather, his starting point seems to have included factors personal to the appellant because the Judge made no separate uplift for this.  While this approach does not follow the Taueki15  methodology, no

manifest error has resulted.

14     Police v Vincent DC Palmerston North CRI 2008-054-004634, 21 April 2009.

15     R v Taueki [2005] 3 NZLR 372.

[26]     The appellant has an appalling criminal history.  His offending commenced in late 1999, and it has continued unabated through until the present date.  He has 11 previous convictions for burglary.   He has convictions for breaching Court orders, theft, and other dishonesty-related offending.  There was no suggestion of remorse, no letter of apology and no attempts at rehabilitation.  An uplift to the starting point was clearly necessary.  In my view, an uplift of four to six months would not have been inappropriate in the circumstances   This would have resulted in an uplifted sentence of 22 to 24 months.  After allowing a discount of 25 per cent for the early guilty plea, the end sentence imposed would have been about 16 to 18 months.  It follows that the end sentence imposed by Judge McKegg — 15 months — was modest.

[27]     It is the end sentence that is relevant, and not how it is arrived at.  The Judge arrived at an end sentence for the burglary that was clearly not manifestly excessive. Deterrence and community protection must be primary considerations when sentencing a recidivist offender such as the appellant in this case.  The appellant’s criminal record reinforced the need for a meaningful sentence and the Judge was right to impose such a sentence.

[28]     The appeal is dismissed.

Wylie J