Wright v Police

[2013] NZHC 2049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-207 [2013] NZHC 2049

BETWEEN

CRAIG ALISTAIR WRIGHT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 August 2013
Appearances:	R Treloar for appellant L Mills for respondent
Judgment:	13 August 2013

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

CRAIG ALISTAIR WRIGHT v NEW ZEALAND POLICE [2013] NZHC 2049 [13 August 2013]

[1]  Mr Wright pleaded guilty in the District Court to two charges of burglary and two charges of aggravated driving whilst disqualified. On 15 July 2013, Judge Winter sentenced him to 25 months imprisonment.1

[2] Mr Wright appeals to this Court against the sentence the Judge imposed. He argues that the Judge gave insufficient recognition to his guilty pleas, and thereby imposed an end sentence that was manifestly excessive. He contends that an appropriate end sentence would have rendered him eligible for a sentence of home detention, and that the Judge ought to have imposed that sentence rather than a sentence of imprisonment.

Background

[3]     The charges arose out of the fact that Mr Wright had worked as a contractor at the New Zealand Steel mill situated near Waiuku. This gave him access to the plant, and knowledge of its layout. He devised a plan whereby, on at least two separate occasions, he travelled to the plant in his vehicle at night. He then waited until another vehicle went through the gate, before entering the plant yard following closely behind the vehicle in front.

[4]   Mr Wright would then proceed to a building on the northern side of the yard. He knew that this building had an insecure door, and he used this to gain access to the building. He then opened a larger roller door, and drove his own vehicle inside the building.

[5] Once inside the building, Mr Wright used a forklift to load onto his vehicle contact clamps made out of cooper and bronze. He also loaded onto his vehicle coil inductor windings made out of steel and copper. The former weighed 300 to 450 kilograms each, and each was valued at $18,211. The coil inductor windings each weighed approximately 400 to 450 kilograms, and were each valued at approximately $8,700. Although a total of 28 copper clamps were stolen from the plant, Mr Wright pleaded guilty on the basis that he was only responsible for stealing

1       New Zealand Police v Wright DC Pukekohe CRI-2012-057-001944, 15 July 2013.

19 of these. He acknowledged, however, that he had taken all three coil inductor windings.

[6] After stealing the property, Mr Wright subsequently took some of it to a scrap dealer some distance from his home where he sold the items for cash. He received a total sum of approximately $21,000 in respect of these sales.

[7]  The burglaries occurred at some stage between January and 21 August 2012. The theft of the items was not discovered by the plant management until 21 August 2012. At that stage, the police became involved and an alert was sent out to scrap and second-hand dealers throughout New Zealand. This resulted in a scrap-dealer contacting the police to advise them that the scrap dealer was in possession of items matching the description of those stolen from New Zealand Steel. Subsequent investigations revealed that this scrap-dealer had obtained the items from the scrap- dealer to whom Mr Wright had originally sold them.

[8] The police then obtained search warrants in respect of Mr Wright’s work and residential addresses. The police discovered nine copper clamps and one  coil inductor winding buried under the ground at Mr Wright’s work address.

[9]    The police have now established that the items that can be proved to be stolen by Mr Wright had a total value of $372,086.47. The police have recovered some of the items, albeit in a damaged state, and these have cost New Zealand Steel considerable sums to repair. The stolen property that remains outstanding has a total value of approximately $35,600.

The Judge’s decision

[10] The Judge took the view that this  was  a  serious  burglary.  It  involved elements of premeditation by a person who had inside knowledge of the plant due to his association with it. He noted that the items had a very large commercial value, and that the risk for harm as a result of their theft was also large. The material before the sentencing Judge indicated that, in the event that the plant had suffered a breakdown and had not been able to have resort to the stolen property, it could have resulted in the steel mill closing down for a considerable period.  This would have

caused very considerable financial loss for the operation, and could also potentially have led to the loss of many jobs.

[11] The Judge considered that the offending warranted a starting point of 30 months imprisonment. He then added two months to reflect the charges of aggravated driving while disqualified. The Judge then reduced the resulting starting point of 32 months by 15 per cent, or five months, to reflect Mr Wright’s guilty pleas. He applied a further two month discount to reflect the fact that Mr Wright has expressed remorse and attended a restorative justice conference with the victim of his offending. This led the Judge to conclude that an appropriate end sentence was two years one month imprisonment. As a result, a sentence of home detention was outside the available range.  He also observed, however, that he did not consider that a sentence of home detention would have been appropriate in any event.

Grounds of appeal

The starting point

[12] Counsel for Mr Wright initially advanced three grounds in support of the appeal. The first of these was that the Judge had erred in selecting a starting point on the burglary charges of 30 months imprisonment. In her  written  submissions, counsel for Mr Wright submitted that this was too high given the fact that only two burglaries occurred, and that most of the stolen property was recovered. During the course of the hearing counsel for Mr Wright effectively abandoned this ground of appeal, but I consider that it remains relevant for a reason that will shortly become clear.

[13] By any measure, this was sophisticated offending. It involved, as the Judge found, substantial premeditation and use of inside knowledge. It also contained elements of breach of trust because of the fact that Mr Wright used knowledge gained from his contract work with the victim to gain access to the plant. The manner in which the burglaries occurred was also sophisticated. It involved Mr Wright inserting his vehicle surreptitiously into the plant yard, and then obtaining access to the building by a door he knew to be insecure.  The items in question were

large in size, and also extremely valuable. Given those factors, the burglaries must be viewed as being serious.

[14] In their written submissions, counsel referred to several cases involving sentencing for burglary. Of these, the only case that I have found to be of any real assistance is that of R v Stevens.2 In that case, the appellant had knowledge of commercial premises by the fact that he used to be employed as a cleaner there. This meant that he had keys to gain access to the building. He was also aware of the security system. He used this knowledge to enter the building, deactivate the alarm system and then steal several metres of copper piping. He loaded this into his van and drove away. Fortunately, he was stopped by the police a short distance away and

the copper was recovered. The items stolen had a total value of $350. The Court of Appeal considered3 that an appropriate starting point for this offending was a sentence of approximately 18 months imprisonment.

[15] Given the fact that the present case involves two burglaries and the theft of items having a much greater value than those stolen in Stevens, I do not consider that a starting point of two and a half years could possibly be regarded as outside the available range. Indeed, in my view, the Judge could easily have selected a starting point of three to three and a half years to reflect the aggravating factors to which I have referred.

[16] It is noteworthy that recent decisions of the Court of Appeal4 indicate that burglaries of residential premises can attract starting points of around three to three and a half years when they involve the theft of property having a much lesser value than the property stolen in the present case. For that reason, I consider that counsel for Mr Wright was well advised to abandon this ground of appeal.

Credit given for guilty pleas

[17] The next ground of appeal is that the Judge gave insufficient recognition to Mr Wright’s guilty pleas.  Mr Wright was arrested on or about 1 September 2012 and

2       R v Stevens [2009] NZCA 190.

3 Ibid, at [14].

4       See eg Jones v R [2012] NZCA 273 and Makene v R [2013] NZCA 178.

appeared in the District Court for the first time on that date. He then appeared again on a number of occasions, before entering guilty pleas on 7 November  2012. Counsel explains that the delay between initial appearance and the entry of the guilty pleas resulted from the fact that the police were tardy in complying with disclosure requirements. In particular, counsel needed to ascertain the true value of the goods stolen before pleas could be entered. Secondly, the police had laid a third burglary charge that Mr Wright denied. This was later reduced to a charge of receiving, and Mr Wright denied this charge also. On the day before the defended hearing on this charge the police withdrew it, thereby enabling all matters to be resolved.

[18] I agree that the period of time between 1 September and 7 November 2012 is not great when regard is had to the explanation for the delay. For that reason it was open to the Judge to apply a discount of greater than 15 per cent.

[19] On the other hand, a sentencing Judge is not obliged to apply a discount of 25 per cent when early guilty pleas are entered. As the Supreme Court observed in Hessell v R,5 the discount to be applied in respect of guilty pleas must reflect all of the circumstances of the case. These include the strength of the prosecution case and other factors that may be relevant to the entry of the pleas.6

[20] In the present case, conviction was virtually inevitable once the  police received the information from the scrap-metal dealers and then discovered the stolen items buried on Mr Wright’s property. That factor may have persuaded the Judge that a lesser discount was appropriate in the present case. The crucial issue, in any event, is whether the end sentence was manifestly excessive. The path by which the sentence is reached is of little significance.

[21] Any concern about the level of discount applied by the Judge in relation to the guilty pleas dissipates, in my view, once the starting point the Judge applied is taken into account. As I have already observed, he could easily have applied a starting point of three to three and a half years imprisonment to reflect the gravity of

5       Hessell v R [2011] 1 NZLR 607.

this offending and its potential consequences. When I take that factor into account, I do not consider that the end sentence can be said to be manifestly excessive.

Home detention

[22] As a result, the third ground of appeal, that relating to the failure to impose a sentence of home detention, does not need to be considered. Even if it had, however, I agree with the Judge’s assessment as to whether or not such a sentence was appropriate.

[23] The imposition of a sentence of home detention has been described as the exercise of a “fettered discretion”.7 The exercise of the discretion is fettered by the purposes and principles of sentencing contained in the Sentencing Act 2002. The Judge expressly acknowledged this fact8 when concluding that a sentence of home detention was not appropriate. I agree that the principles and purposes of deterrence, denunciation and the need to hold Mr Wright properly accountable for this serious offending were to the forefront in the present case. I do not consider that a sentence of home detention would have paid proper regard to these principles.

[24]  Mr Wright’s previous convictions also raise two issues that would give cause for concern in the context of a sentence of home detention. The first of these is that he has numerous convictions for driving under the influence of alcohol. He also has some convictions relating to possession of drugs. These give rise to a concern that Mr Wright has issues with substance abuse, and that this may present an obstacle to successfully completing a sentence of home detention.

[25] More importantly, he also has several convictions for breaching Court orders, including driving whilst disqualified. When a Court sentences an offender to a period of home detention, it must be able to trust the offender to abide by any conditions that the Court might impose. Mr Wright’s response to punitive Court orders to date is such that the Court could not be confident that he would abide by any ancillary conditions the Court might impose in relation to a sentence of home detention.

7       Manikpersadh v R [2011] NZCA 452, at [10]-[12]; Fraser v R [2013] NZCA 250 at [20].

Result

[26]     For these reasons, notwithstanding the forthright and excellent submissions made to the Court on his behalf, the appeal must be dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland Counsel:

R Treloar, Public Defence Service, Auckland