MCCORMICK v NEW ZEALAND POLICE [2021] NZHC 1299

MCCORMICK v NEW ZEALAND POLICE [2021] NZHC 1299 [3 June 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000032[2021] NZHC 1299BETWEEN ALISTAIR MCCORMICKAppellantAND NEW ZEALAND POLICERespondentHearing: 3 June 2021Appearances: T Aickin for AppellantC E Martyn for RespondentJudgment: 3 June 2021ORAL JUDGMENT OF VENNING JSolicitors: Raymond Donnelly & Co, ChristchurchCounsel: T Aickin, Christchurch[1] Alistair McCormick was sentenced by Judge A A Couch to 30 months'imprisonment.1 The Judge constructed the sentence by imposing one year, threemonths on three charges of burglary, and one year, three months cumulative on acharge of breach of a protection order. The Judge imposed concurrent sentences onan earlier breach of protection order charge and on charges of receiving and breach ofintensive supervision.[2] Mr McCormick appeals against the sentence. He says the Judge should haveimposed a sentence of home detention.Background[3] The burglary charges arose out of three incidents on 27 May 2020, 1 June 2020and 30 July 2020. The burglaries were committed at a Christchurch school, a builder'syard, and an apartment complex that Mr McCormick had previously worked at. Theproperty at the school and the builder's yard were damaged by Mr McCormick inforcing his entry. From those properties he stole keys to a vehicle and a petrol chargecard and goods of more than $3,000. In relation to the burglary of the apartmentcomplex he stole pails of paint.[4] In June 2020 Mr McCormick had been served with a protection order. On 15July he breached that protection order by making numerous phone calls and texts tohis former partner. He also attended her home and tried to get inside.[5] The second breach of the protection order was more serious. On 19 October2020 Mr McCormick accosted his former partner outside her home and refused toleave for an hour or so. He then returned half an hour later telling her by text he wasoutside her door. Concerningly, at 3.30 am the next morning Mr McCormick climbedup the outside of the victim's apartment building and broke into her apartment. Thevictim awoke to find Mr McCormick standing at the end of her bed. She repeatedlyasked him to leave but he only did so after quite some time. Early in the morning MrMcCormick sent a series of what the Judge described as lengthy and unwelcome textmessages to the victim.1 New Zealand Police v McCormick [2021] NZDC 3011.[6] At 10.00 am that day Mr McCormick approached the victim again when shewas getting into her car. He got into the passenger's side of the car. He refused to getout. He remained in the car while the victim drove to the city and back again. Sheran to her apartment and locked the door. Mr McCormick then climbed up the outsideof the building again to her balcony, broke in and confronted her. After the victim hadleft for work he telephoned her and verbally abused her. When she returned homefrom work Mr McCormick's scooter was parked in her parking place.[7] In addition to the charges of burglary, when the Police executed a searchwarrant at Mr McCormick's home on 10 July they found property that had been stolenat a burglary in May which led to a charge of receiving.[8] In June 2020 Mr McCormick had been sentenced to intensive supervision onan earlier charge of burglary. He repeatedly failed to report which led to the charge ofbreach of supervision.District Court judgment[9] The District Court Judge took a starting point of two years' imprisonment forthe three burglaries. He considered the breaches of the protection order, particularlythe second charge, as serious and said he would apply an uplift of one year, ninemonths for that. The Judge considered an uplift of six months to be appropriate forthe receiving charge and two months for the intensive supervision charge.[10] The Judge then said that arithmetically that led to a total of three years, fivemonths' imprisonment. Actually, on the basis that the sentences were calculated asuplifts as the Judge had expressed, that led to a total of four years, five months'imprisonment. The Judge then said he reduced the sentence "a little" to take accountof totality, reducing it to three years, two months before uplifting that for 10 per centto reflect the aggravating feature that the breaches of the protection order werecommitted while Mr McCormick was on bail and subject to the sentence ofsupervision.[11] The Judge then accepted by way of mitigation that Mr McCormick hadexpressed remorse and was willing to engage in rehabilitation. He recognised boththose factors by a reduction of 10 per cent and then allowed Mr McCormick a furtherreduction of 20 per cent for the guilty plea. That led the Judge to the end sentence of30 months' imprisonment which he imposed as noted above. In addition the Judgemade modest reparation orders.Appeal[12] Ms Aickin submits the sentence of imprisonment was manifestly excessive andthe Judge was in error in imposing the sentence of imprisonment.[13] In support of the appeal counsel submits the starting point of no more than 20months' imprisonment was appropriate for the three burglaries given the low value ofthe goods stolen and that they were committed at commercial premises in the middleof the night. Further, counsel submitted that, if the Judge had incorporated all relevantmitigating factors personal to the appellant, a significantly reduced sentencing endpoint would have been reached.[14] In particular Ms Aickin referred to the link she said existed between MrMcCormick's drug addiction and his offending. She also submitted the Court wasrequired to impose the least restrictive outcome available which would have beenhome detention. If the Judge had taken into account his drug addiction, MrMcCormick's personal background, his remorse and willingness to undertakerehabilitation, a sentence allowing home detention to be considered would have beenavailable to the Court. She noted that home detention was recommended by the pre-sentence writer.Decision[15] The appeal is under s 250 of the Criminal Procedure Act 2011. The appellantmust satisfy the Court there has been an error so that a different sentence should beimposed. The focus is on the correctness of the end result rather than the process bywhich the sentence was reached.22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.[16] The principal challenge to the starting point is in relation to the burglaries. Ascounsel have noted there is no guideline judgment for burglary sentencing. The Courtof Appeal in R v Columbus3 has discussed the approach that the Court may adopt andalso in Arahanga v R4 the Court has discussed what might be appropriate startingpoints for various types of offending.[17] Having regard to the relevant authorities that counsel have helpfully referredto,5 I consider a starting point of 20 months as suggested by the appellant would bethe bottom of the range for burglary offending in this case. It would be difficult tocriticise the Judge's starting point of 24 months. However, for present purposes andin constructing and in testing the sentence imposed in this case, the Court takes as astart point for the burglaries the 20 months advocated by Ms Aickin.[18] In constructing an appropriate end sentence, however, I consider the Judge'sapproach of uplifting for the other unrelated offending, namely the receiving, thebreaches of the protection order and the breach of the intensive supervision order, wasan appropriate approach.[19] An uplift of four months for the receiving charge again, giving the appellantthe benefit of the doubt on that, would be appropriate.[20] The breaches of the protection order, however particularly the second breachof the protection order, were particularly serious. There can be no criticism of theJudge's assessment that the breaches of the protection order warranted an uplift of oneyear, nine months in total. As I have noted, there are a number of concerning featuresof that offending. It involved a number of different incidents, harassment over alengthy period, and concerningly breaking into the victim's home in the middle of thenight.3 R v Columbus [2008] NZCA 192.4 Arahanga v R [2012] NZCA 480.5 R v Stevens [2009] NZCA 190; Anderson v NZ Police HC Hamilton CRI-2006-419-119, 30November 2006; Gordon v NZ Police HC Wanganui CRI-2009-403-3, 9 February 2009; andCrawford v NZ Police [2015] NZHC 3262.[21] An uplift of one year, nine months on those offences is entirely appropriate.That leads to an adjusted sentence of 45 months' imprisonment. Some allowance mustbe made for the breach of the supervision order and for the fact that this offendingoccurred whilst the appellant was on bail and subject to a sentence. An uplift of afurther five months to reflect those two factors would take the adjusted start point to50 months. Standing back and looking at the matter for totality that starting pointcould be adjusted down to 45 months which would be three years, nine months.[22] The issue then is whether the further discounts should have been madeavailable as Ms Aickin submits particularly for the appellant's drug addiction as shedescribed it.[23] As discussed with counsel there is really limited information before the Courtabout that. In the pre-sentence report the pre-sentence report writer notes that thecircumstances, the unfortunate death of both his parents within a relatively shortperiod of time, the break-up of a relationship, loss of a support network led theappellant to drug use, specifically methamphetamine which was normalised. Theappellant described using drugs to "numb" everything. The report writer noted thatthe appellant had accepted his need to address his addiction to methamphetamine andrelationship issues. There was also an alcohol and drug assessment report before theCourt. It recommended an intensive outpatient treatment programme for MrMcCormick.[24] With respect to Ms Aickin's submission that there was sufficient evidencebefore the Court of a drug addiction, I do not accept the material before the Court,which is essentially self-reporting of a rather limited nature of the use of drugs meetsthe requirements for a significant discount as referred to in Zhang.6[25] I also note that the Judge has provided a 10 per cent discount for remorse andrehabilitation prospects in this case. Even increasing that to 15 per cent to take accountof the other factors referred to in the pre-sentence report, including the appellant'sbackground and use of drugs, when taken with the 20 per cent reduction for the guiltyplea, which given the strong Police case, was appropriate, a combined discount of 356 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.per cent applied in accordance with Moses7 would lead to an end sentence ofsomewhere in the range of 29 months' imprisonment.[26] Even on that adjusted basis the issue of home detention does not arise. It alsocompares closely with the Judge's end result of 30 months' imprisonment.[27] The appellant fails to satisfy the Court that the sentence imposed by the Judgewas manifestly excessive or out of range. Ultimately there is no error in the end resultof the sentence imposed. For those reasons, the appeal is dismissed__________________________Venning J7 Moses v R [2020] NZCA 296.