TRAINOR v NEW ZEALAND POLICE [2020] NZHC 322

TRAINOR v NEW ZEALAND POLICE [2020] NZHC 322 [28 February 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000192CRI-2019-409-000193[2020] NZHC 322BETWEEN ANDREW STEVEN TRAINORAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2020Appearances: A J Trainor (Appellant) in person – by AVLA Harvey for RespondentJudgment: 28 February 2020JUDGMENT OF OSBORNE JThis judgment was delivered by me on 28 February 2020 at 11.30 amRegistrar/Deputy RegistrarDate:Introduction[1] Andrew Trainor, the appellant, pleaded guilty to breaching a home detentionsentence which was imposed on 26 August 2019.1 The sentence of home detentionwas imposed for offending in March 2018 (burglary) and February 2019 (petrol driveoffs, failing to stop, driving whilst disqualified, reckless driving, and possession of amethamphetamine pipe). On 10 December 2019 Judge Kellar cancelled theappellant's sentence of home detention and re-sentenced him to two years and onemonth's imprisonment.2 The appellant appeals this sentence.Facts[2] On 29 March 2018 the appellant broke into a shed in Waikuku and stole a red1989 Holden Berlina station wagon valued at $6,000. He sold the car to a third partywho later realised the car was stolen and contacted the police.[3] While on bail for the burglary charge, and during a period of disqualificationfrom driving:(a) On 3 January 2019 the appellant was observed driving a car using a cellphone and not wearing a seat belt. He failed to stop when signalled toby the police.(b) On 1 February at 11.37 am the appellant drove to a petrol station inDarfield. He filled his vehicle with $50 worth of petrol and drove outof the forecourt without paying.(c) At 12.08 pm the appellant drove to a petrol station in Oxford. He filledthe same vehicle with $73 worth of petrol and drove away withoutpaying.1 Police v Trainor [2019] NZDC 17026.2 Police v Trainor [2019] NZDC 24939.(d) At 12.36 pm police signalled the appellant to stop as his vehicle wassought in relation to the two petrol thefts. The appellant did not stop,and the police pursued him.(e) During this pursuit the appellant drove at speed, drove on the wrongside of a raised centre island, through a stop sign and swerved towardsoncoming vehicles. The police abandoned the pursuit.(f) Shortly after this chase the appellant was located walking along TramRoad, Swannanoa. The vehicle was found in a private driveway. Twoglass pipes used for methamphetamine were found inside the vehicle.[4] On 26 August 2019 Judge Kellar sentenced the appellant to nine months' homedetention at Odyssey House on the above charges.[5] Four days later, on 31 August, the appellant removed his electronic monitoringbracelet and absconded from Odyssey House. On 3 September Odyssey Housedischarged him from the programme.District Court decisionsSentencing decision – 26 August 2019[6] Judge Kellar considered the appellant had a high risk of re-offending due to hisdrug use, and noted his extensive history in the Youth Court from 2005, for offencesincluding driving, dishonesty, violence and non-compliance.[7] The Judge considered burglary to be the lead charge and set a starting point ofone year and six months. To that the Judge added:(a) six months for the driving whilst disqualified charge;(b) six months for all other offending;(c) three months because some of the offending occurred whilst theappellant was on bail and serving other sentences; and(d) three months for previous dishonesty convictions.[8] This amounted to a three-year term of imprisonment. Judge Kellar then gavea nine-month discount to reflect the guilty plea, reducing the sentence to two years andthree months. He then gave a further discount "looking at the offending as a whole"and came to a sentence of "just under two years".[9] In light of the appellant's need for intensive rehabilitative treatment, the Judgecommuted that sentence to one of nine months' home detention at Odyssey House. Healso cancelled the appellant's sentences of community work, made orders forreparation, imposed post-detention conditions, confiscated the appellant's motorvehicle and disqualified the appellant from obtaining a driver license for three years.Resentencing decision – 10 December 2019[10] In the resentencing decision, Judge Kellar cancelled the sentence of homedetention and resentenced the appellant to a term of imprisonment of one year and 10months on those charges.[11] The Judge imposed a cumulative three months' imprisonment for the breach ofhome detention, taking into account both the appellant's prompt guilty plea and theseriousness of his breach. This amounted to a total sentence of two years and onemonth's imprisonment.Principles on appeal[12] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldhave been imposed.3 As the Court of Appeal stated in Tutakangahau v R (quoting thelower court's decision), a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".4 It is only3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].appropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.5SubmissionsAppellant's submissions[13] Mr Trainor appeared in person by AVL.[14] I explained to him that in the absence of any written submissions received fromhim, the Court would be most assisted by his identifying at the start the specificreasons why he considers the sentencing went wrong.[15] Mr Trainor responded that it was because there had been no restorative justice,despite the Judge ordering it, and that although he had asked for a cultural report, nonehad been provided. In relation to restorative justice, he acknowledged that he hadburgled the victim's house but he explained that he had wanted to say sorry. In relationto his cultural situation, he indicated that he had had a very difficult upbringing andthat he had entered the youth justice system at 11 years of age. Although he is partlyof Māori ancestry, he has no real association with those roots.[16] Given that the later breach of home detention was the subject of an uplift insentence, I asked Mr Trainor whether he wanted to say anything about the breach ofperiodic detention. He stated that it had been stupid of him. At a time when hischildren were in the charge of his partner, he had seen stuff on her phone whichindicated that she was involved again with drugs. He described himself as "blackingout" (an expression which he is also recorded as having used to the Probation Officerwho prepared the pre-sentence report before his last sentencing).5 Ripia v R [2011] NZCA 101 at [15].Respondent's submissions[17] For the Crown, Mr Harvey submitted that Mr Trainor had (by his conduct) leftthe Court with no alternative to imprisonment. He identified the Judge's starting point,uplifts, and discount and submitted that each was appropriate.[18] Mr Harvey submitted that the end-sentence (after the breach of home detentionhad been taken into account) could appropriately be viewed as a lenient sentence, ascould the period of imprisonment which the Judge had arrived at on the initialsentencing (before imposing the sentence of home detention).[19] Mr Harvey further submitted that, while the end-sentence could not beregarded as excessive when approached on normal principles, it also when imposedhad the potential to enable Mr Trainor to be released earlier than if he had beensentenced to a term of imprisonment of between 20 months and 24 months. By thenposition of a sentence slightly over two years, Mr Trainor became eligible for releaseat the point he was one-third through the term of imprisonment.Discussion[20] The Judge correctly took the burglary as the lead offence. There is no guidelinedecision for burglary offending. In Arahanga v R, the Court of Appeal indicated thata starting point between 18 and 30 months is appropriate for relatively unsophisticatedburglaries of residential properties.6 There are a number of comparable cases.Eighteen months was an appropriate starting point in the circumstances of this case.7While the address was not a residential property, the burglary involved a forced entryand the theft of a $6000 vehicle which was then modified and sold.[21] The uplifts applied by the Judge were similarly appropriate. The uplift of sixmonths' imprisonment for two charges of driving while disqualified on a third orsubsequent occasion, being Mr Trainor's fourth such offence as an adult, is inaccordance with past approaches.8 The other uplift appropriately reflected the extent6 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].7 Toala v Police [2013] NZHC 3270; Tawhara v Police [2015] NZHC 2246; Cook v Police [2019]NZHC 2327; Bates v R [2016] NZCA 456.8 Wiki v Police [2018] NZHC 885; Russell v Police [2018] NZHC 858.of other offending, the fact that the same occurred while Mr Trainor was alreadyserving other sentences, and the nature of Mr Trainor's past history of dishonesty andoffending.[22] The full 25 per cent discount for his guilty plea brought Mr Trainor's potentialsentence down to two years and three months. The Judge then stood back and, havingregard to totality, came to a sentence of "just under two years", not specifying an exactperiod in the sentencing judgment as he commuted the sentence to nine months' homedetention.[23] On re-sentencing, the Judge recorded that Mr Trainor was effectively beenresentenced "to one year and 10 months' imprisonment" (that is, to a sentence "justunder two years").9[24] Through that that length of sentence, Mr Trainor received a significantdiscount. The fact that it was then commuted to nine months' home detention doesnot alter the fact that one year and 10 months' imprisonment was well within range,arguably at its lowest end.[25] The two matters which Mr Trainor particularly wished to refer to are bestviewed as matters argued by way of mitigation.[26] First was his understanding that the Judge had ordered a restorative justiceconference. As Mr Trainor indicated to me, he wished to pursue that course for thepurposes of apologising to the victim. The victim impact statement reveals that the 85year old victim decided not to engage in the restorative justice process. The victimrecorded in his statement that every time he thought about his (stolen) vehicle, he couldfeel the stress build up. It was the victim's entitlement not to engage. I am in anyevent satisfied that, had there been a restorative justice conference, an apology by MrTrainor could have counted for little, if anything, in the sentencing process. MrTrainor's history of adult offending involves offences of dishonesty dating from 2006,with repeated offending while not in custody. An apology to this particular burglary9 Police v Trainor [2019] NZDC 24939 at [10]; Police v Trainor [2019] NZDC 17026 at [11].victim could not have warranted any discount (over and above the 25 per cent discountfor early plea).[27] Secondly, Mr Trainor considers that a cultural report may have led to a differentoutcome. I am not satisfied that that is so. In any event, Mr Trainor was representedby counsel and it was open to Mr Trainor to obtain a cultural report if he wished to doso. The sentence was always going to be one of imprisonment of some length becauseof the breach of home detention and Mr Trainor's ineligibility to return to OdysseyHouse. On the information provided in this appeal, there is no basis for the Court toconclude that a cultural report might reasonably have led the Court to impose a lesserperiod of imprisonment.[28] The Judge, on resentencing, added a cumulative three months' imprisonmentfor the breach of home detention. In Hunter v Police¸ the High Court upheld acumulative sentence of six months for a breach of home detention where the breachwas "brazen and blatant".10 In that case the appellant, rather than obeying hiscondition to go directly to his home detention address, went from the Court to a retailstore, where he stole two pairs of underpants. The breach in the present case was notso brazen, but it is significant that it occurred only four days after the appellant wassentenced to home detention. In the circumstances, a period of three years'imprisonment (before discount for guilty plea) was available to the Judge.[29] It follows that the end sentence of two years and one month's imprisonmentwas not manifestly excessive. Standing back and having regard to totality, I amsatisfied that sentence is appropriate.[30] For completeness I record that the Judge did not need to take into account thetime spent in custody between the breach of home detention and the imposition of thesubstituted sentence of imprisonment. That period is properly taken into account byCorrections, not by the resentencing judge.1110 Hunter v Police [2012] NZHC 3196 at [29].11 Chief Executive of the Department of Corrections v Sutherland [2018] NZCA 623 at [62].Order[31] I dismiss the appeal.Osborne JSolicitors:Crown Solicitor, ChristchurchCopy to: A S Trainor