CRISTOPHER v POLICE [2022] NZHC 457

CRISTOPHER v POLICE [2022] NZHC 457 [15 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000016[2022] NZHC 457BETWEEN ANTHONY JAMES ALEXANDER CRISTOPHERAppellantAND NEW ZEALAND POLICERespondentHearing: 14 March 2022Counsel: T Hu on instruction from M Kan for Appellant JK Bola for RespondentJudgment: 15 March 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 15 March 2022 at 10 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.Michael Kan Law, Auckland.[1] Anthony Cristopher was sentenced to a term of 18 months' imprisonment for burglary.1 He appeals, arguing the sentence is manifestly excessive. An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.2[2] At 6.40 pm, on 23 July 2021, Mr Cristopher walked into an Auckland home while the occupant popped next door. Mr Cristopher had earlier waited outside in his car. He took a wallet from a drawer worth $100. The home was protected by closed- circuit television. When shown the footage, Mr Cristopher declined to comment. He was charged 21 September 2021. He pleaded guilty promptly—7 October 2021.[3] Judge S Bonnar QC adopted a starting point of 20 months' imprisonment. He added two months for Mr Cristopher's extensive history of dishonesty and another two because Mr Cristopher was serving a sentence of supervision and community work when he committed the offence. The Judge deducted six months for the swift guilty plea, leaving, as observed, an 18-month term of imprisonment. The Judge granted Mr Cristopher permission to apply for home detention, though the issue was "finely balanced". 3[4] On behalf of Mr Cristopher, Mr Hu contends the Judge erred by not making a specific allowance for Mr Cristopher's alleged methamphetamine addiction. Mr Cristopher told the probation officer who prepared his pre-sentence report he was "under the influence of methamphetamine" and using, at that time, "approximately half a gram daily". The officer considered several factors contributed to the offending: Mr Cristopher's "problematic use of drugs, gambling and an attitude of entitlement".4The officer recorded Mr Cristopher's desire to remain "clean".[5] Mr Hu contends there was "sufficient information to provide an evidential basis of a link between the appellant's addiction issues and his offending", and the Judge should therefore have reduced the sentence by 10 or 15 percent.1 Police v Cristopher [2021] NZDC 25651.2 Criminal Procedure Act 2011, s 250 and Tutakangahau v R [2014] NZCA 279.3 Police v Cristopher, above n 1, at [10].4 Elsewhere in the report, the officer recorded Mr Cristopher "has a longstanding drug problem".[6] Section 24(2)(d) of the Sentencing Act 2002 provides a defendant "must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence". This explains why the Court of Appeal has held drug-addiction (as causative of an offence) must be established by the defendant with "persuasive evidence", and self-reporting will not suffice, at least when this mitigating fact is disputed.5[7] No discount based on methamphetamine addiction was sought at sentencing. The point was not raised. Now that it is, the prosecution contends it is not sufficient for Mr Cristopher to rely on the content of the pre-sentence report; such material is not ordinarily considered evidence, particularly as it is heavily based on self-reporting.[8] Citing Stuart v R Mr Hu says this Court has held a pre-sentence report can constitute such evidence. 6 In Stuart, Hinton J accepted the required causal link could "readily be inferred" from the pre-sentence report. 7[9] It is unnecessary to resolve the point for three reasons.[10] First, even if the Judge ought to have afforded modest discount for addiction, that discount could have been swallowed by one or two things, or both together:(a) A somewhat higher starting point was open to the Judge given the real risk Mr Cristopher would encounter an occupant. As will be recalled, he entered the home at 6.40 pm. The occupant was just next door.8(b) A greater uplift for Mr Cristopher's extensive criminal history. This uplift could easily have been four months, not two.9[11] Second, larger discounts for (causative) addiction are typically made when there is a meaningful prospect of rehabilitation. Having recorded the earlier remarks5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].6 Stuart v R [2021] NZHC 710.7 At [15].8 See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78]: "Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months' to two years and six months' imprisonment".9 See, for example, R v Rako [2015] NZCA 463 at [15].about Mr Cristopher's possible addiction, the probation officer noted Mr Cristopher's "motivation to change is treated with caution as he has been provided the opportunity to attend programmes previously and he has a pattern of not engaging". The officer considered Mr Cristopher a "high risk of re-offending". So, this is not a case in which a significant discount for addiction was available.[12] Third, again assuming error, a discount at the lower end of the range advanced by Mr Hu—10 percent—would result in a sentence of just over 16 months' imprisonment. Given this, an 18-month term cannot be considered manifestlyexcessive.[13] The appeal is dismissed...Downs J