POWELL-COLLINS v NEW ZEALAND POLICE [2017] NZHC 1644

POWELL-COLLINS v NEW ZEALAND POLICE [2017] NZHC 1644 [17 July 2017]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCRI-2017-412-000031[2017] NZHC 1644BETWEEN BADEN POWELL-COLLINSAppellantAND NEW ZEALAND POLICERespondentHearing: 17 July 2017Appearances: B P Kilkelly for AppellantR D Smith for RespondentJudgment: 17 July 2017ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant, Mr Baden Powell-Collins, pleaded guilty in the Dunedin District Court to one charge of burglary. On 19 May 2017, he was sentenced to oneyear ten months' imprisonment by Judge Turner. Mr Powell-Collins now appeals that decision on the basis that:(a) the sentence of one year and ten months' imprisonment is manifestlyexcessive;(b) Judge Turner erred in refusing to grant home detention.Background[2] Turning to the background in this matter, in February this year, the appellantwent to the victim's residential dwelling and gained entry through a front window. He took two firearms and carry bags from a safe and loaded them into his car parkednearby before returning to the house to take more items. While the appellant was in the house, one of the occupants arrived home. She noticed the appellant climbing out of a window with a laptop. The appellant ran to his car driven by an associate and sped away. The following day, police searched the appellant's address andrecovered all of the stolen property. When spoken to, the appellant admitted the offending but declined to name the associate driving the vehicle.District Court Decision[3] In his sentencing notes Judge Turner in the District Court detailed theappellant's extensive criminal record despite his relatively young age. Judge Turner noted at para [4]:[4] As Mr Kilkelly, your counsel, has pointed out, you have previous convictions, 26 prior convictions in the District Court dating from 2008 until November 2016 and four appearances in the Youth Court between 2005 and 2007. Significantly and relevantly, your criminal history involves burglary convictions in 2009 and Youth Court appearances in 2005; conviction for other dishonesty offences – four convictions for theft in 2009, 2010 and 2011 together with an appearance in the Youth Court in 2007 on a theft matter; convictions for violence including serious violence offending – 2008 possession of an offensive weapon; 2009 possession of an offensive weapon; 2009 threatening to kill; 2009 assault with a weapon; 2011 injuring with intent to injure; 2013 assault with a weapon; 2013 wounding with intent to injure, and your most recent conviction in 2016 possession of an offensive weapon. You have appearances in the Youth Court in 2007 for aggravated assault and possession of an offensive weapon. In addition to all of that, you have convictions for failing to comply with Court sentences – in 2010 breach of release conditions and driving whilst disqualified and in 2011 breach of home detention conditions.[4] Bearing in mind the general principles and purposes of the Sentencing Act2002, Judge Turner assessed the gravity of the appellant's offending to be high and adopted a starting point of two years' imprisonment. His Honour imposed an upliftof three months' imprisonment due to the appellant's criminal record, and a further three months' uplift for the fact that the appellant offended while on bail.[5] As to mitigating factors, His Honour allowed a one month discount for theappellant's remorse and attendance at a restorative justice program, and gave a full25 percent credit for the appellant's early guilty plea. The end sentence reached was one of 22 months' imprisonment.Jurisdiction[6] Turning now to jurisdiction issues, the appellant is able to appeal the sentence imposed as of right.1 This Court, as first appeal Court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentenceand that a different sentence should be imposed.2 Toogood J captured the essence of the test in Larkin v Ministry of Social Development at para [26] where he said:3[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.[7] Specifically in relation to appeals challenging an uplift for previous convictions, the Court of Appeal has commented:4On appeal, an assessment of the judge's evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.[8] In addition to the identification of error, the appellant must persuade the appeal court that the ultimate sentence imposed was outside the range available to him or her.SubmissionsAppellant submissions[9] Turning now to the submissions advanced to me in this matter, the appellant submits that the end sentence of one year and ten months' imprisonment wasmanifestly excessive. Mr Kilkelly, counsel for the appellant, refers this court toSenior v Police5 where the Court set out three categories of burglars: first time burglar, a recidivist burglar and a spree burglar. The appellant contends here that he1 Criminal Procedure Act 2011, s 244.2 Sections 247 and 250.3 Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].4 Ripia v R [2011] NZCA 101 at [10].5 Senior v Police [2000] 18 CRNZ 340.should be considered as a "one off burglar" because his two previous burglaries were committed eight and 12 years ago.[10] The appellant does acknowledge that the entry of a residential dwelling, which occurred here, and encountering the victim are aggravating factors.[11] However, he submits that the three month uplift for his previous convictions and a further uplift of three months for offending whilst on bail were excessive. The offence which the appellant was on bail for at the time of the current offending was possession of an offensive weapon, for which the appellant was sentenced to 200 hours' community service.[12] The appellant therefore argues that a starting point in the vicinity of fifteenmonths' for the burglary with a possible uplift for previous offending and offending whilst on bail was more appropriate in this current circumstance of this matter.[13] The appellant also submits that a sentence of home detention here would have met the purposes and principles of sentencing generally.Respondent's submission[14] Turning now to the respondent's submissions, the respondent contends that the starting point adopted by Judge Turner in the District Court was "generous, if not lenient" in light of relevant case law. It is further submitted that Judge Turner was justified in uplifting the sentence by the six months he did for the appellant'sprevious convictions and the aggravating factor of offending whilst on bail.Law & AnalysisStarting point[15] Turning now to the starting point here, there is no tariff decision for burglary sentencing. The reason for this was explained by the Court of Appeal in R v Nguyen:66 R v Nguyen CA 110/01, 2 July 2001 at [18].[18] The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.[16] However, although the Court of Appeal was not willing to fix a tariff for burglary, it identified a number of factors relevant to the seriousness of burglary offending:(a) the degree of planning and sophistication in the offending;(b) the nature of the premises entered;(c) the kind and value of the property stolen;(d) damage done;(e) the impact and potential impact upon occupants of the property; and(f) the extent of the offending where multiple burglaries are involved.[17] The factor which the courts have tended to consider as being the most aggravating is the nature of the premises. As the Court of Appeal noted in its decision in Arahanga v R, "[burglary] of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation withoccupants".7 Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months' to two years six months'imprisonment.8 The taking of firearms as part of the burglary here, even if simply opportunistic, is obviously of concern too.[18] Given this guidance from the Court of Appeal, I do not consider the starting point reached here of two years' imprisonment was outside the available range of7 Arahanga v R [2012] NZCA 480 at [78].8 At [78], citing Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012; Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009; Police v Vincent DC Palmerston North CRI-2008-054-4634, 21 April 2009; and Arps v Police HC Christchurch CRI-2010-409- 167, 2 September 2010.sentences at Judge Turner's discretion. The appellant's offending was premeditated,having arranged an associate to be the getaway driver. The premises burgled were residential, a serious aggravating factor warranting a starting point between 18 to 30months' imprisonment. Concerningly, part of the property stolen were firearms here, and there was a significant and traumatic impact on the occupant of the home confronting the appellant at the time of the offending. I therefore do not accept that Judge Turner erred in adopting a two year starting point.Uplift for previous convictions and bail offending[19] Furthermore, dealing now with the uplift for previous convictions and bail offending, I find that Judge Turner was justified in uplifting the appellant's sentenceby a further three months for his previous relevant convictions. As the Judge properly noted, at the relatively young age of 25, the appellant has already accumulated a substantial list of criminal convictions. While the specific convictions for burglary are some time ago, I find that the Judge was entitled to take into account general dishonesty offending such as theft and other serious violence offending. As noted in the pre-sentence report, the appellant is at a high risk of reoffending as his criminal offending shows an unabated pattern of antisocial and criminal behaviour. A three month uplift, in my view, was justified to denounce and deter the appellant from further offending and to protect the community from his criminal behaviour.[20] Lastly, s 9(b) of the Sentencing Act 2002 states that in sentencing an offender, the Court must take into account that the offence here was one committed while the offender was on bail or subject to a sentence. I accept the respondent's submissionbefore me that it is the fact of the offending, rather than the nature of the offence, which is significant here. A further three month uplift for this aggravating factor of offending whilst on bail was properly available at the Judge's discretion.Whether home detention should have been imposed?[21] I turn now to consider whether home detention should have been imposed. Assessment of whether a sentence of short term imprisonment should be commuted to home detention conventionally involves a two step process. First this requires that the sentence must be one for two years' imprisonment or less. That is clearlysatisfied in the present case. Secondly, the sentencing Judge is then to exercise his or her discretion as to whether it is appropriate to commute that sentence to one of home detention. There is no presumption that either imprisonment or home detention is to be preferred. What is required is an evaluative exercise of the principles and purposes of the Sentencing Act under ss 7 and 8. The Court of Appeal has held recently in Fairbrother v R:9That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.[22] The choice between imprisonment and home detention must be intelligible. The Judge must properly identify and weigh the facts that really count.[23] I am satisfied here that the reasons given by Judge Turner were sufficient to explain why his Honour refused to grant home detention. As Judge Turner noted, inlight of the appellant's criminal history, and his previous non-compliance with home detention and bail conditions, commuting the appellant's short term imprisonmentinto home detention was inappropriate in the current circumstance. I agree. No material error has occurred here.ResultFor all these reasons the present appeal is dismissed....................................................Gendall JSolicitors:Brian Kilkelly, DunedinRPB Law, Dunedin9 Fairbrother v R [2013] NZCA 340 at [30].