MCFARLANE v POLICE [2017] NZHC 1438

MCFARLANE v POLICE [2017] NZHC 1438 [27 June 2017]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2017-463-9[2017] NZHC 1438BETWEEN BILLIE MCFARLANEAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2017Counsel: R Vigor-Brown for AppellantS Casey for RespondentJudgment: 27 June 2017JUDGMENT OF WHATA JThis judgment was delivered by me on 27 June 2017 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Solicitor, Rotorua[1] Billie McFarlane pleaded guilty to two sets of offending, the first comprising two burglary charges and multiple other charges1 and the second comprising a third burglary and other offending which occurred while Ms McFarlane was an absconder on bail.2 She was sentenced by Judge P W Cooper on all charges to three years andnine months' imprisonment.[2] Ms McFarlane appeals on the basis that the sentence was manifestly excessive and the Judge failed to have regard to the totality principle.Background[3] As Judge P W Cooper observed, there are basically two sets of offending. The first set of offending includes two burglaries. The first burglary occurred at commercial premises where approximately $3,800 of property was taken. The second burglary involved residential premises, with property to the value of approximately $30,000 taken, of which two thirds has been recovered. This offending also involved unlawful taking of a motor vehicle and driving while disqualified. At about this time there was also a breach of community work.[4] The second set of offending included another residential burglary, breach of bail, receiving stolen items, consuming methamphetamine, dishonest use of a bank card and theft.Sentencing remarks[5] On the first set of offending (which was subject to a sentence indication), a start point of two years for the two charges of burglary was adopted. This involved one residential burglary and one commercial burglary. Added to this was three months for unlawful taking of a motor vehicle, and two months for driving while disqualified, and breach of community work. This was uplifted by three months for previous convictions. This resulted in a cumulative start point of two years and eight months. A discount of 25 percent for guilty plea was then applied, resulting in an endsentence of sentence of two years' imprisonment.1 Unlawful taking of a motor vehicle, driving while disqualified, and breach of community work.2 Failure to answer bail, consuming methamphetamine, five charges of receiving, one charge of dishonest use of a bank card and theft.[6] On the second set a starting point of 12 months for the second residential burglary was adopted with a nine month uplift for the dishonesty offending, a further month for failure to answer bail and six months for offending while an absconder on bail. This resulted in a cumulative start point of two years and four months. With a discount of 25 percent for guilty plea, an end sentence of one year and nine months was imposed.[7] A combined sentence of three years and nine months' imprisonment washanded down.Evaluation[8] A combined starting point of three years' imprisonment for three burglaries isnot manifestly excessive. That combined starting point for multiple burglary charges is well within range.3 But a combined starting point for all offending, including the relatively minor related offending, comprising two years and eight months for the first set of offending and two years and four months for the second set of offending, or five years in total, appears excessive, as Mr Casey for the Crown conceded.[9] It does not compare favourably to the cases cited by the Crown, McFall v R4and Jones v R. In McFall a sentence of three years was substituted by Andrews J in the High Court in place of a sentence of three years and seven months, where the offending involved two charges of burglary, four charges of receiving, one charge of unlawfully taking a motor vehicle, one charge of wilful damage and one charge of reckless driving. Andrews J considered a starting point of 21 months for the two residential burglaries was appropriate, uplifted by 18 months for other offending,resulting in an overall starting point of three years and three months' imprisonment.5[10] In Jones Judge Farish, confronted with three burglaries spread over six months and a breach of release conditions, found the charges attracted a starting point of three years. Uplifts of six months for breach of release conditions and 183 See Jones v R [2012] NZCA 273.4 McFall v Police [2015] NZHC 2095.5 An uplift of six months for prior convictions adjusted the starting point to three years and ninemonths' imprisonment. Following a 20 percent guilty plea discount, the end sentence was three years' imprisonment.months for prior offending resulted in an extended starting point of five years. This was overturned by the Court of Appeal. The Court of Appeal noted that a three year starting point, given the totality of the offending, was appropriate, but a two year uplift for personal aggravating features was excessive.6 The Court instead applied a combined uplift of 18 months for personal factors, resulting in an end sentence, afterguilty plea discount, of four years and two months' imprisonment.[11] Given these authorities, a five year start point, including a two year uplift on the primary burglary offending, was excessive notwithstanding the additional offending and personal aggravating features in this case.[12] I turn then to assess the sentence afresh. A combined start point of three years for the burglaries is appropriate. A combined 15 month uplift for the other offending would appear, on a totality basis, to broadly accord with the approach taken inMcFall and in Jones. With a 25 percent discount for a guilty plea, or 13 months on a starting point of four years and three months, a resulting sentence of three years and two months' imprisonment is appropriate. It is materially less than the District Court sentence.[13] The appeal is allowed. The cumulative sentence of three years and nine months is quashed. A sentence of three years and two months' imprisonment issubstituted on the first burglary charge. The sentences on the remaining charges are unaffected, save that they are to be served concurrently with the sentence on the first burglary charge.6 Jones v R, above n 3, at [15]-[17].