ZACHAN v POLICE [2017] NZHC 1927

ZACHAN v POLICE [2017] NZHC 1927 [14 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-203[2017] NZHC 1927BETWEEN BILLY ZACHANAppellantAND NEW ZEALAND POLICERespondentHearing: 14 August 2017Counsel: H Leabourn for AppellantF E Gourlay and C D Piho for RespondentJudgment: 14 August 2017JUDGMENT OF BREWER JSolicitors/Counsel:Hugh Leabourn (Auckland) for AppellantKayes Fletcher Walker (Manukau) for RespondentIntroduction[1] Mr Zachan appeals his sentence of three years and four months'imprisonment handed down by Judge Bergseng on 23 May 2017.1 Mr Zachan had pleaded guilty to two charges of burglary.[2] Mr Leabourn, for Mr Zachan, submits that the starting point of two years andeight months' imprisonment adopted by Judge Bergseng was manifestly excessive. Further, it is submitted that the 18 months uplift given for Mr Zachan's previousrecord was too high and, conversely, the discount of 17 per cent for guilty pleas was too low.[3] Mr Leabourn submits that the final sentence was thus manifestly excessive,particularly when the Judge gave no further discount for Mr Zachan's remorse andhis willingness to participate in a restorative justice programme.Appeal[4] An appeal against sentence proceeds on the error principle. That is to say, I will not interfere with the sentence unless I find that Judge Bergseng erred in a material respect.[5] For it to be a material respect, it has to go to a final sentence which was manifestly excessive. That is to say, it is the final outcome of sentencing which has to be scrutinised rather than the process by which it was reached.Background[6] The summary of facts sets out the circumstances of both burglaries. Both were of residential properties and both occurred on the same day during daylight hours.[7] In the first burglary, Mr Zachan went to the back of the complainant'sproperty and smashed the glass of a sliding door using an object he found outside the1 Police v Zachan [2017] NZDC 10680.house. As he went into the house through the broken sliding door, he cut himself. Once inside the house, Mr Zachan tripped a house alarm. He silenced it by ripping the alarm system from the wall.[8] Because he was bleeding, Mr Zachan took two handkerchiefs from a bedroom drawer and wrapped them around the wound. He eventually left, taking nothing with him but the handkerchiefs. He left his blood at the property.[9] Sometime later, Mr Zachan went to the second complainant's property andwalked around to the rear of the house. He managed to pull open a window and reach inside to unlock the rear door. He then went into the house and searchedthrough the complainant's belongings, stealing various electronic items having acombined total value of approximately $950.[10] During the burglary, Mr Zachan dropped one of the handkerchiefs he had taken from the bedroom of the first house. This had his blood on it.[11] The Police were able to match the blood left at the first address and the bloodon the handkerchief left at the second address with Mr Zachan's DNA profile. It wasthe DNA evidence that enabled the Police to charge Mr Zachan. Nevertheless, Mr Zachan entered pleas of not guilty.[12] Mr Leabourn, who has represented Mr Zachan throughout, advised me that his instructions were to put the prosecution to the test. That meant that, rather than accepting that the DNA evidence would inevitably lead to convictions, Mr Leabourn was required to get every piece of the documentary trail to ensure that all procedures leading to the admissibility of the DNA data as evidence had been complied with properly.[13] Mr Zachan entered a plea of guilty to the first burglary at his case review hearing in August 2016. However, he did not enter a plea of guilty to the second charge of burglary until the morning of his trial. Mr Leabourn submits that this was a meaningful concession on the part of Mr Zachan since the paper trail was still not complete and Mr Zachan might for that reason have obtained an adjournment.[14] In these circumstances, Judge Bergseng adopted for both burglaries a startingpoint of two years and eight months' imprisonment. He then looked at Mr Zachan'sextensive history for burglary. The Judge counted 52 previous convictions. One of these was in 2009 when Mr Zachan was sentenced in the District Court to three yearsand seven months' imprisonment. That included an uplift of 18 months'imprisonment for his then record of previous offending. Justice Wylie, on appeal, found that the uplift was not manifestly excessive. Judge Bergseng noted thecontinuing offending from 2009 and again adopted an uplift of 18 months'imprisonment. That took the starting point to 50 months' imprisonment.[15] The Judge then deducted two months to account for the nascent steps towards rehabilitation which Mr Zachan had taken while in custody. The Judge considered the discount available for the pleas of guilty and deducted a further eight months. The Judge said that was a little over 15 per cent but, as I calculate it and rounding upslightly, it is 17 per cent. Judge Bergseng did not consider that, with Mr Zachan'sprevious record, expressions of remorse should be met with a further discount.[16] I should note that the pre-sentence report was referred to by Judge Bergseng who saw the classification of Mr Zachan as being at a high risk of reoffending, particularly because of his drug addiction, as relevant.Discussion[17] Both Mr Leabourn and Ms Gourlay for the respondent have referred me to numbers of cases where people have been sentenced to terms of imprisonment for burglaries. Some are in the range that Judge Bergseng found and others received lesser sentences. As both counsel have submitted, there is no tariff sentencing for burglary. Judge Bergseng, who also appreciated that, placed particular reliance on the decision of the Court of Appeal in Arahanga v R.2 There the Court of Appeal noted that for residential burglary, starting points of 18 months to two-and-a-half years are common where there are no significant aggravating features.2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.[18] For myself, I have to decide whether the end sentence of three years fourmonths' imprisonment was outside the range available to Judge Bergseng and, accordingly, manifestly excessive.[19] I agree with Ms Gourlay's characterisation that the starting point of32 months was at the higher end of the range. But that is a starting point adopted for two burglaries. In the first burglary, Mr Zachan caused damage by breaking the sliding door to gain admission. He did further damage by ripping the alarm from the wall. He left and sometime afterwards, in a persistent display of burglarising, went to the second address. There he went through the personal possessions of the occupant and stole property. Under those circumstances, I do not find the startingpoint of two years and eight months' imprisonment to be outside the range availableto Judge Bergseng.[20] I agree also that the uplift of 18 months for previous offending was at the higher end of the scale. However, Mr Zachan not only had the record of 52 previous burglaries, but back in 2009 had received the same uplift and so was very well aware of the likely response of the Courts to further offending. As Judge Bergseng said, ina case such as Mr Zachan's, the principles of denunciation, deterrence and, above all,protection of the community have to be emphasised.[21] So far as the reductions in sentence are concerned, I agree with Judge Bergseng that mere expressions of remorse and, in this case, a stated willingness to engage in a restorative justice programme do not warrant any sort of separate reduction beyond that which is inherent in the discount for guilty pleas. So far as the discount is concerned, I think the Judge was generous.[22] Mr Zachan was caught squarely by the DNA evidence. All that was left to him was the theoretical possibility that the Police might have slipped up somewhere in their procedure and that might enable him to mount a challenge to the admissibility of the DNA evidence. Of course, he would have had to have overcome the s 30 balancing test, even if there had been a procedural slip-up. All that Mr Zachan did was enter a guilty plea to one charge at the case review hearing andwait until the morning of trial for the second. A discount of some 17 per cent overall is generous.[23] It follows that I do not find Judge Bergseng erred in reaching his finalsentence of three years and four months' imprisonment.Decision[24] The appeal is dismissed.________________________________Brewer J