LEWIS v NEW ZEALAND POLICE [2023] NZHC 1675

LEWIS v NEW ZEALAND POLICE [2023] NZHC 1675 [3 July 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2023-483-000007[2023] NZHC 1675BETWEEN BRODIE LEWISAppellantAND NEW ZEALAND POLICERespondentHearing: 22 June 2023Appearances: M McGhie for the AppellantJ Liu for the RespondentJudgment: 3 July 2023JUDGMENT OF ROBINSON J[Sentence appeal]This judgment was delivered by me on 3 July 2023 at 10:30am.Registrar/ Deputy RegistrarSolicitors:M McGhie, WhanganuiCrown Solicitor, Whanganui[1] On 30 August 2022 Mr Lewis pleaded guilty to one charge of burglary.1 On31 March 2023, in two separate decisions, Judge Krebs declined Mr Lewis' applicationfor a discharge without conviction2 and sentenced him to five months' and two weekshome detention.3[2] Mr Lewis appeals. He says he should have been granted a discharge withoutconviction. Alternatively, he says his sentence is manifestly excessive.[3] Mr Lewis also applies for leave to adduce further evidence on appeal in theform of an Alcohol and Drug Report. The respondent opposes. There is no evidenceas to why any such report was not (or could not have been) prepared prior to sentencingin the District Court. Nor is it apparent how the proposed evidence would be relevant,or add to the evidence already set out in Mr Lewis' affidavit of 23 March 2023. Forthese reasons the application for leave to adduce further evidence is declined.The offending[4] During the evening of 26 June 2022 Mr Lewis drove his Toyota to acommercial kiwifruit orchard in Whanganui. He was towing a tandem trailer. He waswith a female associate.[5] The victim was part way through having a shed built on a small section of theproperty. Mr Lewis drove through an open gate to where the shed was being built. Heand his associate placed $1,520.00 worth of building material on to the trailer. MrLewis then drove away.[6] At approximately 3:15 am Police stopped Mr Lewis while he was towing thetrailer and the stolen property. Mr Lewis must have told the Police that all was inorder because the Police let him go.[7] The supplies were later reported stolen. When Police executed a searchwarrant at Mr Lewis' address they found the stolen building supplies in the backyard.1 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years' imprisonment.2 Police v Lewis [2023] NZDC 6168.3 Police v Lewis [2023] NZDC 6389.Legal principlesDischarge without conviction[8] Section 106 of the Sentencing Act provides that the Court may discharge anoffender without conviction. A discharge under s 106 is deemed to be an acquittal.4Section 107 sets a threshold for the Court's discretion:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[9] This requires the Court to engage in a three-step proportionality assessment:5(a) First, the Judge must identify the gravity of the offending, including allthe aggravating and mitigating factors of the offending and the offender.An assessment of the gravity of the offending is informed by theculpable conduct which is to be determined on an assessment of thefacts rather than the nature of the charge.6(b) Second, the Judge must identify the direct and indirect consequences ofa conviction for the offender. There must be a real and appreciable riskthat any posited consequence will occur.7(c) Third, the Judge must consider whether those consequences are out ofall proportion to the gravity of the offending.Approach on appeal[10] An appeal of a refusal to discharge without conviction under s 106 isconsidered first as an appeal against conviction; and secondly as one against sentence.84 Sentencing Act 2002, s 106(2).5 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]-[28].6 J v R [2021] NZCA 690. See also R v Taulapapa [2018] NZCA 414.7 Costello v Police [2021] NZHC 2796 at [6].8 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]-[8].[11] In respect of conviction, the appeal is brought pursuant to s 232(2)(b) or (c) ofthe Criminal Procedure Act 2011. This Court must allow the appeal if a miscarriageof justice has occurred by virtue of a material error by the sentencing Judge in enteringa conviction; or, if for any reason the Judge has erred in applying the principles fordischarging an offender without conviction in s 107.9 Because the s 107 test is a matterof fact, general appeal principles apply.10[12] If the conviction aspect of the appeal fails, the appeal proceeds as one againstsentence. The usual sentence appeal principles apply. The Court must allowMr Lewis' appeal if satisfied there is an error in the sentence imposed and a differentsentence should be imposed.11 Otherwise, the Court must dismiss the appeal.12Whether the end sentence is 'manifestly excessive' is a useful guide in determiningwhether there is an error.13 The appeal Court will generally not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples.14Discharge without conviction[13] In support of his application for a discharge without conviction Mr Lewis filedan affidavit explaining the background to his offending, and the adverse consequenceshe considers a conviction would have for him. Mr Lewis explained that at the time ofhis offending he was addicted to cannabis and methamphetamine. He says theburglary is an example of bad lifestyle choices he was making at that time. However,he has since taken positive steps to address his addiction.[14] Mr Lewis says that a conviction will have adverse consequences on hisinsurance arrangements and potential employment opportunities. He is also concernedthat a conviction is likely to interfere with his future plans to travel, including with hisfamily. Counsel for Mr Lewis, Mr McGhie submits that these adverse consequenceswill be out of all proportion to his offending.9 At [12]; and Gaunt v Police [2017] NZCA 590 at [9].10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].11 Criminal Procedure Act 2011, s 250(2).12 Section 250(3).13 Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at[SAB5.01].14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482at [36].District Court ruling[15] The Judge accurately set out the relevant legal test, as set out at [9] above.15[16] In assessing the gravity of the offence, Judge Krebs noted that the maximumpenalty for burglary is 10 years' imprisonment. He noted that the burglary was of arural orchard property not a residential burglary, and as such did not have some of theaggravating features present in home burglaries.16 On the other hand the Judgethought it relevant that Mr Lewis' offending was premediated. Mr Lewis hadidentified the property, made a plan to steal the materials and did so in the early hoursof the morning when less likely to be apprehended doing so.17 The Judge thought itrelevant that when stopped by Police Mr Lewis "bluffed [his] way through the Policequestions and carried on home". The Judge recorded that Mr Lewis used some ofthe items that he stole for his own purposes (which Mr Lewis disputes –discussedbelow18). Overall Judge Krebs described the offending as "calculated, premeditatedand of moderate seriousness as burglaries are concerned [sic]".19[17] In terms of the consequences of conviction the Judge noted that he did not haveany material about the urgency of any particular travel plans Mr Lewis might have.20In any event, he considered it was for other countries to determine whether to grantentry to somebody who has offended in this way, and, if so, on what conditions.21Similarly, the Judge considered that insurance companies and potential employerswere entitled to know what had occurred:22I do not believe that it is appropriate in your case given in [sic] what I view asa relatively serious burglary, that information should be supressed from thosethat require it.[18] Counsel for Mr Lewis had emphasised (as he does on appeal) that Mr Lewis'offending occurred at a time when he was subject to a methamphetamine addiction.15 At [6].16 At [7]. For example, the risks of encountering occupants and potential violence.17 At [8].18 At [9].19 At [9].20 At [11].21 At [12].22 At [13].However, Judge Krebs "[did] not particularly see the nexus between that addiction andwhat [Mr Lewis] did here".23[19] Applying the statutory balancing test and taking into account the entitlementof future employers to know what had occurred, Judge Krebs was not satisfied that theconsequences of conviction, as Mr Lewis identified in his affidavit, were out of allproportion to the gravity of his offending.Submissions on appeal[20] Mr McGhie for Mr Lewis acknowledges that burglary is a serious charge butsubmits that the nature of the charge itself is no barrier to a discharge withoutconviction. The focus is on the gravity of the offending and the culpability of theoffender. I agree.[21] Mr McGhie describes the gravity of Mr Lewis' offending as low to moderate.He emphasises that this was Mr Lewis' first burglary offence, and that it was of anunsecured commercial premises. He points out that all the building supplies takenwere recovered.[22] Mr McGhie emphasises Mr Lewis' addiction to methamphetamine at the timeof the offending. He says the evidence shows Mr Lewis' life had spiralled downwardsas a result of his addictions, as a result of which he was making bad lifestyle choices.Mr McGhie submits that the offending would not have occurred but for Mr Lewis'addiction. On the other hand, Mr McGhie points out the considerable steps Mr Lewishas taken to address his addiction since his offending.[23] Mr McGhie also points out that Mr Lewis' associate who was with him at thetime of the offending was granted Police diversion. In his written submissionsMr McGhie acknowledges that her personal circumstances may have been differentbut submits that nevertheless this is relevant to an assessment of the seriousness ofwhat he describes as their co-offending on this occasion.23 At [12].[24] In terms of the consequences of conviction, Mr McGhie refers me tocorrespondence exhibited to Mr Lewis' affidavit that he received from insurers andpotential employers shortly before his sentencing. He says these demonstrate that theconsequences for Mr Lewis of a conviction will be out of all proportion to the gravityof his offending.[25] For the respondent, Mr Liu's submission is that the s 107 test is not made outand Judge Krebs was correct to decline the application for the reasons he gave. MrLiu submits that Judge Krebs was correct to find that the offending was moderatelyserious. On the other hand, Mr Liu says the consequences of conviction Mr Lewis hasidentified in relation to his employment are speculative. He also points out that in2019 Mr Lewis was convicted of unlawfully converting a motor vehicle and submitsthat the consequences of an additional burglary conviction will be limited in light ofthat conviction. For these reasons Mr Liu says the consequences for Mr Lewis of aconviction are not out of all proportion to the gravity of his offending.Analysis[26] I do not consider the Judge erred in entering the conviction or in applying theprinciples for discharging an offender without conviction.[27] In terms of the gravity of the offending, I agree with the Judge that theoffending was moderately serious, albeit perhaps at the lower end of that range. Theoffending was carefully premediated. When the Police stopped Mr Lewis he appearsto have deceived them. Mr Lewis could have returned the stolen materials at thispoint, but instead he continued with his plan and took them home.24[28] I do not accept Mr McGhie's submission that the fact that Mr Lewis' associatereceived Police diversion signifies the low level of offending. It is usual for the Policeto take into account a number of different factors in determining whether or not to24 This appears to be a reference to some shell rock material for which Mr Lewis was ordered to payreparation. However, I understood Mr McGhie to say Mr Lewis disputes this, and points outcorrectly that shell rock is not listed in the summary of facts as amongst the material that wasstolen. I do not consider anything much to turn on this, but I note it for completeness.grant diversion. However, there is no evidence before me of the associate's personalcircumstances, or the basis upon which the Police decided to grant her diversion.[29] Nor do I consider that Mr Lewis' drug addiction at the time of his offendingreduces the gravity of the offending for the purposes of determining whether adischarge without conviction is appropriate. That issue, together with Mr Lewis'efforts to rehabilitate, is more relevant to sentence.[30] In terms of the consequences of conviction, the nature of the adverseconsequences Mr Lewis identifies are among the ordinary and foreseeableconsequences of a conviction for this type of offending. In any event it is unclear tome the extent to which the risks Mr Lewis identifies are real and appreciable risks. Inhis affidavit of 28 March 2023 he says that he and his partner made an offer to purchasea property which was accepted over the weekend; but that he has been made aware:"we would potentially be uninsurable with a burglary conviction". Thecorrespondence dated 23 March 2023 between an insurer and the insurance brokerworking for Mr Lewis and his partner confirms that the insurer will not offer themcover due to Mr Lewis' criminal conviction. However, it is unclear whether the insurerknew of Mr Lewis' conviction in 2019 for unlawfully converting a motor vehicle; andwhether the insurer would have offered insurance if it had known of that conviction.In any event, the evidence also shows that on 24 March 2023 (that is, the day after therelevant correspondence with the insurer) Mr Lewis' partner entered into a Sale andPurchase Agreement in her own name.[31] As for Mr Lewis' employment situation, correspondence dated 23 March 2023advises that if Mr Lewis is convicted it will "jeopardise his chances of furtheringhimself" and that he could not be employed or recommended "due to the pendingcharges". Correspondence dated 22 March 2023 concerning Mr Lewis' applicationfor a sharemilker position is more emphatic. The prospective employer advises thatdue to the pending charges which Mr Lewis has disclosed it is unable to offer him theposition for which he would otherwise have been a strong contender. They advisedthis is non-negotiable. But again, it is unclear whether this employer was aware ofMr Lewis' previous conviction and therefore whether it was declining to employMr Lewis purely as a consequence of the pending burglary charge.[32] In any event, I agree with Judge Krebs that employers are entitled to know ofoffending by prospective employees such as the burglary carried out by Mr Lewis.[33] For these reasons I consider the Judge was correct to conclude that theconsequences of Mr Lewis' conviction are not out of all proportion to the gravity ofhis offending.Sentencing[34] Judge Krebs adopted a starting point of 16 months' imprisonment. He applieda 25 per cent discount for Mr Lewis' guilty plea. The Judge gave a further discount ofone month on account of Mr Lewis' addiction and his rehabilitation efforts to date,which amounted to a discount of six point two five (6.25) per cent on his 16-monthstarting point.25[35] This resulted in an end sentence of 11 months' imprisonment which the Judgecommuted to five months two weeks home detention.Starting point[36] Mr McGhie points out that there is no guideline decision for burglaryoffending. That is because the range of circumstances in which the offence can becommitted is so varied.26 The circumstances of the offending in each case predominatewhen setting the starting point.27[37] In R v Nguyen28 the Court of Appeal identified six relevant factors in assessingthe seriousness of a burglary:(a) the degree in planning and sophistication in the offending;(b) the nature of the premises entered;25 Police v Lewis, above n 3, at [8]-[11].26 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189at [78].27 Nikora v Police [2020] NZHC 2013 at [8].28 R v Nguyen CA110/01, 2 July 2001 at [17].(c) the kind and value of the property stolen;(d) the damage done;(e) the impact and potential impact upon occupants or owners of theproperty; and(f) the extent of the offending where multiple burglaries are involved.[38] Counsel refer to Elers v Police.29 In that case the defendant entered an enclosedcommercial area at night by climbing a fence. Once inside he removed batteries fromthe premises and passed them to an accomplice. The sentencing Judge in the DistrictCourt had been told the batteries had a value of $1,500.00. The Judge adopted astarting point of 16 months' imprisonment. In fact, the batteries were worth $150.00.On appeal, Grice J did not think that the value of the goods was particularly relevant.She referred to four comparative cases30 and concluded that the 16 months startingpoint was squarely within a range of 12 to 18 months' imprisonment for this sought ofoffending, even if the batteries were only valued at $150.00.[39] Mr McGhie submits that if a starting point in the range of 12 to 18 months wasappropriate in Elers, then a starting point of around eight to 10 months was appropriatefor Mr Lewis. He submits that Mr Lewis' offending was relatively unsophisticatedand points out Mr Lewis drove in through an open gate without causing any collateraldamage to property.[40] I disagree. I think it is irrelevant that Mr Elers climbed a fence whilst Mr Lewisdrove through an open gate. The more important similarities are that they both enteredcommercial premises at night, with an accomplice, for the purposes of taking goodsthat did not belong to them.[41] I consider Judge Krebs' starting point of 16 months' imprisonment was entirelyappropriate.29 Elers v Police [2018] NZHC 497.30 At [14].Personal circumstances[42] Mr McGhie submits that a more substantial discount was appropriate in lightof Mr Lewis' addiction at the time of the offending, and his efforts at rehabilitation. Itis relevant to recall that Judge Krebs gave only a six point two five (6.25) per centdiscount in recognition of these factors, noting that he did not find Mr Lewis' drugaddiction to be directly related to his offending.31[43] I accept Mr McGhie's submission that a more significant discount should havebeen given to reflect Mr Lewis' addiction at the time of his offending, and hissubsequent efforts towards rehabilitation.[44] Recently, in Berkland v R the Supreme Court confirmed that in assessingsentencing discounts for a defendant's background, which will necessarily include anyprevious drug addiction, a defendant does not need to establish that his or her addictionis a proximate cause of their offending.32 Rather, the Supreme Court said that it issufficient for a defendant to show that their addiction made a causative contribution totheir offending, albeit indicating that the strength of that contribution would influencethe level of the discount to be given.33 The Supreme Court confirmed that adefendant's own personal evidence about their addiction could be taken into account,and that whether a mitigatory factor was therefore proved was a question for asentencing Judge to consider in all the circumstances of the case.34[45] The Supreme Court also strongly endorsed providing sentencing discounts torecognise and to incentivise rehabilitation. The Court said:35Sentencing judges should encourage offenders to take up the opportunitiesoffered by rehabilitative programmes to make the necessary changes in theirlives. One way to do this is by providing material sentencing discounts whenthe evidence suggests that is what an offender is genuinely willing to do. Suchencouragement can be an inflection point in the life of a prisoner.31 Police v Lewis, n 3 at [10].32 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]-[109].33 At [107] – [109].34 At [129].35 At [161].[46] In that case the Supreme Court considered that the defendant should have beengiven a 10 per cent discount for his efforts at rehabilitation, together with a 10 per centdiscount to recognise the role his addiction played in causing his offending.36[47] Mr Lewis' evidence satisfies me that there was a causative connection betweenhis drug addiction and his offending. He describes the circumstances in which hebegan to use methamphetamine and then became addicted to it. In a relatively shortspace of time he went from being successfully self-employed and living with hispartner and three children to being unemployed and living without his family.Mr Lewis had become an increasingly heavy drug user. To use his words, his partnerwas unwilling to stick around while his life spiralled downwards, and she moved awayfor the best interest of their children. Mr Lewis gave up working, his business becameinsolvent, and his house had to be sold. He says he was hopelessly addicted tomethamphetamine and cannabis, his lifestyle became reckless and he was associatingwith people who also made poor life choices.[48] Seen in that context I accept Mr Lewis' evidence that he has no logicalexplanation for the burglary, and it was an example of his poor decision making at thattime. I also accept that his addiction made a significant causative contribution to hisoffending.[49] More positively, Mr Lewis has successfully and voluntarily completed theBridge Programme which is a 12-week residential rehabilitation programme run bythe Salvation Army. He has remained sober and away from drugs since then. He hasjoined Narcotics Anonymous which he attends regularly. His affidavit exhibits lettersfrom those involved with him in those programmes. They are corroborative and highlysupportive.[50] Fortunately, Mr Lewis has also reconciled with his partner and is living withher and their three children again.[51] Although I do not accept that these matters reduce the gravity of Mr Lewis'offending so as to justify a discharge without conviction, I do accept that they justify36 At [162].sentencing discounts significantly greater than the six point two five (6.25) per centallowed by Judge Krebs. Taking into account the Supreme Court's guidance inBerkland I consider that a discount of 10 per cent is appropriate to reflect the causativeconnection Mr Lewis' addiction made to his offending. I consider a further discountof 15 per cent is appropriate to reflect his rehabilitative efforts to date and hisdemonstrated ongoing commitment to them.[52] Applying a total of 50 per cent discount to a starting point of 16 months'imprisonment gives an end sentence of eight months' imprisonment. This is to becommuted to an end sentence of four months home detention. This sentence shouldbe treated as having commenced on the same day Mr Lewis' home detention began inaccordance with his sentencing in the District Court. For completeness I record that asix-week reduction of a sentence of five months and two weeks home detention is areduction of approximately 27 per cent which I do not consider to be "tinkering".Result[53] Mr Lewis' appeal of Judge Krebs' ruling declining a discharge withoutconviction is dismissed.[54] Mr Lewis' appeal against sentence is allowed.[55] The sentence of five months two weeks home detention is quashed.[56] A sentence of four months home detention is substituted. All other aspects ofthe sentence set out in Judge Krebs' sentencing notes continue to apply including thepost-detention conditions and reparation.____________________Robinson J