WHARTON v POLICE [2017] NZHC 960

WHARTON v POLICE [2017] NZHC 960 [11 May 2017]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2017-463-13[2017] NZHC 960BETWEEN CHARLES EDMOND WHARTONAppellantAND NEW ZEALAND POLICERespondentHearing: 11 May 2017Appearances: K Johnson (on instructions from R Plunket) for the AppellantAZM Shore for the RespondentJudgment: 11 May 2017ORAL JUDGMENT OF WOODHOUSE JSolicitors / Counsel:Ms K Johnson, Potts & Hodgson Ltd, Solicitors, OpotikiMs R Plunket, Barrister, WhakataneMs AZM Shore, Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga[1] Mr Wharton appeals against a sentence of 12 months imprisonment forburglary.1[2] The facts can be stated briefly. One night three associates of Mr Wharton, withwhom he was that night spending some time, burgled a home where the residents wereasleep. Mr Wharton had apparently discussed the possibility of a burglary with thembut in the end did not go with his three associates. These people decided to go backthe same night and on that occasion Mr Wharton went with them. The police summaryof facts, to which Mr Wharton pleaded guilty, records that on this occasion – thesecond occasion – Mr Wharton simply waited outside the house at the door. One ofhis associates went in and then called another to go in. The fourth person acted as alook-out. Mr Wharton claimed he was heavily intoxicated.The sentence[3] In respect of the gravity of the offence Judge P G Mabey QC noted two matters.In relation to what Mr Wharton did the Judge said:[4] He chose not to partake in [the first burglary] but for reasons bestknown to Mr Wharton he engaged with them later and on the second occasionthey went into the property he became involved in a burglary. His share of thereparation is reflected in the schedules which I have been provided. One toan insurance company of $1,039.17 and one directly to the owner of $325.[4] The Judge also referred to the victim impact statement. He said:[8] The victim impact statement is typical of those that have theirprivacy breached and property taken. They live in fear and will continue todo so for some time. That is a human consequence of domestic burglary.[5] In respect of a starting point, the Judge noted that in Arahanga v R the Courtof Appeal "indicated that a start point for a low-level domestic burglary is 18 monthsimprisonment".2 It may assist to record at this point the full statement of the Court:3This Court has deliberately not set a tariff for burglary because the range ofcircumstances in which the offence can be committed is so varied.4 Burglaryof a domestic residence is a significant aggravating feature at sentencing due1 Police v Wharton [2016] NZDC 26862.2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189, (2012) 26 CRNZ 63.3 Ibid, at [78]4 As noted in Sunnex v Police HC Christchurch CRI-2010-409-43, 17 June 2001 at [7].to the heightened risk of confrontation with the occupants.5 Dwelling houseburglaries at the relatively minor end of the scale tend to attract a starting pointof approximately 18 months'6 to two years and six months'7 imprisonment.[6] The Judge concluded, following the reference to Arahanga, and noting Seniorv Police,8 R v Columbus9 and R v Southon:10[10] In all the circumstances and having regard to the contents of the pre-sentence report and giving credit for the guilty plea I consider that anappropriate sentence for the charge of burglary is 12 months' imprisonment.That will be imposed cumulatively upon the two months for the breaches ofcommunity work.[7] In respect of personal factors and related matters the only other observation ofthe Judge, apart from what is implicit in his reference to the pre-sentence report,concerned the sentences of the co-defendants. The Judge said in this regard:[5] Mr Hesketh tells me and the police sergeant confirms that the co-defendants all received community-based sentences. I am not sure what theyare but I expect home detention. I know nothing of their previous history butI do know that Mr Wharton has previous convictions for aggravated robberyin 2006 and burglary in 2005. They are matters which are to a certain extenthistoric but nonetheless relevant.[8] It will assist to record or summarise some aspects of the pre-sentence report.The current charges were not considered an "escalation of Mr Wharton's risk but acontinuation of his sporadic offending". The appellant was assessed "as having amedium risk of reoffending and harm to others". The appellant claimed " he shouldhave walked away and not gone along with it, however got caught up in the adrenalinrush [and] admits at the time he was heavily intoxicated and does not remembereverything that occurred that night. The report writer states: "He accepts responsibilityfor his part, and does not shift blame for his co-offenders, despite playing a lesser rolein the offending [and] [a]lthough sorry for any harm he may have caused the victims,Mr Wharton lacked insight into the financial losses and emotional turmoil his victims5 Senior v Police (2000) 18 CRNZ 340 (HC) at [19].6 See Wilson v R HC Auckland CRI-2011-404-445, 7 February 2012, Dudley v Police HCChristchurch CRI-2009-409-1, 26 February 2009 and Police v Vincent DC Palmerston North CRI-2008-054-4634, 21 April 2009.7 See Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010 and Snowden v PoliceHC Hamilton CRI-2010-419-52, 15 July 2010.8 Senior v Police, above n 5.9 R v Columbus [2008] NZCA 192.10 R v Southon (2003) 20 CRNZ 104.may be experiencing". The appellant failed to provide any explanation for offendingother than "I don't know".[9] The possibility of home detention was investigated. The advice to the Courtwas that an electronically monitored sentence was not available at the proposedaddress essentially for three reasons. The first was that one of the occupants, MrWharton's father, was not available to be interviewed, as required under the Act. Thesecond was gang connections to the property. The third was an assessment that MrWharton himself was not a suitable candidate for home detention. The report writersaid:Mr Wharton's history of non-compliance provides evidence he does not havethe ability to comply with the restrictive nature of an electronically monitoredsentence and a sentence of home detention is likely to be setting him up to fail.Submissions on appeal[10] Ms Johnson's main submission was that the end sentence is manifestlyexcessive. She submitted that the starting point should have been one of 12 months,at most, with an end sentence of imprisonment of 8 months, if imprisonment was tobe imposed. In a careful submission, Ms Johnson advanced a number of points insupport of that first ground of appeal including the following. Perhaps at the heart ofit was that Mr Wharton's criminal culpability was low. As Ms Johnson put it, hisculpability was "mere presence". Second, there were the community based sentencesimposed on the co-offenders, with all three of them having committed two burglaries.Third, Mr Wharton pleaded guilty at the earliest opportunity (and that is not inquestion) justifying a reduction of 25 per cent. Fourth, Mr Wharton, in addition topleading guilty, indicated clearly that he accepted responsibility and he did not seek todeflect his responsibility on to his co-offenders. Ms Johnson acknowledged that theprior offences could not be ignored, but submitted that because they were historic anincrease in the starting point was not justified because of them.[11] The second principal point on appeal was that home detention was notconsidered but it should have been imposed. In support, particular emphasis wasplaced on ss 16(1) and (2) of the Sentencing Act.[12] The essence of the submission of Ms Shore for the Crown was that there wasno error by the Judge; the end sentence on any appropriate assessment is not excessive.Ms Shore also submitted that there was no error in not considering and then imposinghome detention.Evaluation[13] The notice of appeal was filed out of time. The respondent does not opposeleave for an appeal out of time. I am satisfied it should be granted and leave is grantedaccordingly.[14] An appeal against sentence is to be assessed under s 250 of the CriminalProcedure Act 2011. The Court must allow an appeal against sentence if satisfied thatfor any reason there is an error in the sentence and a different sentence should beimposed. The decisions on s 250 since the Act came into force make clear that theexisting jurisprudence on appeals against sentence appeals remains and a criticalenquiry is, irrespective of the process by which the end sentence was reached, whetherthe end sentence is manifestly excessive.[15] This requires, at least for this appeal, some assessment of the sentencingprocess, beginning with a starting point. A difficulty is that the Judge did not articulatea conventional Taueki staged assessment.11 Eighteen months imprisonment appearsto be the starting point adopted by the Judge. Leaving aside, for one moment, the factthat the Court of Appeal in Arahanga referred to a starting point for low-level domesticburglaries of between 18 months and 30 months, it is to be noted that the Court ofAppeal can be taken to have been referring to a principal offender. Ms Johnson'ssubmission that Mr Wharton was not a principal offender is well taken in considerablemeasure. When addressing the gravity of his offending, his culpability can bedescribed, to use Ms Johnson's apt expression, as "mere presence". And it may beinferred from some of the information that is available that, as a secondary party, MrWharton probably would not have provided much in the way of encouragement, andit is doubtful that any was required. The Judge did not discuss this. There is no11 R v Taueki [2005] 3 NZLR 372 (CA).indication that he assessed Mr Wharton's culpability as less than that of those whowent into the house and then stole property, not once but twice.[16] Assuming the Judge's starting point was 18 months, and treating that as anappropriate starting point for a principal offender in respect of one burglary, it isarguable, as Ms Johnson submitted, that the starting point for Mr Wharton shouldproperly have been substantially less and perhaps at around 12 months imprisonment.However, the matter does need to be assessed by considering the end sentence actuallyimposed with that weighed against the broader principles that can be applied. Giventhe range indicated in Arahanga, which is from 18 months as a starting point up to 30months, even if the appropriate starting point for Mr Wharton might have beensomething under 18 months, it is difficult to assess an end sentence at around 12months as being manifestly excessive.[17] Personal aggravating and mitigating factors do have to be taken into account.In broad measure these seem to cancel each other out. The previous convictions mighthave been taken into account to increase a starting point by a small amount. It doesnot appear that the Judge actually did that. He referred to the previous convictionsonly in the context of the sentences imposed on the co-offenders and seemingly as anindication that that may be why the sentences on the co-offenders were communitybased sentences. And as Ms Johnson acknowledged, there is real difficulty, in anyevent, in having any regard to the fact that the co-offenders got community basedsentences, because nothing else is known about those sentences.12 The starting pointsfor the most culpable of the offenders may have been in excess of 2 years, but with anend sentence of imprisonment of 2 years or slightly under and then personalcircumstances warranting a sentence of home detention of 12 months.[18] The broad point is, and where I started, that the aggravating personalconsiderations, and in particular as summarised in the pre-sentence report, tend tocounterbalance the mitigating personal circumstances.[19] That leaves the credit Mr Wharton is entitled to for the guilty plea.12 The PAC report recorded "Mr Wharton's co-offenders are several years younger than himself".[20] If an appropriate starting point is 12 months imprisonment, as Ms Johnsonsubmitted, the end sentence on this analysis would be 9 months imprisonment. Butthere are distinct limits to this sort of exercise. If the starting point was 15 months,the end sentence after a reduction for the guilty plea would be 11 months. Ms Johnsonreferred to some other cases for the purpose of comparative sentences on the facts.13As the Court's have noted many times, comparisons between cases for this sort ofoffending tend not to be very helpful, but those and other cases indicate that the endsentence here, before an allowance for the guilty plea, might readily be around 15months imprisonment.[21] All of this, which perhaps has taken the analysis on appeal beyond what isrequired, or justified, indicates that an end sentence of 12 months imprisonment wasnot manifestly excessive.[22] The remaining consideration is the appeal in respect of a home detentionsentence.[23] There was no error by the Judge in not considering a sentence of homedetention. A sentence of home detention was not possible given the home detentionreport, the relevant content of which I have already summarised. It can readily beinferred that the Judge made no reference to home detention for that reason.[24] A further consideration is that Mr Wharton was sentenced to 12 monthsimprisonment on 7 December 2016. In the normal course, and leaving aside the factthat there was a cumulative sentence of 2 months imprisonment for other offending,Mr Wharton would have been released on parole a few days ago. In broad terms therewould be no practical utility in granting leave to apply for a sentence of home detentionassuming a suitable report could now be obtained. However, the principalconsideration against home detention is the first point I have discussed.13 R v Columbus, above n 9; Herewini v Police [2015[ NZHC 2807; Moeroa v Police [2015] NZHC2226.Result[25] For all of these reasons I am satisfied that there was no error on the sentencefor the burglary offence. The appeal is accordingly dismissed._____________________________Woodhouse J