LAINE v NZ POLICE [2021] NZHC 1231

LAINE v NZ POLICE [2021] NZHC 1231 [28 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000110[2021] NZHC 1231BETWEEN CJ MACDONALD LAINEAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2021Appearances: HN Kim for AppellantCE Best for RespondentJudgment: 28 May 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 28 May 2021 at 3.30pmRegistrar/Deputy RegistrarDate..Solicitors: Kayes Fletcher Walker, AucklandTo: H Kim, AucklandIntroduction[1] On 4 February 2021, Judge Wharepouri sentenced Mr Laine to 25 months'imprisonment on two charges each of burglary1 and driving while suspended,2 and onecharge each of the theft of property worth over $1,000,3 possession of cannabis,4possession of methamphetamine5 and failing to appear.6[2] Mr Laine now appeals (out of time) saying the sentence was manifestlyexcessive. In particular, he says an end point within the short-term sentence rangeshould have resulted, and a sentence of home detention then imposed. The appeal isopposed, the Crown saying there is no error in Judge Wharepouri's sentence.Extension of Time[3] Mr Laine was sentenced on 4 February 2021 but did not file his notice of appealuntil 9 March 2021; so, three working days out of time.7 Ms Kim, counsel for MrLaine, states that the delay was a result of Mr Laine's transfer between prisons, postaldelays and her inability to see him during a COVID-19 lockdown. The Crown,accepting this explanation, does not oppose an extension of time being granted. Iaccept that an extension ought to be granted and do so.BackgroundOffending[4] The charges for which Mr Laine was sentenced relate to four unconnectedepisodes in 2019 and 2020.1 Crimes Act 1961, s 231(1)(a). Maximum penalty ten years' imprisonment.2 Land Transport Act 1998, ss 32(1)(c) and 32(3). Maximum penalty three months' imprisonmentor a fine not exceeding $4,500.3 Crimes Act 1961, ss 219 and 223(b). Maximum penalty seven years' imprisonment.4 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2). Maximum penalty three months' imprisonment ora fine not exceeding $500.5 Sections 7(1)(a) and 7(2). Maximum penalty six months' imprisonment or a fine not exceeding$1,000.6 Bail Act 2000, s 38. Maximum penalty one year's imprisonment or fine not exceeding $1,000.7 See Criminal Procedure Act 2011, s 231(2).[5] The first two incidents, chronologically speaking, occurred in June 2019. On5 May 2019, Mr Laine had his driver's licence suspended for a period of three months,having accrued an excess of demerit points. That period of suspension was accordinglyto expire on 4 August 2019. However, on 1 June 2019, so only a few weeks after hislicence had been suspended, Mr Laine was stopped by Police while driving on a roadin Wellsford, thereby contravening his suspension. When the vehicle was searched,the Police found two zip lock bags containing a total of 2.36 grams ofmethamphetamine in a satchel belonging to Mr Laine.[6] A few weeks later, on the afternoon of 24 June 2019 – so, while on bail for theoffending on 1 June, and still within the period of his drivers' licence being suspended– Mr Laine and a co-offender went to a residential property on Redoubt Road,Manukau. Mr Laine was again driving. His co-offender scaled a two metre wire fencethat surrounded portions of the rear of the property, while Mr Laine broke through awooden section of the fence. The co-offenders went up to the house, forcing open thealarm box and breaking the alarm before jemmying open the garage door. They thensearched the entire house, taking a variety of electronic devices, jewellery, passportsand other valuables valued at around $7,500.[7] That evening, Mr Laine and his co-offender were stopped by Police on GreatSouth Road, Otahuhu. The Police located 0.53 grams of cannabis and 1.38 grams ofmethamphetamine in the vehicle (though the charge against Mr Laine in relation to themethamphetamine was later withdrawn). The Police also located the property stolenearlier in the day, finding the burglary victim's driver's licence among the stolen items.CCTV footage from a neighbour's address also clearly identified Mr Laine and his co-offender as they went to and from the house.[8] At some point between the night of 3 October 2020 and mid-afternoon of4 October 2020 – so, again while on bail for his earlier offending – Mr Laine went toa street in Silverdale.8 He went up to a trailer (valued at $2,300) parked outside oneof the addresses on that street, removed a clamp and a chain that had been used to8 Although the precise timing of the burglary is not known, the charge subsequently laid against MrLaine was "Burgles (Other Property) ($500-$5000) by day" (emphasis added).immobilise the trailer, and attached it to his car.9 Having stolen the trailer, Mr Lainedrove less than a hundred metres to a nearby house and entered the dwelling througha broken window. Using an internal access, he entered the large commercial garageattached to the house, inside of which were two motorcycles with a value of $47,000.He cut the roller door chain, opened it, loaded the bikes onto the stolen trailer anddrove away. The fact that Mr Laine stole the trailer first suggests he was aware of thepresence of the motorbikes in the garage of the nearby property.[9] The final charge, of failing to appear, relates to events on 10 June 2020, whenMr Laine failed to attend at the District Court for the purpose of a sentencingindication, having been remanded to appear on that date.Criminal and bail history[10] By the time that Mr Laine appeared before Judge Wharepouri for sentencingon 4 February 2021, he had been on bail for approximately 17 months. As well ascommitting the offences noted above while on bail, he had also breached his curfewon two occasions, in January 2020 and September 2020.[11] On the date that he appeared for sentencing before the Judge, Mr Laine, whois 34 years of age, had appeared before the New Zealand courts for sentence on twoprevious occasions.[12] The first was on 22 January 2019, when he was fined $850 for speeding on 2February 2018, his first recorded offence.[13] The second was on 11 April 2019, when he was sentenced to concurrentsentences of one year's imprisonment on six charges of using a document forpecuniary advantage, two of receiving stolen property and one each of the theft ofunder $500 in property, driving while suspended, possessing an offensive weapon andfailing to appear. All of these offences had been committed by Mr Laine during Julyand August 2018. I interpolate to note that it appears from Mr Laine's Criminal andTraffic History Report that at (or shortly after) his sentencing on 11 April 2019, he was9 This gives rise to the separate charge of theft of property.released on the basis of time served, given the first of the offences for which he wassentenced by Judge Wharepouri was committed less than two months later, on 1 June2019. Mr Laine was also on special release conditions at that time, though I do nothave visibility of what they were.[14] Turning back to Mr Laine's criminal offending history, while that is fairlylimited in this jurisdiction, Mr Laine, who is originally from Australia, has a moreextensive criminal history in that country, committed over the period 2005 to 2012.10This information was available at his sentencing and taken into account by the Judge.[15] Mr Laine's convictions in Australia include rather more serious offences ofhaving "carnal knowledge of children under 16 years" and doing "acts intended tomain/disfigure/disable" and assault "occasioning bodily harm". These are of a quitedifferent type to the index offending, however, and occurred in 2012, 2008 and 2006.[16] Of (somewhat) more relevance to the index offending, Mr Laine had also beensentenced for "entering premises and commit[ing] indictable offence by break[ing andentering]" (2008), carrying a weapon in a public place (2004), multiple charges ofpossessing and supplying "dangerous drugs" (2008), wilful damage (2004), publicnuisance (2012), failing to comply with reporting obligations (2012) and breach ofbail conditions (2005). Across all these offences, Mr Laine was sentenced toimprisonment on ten occasions (though some sentences were suspended for twoyears), the longest such sentence being in 2012 when he was sentenced to two yearssix months' imprisonment for what would in New Zealand be aggravated assault orinjuring with intent to injure.Personal circumstances[17] When interviewed by a probation officer for the purposes of the pre-sentencereport, Mr Laine accepted responsibility for his most recent offending. He said thathe was angry with himself because of his offending, felt he had failed in his efforts tobe a positive role model for his children, and said he was motivated to rehabilitate andstop offending. That notwithstanding, the report writer assessed him as having a low10 Mr Laine entered the adult courts in 2006.ability to comply with any electronically monitored sentence, given his offendingoccurred while on bail and his Australian criminal history.[18] Mr Laine stated to the report writer that the offending occurred during a periodwhen he was separated from his wife, having discovered she had been unfaithful tohim, resulting in his leaving work and spending two months living on his own, feeling"lost". He identified that he had become subject to negative peer influences duringthis period.[19] Mr Laine also told the report writer that before arriving in New Zealand, hewas working as a chef in Melbourne and had owned his own restaurant. He said hewas happy and had a good lifestyle. When he arrived here, he began working as asecurity guard and apparently worked long hours, which he thought contributed to thebreakdown of his marriage. The report writer noted from the Department ofCorrections' records, and the interview with Mr Laine, that Mr Laine appeared to haveissues with compulsive behaviour; involving drugs and possibly gambling.[20] The report writer recommended that Mr Laine be given the opportunity toaddress the aspects of his lifestyle related to his offending – poor impulse control,criminal associates, drugs, and gambling – through rehabilitation programmes in thecontext of a sentence of intensive supervision.District Court sentencing[21] Judge Wharepouri began by setting out the factual matters noted above,including also (the Crown accepts on appeal, erroneously) the circumstances of themethamphetamine located on 24 June 2019 in respect of which the charge had beendiscontinued before sentencing.11 Referring to Mr Laine's personal history, the Judgedescribed him as "someone with some potential who has an established work history",who has limited family in New Zealand except for an aunt, whom Mr Laine's counsel11 New Zealand Police v Laine [2021] NZDC 1889 at [1]-[5]. While the Judge did refer to themethamphetamine found in Mr Laine's car on 24 June 2019, when the charge relating to themethamphetamine had been withdrawn prior to sentencing, the Judge correctly noted that MrLaine appeared for sentence on only one charge of possession of methamphetamine (that is, thatmethamphetamine located in Mr Laine's car on 1 June 2019). It is accordingly not clear whetherthe Judge's reference to the methamphetamine found on 24 June 2019 in fact carried through intohis actual sentence.Ms Kim had said had made her address available for home detention (which had not,at the time sentence was passed, been confirmed).12[22] The Judge noted also Mr Laine's remorse, evinced by a letter of remorse thathad been tendered, which he accepted as sincere; and a certificate indicating that MrLaine had successfully held a position of trust and responsibility in the prison whileon remand.13 The Judge accepted that these matters were to Mr Laine's credit.[23] The Judge then alluded to the need for him to have regard to the principles andpurposes of sentencing,14 choosing to referring in particular to the purposes ofdeterrence, denunciation and holding Mr Laine accountable for the harm caused, butalso to the need to achieve consistency in sentencing outcomes and to impose the leastrestrictive sentence appropriate in the circumstances.[24] Against that background, the Judge noted the pre-sentence report writer'srecommendation that the appropriate sentence in Mr Laine's case was intensivesupervision. As the Judge put it, "Ms Kim accepts that that recommendation iswoefully inadequate given the offending which is before this court, and I make it clearthat I have no intention of following that recommendation."15 Instead, the Judge,taking the burglaries as the lead offences, adopted a global starting point of 27 months'imprisonment. As to his reasons for adopting this starting point, the Judge said:16[11] [] When looking at the facts of the burglary carried out [on 24 June2019] it is clear that it was aggravated by the fact that the property targetedwas a residential one, two offenders were involved, forced entry took placeand a significant amount of property was stolen. While there are no tariffcases for burglary, the Court of Appeal has said in Arahanga that burglaries ofdwelling houses can attract sentences with a starting point of anywhere in therange of 18 months to two years and six month's imprisonment. The bottomend of that range is reserved for relatively minor burglaries.[12] I note that the burglary that was committed by you on 24 June aloneis one that I would have treated as deserving a starting point of two years'imprisonment. That is because of the aggravating features of that burglarywhich I have previously referred to [] But here, of course, you are chargedwith two burglaries. The second burglary is one that also could not be12 At [8].13 At [10].14 At [6], referring (implicitly) to Sentencing Act 2002, ss 7-8.15 At [9].16 Citations omitted.described as relatively minor, because of the value of the property taken andthe fact that it involved a residential address. In setting a starting point forboth burglaries, I must also take into account the totality principle. Therefore,for two burglaries, my view is that a starting point of 27 months' imprisonmentis appropriate. [][25] To this, the Judge added uplifts of ten months: six months in respect of theother charges for sentence, two months for the offending having been committed whileon bail, and an additional uplift of two months in respect of Mr Laine's previousdishonesty offending. This produced an overall starting point of 37 months'imprisonment.17[26] From this, the Judge allowed a guilty plea discount of nine months, intendedto equate to the maximum available guilty plea discount of 25 per cent, and a furtherdiscount of three months (so, about eight percent), in respect of "limited remorse future potential and what you have done since being taken into custody in a modestway", noting that the discount "may have been more had you been able to do anycounselling aimed at actual rehabilitation while in custody."18 This produced anoverall discount of 12 months (about 32 per cent), resulting in an end sentence of 25months' imprisonment.[27] The Judge then imposed that sentence in respect of the two lead charges ofburglary, convictions and discharges on the drugs and failure to appear charges, andconcurrent sentences of one month's imprisonment on the remaining charges.19[28] In an addendum, the Judge noted that, just after sentence was passed, Ms Kimreceived a text message from Mr Laine's aunt confirming the availability of heraddress for a sentence of home detention. On that basis, Ms Kim had asked the Judge"to recalibrate my discounting for the mitigating circumstances so as to place Mr Lainein a position where he was eligible for home detention." The Judge declined to do so,and, so as to emphasise his assessment, noted that:20[] even if I had reached a point where the imprisonment sentence was 24months or less, I would not have sentenced the defendant to home detention17 At [12].18 At [13].19 At [15].20 At [16].[] The offending here in my view is sufficiently serious that no sentence ofless than imprisonment would have satisfied the sentencing purposes ofdenunciation and deterrence while holding Mr Laine accountable for the harmdone.Approach on appeal[29] Mr Laine's appeal against sentence is brought pursuant to s 244 of the CriminalProcedure Act 2011 (the Act). Pursuant to s 250 of the Act, the Court must allow theappeal if satisfied that, for any reason, there is an error in the sentence imposed andthat a different sentence should be imposed.21 Otherwise, the appeal must bedismissed.22The appeal – Submissions and analysis[30] Ms Kim, who also appears for Mr Laine on appeal, submits that the Judge erredin numerous respects, the cumulative effect of which was to produce a manifestlyexcessive sentence. The grounds of appeal can be grouped under four headings.Starting point adopted on lead burglary charges was too high[31] First, counsel submits that the Judge erred in regarding Arahanga as a tariffcase for burglary offending, when there is in fact no guideline case for burglarysentencing. The appropriate starting point, she submits by reference to what she saysare two comparable cases of burglary, MacDonald and Simon,23 was less than 24months' imprisonment, having regard to the comparatively low gravity of theoffending. That assessment is supportable, she says, by reference to the offendershaving been unarmed, there having been no aspect of violence, limited risk ofconfrontation between the offenders and the occupants, mostly all of the items stolenhaving been recovered and Mr Laine's lack of previous convictions for burglary.[32] In terms of the authorities referred to by Ms Kim, in Arahanga, the Court ofAppeal observed that that Court has not set a tariff for burglary because of the21 Criminal Procedure Act 2011, s 250(2).22 Section 250(3).23 MacDonald v Police [2020] NZHC 3217; Simon v Police [2020] NZHC 2430, in which endsentences of 23 months' imprisonment resulted.extremely varied range of circumstances in which burglary can take place.24 Havingregard to general trends in sentencing, however, the Court identified burglaries ofdomestic residences as particularly serious "due to the heightened risk of confrontationwith the occupants", with "relatively minor" such burglaries attracting starting pointsof between 18 months and two years and six months' imprisonment.25[33] As to MacDonald, it is not clear from the appeal judgment what the facts werewhich had given rise to the offending for which Mr MacDonald had been sentenced.Nor is it clear from the decision how the "end starting point of 30 months'imprisonment" was arrived at by the District Court Judge. The decision accordinglydoes not provide significant assistance in this case.[34] In Simon, Mr Simon was sentenced on two charges of burglary, and charges ofpossessing methamphetamine and cannabis and utensils, and breaching the conditionsof home detention. At night, he entered a residential property while disguised, taking$14,000 in household items and tapware. He returned the following evening, breakingthrough the front door, and taking tools and other items valued at $1,300. It is unclearif the property was recovered. In the District Court, a starting point of 2 years'imprisonment on the first burglary, uplifted by 18 months for the second burglary, hadbeen adopted. On appeal, Davison J considered the starting point adopted for the firstburglary to be at the upper end of the available range, having regard to Arahanga, butconsidered the uplift on the second charge excessive. Substituting a starting point of18 months on the first burglary, which he considered more appropriate, and adding anuplift of 9 months on the latter burglary, the Judge substituted a starting point of27 months' imprisonment in respect of both the burglary charges. Ms Kim suggeststhat Mr Laine's offending was less serious than that in Simon, and accordingly justifiesthe lower starting point she advocates for.[35] For the respondent, Ms Best submits that the Judge did not erroneously rely onArahanga as a tarrif case, and that even if the Judge did consider himself bound byArahanga, the guidance offered by that authority, as applied the Judge to the facts ofthis case, produced a starting point that was well within range. In this respect, Ms Best24 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].25 At [78].identifies the aggravating features of the offending as being the residential nature ofboth premises, the fact that in the first burglary there were two offenders, the damageoccasioned to the properties, that over $50,000 in property was taken – even if muchof that was recovered. As to the authorities to which Ms Kim refers, Ms Best submitsMacDonald is of limited assistance (for the reasons noted earlier), and Simondemonstrates that the starting point adopted was within range, as do other burglarysentencings, such as Johnstone, Wilkinson, Banks, and Henriksen.26[36] In Johnstone, Mr Johnstone was sentenced for two burglaries, driving withexcess blood alcohol on two occasions, and one charge each of dangerous driving andbreach of parole. The lead charge, Woolford J agreed on appeal, was a burglaryinvolving "the invasion of a dwelling-house, the significant financial and sentimentalvalue of the property taken including the risk of data loss from the computers", butwith little evidence of premeditation and limited damage being done to the house. Thestarting point adopted in the District Court of two years' imprisonment was, WoolfordJ considered, within range.[37] In Wilkinson, Mr Wilkinson was sentenced on a charge of burglary, togetherwith other charges. There had been four burglaries in the one community in quicksuccession. Mr Wilkinson was convicted of receiving the property stolen on three ofthese occasions and of the burglary itself on the fourth. During that burglary,Mr Wilkinson took jewellery and cash valued at about $14,000, having ransackedevery room in the house, also taking a late model luxury vehicle at the address. Onappeal, Brown J identified the aggravating features of the burglary as being the fact adomestic residence was targeted, the presence of two offenders and the high level ofloss caused, but appears implicitly to have accepted the fact that the occupants werenot home mitigated the gravity of the offending home (because the offender had firstmade sure to establish they were not at home). By reference to Arahanga and otherauthorities, and these aggravating and mitigating factors, Brown J considered thestarting point of two years adopted in the District Court as being appropriate.26 Johnstone v Police [2012] NZHC 551; Wilkinson v Police [2016] NZHC 1845; Banks v Police[2020] NZHC 859; and Henriksen v Police [2015] NZHC 2572.[38] In Banks, the lead charges were three burglaries. All were private homes. Thefirst two burglaries took place at night, which disclosed a real risk of confronting theoccupants. The total value of property stolen was $12,000, together with a vehiclestolen from outside a suburban home. On one of the three occasions, Mr Banks hadforced his way into an occupied dwelling. He was on bail on at least one of theoccasions. On appeal, Dunningham J, referring to Arahanga for guidance, and othersentencing decisions for comparison, considered that the starting point of two yearseight months' imprisonment adopted on these charges by the District Court Judge wasappropriate.[39] In Henriksen, Mr Henriksen went to a farm and approached one of theoccupants asking if she had any scrap metal he could take away. She told him he couldtake a length of chain. Mr Henriksen took the chain, but also two trailers valued at$1,600. On appeal, Lang J upheld the starting point adopted by the District CourtJudge on a burglary charge of twelve months' imprisonment.Starting point – discussion[40] As noted by the Court of Appeal in Arahanga, and by counsel, there is no tariffcase for burglary. However, the guidance provided in Arahanga has been consistentlyapplied in subsequent cases of the burglary of residential premises, as emerges fromthe authorities referred to in counsel's submissions and as summarised above. Theaggravating features of burglary offending engaged in cases of this type are alsoconsistently described in accordance with those noted in Arahanga.27[41] In considering the starting point adopted by the Judge in this case for bothburglaries, namely two years and three months' imprisonment, I have had regard tothose authorities referred to by counsel for Mr Laine and the respondent. I have alsoconsidered a number of other sentencings for burglary offending, particularly wherethere are two burglaries involved, namely Dawson v New Zealand Police,28 Shierney27 See Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [77]-[79].28 Dawson v New Zealand Police [2020] NZHC 2296; two burglaries of the same property, a startingpoint of two years and six months' imprisonment adopted in the District Court and upheld onappeal.v Police,29 Cook v New Zealand Police,30 Tuala v New Zealand Police,31 McFall vNew Zealand Police,32 Marsh v R33 and Cleghorn v New Zealand Police.34[42] Having considered the various authorities, I consider a starting point of 27months, or two years and three months' imprisonment, was within the range availableto the Judge and was not manifestly excessive. In saying this, I have regard to what Iconsider to be the aggravating features in this case, being the presence of two offendersin the first burglary, significant force used to gain entry into the properties withresulting damage, both properties being residential in nature (though accepting thatthe offending took place during the day), what appears to have been the targeted natureof the second burglary, and property of significant value having been taken.Were the uplift for other offending excessive[43] Ms Kim submits that the uplift of six months imposed in respect of theremaining charges was excessive, noting that except for the theft charge, these wereall minor charges that, if sentenced on a standalone basis, would have resulted in a fineor community-based sentence only. Also, Ms Kim submits, the theft charge related topart of the same sequence of events as the second burglary, and ought therefore to havebeen dealt with as part of the three month uplift imposed in respect of that burglary.Finally under this heading, Ms Kim submits the Judge also erroneously considered the29 Shierney v Police [2014] NZHC 2963; two burglaries of the same address, including the theft ofthree rifles. Starting point adopted of three years and six months' imprisonment, not subject toadverse comment on appeal.30 Cook v New Zealand Police [2019] NZHC 2327; a starting of two years' imprisonment for a singleburglary involving items valued at approximately $5,500 upheld on appeal.31 Tuala v New Zealand Police [2013] NZHC 2370; a single burglary for which a starting point ofthree years had been adopted in the District Court, reduced to approximately two years'imprisonment on appeal.32 McFall v New Zealand Police [2015] NZHC 2095; two burglaries of residential properties in quicksuccession, with a starting point of two years and six months' imprisonment adopted in the DistrictCourt, reduced to one year nine months on appeal.33 Marsh v R [2010] NZCA 445; a case of three burglaries and an attempted burglary of houses inNapier and Gisborne, where a starting point in respect of the first burglary of three years and sixmonths' imprisonment adopted in the District Court was held to be correct (primarily by referenceto considerations of parity between co-offenders).34 Cleghorn v New Zealand Police [2018] NZHC 2553; a case of a single burglary of a residentialproperty involving goods worth approximately $10,000 in value, including sentimental items, inwhich the District Court had adopted a starting point of three years' imprisonment. On appeal, theHigh Court concluded that a starting point of no more than two years' imprisonment waswarranted.methamphetamine located on 24 June 2019 when that charge had been withdrawn.Looking at the totality of the behaviour,35 Ms Kim says, the uplift was excessive.[44] Ms Best submits that, even accepting the Judge erred in having regard to the1.38 grams of methamphetamine located on 24 June 2019, the uplift imposed inrespect of the remaining charges cannot be said to be excessive, having regard to theoverall criminality of that offending, and is consistent with the uplifts adopted in thecomparable cases of Henriksen and Duxfield.36[45] I am not persuaded the uplift for the remaining offending was excessive. I notethat the Judge referred, in the factual section of his judgment, to the 1.38 grams ofmethamphetamine found during the 24 June 2019 offending. But as noted earlier, theJudge correctly noted that only one offence of possession of methamphetamine wasbefore the Court for sentencing.[46] Further, I accept the respondent's submission that, had the theft charge beensentenced on a standalone basis, a starting point of around 12 months' imprisonmentcould have been imposed. On this basis, while I consider that the total uplift of sixmonths' imprisonment for the remaining charges to have been at the upper end of theavailable range, having regard to considerations of totality, I do not consider it to bemanifestly excessive in the sense warranting intervention on appeal.Uplifts for previous offending and offending on bail were excessive[47] Ms Kim submits that the additional uplifts imposed for Mr Laine's previousconvictions (two months) and offending while on bail (two months) were also bothexcessive. While acknowledging Mr Laine's criminal history in Australia and NewZealand, including for dishonesty offending, he is, counsel submits, a first time burglarwhose previous convictions for dishonesty are all apparently minor.[48] Also, Ms Kim submits, the fact that Mr Laine had spent a considerable periodon restrictive bail conditions ought to have received some recognition at sentencing,35 Counsel referring to R v Bradley [1979] 2 NZLR 262 (CA) at 263.36 Counsel referring to Henriksen v Police [2015] NZHC 2572, Duxfield v Police [2015] NZHC3018.if only in the form of tempering or negating the uplift for offending while on bail orprevious offending.[49] Ms Best submits the uplifts adopted were appropriate and the Judge did not errin this respect, saying the previous conviction for burglary in Australia, together withMr Laine's previous New Zealand dishonesty offences, disclose an ongoing pattern ofdishonesty offending by Mr Laine from which he has not been deterred by his previoussentences. Similar points are made in respect to the need for additional deterrence interms of the uplifts adopted for Mr Laine's having offended while on bail.[50] Again, I am not persuaded that the Judge erred. There is a discernible patternin Mr Laine's prior offending, particularly his earlier dishonesty and property relatedoffending in New Zealand. He also has a number of relevant earlier instances ofoffending in Australia, though I acknowledge that some are now quite historical. Theuplift of two months was not in my view excessive.[51] Nor in my view was the uplift for all of the index offending occurring while onbail. I do not consider the fact Mr Laine was on bail for a relatively lengthy period oftime to mitigate this factor. The length of time has unfortunately led to a greaternumber of offences being committed during that time. It is also of concern that theindex offending commenced almost immediately after Mr Laine was released from hisearlier custodial sentence (and when he was subject to special conditions), reinforcingthe need for additional deterrence in the form of an uplift.The end sentence – is it manifestly excessive?[52] Ultimately, irrespective of how the Judge arrived at his end sentence, I muststand back and consider whether the overall sentence was manifestly excessive.[53] In my view it was not. While in some aspects a (very) slightly lower startingcould have been adopted on the burglary charges, or a (very) slightly lower upliftadopted, it could also be said that the Judge's discount for remorse of around eightpercent in addition to the full 25 percent discount for Mr Laine's guilty pleas wassomewhat generous.[54] Considering the totality of the offending, an end sentence of 25 months'imprisonment was not in my view manifestly excessive. A one or two month reductionto this would in my view be "tinkering". That is to say, in terms of s 250 of the Act, Iam not satisfied a different sentence ought to have been imposed.Should home detention have been imposed?[55] For completeness, I record that even if I had allowed the appeal and substitutedthe sentence of imprisonment for one slightly lower, I would not have converted thatsentence to one of home detention.[56] In my view, the unfortunate pattern emerging in Mr Laine's offending,including while on bail and shortly after serving an earlier sentence of imprisonment,was appropriately marked by a custodial sentence. In this context, the principles ofpersonal deterrence, the promotion of accountability and community protection areparticularly engaged.Result and concluding comments[57] The appeal against sentence is dismissed.[58] Mr Laine has expressed his disappointment in his offending. He wants to be abetter role model for his children. As the Judge noted, Mr Laine has potential tobecome a contributing member of the community.[59] Now is the time and opportunity for Mr Laine to draw a hard line under hisoffending. He will no doubt wish to take whatever opportunities are available to himwhile serving his sentence to continue to secure the trust of those around him, and toengage in any relevant rehabilitative programmes that are made available to him.___________________________Fitzgerald J