NORLING v NEW ZEALAND POLICE [2016] NZHC 1648

NORLING v NEW ZEALAND POLICE [2016] NZHC 1648 [20 July 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI-2016-485-32CRI-2016-485-33[2016] NZHC 1648BETWEEN CLINTON NORLINGAppellantAND NEW ZEALAND POLICERespondentHearing: 19 July 2016Counsel: J A Dean for AppellantS T Ellis for RespondentJudgment: 20 July 2016JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is3.30 pm on the 20th day of July 2016[1] On 23 March 2015, Mr Norling was sentenced by Judge Barry on a panoply of relatively low level charges to a total of two years and six months' imprisonment.1The charges and the respective sentences are set out at [4] - [7] below.[2] Mr Norling appeals against his sentence on the basis that it was manifestly excessive, as a result of the starting point for the lead offending being too high.The sentence[3] The lead offending took place at around midday on 6 April 2015 when Mr Norling unlawfully entered an (unlocked) house in Waikanae, picked up a wallet and keys, took a vehicle from outside and drove it to a petrol station, bought cigarettes using the card that was taken, then went to another petrol station in Levin and purchased petrol and cigarettes. The vehicle was subsequently returned to the owner.[4] These events led to charges of:(a) burglary;(b) unlawfully taking a motor vehicle; and(c) dishonest use of an eftpos card.[5] The Judge recorded Mr Norling's criminal history which included over140 convictions and 26 sentences of imprisonment. The Judge noted, however, that Mr Norling had not received a jail sentence since 1993 and that between 1995 and2001 he had not offended at all. He recorded his acceptance that Mr Norling's morerecent downward slide began when he lost his licence and his job.[6] Judge Barry adopted a starting point of 22 months for the lead offences.[7] The other charges and the respective sentences can best be set out in tabular form. All sentences are cumulative except where indicated.1 New Zealand Police v Norling [2016] NZDC 5204.Grouping Offences Sentence/Starting point"Second tranche"of offending21 February 2015: receiving stolen motor vehicle19 December 2015: obtaining $425 by deception (TradeMe scam)Six monthsDriving whiledisqualified5 April 2015: driving while disqualified (third orsubsequent) and failing to stop on request12 months"Sundry charges"  receiving a stolen bag, passport and chequebook possession of methamphetamine failure to answer bailOne month concurrent foreach charge (added at theend, not part of totalstarting point)"Failing to stop" 11 December 2015: driving while disqualified (third orsubsequent) failing to stop failing to remain stopped giving false detailsConvict and dischargeCorrections  breach of community detention breach of community work application to cancel these sentences and re-sentenceThree months for thebreaches, and six monthsimprisonment substitutedon resentencingTheft 24 March – 15 April 2015 theft of petrol x 3 theft of groceriesTwo months, concurrentwith the rest of thesentence (added at the end,not part of total startingpoint)[8] As far as the sentence for breach of community detention and breach of community work are concerned, the Judge's notes are a little unclear. In particular it is unclear from the words used whether he intended to impose a cumulative sentenceof three months' imprisonment for each breach (ie six months in total) or threemonths' for the two combined. But it is the former interpretation which is consistent with the total combined starting point of 52 months' imprisonment which the Judge recorded and it is therefore that interpretation which I prefer for present purposes.[9] Having recorded this 52 month total, the Judge then discounted that result by nine months for totality, 11 months for the guilty pleas (25 per cent), and two months for the five months' time spent on EM bail.2 This yielded the final sentence two years and six months.2 The Judge noted that Mr Norling had previously been on EM bail for five months but due to fears for his own safety and that of his 17 year old daughter as a result of threats or stand-over tactics by Wairarapa gang-members, he had cut off his bracelet and gone into hiding until he was arrested in January 2016. His offending in the intervening period is said to have been caused by the need to support himself while on the run.[10] He also disqualified Mr Norling from holding a licence for 18 months, and made reparation orders of $1,027. No issue is taken with that.The appeal[11] As I have said, the appeal is advanced on the basis that the starting point for the lead offending was too high. Mr Dean submitted that the starting point should have been 18 months rather than 22 months. Then, he said:(a) the other starting points should remain the same, making the total starting point 45 months;3 and(b) no issue is taken with the other starting points, the nine month discount for totality, a 25 per cent (nine month) discount for guilty pleas, and the two months discount for time spent on EM bail.[12] On Mr Dean's calculations that would yield a final sentence at 25 months.4[13] In support of the submission that the starting point for the lead offending was too high, Mr Dean correctly noted that there is no tariff decision for burglary, but that the Courts have identified relevant factors to take into account. He submitted that the burglary offending was at the low end of the scale, because there was no evidence of premeditation, it was during daylight hours, no damage was done, no- one was harmed and the vehicle was recovered. He also emphasised Mr Norling'sdifficult personal circumstances, which are not really disputed.Approach[14] As is well-established, the Court on appeal should only interfere with a sentence if there is an error in the sentence which has resulted in an end sentence that3 This is on the basis of the second interpretation noted at [8] above. If the starting point for the index offending was to be reduced to 18 months but the first interpretation noted at [8] adopted, the combined starting point would be 48 months.4 I reject immediately as untenable the further proposition that, because Mr Norling has already served four months in prison, the sentence should be quashed and substituted with a sentence of 21 months' imprisonment, with leave to apply for home detention.is manifestly excessive in the particular circumstances.5 The particular means by which the sentence is arrived at are generally regarded as irrelevant.Discussion[15] As I have said, it is not in dispute that there is no tariff decision for burglary because of the variety of circumstances in which the offence can be committed.6However, the Court of Appeal in Arahanga v R stated that burglary of a domestic residence is a significant aggravating feature due to the risk of confrontation with the occupants, and that minor dwelling house burglaries tend to attract a starting point of 18 months to two years and six months.7 Other factors relevant to culpability include: the degree of planning and sophistication of the offending, the kind and value of the property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.8[16] Counsel were also essentially agreed that the burglary committed by Mr Norling on 6 April 2015 is properly classified as a "minor dwelling house burglary". The starting point of 22 months' imprisonment is within the Arahangarange for such offending, albeit at the higher end. But as Ms Ellis submitted, the risk of confrontation with the occupants here was real; one of the occupants was at home asleep. And as well as the further additional thefts which followed the burglary, anuplift for Mr Norling's extensive history of dishonesty offending was arguablyavailable, but not imposed.[17] Once it is accepted that the starting point was within range (as I think it was) there is no basis for interfering with the exercise of the Judge's discretion. And even if that particular starting point could fairly be said to have been excessive, the endsentence arrived at based on the totality of Mr Norling's offending, after taking into the available discounts, seems unimpeachable.95 R v Shipton [2007] 2 NZLR 218 (CA); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].7 At [78].8 R v Nguyen CA110/01, 2 July 2001 at [17].9 As I have said I am also unable to accept that there was an arithmetical error in the 52 months'combined starting point.[18] While it is impossible not to have some sympathy for Mr Norling and the unfortunate turn his life has more recently taken, it cannot be said that an endsentence of two years and six months' imprisonment for the numerous offences he committed during 2015 was manifestly excessive. The appeal is dismissed accordingly."Rebecca Ellis J"Solicitors: John Dean Law, Wellington, for AppellantCrown Solicitor, Wellington, for Respondent