EDWARDS v POLICE [2018] NZHC 1882

EDWARDS v POLICE [2018] NZHC 1882 [27 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-139[2018] NZHC 1882BETWEEN CORRIE JESSIE EDWARDSAppellantAND NEW ZEALAND POLICERespondentHearing: 25 June 2018Appearances: T A Fitzgibbon for AppellantB A Keown for RespondentJudgment: 27 July 2018JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 27 July 2018 at 11:30 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Corrie Edwards was sentenced in the Auckland District Court to two years andtwo months' imprisonment on two charges of burglary and one charge of unlawfulpossession of an imitation firearm.1 He now appeals against that sentence on thegrounds that the Judge adopted an excessive starting point and gave insufficient creditfor time spent on electronically monitored bail.The offending[2] The first burglary took place at a residential address in Hamilton sometimebetween 3.00pm on 10 December 2016 and 6.30pm on 11 December 2016. Theoccupant had left the house locked and secure. Mr Edwards entered by smashing aglass door at the back of the house, and conducted what is described in the summaryof facts as a "messy search" of all the bedrooms. He took numerous electrical items,books, jewellery and men's clothing. His DNA was subsequently found in the masterbedroom.[3] The second burglary took place at a residential address in Grey Lynn,Auckland, sometime between 1.00pm and 9.15pm on 15 February 2017. Mr Edwardstook several items including silver cutlery, a sterling silver tea set, clothing and videotapes. The estimated total value of the property stolen is $650. When police carriedout inquiries at the address, they found the toilet window had been smashed and arubbish bin was positioned beneath that window. They also found a blood smear onthe interior wall of the toilet, which returned a positive result for Mr Edwards.[4] The police located and arrested Mr Edwards at the Work and Income office inManurewa on 17 March 2017. On searching him, they found an airgun in hispossession.[5] Mr Edwards initially entered a plea of not guilty to the first burglary, in March2017. He was released on electronically monitored bail on 2 May 2017 and compliedwith his bail conditions. On 24 August 2017, he pleaded guilty to the first charge of1 Police v Edwards [2018] NZDC 9313.burglary. In November 2017, he also pleaded guilty to the second burglary and thepossession of an imitation firearm charge.Mr Edwards' personal circumstances[6] Mr Edwards is 34 years old. He was deported from Australia after beingconvicted of breaking and entering, and arrived in New Zealand on 23 October 2016.His Australian criminal conviction history has not been made available to me, but thepre-sentence reports record that he has multiple convictions for violence, robbery,burglary, wilful damage, unlawful possession of weapons, drug-related offending,breaches of bail and assaulting or obstructing police. He has not resided in NewZealand since 1996, and has no previous convictions in New Zealand.[7] The pre-sentence reports state that Mr Edwards has an extensive history of druguse, in particular methamphetamine and heroin. He uses these drugs in order to"escape from reality", and it seems that drug use motivated his present offending.However, the pre-sentence report writer records that Mr Edwards committed torecovering from drug use in October 2017 when his daughter was born, and althoughhe has had periods of relapse since then, he is motivated to rehabilitate himself. Pro-social support networks are important to him in this regard.[8] The pre-sentence report writer considers that Mr Edwards displays remorse forhis offending and accepts full responsibility for his actions. He says his offending was"senseless" and "careless" and that he was "lashing out" in reaction to his deportationfrom Australia and separation from his family. He has been on electronicallymonitored bail with the Grace Foundation since May 2017, and considers this to havebeen a positive influence on him, allowing him to reflect on the consequences of hispoor choices. He is described as being motivated to find full-time employment, joina gym and engage in church activities.[9] The Grace Foundation address was proposed for an electronically monitoredsentence, and the pre-sentence report states that it is technically suitable for electronicmonitoring. However, because of the presence of other offenders with similarconviction histories at the address, the writer of the pre-sentence report expresses someconcern about the suitability of the address for home detention. The influence of otheroffenders is considered to be more manageable if Mr Edwards were to serve a sentenceof community detention at the Grace Foundation address.District Court decision[10] Mr Edwards appeared for sentence before Judge Ronayne in the AucklandDistrict Court on 4 May 2018.[11] After setting out the facts and Mr Edwards' personal circumstances, JudgeRonayne noted that it was a serious aggravating factor that the two burglaries targeteddwelling houses. He also noted that it was a very serious aggravating feature that thesecond burglary and possession of an airgun were offences committed while on bailfor the first burglary. Weighing up the need for deterrence of dwelling house burglariesand the obligation to impose the least restrictive outcome appropriate, the Judge tooka starting point for the first burglary of 18 months. He adopted a starting point of 24months for the second burglary and four months for the possession of the airgun.[12] The Judge then stepped back and considered the totality of the offending, andconcluded that a sentence of three years' imprisonment would be appropriate. Heuplifted that sentence by three months to reflect Mr Edwards' criminal record, andthen gave a 20 per cent discount for his guilty pleas. This resulted in a sentence oftwo years and seven months' imprisonment. Although noting that he did so out oforder, the Judge then reduced that sentence by a further five months to reflect the timeMr Edwards had spent on electronically monitored bail. The overall end sentencetherefore came to two years and two months' imprisonment.Submissions[13] Ms Fitzgibbon for Mr Edwards acknowledges that the starting point of 18months was available to the Judge on the first burglary. Nor does she take issue withthe starting point of four months adopted for the charge of possessing an imitationfirearm. However, she submits that the Judge erred in two respects:(a) by adopting an excessive starting point for the second burglary; and(b) providing insufficient credit for the time Mr Edwards spent onelectronically monitored (EM) bail.[14] Mr Keown for the Crown submits that the starting points adopted by the Judgewere within the available range, and that appropriate credit was given for time spenton EM bail. He adds that the Judge gave generous guilty plea discounts despite MrEdwards' late pleas, and that his adoption of a global discount rather than applying theguilty plea discount at the end operated to Mr Edwards' benefit. He says that the endsentence was therefore not manifestly excessive.Approach on appeal[15] Section 250 of the Criminal Procedure Act provides that the Court must allowan appeal against sentence if satisfied that for any reason there is an error in thesentence imposed, and that a different sentence should be imposed. In any other case,the Court must dismiss the appeal.[16] The Court of Appeal has confirmed that the approach remains that ofdetermining whether or not the end sentence is "manifestly excessive".2 A sentenceappeal therefore turns on a consideration of the final outcome: although the route bywhich the sentencing Judge reached that outcome is relevant, it is seldom pivotal.3Was the 24-month starting point too high?[17] Burglary carries a maximum sentence of 10 years' imprisonment.4 There is notariff sentencing case for burglary, but a distinction is typically made betweenburglaries of residential houses and commercial premises. The Court of Appeal hasobserved:5Burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months' to two years and sixmonths' imprisonment.2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].3 Ripia v R [2011] NZCA 101 at [15].4 Crimes Act 1961, s 231(1).5 At [78].[18] The District Court Judge was therefore correct to treat the fact that the burglarytargeted a residential dwelling as a serious aggravating feature. He was also entitledto regard as a serious aggravating feature the fact that Mr Edwards was on bail forsimilar offending at the time he committed the second burglary.6 This is becauseoffending while on bail displays disregard and contempt for court processes.7[19] Nevertheless, in terms of the value of the property taken ($650), and given thatthere was no actual confrontation with occupants or any evidence of premeditation,the second burglary is at the lower end of the scale in terms of seriousness. It is alsorelevant that the second burglary took place either in the daytime or early in theevening (sometime between 1.00pm and 9.15pm): a burglary of a residential dwellingat night, when the occupants are likely to be asleep in bed, will be regarded as moreserious.[20] Mr Keown referred me to Sussex v Police and Regan v Police in order toillustrate that there will be variations, sometimes significant variations, in thesentences imposed for burglary.8 Neither of those cases is directly comparable to thefacts of the present case: in Sussex, the defendant broke into and stole money from achurch, which is of course distinct from burglary of a residential dwelling, and inRegan the sentencing Judge adopted a starting point of three years for burglary of aresidential dwelling taking into account several aggravating factors personal to thedefendant. I do not derive any real assistance from those cases.[21] Ms Fitzgibbon referred me to Stepanicic v R.9 In that case, the defendant brokeinto two residential dwellings in the early hours of 6 April 2011 and stole a number ofpersonal items. On both occasions the occupant was at home and asleep in bed. TheCourt of Appeal adopted a starting point of two years on each burglary, uplifting thatstarting point by a further four months to reflect the fact that the defendant was on bailat the time. The sentences were imposed concurrently.6 Sentencing Act 2002, s 9(1)(c).7 Clunie v R [2013] NZCA 110 at [22].8 Sunnex v Police HC Christchurch CRI-2010-409-43, 22 April 2010; Regan v Police [2016] NZHC161.9 Stepanicic v R [2015] NZCA 211.[22] Ms Fitzgibbon submits that the two burglaries in that case were more seriousthan the charges Mr Edwards faced. I agree that each of the burglaries in Stepanicicwas more serious than Mr Edwards' second burglary due to the fact that they occurredin the early hours of the morning, while the occupant was at home and asleep. Therisk of confrontation with the occupant (and violence as a consequence) wasconsiderably heightened, and indeed only narrowly avoided – one of the occupantswoke up and saw the defendant crawling across her bedroom floor, but thought it washer son and went back to sleep.[23] The second burglary committed by Mr Edwards therefore merited a lowerstarting point than the 24 months adopted in Stepanicic. By comparison to other casesinvolving daytime burglaries where property with a slightly greater total value wasstolen, Mr Edwards' second burglary (taken alone) should have attracted a startingpoint of around 17 to 18 months.10[24] However, as I have noted, the Judge was also entitled to incorporate in thestarting point an uplift to reflect the fact that Mr Edwards was on bail in relation toanother burglary at the time. Although the Judge did not expressly quantify the upliftfor this aggravating feature, instead choosing to build it into his starting point,Stepanicic indicates that an uplift of around four months would have been justified.Taking this into account, I consider that a starting point of 21 to 22 months would havebeen justified for the second burglary. The starting point of 24 months adopted by theJudge was therefore slightly outside the available range.[25] However, the Judge went on to make a reduction for totality. Section 85(2) ofthe Sentencing Act 2002 provides that if cumulative sentences of imprisonment areimposed, they must not result in a total period of imprisonment wholly out ofproportion to the gravity of the overall offending. Recognising this, Judge Ronayneconcluded that a global starting point of three years' imprisonment appropriatelyreflected the totality of the offending, including the first burglary and the possession10 Compare Hotene v Police [2014] NZHC 2081 (daytime burglary of residential dwelling whileoccupants were out; items taken worth a total of $3,000; starting point of 18 months); Blissett vPolice [2013] NZHC 156 (daytime burglary of residential dwelling; items taken worth $2,000;starting point of 17 months); French v Police [2015] NZHC 2635 (daytime burglary of residentialdwelling while occupant was out; window forced open with shovel; items taken worth a total of$1,340; starting point of 20 months).of the airgun. I consider that no issue can be taken with this reduction or the resultingglobal starting point of three years, into which the 24-month starting point on thesecond burglary was effectively subsumed.[26] I further note that the guilty plea discounts given by the Judge (20 per cent foreach offence) could be regarded as generous, given the length of time between MrEdwards' first appearance in Court and his guilty pleas. The uplift for previousconvictions (three months) was also somewhat lenient, given Mr Edwards' extensivedishonesty-related criminal history in Australia.11Did the Judge give insufficient credit for time spent on EM bail?[27] Ms Fitzgibbon notes that Mr Edwards was on EM bail from 2 May 2017 until4 May 2018 when he was sentenced. He was subject to a curfew 24 hours per day,seven days a week, with some special exceptions. She says that he has not reoffendedduring this time, and has incurred only one minor breach (failing to charge hisbracelet). Ms Fitzgibbon submits that Mr Edwards was entitled to more than fivemonths' credit for the 12 months spent on restrictive bail conditions with (effectively)full compliance. She suggests that seven months' credit could have been given.[28] Section 9(2)(h) of the Sentencing Act provides that the sentencing Judge musttake into account time spent on EM bail. However, there is no fixed rule orarithmetical formula for determining the appropriate quantity of such a discount.12 Itis a matter for the Judge's discretion. A relevant factor in assessing the credit to begiven is to weigh up the degree of restriction on liberty imposed by the bail conditions,compared with the degree of restriction on liberty involved in a prison sentence.13 Inthe present case, although Mr Edwards was subject to a 24/7 curfew, he was allowedseveral trips away from the house, including to attend church and related activities, aswell as an absence of five days to attend his daughter's birth. He therefore hadconsiderably greater freedom of movement than he would have had if imprisoned.11 Compare Jones v R [2012] NZCA 273 (starting point of three years; uplift of 18 months forprevious convictions); R v Columbus [2008] NZCA 192 (starting point of 18 months; uplift of 12months for previous convictions).12 Rangi v R [2014] NZCA 524 at [10].13 Keown v R [2010] NZCA 492 at [12].[29] In Keown v R, the Court of Appeal reviewed a number of its former decisionswhere discounts had been given for time spent on EM bail.14 There is significantvariation between them: in some cases, discounts of more than half the time spent onbail were given,15 while in other cases, discounts of one third of the time spent on bail(or less) were given.16 The Crown referred me to two further decisions in which creditof less than half the time spent on EM bail was given.17 In light of these authorities, Iam not satisfied that the Judge made any error in giving five months' credit for the 12months Mr Edwards spent on EM bail. Although a higher figure would not necessarilyhave been wrong, five months was not inadequate.Home detention?[30] Ms Fitzgibbon submits that if a greater discount had been given for MrEdwards' time on EM bail, his sentence may have come within the two-year range forhome detention and that such a sentence would be appropriate. She refers to s 16 ofthe Sentencing Act, which requires the Court to have regard to the desirability ofkeeping offenders in the community so far as that is practicable and consonant withthe safety of the community, and the principle of sentencing which requires the Courtto impose the least restrictive sentence that is appropriate in the circumstances.18 Shenotes that home detention is a punitive sentence in its own right. In this case, shesubmits that Mr Edwards' adherence to EM bail conditions and the absence of anyother identified issues with compliance supports a sentence of home detention. Shefurther says that Mr Edwards was settled at the Grace Foundation and making goodprogress prior to sentence.[31] I acknowledge Ms Fitzgibbon's submission that home detention may havebeen a desirable outcome for Mr Edwards. However, the fact remains that the Judgereached an end sentence of two years and two months' imprisonment, which is outsidethe range for home detention.19 On examination of that sentence I have not found itto be manifestly excessive. Although the starting point on the second burglary was14 Keown v R [2010] NZCA 492 at [14].15 See R v Aram [2007] NZCA 328; R v Faisandier CA185/00, 12 October 2000.16 See R v Tamou [2008] NZCA 88; R v Gray [2008] NZCA 224.17 Longman v Police [2017] NZHC 2928; Parata v R [2017] NZCA 48.18 Sentencing Act 2002, s 8(g).19 Sentencing Act, s 15A(1)(b).slightly too high, this error was rectified by the Judge's subsequent reduction fortotality, as well as generous guilty plea discounts and a minimal uplift for previousconvictions. There was no error in the discount the Judge gave for time spent on EMbail. It is not appropriate for an appellate Court to "tinker" with or adjust the lengthof a sentence that is not manifestly excessive in order to reach a sentence of homedetention.Result[32] The end sentence of two years and two months' imprisonment was notmanifestly excessive.[33] The appeal is dismissed._____________Paul Davison J