HIGGAN v NEW ZEALAND POLICE [2021] NZHC 188

HIGGAN v NEW ZEALAND POLICE [2021] NZHC 188 [17 February 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2020-454-23[2021] NZHC 188DAMIAN RICHARD HIGGANvNEW ZEALAND POLICEHearing: 16 February 2021Appearances: T E Hesketh for the AppellantA M Barham for the RespondentJudgment: 17 February 2021JUDGMENT OF COOKE J[1] Mr Higgan appeals a sentence of 22 months' imprisonment following the entryof guilty pleas on the following charges:1(a) Breach of Protection Order;2(b) Burglary;3(c) Receiving.41 New Zealand Police v Higgan [2020] NZDC 24642.2 Family Violence Act 2018, ss 90(b) and 112(1)(a).3 Crimes Act 1961, s 231(1)(a).4 Crimes Act 1961, ss 246 and 247(a).The offending[2] The breach of protection order offence occurred on 16 July 2020. Mr Higganand the victim had previously been in a relationship for 16 years and have one childtogether. Mr Higgan arrived at the victim's address and approached the back dooradjacent to the kitchen. When the door was open he remarked to a witness "it's funnyI can have a protection order against people, I can still walk in". The victim heard hisvoice, came down the hallway and told him to go away. He left the house, got into avehicle and drove away. This was his second conviction for breach of the protectionorder. In the month before this offence he had been sentenced to nine months'supervision and two months' community detention for the previous breach.[3] Between 31 August and 13 October Mr Higgan then received a stolen motorvehicle valued at $5,000. He attempted to disguise its identity by changing theregistration plates and the VIN number. The ignition barrel was missing and when hewas spoken to he confirmed it was stolen.[4] On 21 September he then entered a property. He drove into its driveway whenlooking for a place to steal items. He walked to the back of the property and openedan unlocked back door of the house. The door had access to a garage. He entered thegarage and opened a large chest freezer and stole a large amount of frozen food. Healso stole a tent and camping items. A witness arrived at the address and challengedhim when he was leaving.The grounds of appeal[5] In imposing the sentence the burglary charge was adopted as the lead offenceand a starting point of 18 months was adopted. An uplift of six months was imposedfor the breach of protection order, and a further six month uplift was imposed for thereceiving charge. Discounts of seven months for a guilty plea and one and a halfmonths for remorse were given. A further uplift of one month was added in connectionwith the remission of fines. This made the total end sentence twenty-two monthsimprisonment.[6] The appeal is brought pursuant to ss 244 and 250 of the Criminal ProcedureAct 2011. The appellant submits that under s 250(2) there was an error by thesentencing Judge in the sentence imposed on conviction and that a different sentenceshould be imposed instead. The ultimate question is whether the sentence imposedwas manifestly excessive.5 The appellant argues that the overall sentence wasexcessive given the gravity of the offending, and in particular the cumulative upliftswere not justified, or that there should have been an adjustment for totality.Assessment[7] It is important to be clear about the sentencing approach adopted by the DistrictCourt Judge. It is apparent from the appellant's formal criminal record, and thewarrants for detention signed by the Judge, that the sentence for each of the chargeswas imposed concurrently and not cumulatively. The warrants record that for each ofthe charges of burglary, receiving, and breach of a protection order, a sentence of 21months was imposed. One month was then added cumulatively in relation to theunpaid fines. The sentencing notes do not make it clear that the sentences wereimposed on each of the charges in that way, but the formal record makes that apparent.[8] The focus of the appeal is ultimately the totality principle referred to in s 85 ofthe Sentencing Act 2002.6 Where there are multiple offences, the individual sentencesmust reflect the seriousness of each offence.7 If cumulative sentences of imprisonmentare imposed, then they must not result in a total period of imprisonment wholly out ofproportion to the gravity of the overall offending.8[9] As Mr Hesketh accepted there can be no criticism of the 18 month startingpoint for the burglary charge, which was taken as the lead charge. It involved entry tosomebody's home and taking a large amount of food from a freezer as well as campingitems. Based on comparable authorities, a starting point of around 18 months for thatoffending was justified.95 Tutakangahau v R [2014] 3 NZLR 482 (CA).6 Sentencing Act 2002, s 85.7 Sentencing Act 2002, s 85(1).8 Sentencing Act 2002, s 85(2).9 See, for example, Andrews v Police [2015] NZHC 2496 at [32].[10] The approach the District Court Judge adopted was to then uplift the startingpoint by six months for the receiving charge. The receiving stolen property chargeinvolved a car valued at $5,000, with the appellant taking steps to disguise its stolenstatus. That also appears to be in range given similar cases. In Drake v Police it washeld that a starting point of 15 months imprisonment for receiving a vehicle worth$11,000 was within the available range.10 In Williams v Police the appellant receiveda vehicle worth $3000 which had valuable tools inside it, and he also removed theregistration label and the vehicle number plates. On appeal the starting point of 18months was reduced to 9 months.11 Given that the offences here occurred over thesame period, and accordingly as a single course of dishonesty offending, the approachadopted by uplifting the starting point by six months was appropriate.[11] The breach of protection order offending is not related offending. For thatreason an appropriate sentencing approach might have been to sentence for thatoffending and order it be served cumulatively in accordance with s 84 of theSentencing Act, subject to the totality principle in s 85. Mr Hesketh suggested that astarting point for a non-violent breach of a protection order could begin at around fourmonths given previous cases.12 I accept that a 21 month term of imprisonment for thischarge alone would not be justified, but that sentence was only imposed as aconsequence of the District Court Judge's approach to deal with these offences on aconcurrent basis.[12] As has been emphasised in a number of decisions the sentence for the offenceof breaching a protection order very much depends on the circumstances.13 Here thefact that the breach occurred in the month following his conviction and sentence for aprevious protection order is relevant. The comment Mr Higgan made was to the effectthat he was able to breach the order no matter what the Court had done. That warranteda firm response. Uplifting the starting point by six months — equivalent to a six monthcumulative sentence — was an available sentencing option.10 Drake v Police [2015] NZHC 2252 at [23], cited in Whittaker v Police [2017] NZHC 2747 at [20].11 Williams v Police [2015] NZHC 3285 at [5], cited in Whittaker v Police [2017] NZHC 2747 at[19].12 Prince v New Zealand Police [2019] NZHC 1742 at [14]; Thompson v Police [2020] NZHC 20 at[20].13 See Whiu v New Zealand Police [2020] NZHC 298 at [16].[13] Mr Hesketh also challenged the one month uplift imposed in relation to theunpaid fines. This was an independent exercise under s 88 of the SummaryProceedings Act 1957 and given the total fines of $2,000 it was an available approach.[14] The appellant's best point is that adopting an uplift of six months for each ofthe additional offences was unduly harsh, and in light of the totality principle thesentence was manifestly excessive.[15] I accept that the end sentence can be seen as at the higher end for this group ofoffences. But on the other hand both the burglary and receiving offences weresignificant, and there were also aggravating features of the breach of protection orderoffence. They Judge was also dealing with an overall series of offences committed bythe appellant. They occurred over the same period — the breach of the protectionorder occurred in July, the stolen motor vehicle was received from the end of August,and the burglary took place in September. The offending was interrelated to thatextent, and the uplifts can be considered in that context.[16] I accept that the approach the Judge adopted, and the overall sentence arrivedat, was open, and the end sentence is not manifestly excessive. The appeal isdismissed.Cooke JSolicitors:Tim Hesketh Law, Palmerston North for the AppellantBV+A, Palmerston North for the Respondent