VALE v NEW ZEALAND POLICE [2020] NZHC 3520

VALE v NEW ZEALAND POLICE [2020] NZHC 3520 [22 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2020-404-000434[2020] NZHC 3520BETWEEN DANIEL VALEAppellantAND NEW ZEALAND POLICERespondentHearing: 8 December 2020Appearances: J Grainger and R Malolo for AppellantS Teppett for RespondentJudgment: 22 December 2020JUDGMENT OF DUFFY JThis judgment was delivered by me on 22 December 2020 at 4.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Public Defence Service, AucklandCrown Solicitor, Auckland[1] Daniel Vale pleaded guilty to one charge of burglary.1 On 9 October 2020,Judge D J Sharp sentenced him to 18 months' imprisonment. Mr Vale now appealsagainst this sentence on the basis the sentencing Judge erred in imposing the sentenceand a different sentence should be imposed. 2The offending[2] On 10 August 2020, at about 1.00 am, Mr Vale threw a rock through thewindow of the New Zealand Coffee Company café in Grafton. He went inside andtook some electronics, cups, and coins. Mr Vale was arrested soon thereafter, and thestolen property was recovered.3Personal circumstances[3] Mr Vale is a 42 year old male of European descent. The provision of advice tocourts report (PAC report) records that the sentencing for the present offence was the51st time that Mr Vale was before the Court for sentencing. He has 42 convictions forburglary, 40 convictions for other dishonesty offences, 57 convictions for wilfuldamage and graffiti, two arson convictions, seven convictions for assault or breachingcommunity-based sentences and orders, nine drug possession convictions and 15 otherconvictions for minor offences. Underlying Mr Vale's offending are mental healthissues which he refuses to recognise. The PAC report records a diagnosis of AspergerSyndrome and paranoid schizophrenia. Asperger Syndrome is said to cause Mr Valeto have significant difficulties in social interaction and nonverbal communication aswell as to have restricted and repetitive patterns of behaviour and interests. The reportwriter describes him discussing Scientology throughout the interview and beingunable to sit down for the duration of the interview. The writer found it difficult tofocus Mr Vale on the purpose of the PAC report.[4] Before his imprisonment Mr Vale was essentially homeless and unemployed.My understanding is that he receives an invalid's benefit. Although he denied thereality of his circumstances, he was sleeping in a derelict building beside St Benedict's1 Crimes Act 1961, s 231(10(a), carrying a maximum penalty of 10 years imprisonment.2 Criminal Procedure Act 2011 s 250(2).3 It is unclear what the value of the stolen goods was.Catholic Church, Eden Terrace. The persons at St Benedict's helped him from time totime and he provided work for them by helping maintain the church grounds. He didthe same for the City Side Baptist Church and Lifewise Merge Café, which isconnected with the Methodist Church.[5] The PAC report writer observes that community based rehabilitative sentenceshave not significantly impacted on Mr Vale's offending.The District Court decision[6] Judge Sharp noted that this was a burglary of a commercial property and thatMr Vale had caused damage to the property which resulted in a significant financialburden for the victims whose small business was suffering.4 In setting the startingpoint the Judge noted there is no tariff case for burglary and that an assessment of thecircumstances must be undertaken.5 Turning to those circumstances, the Judge did notaccept Mr Vale's explanation that the burglary was an impulsive act motivated byhunger.6 Rather, based on Mr Vale's "vast number of previous convictions forburglary offending" the Judge considered that Mr Vale must have been aware thatbreaking into the café would provide an opportunity to steal valuable items.7Nevertheless, the Judge took the view that because there had been a reduction inseriousness and frequency of Mr Vale's offending, it was not appropriate to treat himas "a consistent and persistent offender in respect of burglaries".8[7] With those comments in mind the Judge adopted a starting point of 20 months'imprisonment.9 Although he thought that Mr Vale's prior convictions warranted anuplift of 10 months, the Judge limited the uplift to one of six months on the basis thisfactor had also been considered in setting the starting point.10 The Judge then granteda two month discount for remorse and efforts at restorative justice, bringing the4 At [8].5 Police v Vale [2020] NZDC 21677 at [6].6 Mr Vale also suggested that he was motivated by a desire to "go to jail for a while".7 At [9].8 At [10].9 At [10].10 At [11].sentence down to 24 months. He then applied a discount of 25 per cent for Mr Vale'searly guilty plea, which resulted in an end sentence of 18 months' imprisonment.11[8] Although this brought the sentence within the available range for a sentence ofhome detention, given Mr Vale's history of non-compliance with non-custodialsentences in the past, the Judge was clear that this was a case "in which deterrence anddenunciation could not be met in any way other than by a custodial sentence".12The appeal[9] Mr Vale contends that the 20 month starting point was excessive, as it was setprimarily by reference to his previous burglary convictions, and that the six monthuplift was excessive and risked double counting those same previous convictions.The respondent's position[10] The respondent contends that given the aggravating factors of the offendingand comparator cases; the starting point adopted by the Judge was within the availablerange.[11] The respondent also contends that the uplift provided by the Judge wasappropriate given Mr Vale has 42 convictions for burglary, the most recent of thosebeing in 2017. The respondent argues that there was no double counting of Mr Vale'sprevious convictions because the Judge only considered Mr Vale's previousconvictions when determining whether the offending was spontaneous or premediated,not in arriving at the starting point. Thus an uplift was still required and here the sixmonth uplift was entirely within the available range.[12] In any case, the respondent argues, the end sentence is not manifestlyexcessive, and so the appeal must fail.11 At [13].12 At [17].Approach on appeal[13] An error warranting interference by this Court on appeal will arise eitherbecause the sentence was manifestly excessive or wrong in principle.13 InTutakangahau v Police the Court of Appeal stated that the concept of "manifestlyexcessive" is a means of examining the significance of the error in a sentence, todecide whether a different sentence should be imposed.14 The court's focus should beon the final sentence imposed rather than its component parts or how the sentence waseventually reached.15Discussion[14] Sentencing for burglary offending can follow two approaches. The firstfollows the approach set out by the Full Court in Senior v Police, which identifies threecategories of burglar: first time; recidivist and spree.16 The chosen starting point takesaccount of the type of burglar, which means that in the case of recidivist and spreeburglars their criminal history for this offending will be reflected in the starting point.[15] Senior pre-dated R v Taueki, which introduced a specific sentencing approachthat is now generally applied to all types of offending.17 The Taueki approach requiresthe adoption of a starting point that reflects the gravity of the index offending andaggravating circumstances relevant to the offender, such as criminal history, areprovided for in the sentence by way of a separate uplift.18 A Taueki approach wasapplied to burglary sentencing by the Court of Appeal in R v Columbus.19 To date thetwo approaches are still followed by sentencing Judges.[16] What is important is that a sentencing Judge who follows a Senior approachdoes not fall into the trap of double counting an offender's criminal history by taking13 R v Brooks [1950] NZLR 659 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.14 Tutakangahau v R [2014] NZCA 279 3 NZLR 482.15 Ripia v R [2011] NZCA 101 at [15].16 Senior v Police (2000) 18 CRNZ 340 (HC).17 R v Taueki [2005] 3 NZLR 372 (CA).18 The recent decision of Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 as explained in Grayv R [2020] NZCA 548 has further altered the structure of the Taueki approach as will be explainedlater herein.19 R v Columbus [2008] NZCA 192; See also Blisset v Police [2013] NZHC 156.account of the criminal history in the choice of starting point and then subsequentlyadding an uplift for that same factor.[17] Here the Judge has seemingly applied a mix of the Senior and the Columbusapproaches. At [9] the Judge records that he considers offending that appeared to beimpulsive and driven by hunger was more pernicious given the previous convictionsfor burglary. This suggests to me the Judge was not considering the index offendingin isolation when he chose a starting point.[18] Then at [10] the Judge records that given there has been a reduction inoffending he was not going to treat Mr Vale as a "consistent and persistent offender inrespect of burglaries". This led the Judge to adopt a starting point of 20 months'imprisonment.[19] The effect of [9] and [10] of the sentencing notes suggests to me that thestructure of the sentence is neither a true reflection of the index offending simpliciter(a Columbus approach) or one that has factored in the previous offending (a Seniorapproach). Instead it seems to be a mix of the two approaches. The Judgeacknowledges this in [11] because he then says the uplift for criminal history will beless than what he would have done had he not taken Mr Vale's criminal history intoaccount in the choice of starting point. For this reason, the Judge uplifted by sixmonths rather than 10 months.[20] The mixed approach the Judge adopted increases the risk of double counting,and because the criminal history is taken into account more than once it makes it moredifficult to analyse the sentence when it comes to ascertaining whether it is within therange of appropriate sentences for an offender like Mr Vale. Here there is a real riskthere was double counting of Mr Vale's criminal history. Particularly given thecharacter of Mr Vale's offending.[21] A Senior approach will work for burglars that fall within one of the threecategories identified in Senior. In my view Mr Vale falls outside those categories. Hewas described by the Judge as a persistent burglar, which would place him in thecategory of Senior recidivist burglars. However, there are different types of recidivistburglars as was recognised in Columbus. Typically, there are those who burgle forcommercial gain; they can expect sentences weighted in favour of deterrence anddenunciation. But Mr Vale is not in this category. He is someone whose poverty andmental health problems (which he refuses to acknowledge) have left him vulnerableto the vagaries of those conditions. As was recognised in Columbus "the principalinquiry must be undertaken into the relationship between the nature of persistentoffending and the crime itself".20 Because the type of offending displayed by Mr Valefalls outside the three categories identified in Senior it is best dealt with by a Columbusapproach, which allows the sentencing Judge to focus on the index offending for thestarting point and then to consider an appropriate uplift for the criminal history.[22] Here the index offending is low level burglary. First, it was burglary ofcommercial premises at an early hour of the morning when no occupant was likely tobe on the premises. This is to be contrasted with burglary of a domestic residence,which is a significant aggravating factor.21 Whilst it did involve a breaking and entrythe items taken were an iPhone, iPad, Lenovo Tablet, Kepa cups and coins. Whenlocated by the police Mr Vale was found to be in possession of $55.00 of coins and theother items, which had been dumped, were recovered. Thus, the main injury to thevictim was the cost of the breaking into the premises. Secondly, Mr Vale said he hadstolen the items to get food for himself. Given his personal circumstances thisexplanation is likely to be truthful. The offending was opportunistic and spontaneousrather than calculated offending carried out for commercial gain. In Columbus suchoffending was said to warrant a starting point of 12 months' imprisonment.[23] Accordingly, I accept Mr Vale's argument that when the offending is viewedin isolation the starting point of 20 months' imprisonment is excessive.22 Therespondent has sought to distinguish Mr Vale's circumstances from the cases he reliesupon on the grounds those cases did not involve "breaking and entering". Therespondent refers by comparison to Wharerau v R where a starting point of 24 months'imprisonment was adopted for offending on two occasions where a rock was used to20 Columbus at [15].21 See Arohanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].22 See Gardiner v Police [2015] NZHC 1241; Charlett v Police [2014] NZHC 3002; R v Columbus[2008] NZCA 192.break a window at a supermarket and alcohol was stolen.23 The respondent also pointsout that the impact on the victims in this case is more significant than in Whareraugiven that here they are small business owners. I reject those submissions.[24] Mr Vale's offending is less serious than that in Wharerau, which involved twoincidents, whereas here there is only one. The offending is also less serious than inColumbus. In that case Mr Columbus forced open the vehicle access door of a garageat a residential property causing damage, which cost $672 to repair. He also stole alawn mower, a mountain bike, gardening tools and a toolbox. Also, while on bail, MrColumbus drove to a service station and pumped $68 worth of petrol into his vehiclebut departed without paying. Mr Columbus had 89 previous convictions, of which 13were for burglary and 34 were for property related offences. On appeal, the Court ofAppeal considered that the burglary was at the lower end of the scale, and a one-yearstarting point was appropriate. This was adjusted up by six months to account for theother offending, and then by another year to account for the previous convictions.[25] On the other hand, Mr Vale's offending is somewhat more serious than that inGardiner and Charlett where starting points of eight months and six months wereadopted respectively. Mr Gardiner entered a takeaway shop through a closed gate andtwice, took some food items from a chiller, motivated by his hunger to do so. MrCharlett stole a number of low value grocery items from a dairy and a PAK'nSAVEsupermarket. Although the offending is similar in nature, I agree with the respondentthat Mr Vale's offending is more serious than in those cases as here it involvedbreaking into the victim's premises, which necessarily had a greater impact on thevictims.[26] Accordingly, I consider that a starting point of nine months' imprisonment isappropriate. This assessment is made without consideration of Mr Vale's history ofother burglary offending.[27] I consider there needs to be some uplift to recognise Mr Vale's previous history,which includes 42 burglaries. Uplifts for previous convictions are made for threereasons: (a) as an indicator of character and culpability; (b) need for deterrence; and23 Wharerau v Police [2017] NZHC 72.(c) as an indicator of risk of reoffending.24 However, it is important when dealing withoffenders like Mr Vale to recognise that their offending is essentially driven by theirimpoverished personal circumstances and mental health problems. Their offendingdoes not necessarily indicate a general disrespect for the law or authority. Deterrencewill have little effect. I have the clear impression that Mr Vale's mental healthdisabilities leave him with little insight or ability to control his impulses, particularlywhen they are triggered by strong drivers such as hunger. I doubt that deterrence anddenunciation are factors that will weigh on Mr Vale and influence his conduct in thefuture.[28] Also, it is important that Mr Vale not be penalised more than once for hisoffending.25 If he were to receive stern uplifts for his previous history each time here-offended he would be penalised multiple times for the earlier offending.[29] Finally, as regards Mr Vale's previous convictions being an indicator of his riskof reoffending, there is no doubt, while his circumstances remain the same, there is astrong likelihood of re-offending. However, there has been no escalation in theseriousness of the offending.[30] Further, I note that the last previous offending occurred in October 2018, whichsuggests that despite the difficulties of his circumstances the re-offending isdiminishing. This is to his credit. Accordingly, I consider that an uplift of no morethan three months is appropriate.[31] I next turn to mitigating factors. The Judge gave Mr Vale a two-month creditfor remorse and attendance at a restorative justice meeting. The Judge said he wouldhave given a greater discount but for Mr Vale's criminal history. By adopting adiminished discount to reflect Mr Vale's criminal history the Judge has for the thirdtime taken note of Mr Vale's criminal history.26 This was another error. The criminalhistory should have been taken into consideration once only.24 Reedy v Police [2015] NZHC 1069 at [19].25 See R v Casey [1931] NZLR 594 (CA) at [9].26 See [17] and [19] herein where the earlier occasions in which the criminal history was taken intoaccount are explained.[32] Mitigating factors are usually quantified by percentages. Mr Vale's mentalhealth problems and his impoverished circumstances are mitigating factors whichrequire recognition. In Zhang v R27 the Court of Appeal, albeit dealing withmethamphetamine sentencing, recognised that mental health issues were mitigatingfactors that could attract an appropriate discount.28 Also in Zhang v R the Court ofAppeal recognised that poverty and deprivation were vulnerabilities that requiredconsideration in sentencing by way of mitigating discounts.29 Whilst the Court ofAppeal referred to the poverty and deprivation resulting from loss of land, language,culture, rangatiratanga, mana and dignity, all of which are most relevant to Māori, theconsiderations of poverty and deprivation were not necessarily limited to those factors.I consider someone with mental health problems who is also homeless and unable towork to support himself is necessarily within the concept of poverty and deprivationenvisaged in Zhang v R.[33] Further, I see no basis why the reasoning relevant to mitigating factors foroffenders applied in Zhang to drug offending should not be applied when consideringmitigating factors relevant to other types of offenders, especially when they sufferfrom the same conditions.[34] There are also the mitigating factors of remorse and attendance at a restorativejustice meeting which the Judge correctly recognised. I consider that here anappropriate discount for the personal mitigating factors would have been 15 per cent.[35] The Judge gave Mr Vale a full 25% discount for his guilty plea, which Iconsider was appropriate.[36] The result is a total discount for mitigating factors of 40 per cent.30[37] Moses v R has introduced a new approach to the structure of sentencing whenit comes to applying discounts and uplifts for factors personal to the offender. As27 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.28 See above at [10] (k).29 See above at [10] (l).30 The calculation of the discounts for mitigating factors in this way is consistent with Moses v R[2020] NZCA 296, (2020) 29 CRNZ 381 at [46] and [71].explained in Gray v R the personal mitigating discounts are calculated from the startingpoint without taking account of any uplifts for personal aggravating factors.31 Themitigation discount reduces the adjusted starting point to a sentence of five months'imprisonment.32 There remains the uplift of three months' imprisonment. The resultis an end sentence of eight months' imprisonment. This is significantly lower than thesentence reached by the Judge, which means the errors he made have resulted in amanifestly excessive sentence. Accordingly, the appeal should be allowed, and a newsentence imposed on Mr Vale.[38] The sentence I have arrived at is one of nine months' imprisonment. This is ashort sentence that would allow Mr Vale to qualify for a community-based sentence.33The Judge considered a sentence of imprisonment should be imposed to take accountof deterrence and denunciation.[39] The PAC report writer was not optimistic about Mr Vale's response tocommunity based rehabilitative sentences. I have already expressed my doubts as tohow deterrence and denunciation might influence Mr Vale's conduct in the future.However, a prison sentence will have a general impact on deterrence and denunciationin respect of other persons, so to that extent it serves a purpose. Also Mr Vale hasnowhere to live so could not perform a community based sentence. The PAC reportrecords that he wants "to go to jail for a while". This will at least solve his food andaccommodation problems. A Court should impose the least restrictive sentencepossible.34 Here, the circumstances of Mr Vale leave me with no alternative but toimpose a term of imprisonment.Result[40] The appeal against sentence is allowed.31 Gray v R [2020] NZCA 548 at [31]. Gray refers to an adjusted starting point because in that casethe starting point was adjusted to take account of other offending which was relevant to the leadoffending and for which concurrent sentences were imposed. Here there is only the one offencefor which a starting point is required so there is nothing to adjust.32 The arithmetical result is 5.5 months, which I have rounded down to five months.33 See s 4 of the Sentencing Act 2002 for the definition of "short-term sentence"; see also Parole Act2002, s 4 definition of "short-term sentence", both of which identify a short-term sentence as asentence of less than 24 months' imprisonment.34 see s 8(g) of the Sentencing Act 2002.[41] The sentence of 18 months' imprisonment is set aside. In substitution Mr Valeis sentenced to eight months' imprisonment.[42] The special release conditions imposed by the Judge in the District Courtremain in effect.Duffy J