COOK v NEW ZEALAND POLICE [2019] NZHC 2327

COOK v NEW ZEALAND POLICE [2019] NZHC 2327 [16 September 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-27[2019] NZHC 2327BETWEEN DESI JAMES COOKAppellantAND NEW ZEALAND POLICERespondentHearing: 6 September 2019Appearances: W R Hawkins for the AppellantF E Cleary for the RespondentJudgment: 16 September 2019JUDGMENT OF CULL J[1] Mr Cook appeals his sentence of two years six months' imprisonment for onecharge of burglary and a number of dishonesty-related offences. Mr Cooke appealshis sentence on the grounds the starting point was too high and the guilty plea discountwas insufficient.[2] On 19 June 2019 Mr Cook was sentenced in the District Court at Hastings totwo years two months' imprisonment in respect of the following charges:1(a) One charge of burglary;2(b) Five charges of theft under $500;31 New Zealand Police v Cook [2019] NZDC 11811.2 Crimes Act 1961, s 231(1)(a) and s 66; maximum penalty 10 years' imprisonment.3 Sections 219 and 223(d); maximum penalty three months' imprisonment.(c) Two charges of receiving stolen goods under $500;4(d) One charge of possession of methamphetamine pipe;5 and(e) One charges of using a document for pecuniary advantage.6[3] For the burglary conviction, the District Court Judge adopted a starting pointof two years' imprisonment, uplifted by three months for the other offending, and threemonths for Mr Cook's extensive criminal history.7 Mr Cook suggests an appropriateend sentence would not exceed two years' imprisonment. The Crown submits thestarting point and guilty plea discount were entirely orthodox and the end sentencecannot be described as manifestly excessive.Factual background[4] On Saturday 1 September 2018, Mr Cook was staying in a room at a lodge inHastings. Police executed a search warrant in the room. In Mr Cook's bedroom,police located two wrist watches previously stolen from a vehicle on the premises.The owner of these watches had also already recovered a number of stolen itemsbelonging to him from Mr Cook's room in the days prior. Those items included sixhunting knives, a wrist watch and a set of keys that opened secure areas of the Lodge.Police also located a black sunglasses case containing a glass pipe. In explanation, MrCook admitted he had the stolen items in his possession but claimed to have beengiven them, or found them outside the building. He also said the pipe was not his.[5] Sometime between 6.30 pm on Saturday 20 October 2018 and 6.55 pm onSunday 21 October 2018, Mr Cook was at an orchard in Hastings. He went to a utilityvehicle parked on the property and took a bank card from a wallet inside. From therear of the car he took a petrol container and a cordless battery drill. Mr Cook thenwent to a liquor store in Hastings and used the stolen bank card to purchase alcohol.4 Sections 246 and 247(c); maximum penalty three months' imprisonment.5 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year's imprisonment or $500fine.6 Crimes Act 1961, s 228(b); maximum penalty seven years' imprisonment.7 New Zealand Police v Cook, above n 1, at [3].[6] On Saturday 27 October 2018, Mr Cook was at a school in Hastings. He gainedentry to the school shed by forcing the bolts off the main door. He left the shed, takinga petrol container with him and placed it in a nearby bush. He then walked around theschool and spoke to some children playing on the grounds. He later returned to theshed and uplifted the petrol container and left the school.[7] On Monday 12 November 2018 between 7.50 am and 5.00 pm, Mr Cook wasat an address in Napier. He gained entry to the house through the laundry door at therear of the property, damaging the door as he did so. Mr Cook removed several itemsfrom the house, including sneakers, electronics, food, and a sleeping bag. The itemsare together valued at $5,574.[8] On Monday 3 December 2018, Mr Cook was at The Warehouse in Dannevirke.Mr Cook took a drone from the shelf, valued at $199. He also took various other itemsat a value of $397, and left without paying.[9] On Thursday 13 December, Mr Cook was again at The Warehouse inDannevirke. He took various items valued at $99 from the shelves, concealed themon his person, and left without paying.District Court decision[10] Mr Cook pleaded guilty to all charges on 19 June 2019 and was sentenced thesame day.8 The Judge noted the burglary charge "rather alters the sentencinglandscape" as it carries a large maximum penalty in comparison to the other charges.Citing Arahanga, he observed the starting point for burglary is between 18 monthsand two and a half years.9 He characterised the offending as marginally more seriousthan either of the two burglaries for which Mr Cook was sentenced to 21 months'imprisonment, as there was forced entry to the house and high value property wasstolen. He adopted a starting point of two years' imprisonment.108 New Zealand Police v Cook, above n 1.9 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.10 At [3].[11] The Judge then uplifted three months for Mr Cook's criminal history anduplifted three months for all other charges. That brought the sentence to two years sixmonths' imprisonment. He then applied a moderate discount for his guilty plea,discounting four months, or 13 per cent. That reduced the sentence to two years twomonths' imprisonment. The Judge also declined reparation on the grounds it wasbeyond any real prospect of being met by Mr Cook.11Approach to appeal[12] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[13] A sentence appeal is an appeal against a discretion and only if there is an errorof principle should the appellate court re-exercise the discretion. An error of principleincludes an error of fact or law, failing to take into account a relevant consideration,or if the decision was plainly wrong.12 The focus is on the final sentence and whetherthat was in the available range, rather than the exact process by which it was reached.13AnalysisGround one: starting point too high[14] For Mr Cook, Mr Hawkins submits the appropriate starting point for MrCook's offending was 18 months' imprisonment. Both counsel provided a number ofauthorities with "broadly similar offending". Ms Cleary, for the Crown, referred to Rv Nguyen, where the Court of Appeal provided guidance as to factors to consider whendetermining the "criminality" of a burglary charge:1411 New Zealand Police v Cook, above n 1, at [5].12 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].13 Ripia v R [2011] NZCA 101 at [15].14 R v Nguyen CA110/01, 2 July 2001.[17] As we said in Mako, with reference to aggravated robbery, it isnecessary to consider the combination of factors surrounding the offendingconduct. In burglary cases, these include the degree of planning andsophistication in the offending, the nature of the premises entered, the kindand value of property stolen, damage done, the impact and potential impactupon occupants or owners of property, and the extent of the offending wheremultiple burglaries are involved.[15] More recently, the Court of Appeal in Arahanga v R stated that the Court hasdeliberately not set a tariff for burglary because the range of circumstances in whichthe offence can be committed are so varied.15 The Court said further that burglary ofa domestic residence is a significant aggravating feature at sentencing, due to theheightened risk of confrontation with the occupants.16 The Court then said thatdwelling house burglaries at the relatively minor end of the scale tend to attract astarting point of approximately 18 months to two years and six months'imprisonment.17[16] There are four authorities in particular which I consider have comparable factsto the present offending, and I set them out as follows:Case Charges StartingpointAggravatingfeaturesToala v NewZealand Police18Burglary; plus familyviolence chargesBurglary of aresidential home,during the day. Entrygained by kicking intwo glass panels on thefront door, withdefendant cuttinghimself in the processand trailing bloodthroughout the house.Electronic items stolento the value ofapproximately $5000.High Court'sstarting pointon appeal –two years'imprisonmentOffending was inthe middle of theArahanga range,with damage toproperty and theftof valuable items.Tawhara v NewZealand Police19One charge burglaryAccess gained to aresidential houseHigh Court'sstarting pointon appeal –15 Arahanga v R, above n 9.16 At [78].17 At [78].18 Toala v New Zealand Police [2013] NZHC 3270.19 Tawhara v New Zealand Police [2015] NZHC 2246.through an unlockeddoor and theft of awidescreen TV. NoPCs for burglary, butfive previousdishonesty-relatedoffences.Mr Tawhara hadpreviously beenboarding at theaddress, and claimedhe had loaned thevictim money shewould not repay.18 months'imprisonment.McFall v NewZealand Police20Two charges ofburglary; plus otherrelated chargesBurglaries committedduring the day withitems of value taken –passports andelectronics. Entrygained by smashingwindow.High Court'sstarting pointon appeal –one year ninemonths'imprisonment.There were twoburglaries, both ofwhich weredomesticproperties; the riskof confronting theoccupants, the factthe burglarieshappened duringthe day, and thenature of the itemstaken.Stepanicic v R:21 Two charges ofburglary; plus one ofcausing grievousbodily harmBoth burglaries tookplace at night when thevictims were home.Items stolen – clothing,keys, wallets, andelectronics.Court ofAppeal'sstarting point– two years'imprisonment.Victim impactstatements revealthere was asignificant effecton the peace ofmind of theoccupants.[17] In the present case, the offending took place during the day, but there wasforced entry and damage to the door. Further, the property was residential and thecombined value of the items taken in the burglaries was significant, valued at just over$5,500. Those are all aggravating features to this offending.[18] Having considered the range of authorities provided by both counsel, I considerMr Cook's offending falls in the middle of the Arahanga range of 18 to 30 months'20 McFall v Police [2015] NZHC 2095.21 Stepanicic v R [2015] NZCA 211.imprisonment. It has a strong similarity to the facts in Toala v New Zealand Police.It is less serious than Stephanicic v R, but more serious than Tawhara v New ZealandPolice, and a starting point of two years' imprisonment was consistent with theauthorities. I do not consider, therefore, that the Judge erred in the two year startingpoint he adopted.Ground two: insufficient discount for guilty plea[19] The Judge discounted four months, or 13 per cent, for his guilty plea, notingthat Mr Cook originally pleaded not guilty to the lead charge of burglary. On thatbasis, the Judge said a moderate discount is required.22[20] Mr Hawkins accepts the entry of a guilty plea was delayed, but argues that adiscount in the range of 20 per cent should have been awarded. Mr Hawkins explainsthat Mr Cook was originally charged with two charges of burglary, and after the notguilty pleas were entered, one of the charges was amended to theft on 26 April 2019.Mr Hawkins argues, and I accept, that there was obvious merit in pleading not guiltyto the second burglary charge, as the charge was later reduced to theft.[21] Thus, Mr Cook had been charged with the offences on 7 September 2018, 18December 2018 and 8 January 2019. His guilty plea to the lead offence of burglarywas entered on 19 June 2019, two months after the amendment of the former burglarycharge. While Mr Cook did not plead guilty at the earliest opportunity, the entry ofguilty pleas followed an important process, where the charging of the offences wasreassessed and resulted in an amendment of a burglary charge to one of theft.[22] Although no percentage was put on the "moderate discount" by the Judge, infact it was a 13 per cent discount, which was open to him, particularly given it was onMr Cook's tenth appearance that the guilty plea was entered. Even if I were mindedto grant a greater discount, I bear in mind that the ultimate assessment is whether thesentence is manifestly excessive in all the circumstances. For the reasons I canvassunder ground three, I do not consider the Judge's moderate discount for guilty pleawas in error.22 New Zealand Police v Cook, above n 1, at [3].Ground three: manifestly excessive in all the circumstances[23] Mr Hawkins submits that there appears to be no reference to broadersentencing principles in the decision, such as the need to impose the least restrictiveoutcome or the need to promote the rehabilitation of Mr Cook. He argues that hadexplicit reference to those principles been made, a sentence of two years'imprisonment or less would have been imposed.[24] Although the Judge did not explicitly make reference to the principles ofsentencing, he clearly took into account Mr Cook's previous offending, noting that hewas recently sentenced to 21 months' imprisonment. The Judge observed that MrCook was beginning to "fall into the category of recidivist burglar and thief at the ageof 32".23 In doing so, the Judge was plainly aware that, with a sentence of two yearsand two months' imprisonment, Mr Cook would come to the notice of the Parole Boardwhen a third of his sentence had elapsed. The Judge expressly stated that the Board"will fix such conditions as are appropriate around his release".24 He also notedcounsel's submissions that Mr Cook was detoxifying and making good progress. TheJudge said further that the Parole Board would be interested to have that confirmed atthe appropriate time.25[25] Mr Hawkins repeated the submission that an end sentence of less than twoyears would be the least restrictive sentence that the Court could impose, because MrCook would be released after serving half the sentence. However, serving the leastrestrictive sentence is but one of the sentencing considerations.[26] On a perusal of Mr Cook's previous convictions, I consider it is understandablethat the Judge had concerns about Mr Cook's recidivism. He had just recently beensentenced to 21 months' imprisonment, and was released on the standard releaseconditions. Ms Cleary brought to my attention that Mr Cook committed these offencesunder consideration while he was under his release conditions.23 New Zealand Police v Cook, above n 1, at [2].24 At [4].25 At [4].[27] I accept Ms Cleary's submission that Mr Cook's appearance before the ParoleBoard to check on his progress and to fix appropriate conditions will benefit Mr Cook,particularly in his reintegration and rehabilitation within the community. These areimportant factors in sentencing. Although the Judge did not expressly refer to MrCook's rehabilitation or reintegration, I consider this was at the forefront of the Judge'smind when he imposed the sentence of two years and two months' imprisonment,because he was concerned about the recidivist behaviour. I have reached theconclusion that Mr Cook's sentence is not manifestly excessive in the circumstances.Result[28] The appeal is dismissed.Cull JSolicitors:Bramwell Bate, Hastings for the AppellantElvidge & Partners, Napier for the Respondent