HAMILTON v NEW ZEALAND POLICE [2016] NZHC 938

HAMILTON v NEW ZEALAND POLICE [2016] NZHC 938 [10 May 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000019[2016] NZHC 938BETWEEN DION JOHN HAMILTONAppellantAND NEW ZEALAND POLICERespondentHearing: 10 May 2016Appearances: P Johnson and S Teki-Clark for AppellantD L Elsmore for CrownJudgment: 10 May 2016ORAL JUDGMENT OF DUNNINGHAM J[1] Mr Hamilton was sentenced to two years and nine months' imprisonment inthe District Court for 23 charges of dishonesty related offences.1 He appeals that sentence on the basis that it was manifestly excessive.[2] In his notice of appeal he says the Judge did not place enough weight on theappellant's attempts to rehabilitate himself. However, in counsel's legal submission, that ground has been expanded upon to explain that the Judge did not give discrete, and sufficient, discounts for the various mitigating features relating to the offender, including his co-operation.Mr Hamilton's offending[3] The offending took place between 22 June and 24 August 2015 when the defendant was involved in a spree of residential burglaries in the Auckland area. He committed 19 separate burglaries and stole property in excess of $100,000. Very little of the property was recovered or returned to the victims.1 Police v Hamilton [2016] NZDC 2850.[4] On 22 June 2016, an address in Auckland was burgled and an ASB paywave bankcard was taken. This was later obtained by the defendant and used to make seven purchases around the Auckland area. In addition, a set of six keys for a property in Mangere were taken in a burglary in August 2015. These were found by the police, hidden under the defendant's mattress during the course of the searchwarrant for which he was charged with receiving.[5] On 26 June 2015, there was a burglary of a residential address in Auckland. Later that day the defendant received two jewellery boxes valued at $500 which had been stolen in the burglary. The defendant admitted committing all the burglaries and using the stolen bankcards to purchase cigarettes. He admitted he received the set of keys and was paid $50 by an associate to hide the keys under his mattress.[6] The appellant was arrested on 1 September 2015 on a number of the burglaries. During interviews with the police he made full admission to the burglaries he was subsequently charged with and assisted the police with their enquiries.Sentencing[7] The appellant pleaded guilty to the various charges on 27 November 2015 at the Manukau District Court and was transferred to the Christchurch District Court for sentencing on 23 February 2016.[8] When sentencing Mr Hamilton, Judge Couch summarised the 23 convictions and adopted the 19 convictions for burglaries as the lead offences, noting that these carried a maximum penalty of 10 years' imprisonment.[9] As aggravating features, Judge Couch took into account the nature of the premises, being private dwellings, and the quantity and value of the property stolen. Furthermore, he acknowledged the distress and emotional harm of the victims caused by this spree of dishonesty offending. Many of the items stolen were of little value to the appellant, but were of great value to the victims. For example, the defendant stole a Russian passport which the victim had to go through considerable expense to replace. There was also jewellery stolen that carried significantsentimental value to the owners. Many of the victims developed a fear of invasion of their property and have spent money on security systems which they could ill afford. Indeed the Judge said that the victim impact statements made "very difficult reading".[10] Judge Couch described the offending as a "spree" which was undertaken for personal gain and to support the defendant's drug habit.[11] He concluded that a three year, four month starting point was warranted. He then took account of the fact that the offending was premeditated, which was an aggravating factor, and uplifted that starting point by six months.Jurisdiction on appeal[12] Mr Hamilton appeals to this Court as of right.2 Under s 250 of the Criminal Procedure Act 2011, the appeal must be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should beimposed. It is well accepted that where a sentence is "manifestly excessive" that isan error which would justify allowing an appeal.3 Furthermore, whether a sentenceis manifestly excessive "is to be examined in terms of the sentence given, rather thanthe process by which the sentence is reached".4Submissions for the appellant[13] In terms of the starting point, counsel for the appellant accepts that thestarting point imposed for Mr Hamilton (three years four months' imprisonmentuplifted to three years 10 months) was an appropriate starting point. I agree that the starting point is readily justified having regard to the gravity and the extensiveness of the offending, and in light of the authorities that are discussed in both the appellant's and respondent's submissions. Indeed I would say, given the extent of the "spree", it was arguably lenient and my decision will focus on the appropriateness of the discounts that are then applied to the starting point.2 Criminal Procedure Act 2011, s 244.3 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].4 Larkin v Ministry of Social Development [2015] NZHC 680 at [26].[14] Counsel for the appellant notes that the District Court Judge reduced the starting point by 13 months in consideration of the mitigating features which included the prompt guilty pleas, a measure of remorse, previous good record and the imposition of restrictive bail terms, including a 24 hour curfew, for more than two months. Counsel says that represents a total discount of little more than the 25 per cent that was available on the early guilty pleas alone, and thus the Judge failed to sufficiently account for any of the remaining mitigating features.[15] In that regard, he considers that further discrete discounts should be included to reflect:(a) Mr Hamilton's previous good record;(b) the fact Mr Hamilton was on restrictive bail conditions for over two months;(c) the fact Mr Hamilton demonstrated remorse as recorded in his pre-sentence report and his genuine efforts at rehabilitation; and(d) Mr Hamilton's youth (he was 20 years of age at the time of his offending).Each of these factors, the appellant argues, should justify a discrete five per cent discount.[16] A further factor justifying a discount is the failure to recognise thedefendant's co-operation with the police, which enabled the clearance of 14 further burglaries in addition to the five he had originally been charged with because he admitted to them.[17] In advancing this ground, counsel referred to observations by Panckhurst J inSell v Police,5 about the assistance given by the appellant in that case to "clearance"of unresolved crimes. In Sell, Panckhurst J said:65 Sell v Police [2013] NZHC 3455.Eight of the 12 offences of burglary were before the Court as a result of the appellant having confessed to his involvement in them when interviewed by the police. Hence, said Mr Young, this was not just a case of co-operation when interviewed, but a case of the kind recognised in Senior where a person involved in a spree of burglaries had admitted his complicity in a significant number of them, with the result that he was before the Court for significantly more offences than would otherwise have been the case. As the full Court recognised, this is often a feature of burglary cases and one which requires express recognition at sentencing because of the advantage to the police, and potentially to others, of offences being cleared in this manner.[18] In this case counsel for the appellant notes that there was a considerable measure of assistance provided to the police, and it is analogous to that in the cases of Senior and Sell, as the appellant disclosed a further 14 burglaries following his arrest.7 There is nothing in the sentencing notes that indicate that this factor was taken into consideration. Counsel for the appellant submits that this is a significant mitigating factor that should be afforded a discount in the range of five to 10 per cent. Taking all those discounts into account, counsel for the appellant submits that an end sentence in the range of two years would be appropriate.[19] The respondent's written submissions focused on the more limited issue set out in the notice of appeal, which was whether the District Court Judge had failed to take account of the defendant's attempts at rehabilitation. In response, it was notedthat the District Court Judge has expressly referred to the defendant's expression ofremorse as contributing to the credit given for that and an early guilty plea. In terms of rehabilitation, while the pre-sentence report records a cessation of drug and alcohol use, from shortly after arrest, the respondent says this cessation was to beexpected as a consequence of the restrictive terms of the appellant's bail and it is notsurprising that further credit was given to this factor.[20] Today, counsel for the respondent acknowledges that the level of co-operation is a further factor which can justify a discount in sentencing and that could be in the range of five to 10 per cent. However, she also notes that the overall sentence should be taken into account and, even with the Judge's failure to takeaccount of this as a mitigating factor, the end sentence fairly reflects the offending and the various factors in the Sentencing Act.6 At [11].7 Senior v Police (2000) 18 CRNZ 340 (HC).Discussion[21] The Judge has chosen to deduct a global discount of 13 months, to represent the early guilty pleas, a modest credit for remorse (noting he questioned how deep and serious the appellant's remorse really was), his lack of previous convictions and the fact that he had been on a 24 hour curfew for more than two months.[22] I accept that the discount given by the Judge, of 13 months, represents an overall discount of nearly 28 per cent. However, that does not mean he got little more than his 25 per cent discount for a guilty plea, as that is to be taken off the sentence once it is adjusted for the other mitigating factors. In this case, if, say, three months were taken off the sentence for the factors identified by the Judge, which is approximately 6.5 per cent for the factors identified by him, then the further discount of 10 months for the guilty pleas is a discount of approximately 22 per cent. While I accept some factors such as youth were not expressly referred to, overall, given my view that the starting point could have been even higher in light of the extent of the offending, I cannot say the discounts applied for the factors referred to (if accounted for sequentially) are inappropriate.[23] However, I do accept the appellant's submission that a further discount is required for the appellant's co-operation with the police and that was not considered by the Judge. That should be a separate consideration from the requirement to acknowledge the benefits of an early guilty plea. I consider there are strong policy reasons to encourage defendants to assist in resolving crimes which would be unlikely, but for the confession or the admission, to be resolved. Burglary is a crime with a notoriously low clearance rate, and the co-operation of the defendant in this case meant significantly more burglaries than he was initially charged with were resolved as a result of his assistance. I consider that the defendant should receive express credit for this assistance which is separate from the credit for the matters already discussed and from the credit for the guilty pleas on the offences he was originally charged with.[24] Thus, in addition to the three month discount (which is what I have calculated it to be) for the mitigating factors before the guilty plea, I would apply a furtherfour months' discount (which represents a further discount of almost nine per cent on the starting point). I would then apply a discount for the guilty plea of nine months (which reflects about a 23 per cent) to reach an end sentence of 30 months.[25] Thus, having regard to the totality of the offending, but in light of the mitigating factors discussed, I consider that end sentence of two years six months is appropriate.[26] Accordingly, the appeal is allowed. The sentence of two years and nine months is set aside and a sentence of two years six months is imposed in its place.Solicitors:Public Defence Service, ChristchurchRaymond Donnnelly & Co., Christchurch