BYLES v NZ POLICE [2016] NZHC 56

BYLES v NZ POLICE [2016] NZHC 56 [3 February 2016]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI 2015-443-00049[2016] NZHC 56BETWEEN ERRON JAMES BYLESAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2016Counsel: J C Hannam for AppellantS J Simpkin for RespondentJudgment: 3 February 2016JUDGMENT OF SIMON FRANCE J(Appeal against sentence)Introduction[1] The appellant pleaded guilty to one charge of burglary.1 He appeals thesentence of two years and six months' imprisonment.Offending[2] Mr Byles attended the scene accompanied by his partner.2 He alone went inside by forcing open a window, having previously failed in his efforts to open a door. The house was occupied by its two owners, one of whom confronted the partner parked outside. This led to Mr Byles leaving the property without removing anything.1 New Zealand Police v Byles [2015] NZDC 23828.2 She is charged with the same offence but denies she was involved. The trial has not yet taken place.Offender[3] Mr Byles is 35 years old. He has a bad history of past offending involving 99 convictions and 56 terms of imprisonment. Of these, eight are for burglary, the latest being 2008. That said, there have been 16 convictions since then, including robbery, being in an enclosed yard, demands to steal, threats to do various violent acts, and male assaults female (x2), as well as driving offences.Sentencing[4] The Judge took a starting point of three years' imprisonment, added sixmonths for past offending, and then discounted the total by one year for the plea and the fact there was minimal damage caused and no goods taken.3Decision[5] The key question is always whether the outcome is within range. Here a six month uplift for this criminal history, including the fact that Mr Byles was at the time of the offending both on release conditions and subject to a sentence of community work, was by no means stern. Up to a year could have been expected in a case where considerations not only of deterrence but of protection of the public loom large.[6] As regards these concerns Mr Hannam points to material that suggests Mr Byles is at last seeking to break this offending cycle he has long been in. There are legitimate third party observations of a new-found commitment, tempered (as is often the case) by the reality that for now it is manifested only by words. The objective facts show no change at all in a persistent and somewhat violent pattern of behaviour.3 It is common ground these matters have been incorrectly considered as part of personal mitigation.[7] Important to the success of the appeal is the correctness of Mr Hannam'ssubmission that the starting point should have been 18 months rather than three years. The respondent has pointed to cases where a figure higher than 18 months has been taken, but in my view the balance of authority favours Mr Hannam'sproposition.4 This was a single burglary of a dwelling during the day where no goods were taken and minimal damage caused. It is aggravating that the occupants were present, but overall a figure nearer the bottom of the range for one residential dwelling burglary was to be expected, especially given nothing was stolen.[8] The respondent suggests an aggravating factor was the presence in Mr Byle'scar of his young children. It is an unappealing feature, but not really a matter for uplifting a sentence. The young children were not at risk and would have no awareness of what was happening. Pre-meditation is also suggested based on the use of a jemmy, but that is more to suggest the offending was not spontaneous rather than involving the sort of planning the Act is aimed at. Finally I do not consider one can sentence on the basis there were multiple offenders when the other accused claims her presence was innocent.[9] In my view, however one constructs the package, 30 months was the highest available for the offence and aggravating factors. A discount for the guilty plea would then leave a final sentence of 22.5 months. However, at the appeal Mr Hannam proffered a cheque of $400 reparation. This is a genuine effort on behalf of a person in Mr Byles' position and merits recognition both for its sum, and also for what it says about the commitment to change.[10] The appeal is allowed, the sentence is quashed and in its place I impose a sentence of 21 months' imprisonment, together with an order for reparation of $400 to be paid immediately.__________________________Simon France JSolicitors:Hannam and Co Lawyers Ltd, New PlymouthCrown Solicitors, New Plymouth4 In Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 the Court of Appeal described the lower end of the range for this type of offending as 18–30 months.