SULLINGS v NEW ZEALAND POLICE [2017] NZHC 601

SULLINGS v NEW ZEALAND POLICE [2017] NZHC 601 [28 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000014[2017] NZHC 601BETWEEN FRAN PATRICIA SULLINGSAppellantAND NEW ZEALAND POLICERespondentHearing: 28 March 2017Appearances: C M Yardley for AppellantS J Mallett for RespondentJudgment: 28 March 2017ORAL JUDGMENT OF GENDALL JIntroduction[1] On 20 July 2016, the appellant was sentenced by Judge Kellar in the District Court to two years and one month imprisonment on one charge of burglary. The appellant appeals the sentence on the basis that it is manifestly excessive, considering what are said to be the unique circumstances of the offending here.Facts[2] On 8 April 2016, at about 6:30 p.m. the appellant entered the victim's homewhile the victim was out. The appellant piled up food from the pantry and othervarious items into boxes. She drank Vodka and consumed ice-cream that the victimhad in the house. Inexplicably she had also poured medication, used to treat thevictim's infant daughter who has Cystic Fibrosis, down the sink. She also wentthrough wardrobes and bathrooms and removed other items from the house. Thevictim returned home around 10.00 pm to find the appellant in the house. Thevictim, a young teenage mother, told her to leave. When the victim confronted theappellant, the appellant told the victim she would "Smash her" and then left theaddress.[3] The appellant seems to have been acting at the time under the influence ofdrugs and explained to the victim that she thought she was helping her grandfatherpack up his house.District Court decision[4] Judge Kellar in the District Court considered that the two main aggravating circumstances of the appellant's offending here were the sense of violation thatcomes from the burglary of someone's home and the harm that has resulted, and theappellant's numerous convictions for burglary and other dishonest offending. The Judge noted that Corrections assessed the appellant as being at high risk of reoffending. He considered here that the relevant applicable sentencing principles were the need to denounce and deter the offending, and to hold the appellant accountable for it. He highlighted the need to protect the community from a regular burglar. The Judge did note that the appellant had taken responsibility for the offending and expressed remorse for the harm caused to the victim[5] In the District Court a starting point of two years and nine months'imprisonment was adopted to reflect the overall seriousness of the offending, and theappellant's previous dishonesty offending. Judge Kellar considered that theappellant's entry of a guilty plea on her second appearance warranted full credit, or something near to it. This resulted in a sentence of two years and one month imprisonment.[6] Finally, Judge Kellar noted that, even if the ultimate sentence had been shorter, a sentence of home detention would not have achieved the relevant sentencing objectives in this case.Principles on appeal[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 (CPA), and must be determined in accordance with s 250 of thatAct. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 It is only appropriate for this court to intervene andsubstitute its own views if the sentence being appealed is "manifestly excessive" andnot justified by the relevant sentencing principles.2Leave to appeal out of time[8] Leave to appeal out of time is sought here. Section 248 Criminal Procedure Act requires a notice of appeal to be filed within 20 working days after the date of the sentence appealed against. The sentence in question here was entered on 20 July 2016. However the notice of appeal was not filed until 2 February 2017, around five months out of time. The applicant's notice of appeal explains that the extension of time sought arises because of issues with the appellant filing for legal aid andcounsel's other commitments.[9] The overriding consideration for a court in deciding whether to grant an extension of time for filing an appeal is whether the interests of justice support an extension. Weight will also be given to the appeal's merits.3 It can also be relevant that the respondent does not take issue with granting leave.4 Here, the respondent says it is neutral on whether an extension should be granted.[10] Given that the respondent does not object to leave being given, and what I see as the importance of the rights at stake here, leave to appeal out of time is granted.Submissions[11] The appellant submits that the sentence was manifestly excessive when considering the unusual and it is said the "bizarre" nature of this burglary, a burglary which the appellant suggests is not a normal commercial burglary. Counsel suggests it was simply a drug-fuelled escape. Counsel for the appellant does concede that the sentence is within range, considering particularly the appellant's extensive history of1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Ripia v R [2011] NZCA 101 at [15].3 Mikus v R [2011] NZCA 298 at [26].4 Tekira v Police [2014] NZHC 700.burglaries and dishonesty offending. Counsel submits however that Judge Kellarshould have viewed the burglary as "an out of the usual" type and have putrehabilitative needs more to the forefront. The appellant contends here that home detention, as recommended by probation, should be imposed instead of imprisonment.[12] The respondent submitted before me that the starting point of two years and nine months was not manifestly excessive. Counsel points to the Court of Appeal's statement that "Dwelling house burglaries at the relatively minor end of the scaletend to attract a starting point of approximately 18 months to two years and sixmonths imprisonment."5[13] The respondent suggests that the starting point was appropriate and in the range because of a number of aggravating factors:(a) The fact of an actual confrontation between the appellant and the victim;(b) The appellant's threat to smash the victim;(c) The appellant's decision to pour medication down the sink; and(d) The negative effects of the offending on the victim, who states she no longer feels safe at her own property.[14] Judge Kellar also took into account the appellant's criminal history, which included 17 previous convictions for burglary, when setting the starting point, rather than applying a separate uplift. The respondent maintains that an uplift of around three to six months would have been available to the Judge. On the basis of these factors, the respondent says that the sentence was within range and I agree.5 Arahanga v R [2012] NZCA 480 at [78].Analysis[15] I accept that counsel for the appellant is correct in asserting that the particular facts of the offending here were unusual and they did not contain many of the features of a typical burglary. However, it was still a burglary and, as the respondent has highlighted, there were a number of serious features involved. These factors, such as the confrontation and the intimidating interaction with the victim, the pouring of the medicine down the sink, and the lasting effects of this offending on the young victim, as I see it, entitled the Judge to treat it seriously.[16] The appellant's extensive and unenviable offending record, including 17 previous burglary convictions, must also be taken into account when sentencing. I agree with the respondent that an uplift in the range of three to six months was available.[17] Overall, the appellant's submissions have not shown that the sentence is out of range and, in fact, counsel has conceded that it is within range. The starting point of two years and nine months was therefore appropriate.[18] No challenge has been made to the discount of eight months for theappellant's guilty plea (which was effectively a discount of 24.24 percent).Conclusion[19] The appellant has not demonstrated that the sentence of two years and one month is manifestly excessive or that it is not within the range available to the Judge here. No error has occurred in the imposition of this sentence. Nor in all the circumstances should a different sentence have been imposed. Therefore this appeal is dismissed.[20] In giving this decision, one further matter needs to be mentioned. I note from the submissions advanced to me by Ms Yardley for the appellant that Ms Sullings, it is said, has a severe drug and alcohol dependency condition. If that is the case, I express the view that at an appropriate point Ms Sullings has rehabilitation treatment and assistance made available to her.[21] A direct that a copy of this judgment is to be made available to Community Corrections and the prison and probation authorities and the Parole Board....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopy to:Clare Yardley, Christchurch