FIELDING v R [2021] NZHC 2753

FIELDING v R [2021] NZHC 2753 [14 October 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-441-22[2021] NZHC 2753BETWEEN GRAEME PRICE FIELDINGAppellantAND THE QUEENRespondentHearing: 12 October 2021 (by AVL)Appearances: S Yee for AppellantJ Eng and H Cunningham for RespondentJudgment: 14 October 2021JUDGMENT OF ISAC JIntroduction[1] Mr Fielding was sentenced to two years and eight months' imprisonment on acharge of burglary. He now appeals that sentence.The offending[2] On the 27 April 2020, Mr Fielding was at home with his partner, who was alsothe co-offender. They lived in a block of four flats.[3] The victim lived on her own in an adjacent flat.[4] Mr Fielding and his partner saw the victim leave her home at approximately8 pm. It appeared she was going away overnight.[5] After she had left Mr Fielding gained entry to the victim's flat through aninsecure window. Once inside he searched every room. He pulled out all the drawersand emptied their contents onto the floor. He did the same with cupboards. Clothingand personal items were strewn across the floors throughout the flat.[6] Mr Fielding's partner remained outside and helped transport items of value intotheir flat, and assisted Mr Fielding to dispose of items later.[7] The belongings stolen included cosmetics, medicines, cash (approximate$1300), credit cards, passports, alcohol, presents, some clothing, and personal papersfrom throughout the home. The victim's entire jewellery drawer was taken. Itcontained a large amount of jewellery and related items, including medals which hadbelonged to the victim's grandfather. It included a valuable collection of ringsinherited from the victim's grandmother. Several pearl necklaces, crystals andpounamu pieces were also taken.[8] Other items taken included a 42-inch television, two laptops, old cell phones,headphones and spare keys.[9] The victim returned to her home on Tuesday 28 April. Mr Fielding approachedher and tried to speak with her before she gained entry to her home. The summary offacts described his behaviour as "agitated, fidgeting and pacing". Once she gainedentry the victim discovered the burglary and called the Police.[10] A limited number of items were recovered but not, it seems, any items ofsentimental or financial value. The value of the property taken was at least $30,000.The victim was uninsured.District Court judgment[11] After outlining the relevant facts, the Judge noted Mr Fielding had a lengthylist of previous convictions including seven for burglary.1 He noted that, as far as thecommunity is concerned, the one offence New Zealanders "really have just completely1 R v Fielding [2021] NZDC 14887 at [11].tried of" is having their homes broken into and coming home and seeing their homesnot only trashed, but all items of value and of sentimental value have been taken.2 TheJudge then referred to the Court of Appeal's decision in Arahanga v R3 before notingthat the normal range for a sentence involving burglary at a residential home isbetween 18 months and two and a half years' imprisonment.4[12] After noting that Mr Fielding's counsel had urged a starting point of21 months,5 in light of aggravating factors such as premeditation and what wasdescribed as a "particularly mean burglary", the Court concluded that a starting pointof two and a half years was appropriate.6[13] Given Mr Fielding's previous convictions, an uplift of six months for previousoffending was appropriate, relying on Makene v R.7[14] From an overall sentence of 36 months' imprisonment, a ten per cent deductionon account of a late guilty plea was appropriate. Accordingly, a sentence of two yearsand eight months was imposed.8This appeal[15] On behalf of Mr Fielding, Mr Yee advances no less than six grounds of appeal.He submits:(a) aggravating factors were double countered or wrongly taken intoaccount;(b) the starting point was too high;2 At [14].3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.4 R v Fielding, above n 1, at [15].5 At [16].6 At [19]. The Judge considered the burglary was "particularly mean" because "We live in acommunity. We have been through a pandemic where the Prime Minister urged people to all co-operate, to be a team of five million. Someone who burgles their neighbour is the antithesis ofsomebody who wants to live in a society which is a team of five million."7 Makene v R [2013] NZCA 178.8 At [25].(c) the uplift of six months was disproportionate;(d) there was no discount applied for personal mitigating factors;(e) there was a failure to have regard to the requirement to impose the leastrestrictive outcome in the circumstances; and(f) no discount was provided to reflect the hardship the sentence ofimprisonment will have on Mr Fielding's mother, who was dependenton his care before his incarceration.[16] Following sentencing Mr Fielding obtained a lengthy s 27 report setting outimportant information about Mr Fielding's family background and drug addiction. TheCrown did not oppose an application to adduce that material as fresh evidence onappeal. Given its importance to the disposition of the appeal I grant leave for itsadmission.Approach on appeal[17] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldhave been imposed.9 A court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles.10 It is only appropriatefor this Court to intervene and substitute its own view if the sentence being appealedis "manifestly excessive".11[18] The focus is on the final sentence and whether that was in the available range,rather than the exact process by which it was reached.129 Criminal Procedure Act 2011, ss 250(2) and 250(3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].11 Ripia v R [2011] NZCA 101 at [15].12 At [15].Discussion[19] Three of the six grounds of appeal were the focus of argument. Two others —the starting point and uplift — can be dealt with briefly.[20] The starting point adopted by the Judge was well within the available range. Astarting point in excess of two and a half years' imprisonment could not have beencriticised.13 Arahanga v R noted that the range of starting points between 18 monthsand two years six months' imprisonment was applicable to "dwelling house burglariesat the relatively minor end of the scale". Mr Fielding's offending was not at the minorend. In fact, there were at least two of the Nguyen factors present that suggest a startingpoint above two and a half years was warranted:14(a) First, the nature and value of property taken. The victim lostirreplaceable family items such as her grandfather's war medals and hergrandmother's rings. The impact of that loss on her is obvious. And inaddition, the overall value of the items stolen was at least $30,000.(b) Second, I agree with the Judge that this was a "particularly meanburglary"; the victim's home was ransacked. While it does not appearthat there was damage done to the dwelling itself, it is clear thatMr Fielding was completely indifferent to her expectations of privacyand safety within her own home. That has increased the harm to thevictim.[21] Turning to the appropriate uplift, given Mr Fielding's extensive criminalhistory for dishonesty, including seven previous convictions for burglary, an uplift of20 per cent of the starting point was not disproportionate. There is now something ofa regular pattern to the burglaries he has committed since 2009. Previous sentences of13 The cases cited by Mr Yee in support of a lower starting point are distinguishable fromMr Fielding's offending. In Stridom v Police [2019] NZHC 354 (starting point of 24 months'imprisonment) the value of the property taken was less, and Mr Stridom played a secondary roleas the driver and lookout. In Bates v R [2016] NZCA 456 (18-month starting point) $15,000 worthof property was stolen and there was no premeditation. And in Tautari v Police [2018] NZHC2483 (starting point of 24 months and an uplift of 12 months for previous offending) $23,000worth of property was stolen, Mr Tautari was alone, and the "particularly mean" features ofMr Fielding's offending were not present.14 R v Nguyen CA110/01, 2 July 2001.imprisonment have not deterred that conduct. Indeed, Mr Yee's submission was thatan uplift of four months on a starting point of 21 months was within range; implicitlyaccepting a 20 per cent uplift was appropriate. Given the higher starting pointwarranted in this case, and the uplift already acknowledged by the appellant, there isnothing in this ground.15Reduction for personal mitigating factors?[22] The real issue on appeal was the question of the appropriate discount to reflectMr Fielding's unfortunate upbringing.[23] In support of this ground of appeal Mr Fielding presented a s 27 reportprepared sometime after his sentencing. The Judge did not have the benefit of thereport at the time he sentenced Mr Fielding.[24] The report begins by noting that every year of Mr Fielding's life "encapsulatessocial, cultural, or economic deficiency." Generally, the report reveals a traumaticearly childhood. Mr Fielding's father was a violent alcoholic. As a child Mr Fieldingwas subjected to physical abuse. He recalls one incident when he was thrown againsta wall.[25] As a result of the violence he experienced at home he was placed in state care.And there he was subjected to further physical abuse.[26] Mr Fielding was introduced to drugs at the age of 11 while in state care. Heengaged in daily cannabis use, abusing Ritalin and then began injecting intravenousdrugs such as morphine from the age of 16. Drug use and addiction has been theongoing driver for his offending since that time. Mr Fielding uses it as a copingmechanism to deal with the trauma he experienced as a child. He started shoplifting15 The Judge expressly followed Makene v R, above n 7, where a six-month uplift was imposed forsix previous burglary convictions. See also Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at[39] where the Court of Appeal said previous convictions "are relevant as an indicator of characterand culpability, or because they show the need for a greater deterrent response, or as an indicatorof risk of reoffending."from a young age to support his drug use and graduated from there to more seriousforms of dishonesty offending, including burglary.[27] Unsurprisingly Mr Fielding also struggled with school. He was diagnosed withADHD.[28] The abuse Mr Fielding suffered as a child set him on a collision course withthe criminal justice system that continues to this day. I am satisfied it played a clearrole in the current offending.[29] None of that is to excuse Mr Fielding for what he did, or the impact of it on hisvictim. Instead, it is relevant when assessing the level of moral culpability as part ofthe sentencing exercise. As the High Court of Australia said in Bugmy v R, the fact anoffender has been raised surrounded by alcohol abuse and violence may mitigate thesentence because his or her moral culpability is likely to be less than someone whoseearly years were not marred in such a way.16 This in turn can impact on the operationof the purposes and principles of sentencing, such as holding the offender accountable,denunciation, general and specific deterrence community protection, and the need forrehabilitation.17[30] And also relevant in my view are the steps Mr Fielding has taken to removehimself from the culture of drug use he was in, and to deal with his addiction. I wastold, and accept, that he had managed to stay off drugs for at least five months beforehe was sentenced. The pre-sentence report writer also concluded that Mr Fielding "hasshown motivation to stay away from drugs".[31] For the Crown, Mr Eng and Mr Cunningham recognised that some discount toreflect both deprivation and addiction was likely to be warranted at sentencing. Butthey submitted that any such discount would be less than the 15 per cent urged on theCourt by the appellant, and in any case given the lenient starting point, any error ofapproach could not have resulted in a sentence that was manifestly excessive.16 Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [40].17 Poi v R [2020] NZCA 312 at [27].[32] I disagree. Discounts to reflect deprivation and the role of addiction can surpass15 per cent.18 The key in this case is to identify the appropriate level of discount thatought to have been provided.[33] In my view, a discount to reflect the role of addiction and deprivation inMr Fielding's offending of 20 per cent is appropriate. That discount acknowledges thepositive signs that Mr Fielding is now ready to tackle his addiction.Remaining grounds of appeal[34] There is nothing in the remaining grounds of appeal. The Judge did not doublecount aggravating factors, and I am not satisfied that considerations such as breach oftrust influenced his calculation of the relevant starting point.[35] Nor was there any error of approach in the application of s 8(g) of theSentencing Act 2002 (the requirement to impose "the least restrictive outcomeappropriate in the circumstances"). This ground overlooks the proviso. That is, a courtmust impose the least restrictive outcome "in accordance with the hierarchy ofsentences and orders set out in s 10A". The least restrictive outcome is not a referenceto the sentence length. It is a reference to the sentence type.[36] Finally, on the material before the Court it is clear that Mr Fielding's motherwas not dependent on his care before he moved to Nelson awaiting trial. I am far fromsatisfied that this ground warrants any discrete reduction in the sentence imposed.Result[37] The appeal is allowed, and the sentence quashed. In its place I impose asentence of 26 months' imprisonment calculated as follows:(a) A starting point of 30 months (or two and a half years' imprisonment);18 See generally Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; Poi v R; above n 17, and mostrecently Waikato-Tuhega v R [2021] NZCA 503.(b) A discount of 10 per cent, on account of Mr Fielding's late guilty plea;(c) A further discount from the starting point of 20 per cent to reflectdeprivation and the role of addiction in the offending; and(d) An uplift of six months to reflect personal aggravating factors.Isac JSolicitors:Public Defence Service, Hastings for AppellantCrown Law, Wellington for Respondent