VAN WYK v POLICE [2018] NZHC 2853

VAN WYK v POLICE [2018] NZHC 2853 [5 November 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-289CRI-2018-404-290[2018] NZHC 2853BETWEEN HENDRIK VAN WYKAppellantAND NEW ZEALAND POLICERespondentHearing: 30 October 2018Counsel: H Kim for AppellantM Mortimer for RespondentJudgment: 5 November 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 5 November 2018 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, AucklandIntroduction[1] Mr Hendrik van Wyk pleaded guilty to five charges of burglary, possession ofammunition, possession of methamphetamine, breach of community work and breachof supervision. He was sentenced to nine months' home detention on all the charges.He now appeals that sentence as manifestly excessive.Background facts[2] On 28 December 2017, Mr van Wyk entered an address without authority andremoved two air conditioning systems from a house under construction. He alsoremoved an intercom unit and a showerhead. All items were brand new and still intheir packaging. The next day, the police searched his home. While searching hisvehicle, methamphetamine was found on the driver's seat of his car. A search of therear of the vehicle also revealed .22 calibre bullets and magazines. When questioned,Mr van Wyk admitted that he had stolen the air conditioning units. He also admittedthat the methamphetamine was his.[3] Mr van Wyk had previously been sentenced to 12 months' supervision and 150hours community work for theft-related offending. His reporting for his sentence ofcommunity work was sporadic and he completed only 26.5 hours in time. Finally, on19 June 2018, he failed to report as required for his sentence of supervision, havingpreviously received written and verbal warnings.District Court judgment[4] Judge Sinclair identified a starting point of between 18 months and two and ahalf years for the burglary.1 Having identified the risk of confrontation was "probablyreduced a little", given that the house was still under construction, the Judge adoptedan 18-month starting point.2 The Judge applied an uplift of six months for theremaining charges, noting that they are "separate and discrete offending".3 She also1 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.2 New Zealand Police v van Wyk [2018] NZDC 17904 at [10].3 At [11].considered that the failure to complete the previous sentences reflects a laissez faireattitude towards Court orders and sentencing.4[5] In terms of mitigating factors, the Judge refers to a heartfelt letter to the Courtadvising her of Mr van Wyk's methamphetamine addiction and the impact that it hashad. She notes that he has participated in a rehabilitative programme but that therehabilitation steps have fallen by the wayside.[6] The Judge then notes:[14] From what I have read, it seems to me that you have a journey tocomplete. It is a long journey grappling with methamphetamine, and you aregoing to have to embrace the rehabilitative provisions that I am going toimpose so that you tackle this addiction and maintain abstinence frommethamphetamine. But I do take into account your rehabilitative steps andallow a discount of a month or two for those matters.[7] The Judge then gave a 20 per cent discount for the guilty plea. In the result,the Judge imposed a sentence of nine months' home detention on the lead burglarycharge, with concurrent sentences of three months' home detention on the remainingcharges, with rehabilitative and post-detention conditions attached. She cancelled thesupervision and community work sentences.Affidavit evidence[8] Mr van Wyk has provided an affidavit describing his role in the offending andhis personal circumstances. In summary, Mr van Wyk says he was under the influenceof methamphetamine at the time that he stole the air conditioning units. He says that"some of the guys" that he was "socialising" with had told him that they had movedthe units and asked him to pick them up for them. He said, when the drugs wore off,he had realised what he had done wrong and started to panic. He also says that whenthe police were searching his place, he confirmed that he was in possession ofmethamphetamine and told them where it was. He said he had forgotten about the .22calibre bullets and the two magazines in the van.4 At [12].[9] In relation to his non-compliance with his supervision and community worksentence, he refers to breakdowns in communication with his case worker and havinglost faith in the Salvation Army Bridge Community programme after they failed tofollow up and then lost his file. He also says he was still suffering from withdrawalsymptoms. He then details the difficulties that he has had with his methamphetamineuse and withdrawals and provides some background detail as to driving whilesuspended. He says he is a different person from what he was a year or so ago andthat he has found a new expert who is going to help him with counselling.[10] The Crown opposes the affidavit to the extent that it challenges the summaryof facts.[11] I allow the affidavit but note, in agreement with the Crown that, I place noweight on it to the extent that it departs from the summary of facts5, given Mr van Wykplead guilty to the summary of facts and did not dispute or challenge those facts at hissentencing.Jurisdiction[12] An appeal will be successful only if the appellant can point to an error, eitherintrinsic to the Judge's reasoning, or because of additional material submitted on theappeal which vitiates the sentencing decision of the Court below.6 Unless there is amaterial error in sentence, for example, that it is manifestly excessive; manifestlyinadequate; or wrong in principle, an appellate court will not intervene.The grounds of appeal[13] Mr Kim, for the appellant, submits:(a) The Judge's assessment on the burglary involved several errors of fact,including:(i) the appellant "broke into a residential building and took items";5 Sentencing Act 2002, s 24; R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R [2014]NZCA 356 at [30].6 Tutakangahau v R [2014] NZCA 279 at [29]-[31].(ii) there was a potential risk of confrontation with the owners,although it did not occur; and(iii) the owner suffered loss and psychological impact that someonehad entered into the privacy of their property and taken itemsfrom it.(b) The uplift of six months was excessive, having regard to:(i) possession of methamphetamine and ammunition chargesshould have been considered as part of the appellant's overalloffending;(ii) insufficient weight was given to the appellant's personalcircumstances (including those set out in the appellant'saffidavit);(iii) the Judge mischaracterised the appellant's behaviour as "laissezfaire", particularly in light of a medical certificate confirmingthat the appellant was and still is suffering from depression;(iv) the Judge failed to provide a discount for time spent on bailconditions; and(v) the Judge failed to impose the least restrictive sentencenecessary.Assessment[14] I am not satisfied the Judge erred or that the sentence was manifestly excessive.[15] First, there were no factual errors. The sentence was based on a summary offacts and the Judge's findings about the appellant's conduct was plainly available toher. In addition, the Judge's evaluation of the likely impacts of the offending wasreasonable. Second, the Judge's estimate of the severity of the offending, namely, lowend burglary offending attracting a start point of 18 months, was also reasonable andwell within range.7 Third, the time Mr van Wyk spent on general bail was "notparticularly restrictive" and the Judge's decision not to provide a discount wasreasonable.8[16] Fourth, I accept the global uplift of six months or just less than 33 per cent ofthe lead sentence for the four other charges involving possession of methamphetamine,possession of ammunition, breach of community work and breach of supervision, wasarguably excessive. But it is necessary to observe that:(a) the offending occurred while still serving sentence – a factor notconsidered by the Judge;(b) the methamphetamine offending could, by itself, reasonably expect ashort cumulative uplift of 2-3months – it was distinct offending;9 andin any event,(c) a short cumulative sentence of home detention, in the order of two tothree months, could be expected on resentencing for the prior offendingand non-compliance with the prior sentence.[17] Finally, I acknowledge that the new evidence of depression through the periodof non-compliance with the prior sentencing and during the offending is a relevantconsideration.10 Understandably, as it was not brought to the Judge's attention, it wasnot considered by her. Depression helps explain, at least in part, the non-compliancewith the community service sentence. Nevertheless, I do not consider the overall endsentence was manifestly excessive. Judge Sinclair took great care, and I agree, totailor the sentence to Mr van Wyk's personal circumstances, acknowledging theimportance of abstention from methamphetamine consumption, in combination withhis rehabilitation. The presence of depression, if anything, provides a further basis for7 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.8 Batick v R [2016] NZCA 307 at [27].9 Kahia v Police [2017] NZHC 2018 at [18]-[19]. See also Waterman v Police [2016] NZHC 247at [3] and [22].10 E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411) at [70]; Shailer v R [2017] NZCA38 at [45]-[48].avoiding a sentence which sets Mr van Wyk up for failure, namely community service.While community detention was also an option which was available to the Judge,given the seriousness of Mr van Wyk's offending and his methamphetamine addiction,a sentence of home detention was not inappropriate.[18] Overall, while the uplift was stern, in the final analysis, an end sentence of ninemonths home detention for the burglary offending, together with a concurrent term ofthree months home detention on the remaining charges of possession ofmethamphetamine, possession of ammunition, breach of community work and breachof supervision was not manifestly excessive.[19] The appeal is dismissed.