JENSEN v POLICE [2020] NZHC 726

JENSEN v POLICE [2020] NZHC 726IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-0005[2020] NZHC 726BETWEEN HIRA JENSENAppellantAND NEW ZEALAND POLICERespondentHearing: 16 March 2020Appearances: S J Galler for AppellantJ Kang for RespondentJudgment: 8 April 2020JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 8 April 2020 at 12.15 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: S J Galler, Auckland[1] The appellant, Mr Jensen, appeals against a sentence of two years, nine months'imprisonment imposed by Judge Collins on 19 November 2019.1[2] I must allow the appeal if satisfied there is an error in the sentence imposedand a different sentence should be imposed.2 I must dismiss the appeal in any othercase. The Court does not simply substitute its own view for that of the originalsentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive orwrong in principle.4 The focus is on the end sentence, rather than the process by whichthe sentence was reached.5Background[3] Mr Jensen was for sentence on the following charges, committed on the datesshown:(a) burglary — 5 July 2016;6(b) robbery — 5 July 2016;7(c) failing to answer police bail — 29 August 2016;8(d) common assault (x 2) — 10 December 2016;9(e) wilful damage — 10 December 2016;10(f) failing to answer District Court bail (x 4) — June 2016, December 2016(x 2), and January 2017;111 Police v Jensen [2019] NZDC 23914.2 Criminal Procedure Act 2011, s 250(2).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].4 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 3, at [30]–[35].5 Tutakangahau v R, above n 3, at [36].6 Crimes Act 1961, s 231. The maximum penalty is 10 years' imprisonment.7 Section 234. The maximum penalty is 10 years' imprisonment.8 Bail Act 2000, s 38. The maximum penalty is 1 years' imprisonment or a fine of $2,000.9 Crimes Act, s 196. The maximum penalty is 1 years' imprisonment,10 Summary Offences Act 1981, s 11. The maximum penalty is 3 months' imprisonment or a fine of$2,000.11 Bail Act, s 38. The maximum penalty is 1 years' imprisonment or a fine of $2,000.(g) resisting police — 24 February 2017;12 and(h) escaping lawful custody — 24 February 2017.13[4] The burglary was of a residential address, with no forced entry. The sole(female) occupant was not home at the time, and Mr Jensen gained entry through anunlocked door or window. Once inside, Mr Jensen stole a television and an "igloo"box from the woman's bedroom (never recovered), and then spat on the wall. It wasthis which ultimately led to Mr Jensen's identification.[5] Mr Jensen then committed the robbery in a multi-level apartment building.Mr Jensen approached a 53-year-old woman in the foyer and grabbed her handbag.The victim held onto the bag and offered Mr Jensen money instead, which Mr Jensendeclined. A struggle ensued, the victim only releasing her handbag when Mr Jensenkicked her in the head, face and chest.[6] Having spent the evening of 10 December 2016 drinking with his father, andin the course of an argument, Mr Jensen broke a window, hence the wilful damagecharge. The common assaults were against the police officers who attended.[7] As appears from the chronology, Mr Jensen failed to appear on severaloccasions, including in January 2017, and resisted when the police caught up with himin February 2017.[8] Mr Jensen was 21 years of age at the time he committed the burglary androbbery, and 22 when he committed the other offending. Although he entered guiltypleas at a relatively early stage, Mr Jensen failed to appear for sentencing on 9 August2017 and was not apprehended until August 2019. Mr Jensen was sentenced on19 November 2019.[9] The Judge adopted a starting point of two years' imprisonment for the robbery.The Judge increased this by nine months' imprisonment for the burglary and five12 Summary Offences Act, s 23. The maximum penalty is 3 months' imprisonment or a fine of$2,000.13 Crimes Act, s 120. The maximum penalty is 5 years' imprisonment.months' imprisonment for the other offending, comprising three months for theFebruary 2017 offending, one month for the 10 December 2016 offending and onemonth for the failures to answer bail. The uplifts brought the final starting point tothree years, two months' imprisonment. The Judge did not uplift for Mr Jensen's priorconvictions (see below), declined a discount for youth and gave a 15 per cent discountfor Mr Jensen's guilty pleas. This brought the end sentence to two years, nine months'imprisonment, this being Mr Jensen's first sentence of imprisonment.[10] Mr Galler, counsel for Mr Jensen, contends the sentence was manifestlyexcessive because the uplifts were excessive; there should have been a discount foryouth; and the discount for Mr Jensen's guilty pleas was insufficient. Mr Kang, forthe Crown, contends the end sentence was within range and there is no basis forinterfering with it on appeal.Uplifts and totality[11] In his written submissions, Mr Galler challenged both the uplift for the burglaryand that for the other offending, submitting the additional 14 months' imprisonmentrendered the end sentence wholly out of proportion to the gravity of the overalloffending or, in other words, breached the "totality" principle.14[12] As I said to Mr Galler during the hearing, on its face, the five-month uplift forthe offending after 5 July 2016 does not appear excessive. That leaves the Judge'suplift of nine months' imprisonment for the burglary, which Mr Galler submits shouldnot have been more than seven months.[13] The Judge arrived at the nine-month uplift on the basis the starting point forthe burglary would have been "at least 18 months if it was on its own", and he woulduplift by 50 per cent of that, to ensure the final starting point was proportionate.15Counsel take the Judge's "at least 18 months" to be a reference to Arahanga v R, inwhich the Court of Appeal said burglary of a dwelling house "at the relatively minor14 Sentencing Act 2002, s 85.15 Police v Jensen, above n 1, at [12].end of the scale tends to attract a starting point of approximately 18 months' to twoyears and six months' imprisonment".16[14] In support of his submission, Mr Galler referred me to Newton v Police andNelson v Police.17[15] In Newton, Kós J made the point that Arahanga does not purport to be a tariffcase, or even to set a minimum 18-month starting point for the type of offending withwhich it is concerned.18 The offender in Newton conducted a similar burglary, stealinga television, and jewellery valued at $2,000. The jewellery was never recovered.Kós J reduced the District Court's starting point of two years' imprisonment to15 months. Mr Jensen submits a starting point of 14 months' imprisonment wouldhave been appropriate in the present case because Mr Jensen stole goods of a lesservalue.[16] In Nelson, the offender had been sentenced on numerous charges but his leadoffence was a burglary of a residential address, to which he forced entry through awindow and at night. The District Court Judge took a starting point of 18 months'imprisonment. Hinton J considered Newton and several cases concerning sentencesfor burglaries of residential properties, entailing forced entry and the stealing ofproperty, in which the starting points ranged from 12 to 17 months' imprisonment.19[17] Although Hinton J substituted a starting point of 14 months' imprisonment, itis important to note the Judge did not know whether Mr Nelson had actually enteredthe house, whether any of the occupants were present, or whether Mr Nelson tookanything from the address. Hinton J made it clear the outcome might have beendifferent otherwise.[18] Tutakangahau v R, cited for the various propositions in [2] above, was itself asecond appeal against sentence for burglary, in that case of two tents in a camping16 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].17 Newton v Police [2012] NZHC 2829; and Nelson v Police [2019] NZHC 2434.18 Newton v Police, above n 17, at [9].19 McKee v Police [2012] NZHC 2684; Blissett v Police [2013] NZHC 156; Tairi v Police [2015]NZHC 187; and Moeroa v Police [2015] NZHC 2226.ground.20 The Court of Appeal determined the starting point of 15 months' adopted inthe District Court was too high, and should not have exceeded 12 months'imprisonment. In doing so, the Court referred to Newton and to Kati v Police.21 InKati, the Court adopted a 14-month starting point for an offender who forced entry toa neighbouring residential property and stole items valued at $900, similar to this case.[19] As the Judge said, the "stand-alone" starting point for offending is relevant tothe uplift to be applied. Having regard to the cases cited to me (and quite possibly notto the Judge), I accept the Judge's "at least 18 months'" was too high and should havebeen 14 or 15 months' imprisonment. Standing back, and having regard to the gravityof the offending as a whole, a starting point of no more than 36 months', or threeyears', imprisonment would have been proportionate.Discount for youth[20] The Judge declined a discount for youth on the grounds much of the offendingwas not spontaneous; Mr Jensen had "multiple previous convictions"; Mr Jensen hadreceived "a number of rehabilitative sentences in the past"; and Mr Jensen had failedto comply with Court orders on many prior occasions.22[21] Mr Galler submits the Judge erred in declining a discount for youth andsubmits a discount of 10 to 15 per cent ought to have been allowed. Mr Kang submitsthe Judge did not err and that nothing in the circumstances of this case called for adiscount for youth.23 Mr Kang also submits it would have been open to the Judge touplift the starting point for Mr Jensen's prior convictions, so the two — that is, anuplift for prior criminal history and a discount for youth — "netted off". If I do notaccept these submissions, Mr Kang submits any discount should be no more than10 per cent.24[22] Mr Galler's first point is that Mr Jensen was eligible for a discount for youth,given his age at the time of the offending, that is 21 and 22. I accept that submission.20 Tutakangahau v R, above n 3.21 Newton v Police, above n 17; and Kati v Police HC Napier CRI-2011-441-19, 11 July 2011.22 Police v Jensen, above n 1, at [14].23 Huata v R [2013] NZCA 470 at [32].24 R v Penewi [2019] NZHC 479.Discounts, and of more than 10 per cent, have been given for offenders of a similar orgreater age on the basis they continue to be deficient in reasoning, impulse control andjudgment.25[23] Secondly, Mr Galler submits much of the offending was impulsive andspontaneous. I accept this as regards the other offending, but I do not have sufficientinformation to know whether the burglary and robbery could be so described.Certainly, there was nothing before me to suggest Mr Jensen had good reason to be inthe foyer of the apartment building where he committed the robbery.[24] Thirdly, Mr Galler submits an offender's prior history, whether in the YouthCourt or District Court, does not preclude a discount and, in fact, is irrelevant.Mr Galler referred me to Vaeau v Police, in which, apropos of Youth Court notations,Thomas J said:26[55] Youth Court notations should not alter the discount which wouldotherwise be given for youth because previous history has no bearing on thereasons for which considerations of youth are relevant (for example,neurological factors which can lead to a reduction in culpability of youngpeople compared to adults).[25] I agree with this statement and note also the offenders in Matangi v Police,Nelson and Su'e v Police received discounts for youth, despite having priorconvictions.27[26] Fourthly, Mr Galler submits Mr Jensen has demonstrated the potential torefrain from offending, and therefore for rehabilitation. Mr Galler also submits that,as Mr Jensen has never previously been sentenced to imprisonment, the term the Judgeimposed has the potential to be "crushing", that is, would have a disproportionatelysevere impact on Mr Jensen because of his age.2825 Matangi v Police [2018] NZHC 1479; Nelson v Police, above n 17; and Su'e v Police [2019]NZHC 2501.26 Vaeau v Police [2015] NZHC 1972.27 Matangi v Police, above n 25; Nelson v Police, above n 17; and Su'e v Police, above n 25.28 Sentencing Act, s 8(h).[27] This fourth submission encompasses two reasons why youth may be relevantto sentencing — scope for rehabilitation and the crushing effect of imprisonment on ayoung person.29[28] As to rehabilitation, Mr Jensen has Youth Court notations arising fromoffending in 2010 to 2012, when he was aged 15 to 17. Most are for relativelyinconsequential matters, but there is one wounding with intent to cause grievousbodily harm for which he was subject to several months' supervision.[29] At the time he was sentenced in the present case, Mr Jensen had convictions inthe District Court for resisting and assaulting police; two for wilful damage; and onefor behaving threateningly. A burglary in July 2013, when Mr Jensen was aged 18,and three breaches, in 2014, of conditions of sentences of intensive supervision and/orcommunity detention were the closest in time to the present offending.[30] Mr Galler's point is the burglary in 2013 and the burglary and robbery in thiscase were three years' apart, and there was also a hiatus in offending for two yearswhen Mr Jensen was trying to avoid the police and sentencing for this offending. Thisis not to condone Mr Jensen's behaviour over that two years, but I accept Mr Galler'ssubmission that Mr Jensen has the ability to refrain from offending. A Provision ofAdvice to Courts report of November 2019 also gives some cause for optimism.Mr Jensen said the only explanation he could provide for his offending was hislong-standing and excessive use of alcohol and illicit substances; that he could notafford such things in the period in which he was trying to avoid the police; and that hewished to address his offending and had previously commenced a rehabilitativeprogramme with Community Alcohol and Drugs Services.[31] As to Mr Galler's submission the sentence may be crushing, Mr Jensen's mostsignificant sentence prior to this was three months' community detention for hisburglary in July 2013. For a young person to proceed from there to a sentence ofimprisonment of two years, nine months' is a very substantial increase in duration andseverity.29 Churchward v R [2011] NZCA 531 at [77].[32] In support of his submission that no discount for youth was warranted,Mr Kang referred me to Kino v Police, in which Heath J's discount for youth wasmatched by his uplift for Mr Kino's prior convictions, the two cancelling each otherout.30 The important point in the present case, however, is the Judge's reasons fordeclining a discount did not include that such would have served only to offset anuplift he would otherwise have applied for prior convictions. Rather, the Judgethought Mr Jensen should have learnt his lesson from his prior convictions. As I havesaid, prior convictions are not determinative.[33] Mr Kang also referred me to Skipper v Police, in which Toogood J declinedMr Skipper's appeal against sentence for motor vehicle offending and two burglarieswhen he was aged 21.31 In one burglary, Mr Skipper had broken into a school andstolen laptops, computer screens, computers, and other equipment to a value of$40,000, and had caused $8,000 worth of damage in gaining entry. Mr Skippercommitted this offending having already been sentenced to imprisonment foraggravated robbery. The District Court Judge had declined a discount for youth andalso imposed a minimum period of imprisonment. Toogood J was not persuaded areduction in sentence was required on account of youth, given the seriousness of theoffending and because he did not consider it impulsive. However, he did take youthinto account in reducing the minimum period from 28 months' imprisonment to24 months' imprisonment.[34] Skipper evidences a well-accepted proposition that it is not inevitable a youngoffender will receive a discount for youth.32 Nothing more than that can be taken fromit in the present context, as the facts are very different.Decision[35] The important matters are that Mr Jensen's history shows he has the potentialto refrain from offending and therefore to rehabilitate, and the impact on him of alengthy sentence of imprisonment would be disproportionately severe, even if30 Kino v Police [2012] NZHC 2570 at [20]-[21].31 Skipper v Police [2012] NZHC 783.32 Pouwhare v R [2010] NZCA 268 at [96].warranted for an adult offender. For these reasons, I am satisfied a discount for youthought to have been given.Guilty pleas[36] The Judge gave a discount of 15 per cent on account of Mr Jensen's guiltypleas. He declined to give more because Mr Jensen had wasted much Court time andhad avoided police for the two-year period to which I have referred. Mr Galler submitsthe discount ought to have been 20 per cent because the guilty pleas were entered earlyon. They may have been but Mr Jensen's subsequent actions detracted from them. Iaccept Mr Kang's submission there was no error on the part of the Judge on this issue.A discount of 15 per cent was the most Mr Jensen could reasonably expect in thosecircumstances.Conclusion[37] On the basis of the authorities to which I was referred, I am satisfied the effectof the uplift for the burglary was to make the ultimate starting point wholly out ofproportion to the gravity of the overall offending and should not have exceededthree years' imprisonment. I also propose to allow Mr Jensen a five-month, about 13to 14 per cent, discount for youth. This, with the reduction for guilty pleas, bringsMr Jensen's end sentence to two years, three months' imprisonment.Result[38] I allow this appeal. I vary the sentence imposed on the charge of robberycommitted on 5 July 2016 from two years, nine months' imprisonment to two years,three months' imprisonment.33 All other sentences remain unchanged.Peters J33 Criminal Procedure Act, s 251.