REGAN v POLICE [2016] NZHC 161

REGAN v POLICE [2016] NZHC 161 [15 February 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-409-000103[2016] NZHC 161BETWEEN HOULYO STEVEN REGANAppellantAND NEW ZEALAND POLICERespondentHearing: 9 February 2016Appearances: K Paima for the AppellantC E Butchard for the RespondentJudgment: 15 February 2016JUDGMENT OF NATION JIntroduction[1] Mr Regan appeals against a sentence of three years' imprisonment imposedon a lead charge of burglary. Although he has not appealed against the sentence on two other charges, it is important to recognise this sentence was imposed at the sametime as he was given a concurrent sentence of six months' imprisonment on a charge of receiving and a sentence of two months' imprisonment for breach of release conditions.[2] The burglary charge arose out of his entering a dwelling through an unlocked back door at some point between 1.30 am and 6.00 am on 13 March 2015. He stole electronic equipment, clothing and food. The victim impact report indicated MrRegan went into the victim's bedroom when the man was asleep.[3] Mr Regan was initially charged with another burglary which occurred between 12.00 am and 4.30 am on 23 March 2015 when someone forced entry to the garage of a dwelling in New Brighton, Christchurch and stole a road bicycle valuedat $4,500 and a mountain bike value at $350. The road bike was recovered but not the mountain bike. Mr Regan was found in possession of the road bicycle soon after. The charge was amended on 25 March 2015 to receiving that bicycle. He pleaded guilty to that amended charge.[4] Mr Regan was released from Christchurch Men's Prison on 3 February 2015, having been sentenced to prison for one year and one month for burglary of property under $500 by night. Because he did not have a permanent address, it was a condition of his release that he report every weekday after 16 February 2015 to his probation officer. Mr Regan failed to report at all between 4 March and 19 March 2015. After the probation service made contact with him on 10 March 2015, Mr Regan failed to report to probation as he said he would.[5] In May 2015, a Judge gave Mr Regan a sentence indication in the range of 22months' imprisonment, giving him credit for a guilty plea and acceptance ofresponsibility in relation to the offending. On 15 July 2015, Mr Regan appeared before the Judge again. A pre-sentence report was then available with some negativecomments about Mr Regan's attitude and the significant risk of further offending.Mr Regan also wished to withdraw his guilty plea to the receiving charge. In that context, the Judge was not willing to proceed with sentencing on the other two charges in line with his previous indication. The receiving charge was adjourned for a case review hearing on 28 July 2015.[6] On 28 July 2015, Mr Regan vacated his not guilty plea to the sole outstanding charge, entered a guilty plea and was then remanded for sentence through to 18 September 2015.The approach of the sentencing Judge[7] The Judge regarded the burglary as the lead offence. He arrived at a startingpoint for the burglary of three years' imprisonment. He did this, having regard to aggravating features associated with that burglary, but also taking into account aggravating features relating to Mr Regan personally. These arose from his extensive criminal history and continuing propensity for criminal offending as referred to in the pre-sentence report.[8] To that initial starting point of three years' imprisonment, he added six months for the receiving and three months for the breach of release conditions, to arrive at a starting point for all the offending of three years and nine months. The Judge then allowed a 20 per cent discount for nine months stating that, in this, he was perhaps generous given that none of the pleas of guilty were especially early. With that discount, the ultimate sentence was three years' imprisonment,implemented by way of the three years' sentence of imprisonment for the burglary and concurrent sentences for the receiving and breach of release conditions.The submissions[9] In careful submissions for Mr Regan, Mr Paima argued that the starting point on the burglary charges was too high, having regard to the guidance which is available from previous Court of Appeal judgments. He argued that this ultimately resulted in an overall sentence which was manifestly excessive. Whileacknowledging Mr Regan's extensive criminal history, he suggested the upliftadopted by the Judge in respect of this was excessive. In that regard, Mr Paimasubmitted it was significant that this was only Mr Regan's second burglary conviction in the District Court. He submitted that, adopting the Taueki approach, the starting point for the burglary offending should have been 18 to 24 months andthe uplift on account of Mr Regan's prior criminal history should have been three tosix months.1 He agreed with the sentencing Judge's uplift for the other offending.With a 15 or 20 per cent discount for guilty pleas, he submitted the appropriate endsentence should have been 28 or 30 months' imprisonment.[10] For the Crown, Ms Butchard acknowledged that there is no tariff for burglary offending and that the ultimate outcomes on certain appeals before the Court ofAppeal were somewhat difficult to reconcile. She emphasised that the Court'sconcern should be with the ultimate sentence imposed rather than the process by which it was reached. She submitted that the uplift for the receiving charge couldhave been more appropriately twelve months' imprisonment, that an uplift onaccount of his previous criminal offending of up to six months was appropriate. She submitted that, although a starting point for the burglary charge of three years was1 R v Taueki [2005] 3 NZLR 372 (CA).top of the range, the sentence of three years' imprisonment for all the offending wasnot manifestly excessive.Principles on appeal[11] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case.3 To allow the appeal, I must be satisfied that the sentence imposedwas "manifestly excessive".4 As has been stated:5The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.[12] There is no tariff as to appropriate sentences for burglary offending but I note the statement from the Court of Appeal:6Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months' to two years and six months' imprisonment.Discussion[13] In this instance, Mr Regan entered a person's home in the early hours of themorning when it was almost certain someone would be there. In entering the bedroom of a resident and in taking food from a refrigerator and various clothing, Mr Regan exhibited a callous disregard towards the personal needs of the resident. The electronic items taken, such as the Apple iPad and cell phones, were not only items that would have been expensive for the owner to buy but also items which he would have needed and wanted to use on a daily basis.2 Criminal Procedure Act 2011, s 250(2).3 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 297, [2014] 3 NZLR 482.5 Larkin v Ministry of Social Development [2015] NZHC 680, at [26] per Toogood J.6 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.[14] I have had regard to the starting point of four years, upheld by the Court inArahanga, where that was for two dwelling house burglaries in the early hours of the morning and two offenders were involved. Also, R v Povey where a starting point of two years was justified where the appellant had assisted in the burglary of an occupied dwelling house at night.7 Also, Stepanicic v R where a starting point of two years was considered appropriate, where there had been a burglary of two houses in the early hours of the morning where victims were asleep in bed.8[15] I have also had regard to Mr Regan's record of criminal offending. In 1998 and 1999, he was sentenced on four charges of burglary in the Youth Court. He had at least four other convictions for theft. In the District Court since 2000, Mr Regan had approximately 70 convictions for criminal offending, most of which involved dishonesty. Although there is only one previous conviction for burglary, with muchof his offending he has shown a complete disregard for other people's ownership ofproperty and their personal need for it. He has a number of convictions for unlawfully interfering with a motor vehicle and four convictions for theft from a car and convictions for unlawfully taking a motor vehicle.[16] On 16 September 2014, Mr Regan was sentenced for a range of offending that included a burglary of a private dwelling house at night in circumstances very similar to his offending in March 2015. He was also sentenced on ten charges of wilful damage where he had, as described by the sentencing Judge, gone on a rampage, slashing tyres of a dozen or more vehicles.[17] In September 2005, Mr Regan was sentenced to imprisonment for eight years on a charge of aggravated robbery committed with another person.[18] Given the general nature of Mr Regan's criminal dishonest offending, and itstrend towards an increasing and more serious disregard for the property rights of others, any uplift on account of his previous criminal offending should not have been less simply because this was just his second conviction for burglary in the District Court.7 R v Povey [2009] NZCA 362.8 Stepanicic v R [2015] NZCA 211.[19] As the Judge said, the pre-sentence report made for grim reading. The report referred to Mr Regan having no empathy for the harm he had done to the victims of his offending, the fact he considered himself to be criminally-minded and the indication from him that he would continue to reoffend.[20] The uplift on a starting point for the actual offending may be increased where the previous offending or the information obtained from the pre-sentence report indicates an offender has a predilection to offend in a specific way and the need for a deterrent sentence becomes more important to protect members of the public.[21] I do not consider the Judge was in error in adopting a starting point of three years for the burglary offending before an uplift for the other offending. That starting point was appropriate whether it could be arrived at by following the Tauekisentencing approach, or by fixing a starting point for the offending and the aggravating matters relating to Mr Regan personally. The latter was the approach which the Judge took.[22] It was accepted for the appellant that the uplifts which the Judge then adopted for the receiving and breach of release condition charges were appropriate. I agree with the submission from the Crown that the starting point on the receiving charge could well have been more than the six months adopted by the sentencing Judge. The receiving was again closely related to a burglary of a private home. It again involved property of significant value and use to an individual. In Ellis v R, the Court of Appeal suggested a starting point of between 12 and 18 months would be appropriate on one charge of receiving goods valued at approximately $5,000 where the offender had come into possession of the goods within hours of the burglary.9The uplift for Mr Regan's receiving could well have been 12 months.[23] As was acknowledged by Mr Regan's counsel, the discount of 20 per cent for guilty pleas could well have been less and was justifiably described by the sentencing Judge as generous.9 Ellis v R [2012] NZCA 513.[24] The ultimate sentence imposed nevertheless had to be appropriate for the totality of the offending. Through the approach which the Judge took, the ultimatesentence for all the offending was three years' imprisonment.[25] Given the nature of this offending, the depressing prospects of achieving MrRegan's rehabilitation or promoting in him a sense of responsibility for, and acknowledgement of, the harm he has done, the main purpose of the sentence had to be to protect the community from him. It was appropriate for the Judge to have regard to the particular circumstances of the offending and the effect of the burglary and receiving offending on the victims. Taking all matters into account, I cannot find the Judge was in error in imposing an ultimate sentence for all offending ofthree years' imprisonment.[26] The appeal is dismissed.Solicitors:Better Lawyers Limited, ChristchurchRaymond Donnelly & Co., Christchurch.