BOWMAN v POLICE [2017] NZHC 884

BOWMAN v POLICE [2017] NZHC 884 [3 May 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI 2017-443-5[2017] NZHC 884BETWEEN HURA BOWMANAppellantAND NEW ZEALAND POLICERespondentHearing: 2 May 2017Counsel: N Bourke for AppellantG N Milne for RespondentJudgment: 4 May 2017JUDGMENT OF ELLIS J[1] On 15 March 2017, Mr Bowman was sentenced to 33 months' imprisonmentfor:1(a) three charges of burglary; and(b) one charge of receiving.2[2] He now appeals against that sentence on a number of grounds.1 Police v Bowman [2017] NZDC 5389.2 He was also convicted and discharged on one charge of possession of cannabis, one charge of breach of community work and one charge of breach of supervision.The relevant offending[3] On 3 September 2016, an associate of Mr Bowman's, Mr Boyle, went to a house in Hawera and stole two televisions, a tablet and a playstation, valued ataround $2,220. He took these things to Mr Bowman's home and together they sold them to persons unknown. Those events gave rise to the receiving charge.[4] The following day, Messrs Boyle and Bowman were driving around Hawera. They parked their car outside a house there and knocked on the door. They were seen by someone across the road. They went around the back where they found the back door was unlocked. Both men went inside. Mr Bowman took one television to the back door. He told Mr Boyle there was another one. Mr Boyle then took both televisions and put them in the back of their car. The men also took some jewellery. The total value of the things taken was around $1,550.[5] Early in the morning of 9 September 2016, the two men drove to a house in Normanby. Mr Boyle stayed in the car while Mr Bowman knocked, first on the front, and then the back door. Again, the back door was unlocked and both men entered the house. They took property from inside valued at approximately $1,050.[6] Later that same morning, they parked in a driveway in Egmont Street in Hawera. Mr Bowman told Mr Boyle to check out the house. A neighbour saw them both and called Police. In the meantime, Mr Boyle forced open a door and went inside. Mr Bowman checked out the garage. Mr Boyle picked up something from the lounge but when he saw a Police car pull into the drive he ran from the address empty-handed.[7] Mr Boyle went to a house on Reid Avenue and changed his jersey. Then he went to the Hawera Police station and made a complaint that his car had been stolen. He was later arrested, as was Mr Bowman. The car they had been driving, whichbelonged to Mr Boyle's father, was found at the Egmont Street address, with the keys still in the ignition. Stolen property was found in the car.[8] A search conducted at the Police Station revealed that Mr Bowman was in possession of a small usable quantity of cannabis.Subsequent events and sentencing[9] Mr Bowman first appeared on 10 September 2016 and was bailed on a 24 hour curfew to his parents' address. At that point both he and Mr Boyle were facing three other burglary charges. Mr Bowman was at that point represented by the same lawyer as Mr Boyle.[10] Following the instruction of new counsel, Mr Bourke, the Police accepted Mr Bourke's contention that Mr Bowman's role in the offending had been secondaryto Mr Boyle's and that he was not involved in the other three burglaries. Those three charges against Mr Bowman were then withdrawn, and he pleaded guilty on 13 December 2016.[11] Both Mr Bowman and Mr Boyle appeared before Judge Sygrove for sentencing on 15 February 2016.Mr Boyle[12] Mr Boyle had pleaded guilty to all the original six charges of burglary and one of theft (relating to the property said to have then been received by Mr Bowman). On 15 February Judge Sygrove:3(a) adopted a starting point of 30 months;(b) uplifted by four months for the number of offences, their seriousness, and previous convictions;(c) discounted by 10 months for reparation and restorative justice;(d) reduced by six months for guilty pleas; and(e) converted the end sentence of 18 months to nine months' homedetention.3 Police v Boyle [2017] NZDC 5567.Mr Bowman[13] Because Mr Bowman's proposed home detention address (which was the same as that to which he had been bailed) had not yet been checked for electronic monitoring suitability he was not sentenced on 15 February but remanded to enable an updated PAC report to be prepared. He was advised by the Judge that he would do well to present on the next occasion with a reparation payment.[14] Mr Bowman was sentenced by Judge Sygrove on 15 March 2017. The Judge began by noting that he had two burglary convictions in 2014. He recorded the distress expressed by the victims in their statements. Then, he said:[5] The pre-sentence report recommends a sentence of imprisonment. The address that you have given as a home detention address they do not regard as suitable. The police certainly do not regard it as suitable because there have been callouts to that address on two occasions already, 17 November and 7 August. The probation officer who wrote the report and is in Court today, she does not regard the address as appropriate. You are unable to offer reparation unlike your co-offender and your type of offending is described in Senior v Police as a spree burglar. You can expect a sentenceof around four years' imprisonment. Spree burglars appear for a largenumber of burglaries committed within a short space of time. They tend to be candid with the police usually in the form of admissions to some burglaries that result in those burglaries and potentially other burglaries being solved. Their co-operation is a significant sentencing factor that must be balanced with the sentencing principles of deterrence and denunciation. The factors in Nguyen that need to be considered are the degree of planning and sophistication, that was minimal, the nature of the premises entered, private home, the kind and value of property stolen substantial, high, extent of offending three burglaries. You fit within those categories quite well Mr Bowman. And based on that I regard the starting point for you taking into account the applicable authorities and statutory factors as one of threeyears' imprisonment. The offences were committed while you were on bailsubject to a sentence and the number, seriousness, date and relevance ofprevious convictions justify an uplift of eight months' imprisonment. Thereare not mitigating factors so far as you are concerned. You have breached community work. You have breached intensive supervision and I am sorryto say that your lawyer's submissions to me to impose home detention all ondeaf ears. Do not commit the crime if you cannot do the time Mr Bowman.You are sentenced to 33 months' imprisonment.The appeal[15] Mr Bowman's sentence appeal was brought on the following grounds:(a) the three year starting point was excessive;(b) the eight month uplift was excessive;(c) the sentence was inconsistent with Mr Boyle's;(d) no discount was given for the six months he spent on 24 hour curfew;(e) no credit was given for his youth (he is 20 years old); and(f) the end sentence was outside the available range, and manifestly excessive.Discussion[16] I agree with Mr Bourke that the three year starting point cannot be justified when compared with the 30 month starting point adopted for Mr Boyle. Ms Milne for the Crown did not disagree. In R v Lawson the Court of Appeal said:4The disparity argument is not infrequently raised in this Court. For that reason we reiterate that differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co- offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate. But the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance4 R v Lawson [1982] 2 NZLR 219 (CA) at 223 (citations omitted).over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice. A number of expressions have been used to capturethis concept, namely "the disparity is so gross that a justifiable sense of injustice would persist", that right-thinking members of the public are likelyto say "there is something wrong here". But the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.[17] Here, the signal point here is that Mr Boyle was sentenced for twice as many burglaries (including those three in which Mr Bowman was involved). While it was open to the Judge not to accept that Mr Boyle was the ring-leader (notwithstanding the Police position) he did not express that view. Nor does the Summary of Facts disclose any obvious basis for such. Accordingly the reasons for adopting a higher starting point for Mr Bowman is neither made explicit and nor is it obviously implicit. Those matters which might legitimately form the basis of a distinction between the two men and the two sentences (in particular Mr Boyle's payment ofreparation and his participation in the restorative justice process) were separately dealt with by the Judge. In my view the disparity between the starting points here is such that it meets the thresholds referred to in Lawson.[18] Secondly, there is the matter of the eight month uplift.[19] The Judge was right to note that the offending was committed while Mr Bowman remained subject to another sentence, although it seems relevant that he had, in fact, completed 162 out of his 180 hours' community work sentence.5 TheJudge's statement that he was also on bail at the time of his offending was, however,mistaken.6 And in terms of the "the number, seriousness, date and relevance ofprevious convictions" Mr Bowman had only four dishonesty convictions7 and had never before received a custodial sentence.5 He was precluded from completing the remaining 18 hours before sentencing by his 24 hour curfew.6 He did have active charges for breach of supervision and community work but had been remanded at large.7 Two for burglary, one for theft (under $500) and one for unlawfully taking a motor vehicle.[20] And thirdly there is the question of the six months spent on 24 hour curfew, more or less without incident.8 While I accept that a sentencing Court is only obliged by law to take into account the fact of time spent on EM bail, it is nonetheless commonplace to recognise other cases where an offender has already had a very real restriction placed on his liberty. I accept Mr Bourke's submissionthat such a restriction is particularly acute where a 20 year old man has been required to live for some considerable time in very close quarters with his parents and three younger siblings with no opportunity for relief or escape. Theirs is a modest house. Mr Bowman was required to share a bedroom with his younger brother.[21] The combined effect of the above three matters is, I think, that Mr Bowman'send sentence is inevitably manifestly excessive. For myself, I would adopt:(a) a starting point on the burglary charges of no more than 24 months, given Mr Bowman's secondary role;9(b) an uplift of no more than four months for relevant previous convictions and offending while subject to a sentence;10(c) a discount of two months for time spent on 24 hour curfew; and(d) a 25 percent discount for guilty plea (as did the Judge).[22] That would yield an end sentence of 20 months' imprisonment. Home detention therefore becomes a sentencing option and in my view it is the least restrictive one here. It is trite that home detention carries a considerable measure of deterrence and denunciation. Mr Bowman's relative youth and the fact he has neverpreviously been subject to an EM sentence are also relevant factors.8 There was one recorded breach, where Mr Bowman went to the dairy to buy cigarettes. No charge resulted.9 In relation to the third burglary charge, for example, he did not even go inside the house or take anything.10 Compare for example Newton v Police [2012] NZHC 2829 (three month uplift for 20 previousconvictions (three for dishonesty) and offending on bail) and Kati v Police HC Napier CRI 2011-441-19, 11 July 2011 (four month uplift for over 20 previous convictions in the District Court,including theft, wilful damage and unlawful taking).[23] The PAC report deemed Mr Bowman's bail address technically feasible forhome detention but not suitable due to the two call-outs that had occurred during his time on bail. Those call-outs were the result of friction between Mr Bowman and his brothers where his mother had called Police to help de-escalate the situation. No charges were laid.[24] The PAC report also raised Mr Bowman's parents' criminal past but makes it quite clear that those days are behind them. Both the Police and the District Court regarded their address suitable for strict bail purposes. I also record that Mr Bowman's parents have attended a number of his court appearances and continue to be supportive of him.[25] As Mr Bourke submitted, it is unusual to have a case where the suitability ofa home detention address has been tested by a "dry run" of the kind that has occurredhere. Although not completely without incident the six months already spent by Mr Bowman at the address under 24 hour curfew is as good an indicator as any that the address is appropriate. I note that if trouble nonetheless arises there is another address in Wellington that may be a suitable alternative.Result[26] The appeal against sentence is allowed and the sentence of 33 monthsimprisonment is quashed. A sentence of nine months' home detention is substituted(which is intended to take account of the time Mr Bowman has already spent in custody) on standard and the following conditions:(a) the sentence will commence on the day after the date of this judgment;(b) upon his release from prison Mr Bowman is to travel directly to the home detention address, (his parents' home in Hawera) where he is to await the attendance of a Probation Officer;(c) he is to attend alcohol and drug counselling as directed by his Probation Officer;(d) he is to attend an assessment for Short Rehabilitative Programmes as directed by his Probation Officer and is to attend any counselling, treatment or programme recommended as a result of that assessment as directed by and to the satisfaction of his Probation Officer; and(e) he is to attend an assessment for a Tikanga Programme as directed by his Probation Officer and to attend and complete any counselling, treatment or programme recommended by the assessment and as directed by and to the satisfaction of his Probation Officer._____________________________Rebecca Ellis J