SINGH v POLICE [2016] NZHC 1739

SINGH v POLICE [2016] NZHC 1739 [29 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000171[2016] NZHC 1739IN THE MATTER OF an appeal against sentenceBETWEEN JASON VIRENDRA SINGHAppellantAND NEW ZEALAND POLICERespondentHearing: 26 July 2016Counsel: R P Chambers for the AppellantH D Benson-Pope for the RespondentJudgment: 29 July 2016JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 29 July 2016 at 11.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: R P Chambers, AucklandSolicitors: Kayes Fletcher Walker Limited, AucklandIntroduction[1] Mr Singh pleaded guilty to 23 charges for a spree of burglary relatedoffending. He was sentenced to three years' imprisonment in the District Court. 1 He appeals that sentence on the grounds that the starting point of five years'imprisonment adopted by the Judge was too high, and the discount given for his personal mitigating factors was inadequate.Background[2] Mr Singh pleaded guilty to the following charges:(a) Eight charges of burglary;2(b) Ten charges of using a document for a pecuniary advantage;3(c) Two charges of receiving;4(d) One charge of theft;5(e) One charge of possession of instruments for burglary;6 and(f) One charge of possession of utensils for consumption of controlled drugs.7[3] The offending giving rise to the charges occurred between 13 September 2015 and 8 October 2015. Over this period, Mr Singh burgled eight different residential addresses, stole items out of a car parked in an enclosed yard, pawned a number of items of property, and made various purchases using stolen bank cards.1 Police v Singh [2016] NZDC 10489.2 Crimes Act 1961, s 231. Maximum penalty 10 years' imprisonment.3 Crimes Act 1961, s 228(b). Maximum penalty seven years' imprisonment.4 Crimes Act 1961, ss 246 and 247. Maximum penalty one year's imprisonment.5 Crimes Act 1961, s 223(d). Maximum penalty three months' imprisonment.6 Summary Offences Act 1981, s 14. Maximum penalty three months' imprisonment or a $2,000fine.7 Misuse of Drugs Act 1975, s 13(1)(a) and 13(3). Maximum penalty one year's imprisonment ora $500 fine.[4] Four of the eight burglaries were committed at night. In three of these the victims were at home and asleep. Two victims were also present during another burglary committed in the daytime.[5] Various items were taken during these burglaries, including guitars, video cameras, laptops, televisions, jewellery and other electronic items. Items valuing approximately $10,000 were taken by Mr Singh during one of the burglaries, with the total value of property taken amounting to approximately $26,500.[6] Many of the items stolen by Mr Singh were subsequently pawned, either the next day or within a week of being stolen. The two receiving charges involved receipt of a number of electronic items including Playstation and X-box gaming consoles with a value of approximately $1,200.[7] Mr Singh also stole a number of bank cards during his month long spree and this offending gave rise to the 10 charges of using a document for pecuniary advantage. The amounts taken totalled $450.[8] The theft from a car charge involved Mr Singh removing several cardsincluding a driver's licence, student ID and bank card from an (unlocked) car whichwas parked in the driveway of a residential home.[9] On 8 October 2015, police executed a search warrant at Mr Singh's home.They located two glass pipes used to smoke methamphetamine, two screwdrivers, a hammer and a glove inside a large black sports bag, and items taken from several of the burglaries. As a result, Mr Singh was charged with possession of utensils for the consumption of controlled drugs and possession of instruments for burglary.Sentencing decision[10] The Judge commenced the sentencing by referring to the offending and noting that at the age of 25, Mr Singh had two convictions from 2008 and 2013, neither of which was relevant to the sentencing exercise. He also referred to a report from Dr Woodcock of the Auckland Psychiatric Association. That report concludedthat Mr Singh suffered from antisocial personality disorder and ADHD, and recommended a sentence which focused solely on rehabilitation.[11] In terms of a starting point, the Judge considered that the seriousness of the offending had to be assessed by looking at the more serious charges of burglary. The Judge adopted a starting point of five years' imprisonment for the totality of theoffending.[12] After addressing the starting point, the Judge then went on to state that Mr Singh was 25, had no relevant previous convictions and had been on EM bail with a 24 hour curfew since October (some seven months). He then stated "I can give you a discount for your pleas but that is all". The Judge recorded thatMr Singh's personal circumstances were of little significance given the spate ofoffending he had to deal with, the need to hold him accountable, deter and denounce his offending.[13] The Judge determined that the least restrictive outcome was a sentence ofthree years' imprisonment to be imposed concurrently for the burglary and using adocument offences, and concurrent sentences of one month imprisonment for the other offending.Approach on appeal[14] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[15] In any other case, the Court must dismiss the appeal.8 The Court will rarely intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The Court of Appeal has also held that despite s 250making no express reference to "manifestly excessive", this principle is "well -engrained" in the Court's approach to sentence appeals.9 Whether an end sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.10[16] The methodology by which the Judge reached the end sentence in this case is not clear from the sentencing notes. To ascertain whether there is a material error rendering the end sentence manifestly excessive, I have considered the appropriate starting points and adjustments for mitigating factors.Starting point[17] Mr Chambers, on behalf of Mr Singh, submits that the starting point was too high. He submits a starting point of 18 to 24 months would have been appropriate for the lead offences, with an uplift of eight months to one year for the other offending.[18] In Arahanga v R, the Court of Appeal held that there was no tariff case for burglary because of the wide variety of circumstances in which the offending can be committed.11 The Court observed that burglary of a domestic residence is a significant aggravating feature due to the heightened risk of confrontation, as is offending occurring at night when the occupants are asleep.12 Other factors relevant to the assessment of the gravity of the offending include: the degree of planning and sophistication, the nature of the premises entered, the kind and value of the property stolen, the damage done, the potential impact upon the owners or occupiers of the property, and, where there are multiple burglaries, the extent of offending. 138 Criminal Procedure Act 2011, s 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].10 Ripia v R [2011] NZCA 101 at [15].11 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].12 At [77].13 R v Nguyen CA 110/01, 2 July 2001.[19] The Court of Appeal in Arahanga v R observed that dwelling-house burglaries at the relatively minor end of the scale tended to attract a starting point ofapproximately 18 months to two years, six months' imprisonment.14 At the other endof the scale, starting points ranging from three years and six months to four years'imprisonment for a serious high value residential burglary have been held to be appropriate.15[20] In Swinburne v R, a starting point of three years, six months' imprisonmentfor three burglaries involving entry into dwelling-houses during the daytime and taking property of $13,531 was upheld. No occupants were present at the time the burglaries were committed.16[21] In Makene v R, an overall starting point of three years, six months was similarly upheld for eight counts of burglary and two counts of sexual connection with a young person. The burglaries were of residential properties while no occupants were present. The total value of the property taken was approximately $33,400.17[22] The starting point adopted in those two cases is consistent with the three years, six months starting point adopted for seven charges of burglary and three of attempted burglary in Fonua v New Zealand Police.18 Those burglaries were of residential properties when no occupants were present and $3,000 worth of goods was taken.[23] Mr Chambers referred to the review of sentences imposed in burglary cases in Osborne v Police which had significantly lower starting points for burglaries than those canvassed in the above cases.19 The decisions reviewed in that case relate to sentences imposed between 1995 and 2000. The case of Osborne was itself decided in 2002. In my view, the principle of parity is best met by considering sentences14 Arahanga v R, above n 11, at [78].15 Penniket v R [2016] NZCA 154 at [40]–[43]; Harrison v R [2011] NZCA 80; and Marsh v R[2010] NZCA 445.16 Swinburne v R [2010] NZCA 568 at [8] and [15].17 Makene v R [2013] NZCA 178 at [13]–[14].18 Fonua v New Zealand Police [2015] NZHC 2360.19 Osborne v Police HC Whangarei AP 21/02, 13 May 2002.imposed in the more recent cases which were decided under the Sentencing Act 2002 and in light of guidance from the appellate courts.[24] Mr Chambers also referred to the cases of R v Povey and Stepanicic v R.20 InR v Povey, the Court of Appeal accepted that a two year starting point for a burglary of an upstairs residential apartment during the night when the victim was present, was within range. In that case the value of the property taken was very low, but there were other aggravating features which made the two year starting point appropriate. The Stepanicic case involved two burglary charges for offending in the early hours of the morning when the occupants were present. Items taken included a cellphone, camera, keys, wallets, a laptop, Playstation and jewellery. A two year starting point was adopted by the Court of Appeal in that case also.[25] The number of burglaries in Mr Singh's case (eight) is significantly higher than the single burglary at issue in R v Povey, and the two burglaries at issue inStepanicic v R. The value of the property taken (approximately $26,500) is also significantly higher than in either of those cases. Other aggravating features include the fact that four of the burglaries occurred at night, and three when the victim was asleep. On two occasions Mr Singh gained entry by smashing a window or a door and personal items, including jewellery, electronics and bank cards were taken.[26] I consider the cases of Makene v R, Swinburne v R and Fonua v R to be comparable given the multiple burglary charges and value of items taken in thosethree cases. I therefore consider a starting point of three years, six months'imprisonment for the eight burglary offences to be appropriate.Uplift[27] An uplift on the starting point is required for the other offences. Mr Singh submits that an uplift of between eight to 12 months for the other offending would be appropriate in this case. The Crown submits that an uplift of 12 to 18 months is within range.20 R v Povey [2009] NZCA 362; and Stepanicic v R [2015] NZCA 211.[28] Having regard to the appropriate starting points for each of those charges if considered individually,21 the gravity of the offending which took place over a short period of time,22 and totality, I am satisfied that an uplift of 12 months would be appropriate for the other offending in this case.[29] This would bring the starting point to four years, six months' imprisonment.Although that is lower than the starting point adopted by the Judge, this does not mean that there has been a material error vitiating the end sentence. It is the end sentence which is relevant on appeal, rather than the process by which that sentence was fixed.Personal mitigating factors[30] Mr Singh submits that the Judge failed to take into account his youth, lack of previous serious offending, the report by Dr Woodcock, pre-sentence report and time spent on EM bail, in fixing the end sentence.[31] Crown counsel submits that a total discount of 40 per cent was applied so as to reduce the sentence from the starting point of five years' imprisonment to the end sentence of three years' imprisonment. It is not clear from the sentencing notes howthe discount was calculated. Crown counsel suggests that it comprises a 25 per cent discount for the early guilty plea, and a 15 per cent discount for other personal mitigating factors. The Crown submits that a 15 per cent discount was within range for the various factors raised by Mr Singh and further discount is not justified.[32] I take each of the factors raised by Mr Singh in turn.[33] First, the issue of Mr Singh's age. An offender's youth may justify a discountin certain cases. Young people are more vulnerable to negative influences and may have a tendency to greater impulsivity than adults. The effect of imprisonment on21 Starting points for the offence of receiving were canvassed in Andrews v Police [2015] NZHC 2496 at [32]. Similarly, starting points for the dishonest use of a document offence were considered by the Court of Appeal in Rako v R [2015] NZCA 463 at [9].22 The two receiving charges involved property worth approximately $1,200. The ten charges of using a document for a pecuniary advantage related to the use of cards resulting in $450 being taken.young people and the usually greater capacity for rehabilitation are also factors which can contribute to discounts given for youth.23[34] However, at 25 years of age, Mr Singh can no longer be considered a youth. In Tukaki v R, the Court considered that at 19 the offender was at the upper end of the age range which might justify a separate discount for youth. 24 In R v Blackburn,Allan J considered the 25 year old offender was too old for a separate youth discount.25 In R v Zheng, Winkelmann J considered no discount was available to a 24 year old.26 I do not consider that Mr Singh's age warrants a separate discount.[35] Second, the lack of previous serious offending. The Judge clearly had regard to this factor when sentencing Mr Singh. The sente ncing notes record the Judge'sobservation that the spree of offending seemed out of character and that for sentencing purposes Mr Singh would be treated as a first time offender. In any respect, I do not consider that this factor alone would justify a discount from the starting point. Whilst the prior convictions are of no real relevance, Mr Singh cannot point to an entirely clean record prior to the offending in question. There is also no other indication of positive contribution prior to the offending that might justify a discount for previous good character.[36] Third, Mr Singh's mental health. As already noted, Dr Woodcock's report was referred to in the Judge's sentencing notes. That report concluded that Mr Singhhad an antisocial personality disorder which he described as follows:... individuals suffering from ADHD or an Antisocial Personality Disorder have difficulties with impulse control. There is a risk taking, thrill seeker component to both, but the individual with the Antisocial Personality Disorder will typically have less regard for their own safety and the safety of others than the person with ADHD. I believe that the most distinguishin g feature is the lack of empathy found in persons with Antisocial Personality. There is a disregard for the feelings of others and a lack of appropriate guilt over their own inappropriate or hurtful behaviour.[37] Mental health conditions which are causative of the offending can moderatean offender's culpability. Such conditions may also render a sentence of23 See for example Arahanga v R [2014] NZCA 379 at [26].24 Tukaki v R [2013] NZCA 411 at [18].25 R v Blackburn [2013] NZHC 151 at [19].26 R v Zheng [2012] NZHC 1102 at [8].imprisonment less appropriate in some cases. However the Court of Appeal has cautioned that whilst mental disorder may mitigate moral fault, and therefore criminal culpability, care must nevertheless be taken when assessing the impact of mental illness.27[38] Dr Woodcock's report does not draw an obvious causative link betweenMr Singh's disorder and the offending. It would be well within a sentencing judge'sdiscretion not to grant a discount in those circumstances in my view. Nevertheless, I accept that difficulties with impulse control and a lack of empathy may have played a part in the offending. I therefore consider a very small discount (two months)would be appropriate to recognise that aspect of Mr Singh's personal circumstances.[39] I agree with Mr Chambers' submission that the report is also relevant to assessing Mr Singh's rehabilitation needs. Those needs might be met by the variousprogrammes available in prison, and as assessed by the parole board, and do not justify a separate or different sentence to that of imprisonment in my view.[40] Fourth, the pre-sentence report. The observations made in the pre-sentence report are that Mr Singh did not express remorse for his offending, empathy for his victims, or demonstrate any insight into his offending. His likelihood of reoffending was assessed as high. There is nothing in that report which would require a separate discount in my view.[41] Fifth and finally, there is the seven months spent on EM bail subject to a 24 hour curfew. Mr Singh was only permitted to leave the house to attend court or pre- arranged legal visits. However, he was not fully compliant with these conditions with a curfew breach in February and in May 2016, although the Crown accepts that both were technical in nature.28 In light of these factors and the guidance on such27 Nelson v R [2014] NZCA 121 at [22]. In that case the Court of Appeal upheld a discount ofapproximately 6 per cent for the appellant's personal circumstances which included physical,sexual and psychological abuse by his stepfather. The Court considered this recognition was appropriate given that the reports before the court did not assess the extent to which any of thefactors were causative of or mitigated the appellant's offending.28 Mr Chambers advised from the bar that one of these occasions involved Mr Singh inadvertently breaching curfew in order to meet with Mr Chambers.discounts from recent Court of Appeal authority,29 I consider a discount of six months would be appropriate to recognise this factor.[42] Those discounts reduce the starting point to 46 months.[43] There is no dispute that a 25 per cent discount for the early guilty plea was appropriate in this case. Application of that discount would result in an end sentence of 34.5 months, or approximately six weeks less than the three year sentence imposed in the District Court.End sentence[44] Overall, the end sentence I have reached by considering the starting point for the offending, and the individual discounts for personal mitigating factors is not substantially different to the end sentence imposed by the Judge. Any interference would be tinkering only. The end sentence is not therefore manifestly excessive, and there are no grounds upon which this Court should interfere.Result[45] The appeal is dismissed.___________________Edwards J29 Rangi v R [2014] NZCA 524 at [10]; and Hohipa v R [2015] NZCA 485. In that case a 12 month discount for 14 months spent subject to a 24 hour curfew was given. The appellant was fullycompliant. He was allowed to leave the property to attend court, go to his lawyer's office and tobuy food once a week. There was also a one-off trip to visit family.