HANSEN v NEW ZEALAND POLICE [2018] NZHC 361

HANSEN v NEW ZEALAND POLICE [2018] NZHC 361 [8 March 2018]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2017-425-000051[2018] NZHC 361BETWEEN JOHN EDWARD HANSENAppellantAND NEW ZEALAND POLICERespondentHearing: 7 March 2018Appearances: RGR Eagles for AppellantM J Thomas for RespondentJudgment: 8 March 2018JUDGMENT OF GENDALL JIntroduction[1] The appellant pleaded guilty to three counts of burglary and three counts ofreceiving stolen property and on 18 October 2017 he was sentenced in the DistrictCourt at Invercargill to two years and three months' imprisonment.1 He now appealsthat sentence, submitting that it was manifestly excessive.Facts[2] On 16 June 2017, the appellant was picked up in a car driven by his co-offender, Mr Woods. Mr Woods then drove to three different rural properties. At each,Mr Woods burgled tools from sheds on the properties while the appellant remained inthe car. The appellant claimed not to have known in advance that is what Mr Woods1 Police v Hansen [2017] NZDC 23884.intended but admitted that once he did know this, he effectively acted as a lookout.The burgled properties were all on sealed highways close to Tapanui. No-one waspresent when the items were taken.[3] The appellant and Mr Woods then returned to the appellant's house. Mr Woodsdeposited the stolen tools, and other tools he had stolen on earlier occasions, at theappellant's property. When Police searched the property some days later, they foundall the stolen items.District Court decision[4] In his decision in the District Court, Judge Hunt set out his understanding ofthe facts. Initially he thought that the three burglaries happened over two successivenights, but counsel corrected him. The Judge characterised the appellant throughouthis judgment as having an active part in the offending. He noted the victim impactstatements and the harm from these types of burglaries. He also noted the appellant'sextensive criminal history, although he acknowledged that the appellant had only oneprior conviction for burglary.[5] The Judge took a start point of 32 months' imprisonment. He then applied anuplift of four months for the appellant's prior record of dishonesty, the aggravatingnature of burglary from isolated rural properties and the targeted theft of tools. Hethen gave a 25 per cent discount for the appellant's prompt guilty plea. This resultedin a sentence of 27 months' imprisonment, precluding home detention. The Judgeordered the appellant to pay $700 in reparation and cancelled the balance of theappellant's existing sentence of community work.[6] The co-offender, Mr Woods, was sentenced in the District Court at Invercargillon 10 August 2017 on a range of charges which included charges for the incidents herein question for which the defendant had pleaded guilty. His end sentence effectivelywas one of imprisonment of two years seven months on burglary charges, three monthsconcurrent on receiving charges and one month concurrent on other charges.Leave to appeal out of time[7] The appellant acknowledges that this appeal is brought out of time. Heexplains that his current lawyer was not his lawyer at sentencing, who himself wasonly assigned just prior to the sentencing. He explains that there was a delay in hisprevious lawyer passing on files to Mr Eagle.[8] The overriding consideration for the court in deciding whether to grant anextension of time is whether the interests of justice support an extension. Weight willalso be given to the appeal's merits.2 It can also be relevant that the respondent doesnot take issue with granting leave.3 The present respondent has not opposed theapplication for leave to appeal out of time.[9] Leave to appeal out of time is granted in this case as no party is disadvantaged.Principles on appeal[10] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.4 It is only appropriate for this court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.5SubmissionsAppellant's submissions[11] The appellant submits that the sentence imposed was manifestly excessive,particularly given the sentence imposed on his co-offender. He says the Judgeoverstated the seriousness of the offending and the level of the appellant's involvementin it. The starting point of 32 months is said to be too high in comparison to Mr Woods,2 Mikus v R [2011] NZCA 298 at [26].3 Tekira v Police [2014] NZHC 700.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Ripia v R [2011] NZCA 101 at [15].who was being sentenced for other burglaries as well. In light of other cases, counselsuggests that a lower starting point was appropriate.[12] Counsel also criticises the extent of the uplift applied by the Judge. Mr Eaglessubmits that the properties in question here were not particularly isolated, that theirrural nature does not make the offences more serious, and that the appellant did nottarget the theft of tools as he did not plan the burglaries. Furthermore, counsel notesthat the appellant's previous record for dishonesty was some time ago and that he couldnot be seen as a recidivist burglar. He questioned whether all this justified an uplift.[13] Overall, Mr Eagles suggests the imprisonment starting point should have beenperhaps in the range of 18 months to two years and, more likely, 18 months. He arguesthat the sentence of imprisonment imposed was too harsh given that the appellantaccepted responsibility, was remorseful and had limited culpability. And, therefore,home detention too should have been considered.Respondent's submissions[14] Before me, Ms Thomas for the respondent, said the respondent accepts that theJudge's starting point on the burglary charges does not meet the principle of parity,given Mr Woods' sentence. She suggested that a starting point of two years isappropriate here. This provides a sufficient contrast with Mr Woods' sentence. This,she said, could then be uplifted by two months for the receiving charges.[15] Ms Thomas then went on to argue that the Judge's four-month uplift wasavailable to him given the appellant's extensive criminal history. And she maintainedthat there was no error in the discounts awarded by Judge Hunt.[16] Finally, before me, Ms Thomas, for the respondent, noted that it would notoppose a decision by this Court to grant the appellant leave to apply for homedetention, if applicable.AnalysisThe starting point[17] The Judge, as I have noted, took a starting point of 32 months' imprisonmentfor the totality of the offending. I agree with the concession appropriately made byMs Thomas, for the respondent, outlined above, that this was clearly in breach of theprinciple of parity. The appellant's co-offender, Mr Woods, was assessed on the basisof a starting point of 33 months' imprisonment overall, despite being sentenced forthree other burglaries and taking the lead role in the burglaries involving the appellant.And, I consider that generally the starting point here was high even irrespective of theco-offender's sentence.[18] As I noted at [14] above, the respondent suggests a starting point of two yearsis appropriate here. I agree. Counsel for the appellant did suggest a possible startingpoint at about the 18 month mark but, in my view, two years better reflects the totalityof the appellant's offending.[19] On all of this, in Bowan v Police, the appellant was sentenced on three chargesof burglary and one of receiving.6 Mr Bowman and his co-offender entered threeresidential properties, stealing property worth over $2,000 from two of them. Thesentencing Judge imposed a three-year start point. However, on appeal, the Courtfound that a starting point of two years was appropriate, particularly in light of the30 month start point given to the appellant's co-offender.[20] Mr Bowman's offending was arguably more serious than the appellant's here,as he actually entered the properties while the appellant only remained in the car, albeitas some form of lookout. Mr Bowman's burglaries also involved entering domestichomes, rather than stealing items from farm sheds. But, with the appellant's additionalreceiving charges in mind here, a similar starting point of two years, in my view, isappropriate.6 Bowan v Police [2017] NZHC 884.[21] I repeat that the Judge erred by not taking Mr Woods' sentence into accountwhich meant that his 32-month starting point was manifestly excessive. In light ofMr Woods' sentence and Bowman v Police, I confirm that a starting point of two years'imprisonment for the totality of the offending adequately meets the sentencingprinciples of denunciation and deterrence, whilst sufficiently contrasting with thestarting point imposed on Mr Woods. There is no need to apply a further uplift for thereceiving charges.Uplift and discount[22] Judge Hunt in the District Court then gave an uplift of four months for what hedescribed as the appellant's prior record of dishonesty, the aggravating nature ofstealing from rural properties and their isolated nature, and the targeted theft of tools.[23] I find this uplift to be excessive. In my judgment, the nature of the propertiesbeing rural and somewhat isolated is not a particularly aggravating feature and isadequately recognised in the starting point. Nor, given that it appears the appellantwas not involved in the planning of the burglaries, is an uplift for the targeted theft oftools appropriate here.[24] The appellant does have an extensive criminal record however. This includesone burglary charge and many other dishonesty offences. It has been some time,however, since he offended in that way. I consider that an uplift of two months issufficient to recognise his poor record given that he is not a recidivist burglar.[25] The only discount awarded by the Judge was 25 per cent for his guilty plea.The appellant does not suggest any further award was necessary. I agree that isappropriate in this case.[26] From the start point of 24 months, with the uplift of two months for theappellant's poor criminal record, this brings the figure to 26 months. The 25 per centguilty plea discount then applied and rounded up leads to a discount of seven months,resulting in an end sentence of 19 months' imprisonment.Home detention[27] As the appropriate sentence is less than two years, the Court must considerwhether home detention should be imposed instead of imprisonment. The respondentdoes not oppose home detention.[28] As a general comment at this point, I consider that home detention may wellbe appropriate in this case and leave to apply will follow. While the appellant has alarge criminal record, there has been little offending in recent years. Such a sentencealso takes into account his more passive role in the burglaries, which tends todemonstrate he is of less risk to the public. A sentence of home detention couldadequately meet the principles of denunciation and deterrence here. The appellant, ofcourse, will need a suitable address.Reparation[29] The respondent suggests also that the reparation ordered by Judge Hunt in theDistrict Court was too high. Seven hundred dollars was the total loss caused by theburglaries so the amount should have been halved between the appellant and his co-offender. I agree. I will order accordingly.Incorrect charge[30] In addition, the respondent acknowledges that two of the receiving chargeshere relate to the same offending. One was meant to have been withdrawn but it seemsit was not. The Crown consents to the matter proceeding by way of a conviction appealon that charge and the Court setting aside the conviction.Result[31] This appeal succeeds. The sentence of two years and three month'simprisonment on all the charges is quashed. In its place, the appellant is nowsentenced to 19 months' imprisonment. Leave to apply for home detention is granted.[32] The order for reparation of $700 is quashed and replaced with an order to pay$350 reparation.[33] As I note at [30] above, with the Crown's consent, the conviction on the onereceiving charge in question which has been duplicated is now set aside....................................................Gendall JSolicitors:Eagles Eagles & RedpathPreston Russell Law, Invercargill