NELSON v POLICE [2019] NZHC 2434

NELSON v POLICE [2019] NZHC 2434 [23 September 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000320[2019] NZHC 2434BETWEEN JOHVAN NELSONAppellantAND NEW ZEALAND POLICERespondentHearing: 23 September 2019Appearances: D Taumihau for the AppellantT Stuart for the RespondentJudgment: 23 September 2019ORAL JUDGMENT OF HINTON JSolicitors:Public Defence Service, AucklandMeredith Connell, AucklandIntroduction[1] Mr Nelson was sentenced by Judge Gibson in the Auckland District Court on9 July 2019 on 15 charges, basically amounting to a lengthy petty crime spree:(a) burglary;1(b) unlawfully taking a motor vehicle;2(c) possession of a utensil for cannabis (x 2);3(d) possession of cannabis (x 2);4(e) driving while disqualified;5(f) failing to carry out obligations in relation to a computer search;6(g) unlawfully in a building;7(h) wilful damage;8(i) unlawfully uses a document for a pecuniary advantage (x 2);9(j) unlawfully in an enclosed yard;10(k) shoplifting (under $500);11 and(l) receiving property (over $1,000).121 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years' imprisonment.2 Section 226(1). Maximum penalty seven years' imprisonment.3 Misuse of Drugs Act 1975, s 13(1)(a) and 13(3). Maximum penalty one year's imprisonment.4 Section 7(1)(a) and 7(2). Maximum penalty three months' imprisonment.5 Land Transport Act 1998, ss 31(1)(a) and 32(3). Maximum penalty three months' imprisonment.6 Search and Surveillance Act 2012, s 178. Maximum penalty three months' imprisonment.7 Summary Offences Act 1981, s 29(1)(a). Maximum penalty three months' imprisonment.8 Section 11(1)(a). Maximum penalty three months' imprisonment.9 Crimes Act 1961, s 228(1)(b). Maximum penalty seven years' imprisonment.10 Summary Offences Act 1981, s 29(1)(b). Maximum penalty three months' imprisonment.11 Crimes Act 1961, ss 219 and 223(d). Maximum penalty three months' imprisonment.12 Sections 246 and 247(a). Maximum penalty 10 years' imprisonment.[2] Judge Gibson sentenced Mr Nelson to 23 months' imprisonment with leave toapply for home detention. Mr Nelson appeals his sentence on the grounds that thestarting point was excessive, there was insufficient credit given for mitigating features,particularly youth and mental impairment, and the Judge failed to impose the leastrestrictive outcome appropriate. Mr Nelson is 22 years old.[3] The respondent submits the sentence was appropriate.Background[4] There are four distinct sets of offending.First set – 3 January 2019 offending[5] The first set relates to unlawfully taking a motor vehicle, possession ofcannabis and a pipe, driving while disqualified, and failing to comply with obligationsin relation to a computer search. On 3 January 2019, Mr Nelson obtained access to aninsecure vehicle and drove it away. He was caught by Police at another address. Theyconducted a warrantless search and found cannabis and a pipe. During the search,Police requested Mr Nelson's pin code for his mobile phone and he refused. ThePolice also found the keys for the stolen car.Second set – 24 and 25 January 2019 offending[6] The second set of charges relates to the unlawfully in a building, possession ofcannabis, and wilful damage charges. These arose from events on 24 and 25 January2019. Mr Nelson and an associate entered a primary school, where Mr Nelson rippedoff the door and damaged the window of a playhouse. Mr Nelson and his associatestayed the night in the playhouse until they were seen by the local parish priest, whocalled the Police. The Police found cannabis on Mr Nelson.Third set – 22 and 27 February and 18 and 23 March 2019 offending[7] The third set of charges concerns the use of two credit cards, being in anenclosed yard, and shoplifting.[8] On 22 February 2019, Mr Nelson stole a credit card from a changing room atMoana Pool in Dunedin. He then used the card to make two purchases, totalling$121.54.[9] On 27 February 2019, Mr Nelson stole another card out of a parked car througha faulty window. He used it to make two purchases totalling $95.40.[10] On 18 March 2019, he went into a person's front yard without permission, andwalked around the front and side of the property before leaving.[11] On 23 March 2019, Mr Nelson stole a $40-bottle of liquor from a store. Anemployee noticed him taking it. When challenged, Mr Nelson ran away with thebottle.Fourth set – 18 March and 8 April 2019 offending[12] The fourth set of offending relates to the burglary, receiving, and possession ofa pipe charges.[13] Around 1.00 am on 18 March 2019, a bicycle was stolen from Trafalgar Street,Dunedin, valued at $1,000 and around 2.56 am, Mr Nelson was observed in possessionof that bicycle. At that same time, he committed a burglary at 91 Richardson Street,being a residential address. A fanlight window was forced open and an inside glasspane shattered. Mr Nelson reached through the glass window. His fingerprints werefound on the interior side. The summary of facts Mr Nelson pleaded to is quitenon-specific, and I only have the details I have described.[14] On 8 April 2019, Mr Nelson was arrested on an unrelated matter at theAuckland City Police Station. He was found with a cannabis pipe.District Court decision[15] The Judge began by noting Mr Nelson's age, and that he has a growingcriminal history, but that most of it is anti-social, low-level type offending. The Judgeconsidered, however, that the burglary charge was an escalation. The Judge took theburglary offence as the lead charge, noting there was very little detail in the summaryof facts as to the circumstances, much as I have already noted.[16] The Judge then said that Mr Nelson had written an extensive letter of apology,but that the pre-sentence report-writer did not consider he displayed noticeableremorse or empathy with the victims. His risk of offending was assessed as high. Thereport also commented that Mr Nelson had mental health issues, and he was not onmedication when he was offending. A psychological assessment noted that ifMr Nelson's substance abuse is untreated, he is at high risk of offending further.[17] After considering the reports, the Judge said that what he consideredMr Nelson really needed was assistance with treatment and a stable address. If thatwere possible, the Judge said he would look favourably at granting home detention.Otherwise, the Judge was concerned that Mr Nelson would return to living on thestreets and living the lifestyle he had been living to this point. The pre-sentencereport-writer noted that Mr Nelson has entrenched anti-social attitudes towards the useof drugs and seemed to enjoy the criminal life he was leading.[18] In terms of the sentence, the Judge took burglary as the lead charge. He beganby noting there was no tariff, but that the Court of Appeal in Arahanga v R indicatedthat for a relatively unsophisticated burglary of a residential property, a starting pointof between 18 months and two-and-a-half years was appropriate.13 The Judge took18 months as the starting point. He noted he could sentence cumulatively because ofthe separate nature of the sets of charges, but said he considered it more appropriateto uplift by 12 months to account for all of the other offending. He uplifted by a furthertwo months because the latter three sets of offending occurred while Mr Nelson wason bail for the first. This came to 32 months' imprisonment.[19] The Judge did not add an uplift for previous convictions and gave a discountof approximately 10 per cent (or three months) for Mr Nelson's mental health issues,and 20 per cent (six months) for the guilty plea. This came to one year and 11 months'imprisonment. The Judge gave leave to apply for home detention.13 Arahanga v R [2012] NZCA 480.Approach on appeal[20] The grounds of appeal are that the Judge adopted an excessive starting point,gave insufficient credit for youth and mental impairment, and failed to impose the leastrestrictive outcome, namely intensive supervision and community work.[21] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on conviction,and that a different sentence should be imposed.14[22] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.15 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.16 The focus ison the end result rather than the process by which the sentence was reached.17Discussion[23] I will address each ground of appeal in turn. Of course, the test is whether thesentence taken as a whole is manifestly excessive, which I will consider at the end ofmy discussion.Starting point[24] Mr Taumihau, for the appellant, submits the starting point for the burglarycharge was excessive. He says that the range for the starting point should be 12 to16 months' imprisonment in this case. The respondent submits the starting point of18 months is well within the range for this type of burglary.[25] As cited by the Judge, the Court of Appeal in Arahanga v R wrote that,although there was no tariff case for burglary because of the wide range ofcircumstances in which offending of this type can occur, dwellinghouse burglaries at14 Criminal Procedure Act 2011, s 250(2).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].16 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].17 Tutakangahau v R, at [36].the relatively minor end of the scale tend to attract a starting point of between18 months' and two-and-a-half years' imprisonment.18[26] In Senior v Police, a full bench of this Court set out a number of factors thatwill make a burglary more serious. These factors are often referred to in cases suchas this:19(a) Behaviour which involves actual danger to or confrontation withoccupiers, or the risk of such danger and confrontation. This factor willalmost always be present with the burglary of a dwellinghouseparticularly by night and it is of particular concern where the occupantsof such a dwelling house are elderly, infirm or vulnerable.(b) Behaviour which is likely to make the victim feel targeted. Forinstance, repetitive burglaries of the same property and the theft ofpersonal items.(c) Wanton destruction of property and acts of vandalism.(d) The theft of items of high monetary or sentimental value.(e) Sophisticated planning and execution.(f) Offending while on bail, while on parole or in close proximity to Courtappearances on other charges, particularly of burglary.[27] In terms of the present offending, from the few details I am provided with, theaggravating features here are that it was a dwellinghouse, and it was at night, so therewas a risk of confrontation. But the summary of facts does not say that Mr Nelsonactually entered the address, that there were occupants present, or that he tookanything. I can only proceed on the basis he broke a window and reached in with hishand. The Crown submit it is an aggravating factor that the stolen bike was used in18 Arahanga v R [2012] NZCA 480 at [78].19 Senior v Police (2000) 18 CRNZ 340 (HC) at [19].the offending. I do not accept this submission. While Mr Nelson may have beenunlawfully in possession of the bike at the time, this is accounted for in the uplift forother offending. Considering these aggravating factors, I can only conclude this is alow-level dwellinghouse burglary.[28] Mr Taumihau has cited a number of cases to me where starting points of lessthan 18 months were set for burglaries of a dwellinghouse.20[29] In McKee v Police, the offender entered a residential property by forcing abedroom window, at an unspecified time of day. No significant property was taken,and no one was at home. Woodhouse J held an appropriate starting point was12 months' imprisonment.21[30] In Tairi v Police the offender broke into a residential property during the dayby smashing a window pane and took items of not significant value. It does not appearthere were occupants present.22 Duffy J held a starting point of 16 months wasappropriate.[31] In Blissett v Police, the defendant took $2,000 worth of goods and the Judgeadopted a starting point of 17 months' imprisonment.23[32] To these cases, I add Kós J's decision in Newton v Police.24 The offender inthat case was driving by an address one morning, stopped, entered a house and stolegoods worth a reasonably large amount of money. Kós J held that an appropriatestarting point was 15 months, taking into account that it was an unoccupied residentialaddress, in the morning, and there was no premeditation.[33] From the cases referred to me, and the cases referred to by Kós J in Newton,25I conclude that the Court of Appeal's guidance in Arahanga is not strictly accurate or20 McKee v Police [2012] NZHC 2684; Tairi v Police [2015] NZHC 187; and Moeroa v Police [2015]NZHC 2226.21 McKee v Police [2012] NZHC 2684 at [20].22 Tairi v Police [2015] NZHC 187.23 Blissett v Police [2013] NZHC 156.24 Newton v Police [2012] NZHC 2829.25 At [14]–[17].has not strictly been applied. All these cases considered Arahanga and came tostarting points of less than 18 months. A more realistic range might be one year totwo-and-a-half years' imprisonment.[34] I consider that the starting point adopted by the Judge was too high. WhileMr Nelson's offending occurred at night at a residential address, on the facts, there isno evidence he entered the address, beyond a fingerprint on the inside of the window,that there were occupants present, or that he took anything. While burglaries of adwellinghouse will always be serious, especially where there is a heightened risk ofencountering occupants, which there is at night, I consider a more appropriate startingpoint here would be 14 months' imprisonment.Insufficient discount for mitigating features[35] Mr Taumihau cites the Court of Appeal's decision in Churchward v R for theproposition that a discount for youth is appropriate.26 The Court gave three reasonswhy a youth discount is appropriate: first, to reflect the neurological differencesbetween adults and young people, which make young people more susceptible tonegative influences. Second, long sentences of imprisonment may have a "crushing"effect on young people; and third, young people have a greater capacity forrehabilitation.[36] Mr Taumihau further notes that a youth discount has been found to be availablein the case of a 25-year old.27 He submits that a discount for youth alone in this caseshould be 15 per cent.[37] In terms of Mr Nelson's mental health, Mr Taumihau submits a lengthysentence of imprisonment will only delay Mr Nelson's getting the treatment he needsand would exacerbate any underlying issues he has. He submits that a further discountof 15 per cent is appropriate to reflect this. In other words, a total discount for youthand mental health of effectively 30 per cent or close thereto.26 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].27 Richards v R [2017] NZCA 232 at [37]; and Gacitua v R [2013] NZCA 234.[38] As Mr Taumihau says, in some ways, youth and mental health are similar issuesand there are similar points to be made.[39] I accept Mr Taumihau's submission that the discount is too low. The presentconvictions have all of the hallmarks of youthful, impulsive, stupid, substance-fuelledoffending, committed by a young person without structure in his life. Also, Mr Nelsonhas mental health issues. In these circumstances, I consider a 20 per cent discount foryouth and mental impairment together is appropriate.[40] Although the respondent suggests the uplift for offending while on bail ismodest, neither counsel disputes the two uplifts. Therefore, from my adjusted startingpoint of 14 months, with the uplifts of 12 and two months for the other offending, andfor offending while on bail respectively, I reach an adjusted starting point of two yearsand four months. By taking approximately 20 per cent off this figure for personalmitigating circumstances, being six months, this comes to one year and 10 months.With a further 20 per cent (approximately) for the guilty plea, which again neithercounsel disputes, this comes to one year and five months' imprisonment.Intensive supervision and community work[41] Mr Taumihau submits that a sentence of intensive supervision, coupled with asentence of community work, would be the least restrictive outcome available.28 I donot agree. I consider such a sentence would not sufficiently meet the need to holdMr Nelson accountable for his actions, deter him from committing further offendingor protect the community from further offending.29 Intensive supervision would notkeep Mr Nelson confined to an address. Taking into account the pre-sentencereport-writer's and the psychologist's comments that he is at high risk of re-offending,I do not consider intensive supervision appropriate.[42] I consider home detention would be the least restrictive outcome that a Courtcould impose. There is no application before me, but I understand an application hasbeen made in the District Court. A 24-hour, electronically monitored curfew at an28 Which the Court must impose per s 8(g) of the Sentencing Act 2002.29 Sections 7(1)(a) and (g).address where Mr Nelson has support and supervision would be ideal. He would, Iimagine, be able to obtain leave to attend any treatment sessions he was able to. I canonly hope he can persuade the District Court that he has a suitable address. I amconcerned, having read the PAC report, that his mother's address may not be ideal forhim or his mother and Mr Taumihau tells me she now lives in Dunedin. It isunfortunate that we do not have an equivalent to home detention (but without a home),for the many cases that are like this one.Conclusion[43] Having rejected the submission that I should substitute a sentence of intensivesupervision, and there being no application for home detention before this Court, Imust finally consider whether the six-month difference between the sentence I havereached and Judge Gibson's sentence of one year and 11 months, makes that sentencemanifestly excessive. I consider it does.[44] I therefore allow the appeal and, on the charge of burglary, substitute thesentence of one year and 11 months' imprisonment for a sentence of one year andfive months' imprisonment.[45] I again echo Judge Gibson in saying that this is an appropriate case for homedetention, and I encourage Mr Nelson, with the help of his lawyer, to do his best topromote that application.[46] I also thank counsel for their submissions, which I found very helpful.-----------------------------------------------Hinton J