CURTIS v NEW ZEALAND POLICE [2019] NZHC 1623

CURTIS v NEW ZEALAND POLICE [2019] NZHC 1623 [12 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000188[2019] NZHC 1623BETWEEN JOSHUA CURTISAppellantAND NEW ZEALAND POLICERespondentHearing: 8 July 2019Appearances: P McNabb and G Vear for the AppellantW Fotherby and B Rorrison for the RespondentJudgment: 12 July 2019JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Friday, 12 July 2019 at 11:30 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Public Defence Service, AucklandMeredith Connell (Office of the Crown Solicitor), Auckland[1] On 26 March 2019, Joshua Dean Curtis was sentenced on one charge ofburglary to 20 months' imprisonment by Judge Jelas in the Waitakere District Court.1He now appeals against sentence on the basis that the sentence is manifestly excessiveand not the least restrictive sentence appropriate in the circumstances.2Summary of facts[2] At about 1.45 am on 10 July 2018 the appellant and an unknown associate wentto a residential property in Massey, Auckland. At the time, the occupants of theaddress were in the process of moving to the South Island and had a secured shippingcontainer situated next to the garage on their property. The shipping containercontained a significant amount of their possessions.[3] The appellant and his associate entered the property by removing a padlock tothe main gate. Once inside the property, the appellant and his associate used anunknown tool to damage a handle retainer on the container door allowing the handleto be used to enter the container. Once inside the container, the appellant and hisassociate forced open a gun safe and removed in excess of 700 rounds of ammunitionas well as a hunting scope and two hunting knives. They then proceeded to searchthrough the container and uplifted and took away multiple bottles of alcohol and a safecontaining a large amount of jewellery. The stolen property had an estimatedcombined value of $42,000.District Court sentence[4] At the outset, Judge Jelas noted the fact that the burglary charge occurredduring the currency of two sentences of intensive supervision to which the appellanthad been sentenced. The Department of Corrections had applied to cancel thesentences of intensive supervision on the basis of an assessment that Mr Curtis wasunlikely to comply with a community-based sentence.[5] The Judge referred to the summary of facts and the victim impact statement.She also noted that the appellant's explanation for the offending was that he needed1 New Zealand Police v Curtis [2019] NZDC 5524.2 Criminal Procedure Act 2011, s 250(2)(a).some extra cash to finance his drug habit. The Judge then moved to consider thestarting point for the offending. She took into account the fact that the appellantentered a residential address, albeit that he did not enter the house. The effect on thevictims had been substantial and, although they had been compensated financially,there would have been a lot of stress and inconvenience in making an insurance claim.Further, the appellant committed the offence with an unknown associate. There wasalso some element of preparedness and a substantial amount of property was taken.While the Judge accepted that some distinction needed to be drawn between theappellant's entry into the container and entry into a home, the distinction, in her view,was not great. She said it was more by chance than good fortune that the appellanthad no contact with the victims during the course of the burglary. All in all, the Judgedecided that the appropriate starting point was one of 20 months' imprisonment.[6] The Judge then determined that there should be an uplift for the appellant'sprevious convictions of burglary and other dishonesty offending. The Judge,therefore, imposed an uplift of six months' imprisonment, bringing the nominalstarting point to one of two years and two month's imprisonment. The only mitigatingfactor that the Judge could discern was the appellant's guilty plea which was at thecase review hearing. For that, the Judge determined that six months discount waswarranted, bringing the end sentence to 20 months' imprisonment.[7] The Judge then said that she needed to consider what the least restrictiveoutcome was having regard to the relevant purposes and principles of sentencing.While she acknowledged that the appellant was working and that he had dependents,she felt that she could not impose a sentence of home detention. She was not allsatisfied that, if given the opportunity of yet again serving a sentence in the communitywhere rehabilitative services were made available to the appellant, that he would takeup those opportunities. The Judge noted that the appellant had breached a previoussentence of home detention. Further outcomes included community work, which wasalso breached. Further, sentences of intensive supervision had been imposed to givethe appellant the opportunity to treat the underlying causes or contributing factors ofhis offending, but to date the appellant had not completed those sentences. Norehabilitative steps had been taken by the appellant since the guilty plea was entered.The Judge determined that deterrence, denouncement and holding the appellantaccountable would not be met by a further home detention sentence. Therefore, theoutcome on the charge of burglary was one of 20 months' imprisonment with post-release conditions imposed for a period of six months. Any existing community basedsentences of supervision were cancelled.Approach on appeal[8] In order to justify an appeal court reconsidering a sentence, the appellant mustshow an error:3 that is, application of incorrect principle, insufficient or excessiveweight being given to a particular factor, or that the Judge was plainly wrong.4[9] Where an error or errors are found to have occurred, the Courts' assessment oftheir significance will inform its decision as to whether a different sentence should beimposed. The Court of Appeal noted that although s 250(2) of the Criminal ProcedureAct makes no express reference to a "manifestly excessive" sentence, this conceptremains ingrained in the Courts approach to sentence appeals.5Appellant's submissions[10] The appellant submitted that the Judge erred in the present case by taking astarting point of 20 months' imprisonment, which was disproportionate to the facts ofthe offending and was not consistent with similar offending committed in similarcircumstances.6 As a result, the Judge imposed a sentence that was manifestlyexcessive in the circumstances.[11] Counsel submitted that the Judge erred in effectively treating the appellant'soffending as a residential burglary. Despite the appellant's offending being a break inof a non-residential building on a residential property, the starting point adopted bythe Judge fell squarely within the range for residential burglaries as set out inArahanga v R.73 Criminal Procedure Act 2011, s 250(2)(a).4 Manikpersadh v R [2011] NZCA 452 at [10], citing James v R [2010] NZCA 206. See alsoTutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[36].5 James v R at [33] and [35].6 Sentencing Act 2002, s 8(e).7 Arahanga v R [2012] NZCA 480 at [78].[12] Counsel also relied on the cases of R v Columbus, Gray v Police and Chalmersv Police.8[13] Counsel submitted that the present case was similar to Columbus, Gray andChalmers, in that all cases involved access into a structure on a residential propertyhousing personal property of the victims, but not access into an occupied home,limiting the extent of the victim's invasion of privacy as well as the risk ofconfrontation. The appellant submitted that the appropriate starting point wastherefore 15 months' imprisonment, with a lower uplift for previous convictions offour month's imprisonment required in order to ensure proportionality.[14] The appellant accepted that the discount given for his plea was appropriate, butthat in all the circumstances, the sentence of 20 months' imprisonment was manifestlyexcessive. The appropriate sentence was instead one of 14 or 15 months'imprisonment.Respondent's submissions[15] The respondent submitted that the appellant must point to an error, eitherintrinsic to the Judge's reasoning, or as a result of additional material submitted on theappeal, which vitiated the sentencing decision of the Court below.9 Unless there wasa material error in the sentence, for example, if it was manifestly excessive, wrong inprinciple, or incorrectly calculated by the Judge's own arithmetic, the appellate Courtwill not intervene.10 So the focus is on whether the end sentence was within theavailable range, rather than the process by which it was reached.11 The ultimate issuewas whether the result reflected the overall criminality of the offending and theoffender.[16] The respondent submitted that the starting point adopted was appropriate andresponded to the circumstance of the offending. The appellant's burglary involvedforceful entry into a suburban address at night. The fact that he and his associate did8 R v Columbus [2008] NZCA 192; Gray v Police [2018] NZHC 3245; and Chalmers v Police[2017] NZHC 1434.9 R v Shipton [2007] 2 NZLR 218 (CA).10 Te Aho v R [2013] NZCA 47.11 Tutakangahau v R, above n 4, at [36].not enter the dwelling house on the property is of limited mitigation. Dwelling houseburglaries attract certain starting points because they leave victims feeling vulnerableand because the offending carries a greater risk of confrontation with the victims.12The difference in the present case from a burglary of a dwelling house is one of degree,and a small degree at that. The respondent submits that these factors elevate theoffending beyond the lowest level cases; demonstrating offending markedly moreserious than that in the cases relied on by the appellant.[17] In addition, there are a number of aggravating features of the appellant'soffending. He committed a burglary with an associate. It took place at night, atapproximately 1.45 am. It was targeted offending which involved a degree ofpreparation and the taking of high value items, including a large amount ofammunition and sentimental pieces of jewellery.[18] The respondent submits that, in light of the cases of Shierney v Police13 andOttter v Police,14 the end sentence of 20 months' imprisonment imposed by the Judgewas comfortably within range and appropriate. The appeal should be dismissed.Discussion[19] The primary issue on appeal is the appropriateness of the starting point of20 months' imprisonment adopted in respect of the burglary of a secured container ona residential property in suburban Auckland at night with an associate in which asubstantial amount of property was taken, including ammunition, a hunting scope andhunting knives. It was deliberately targeted offending with the intention of gettingcash to buy drugs.[20] Appellant's counsel sought to distinguish the cases of Shierney and Otter reliedupon by the respondent. Meanwhile, counsel for the respondent says that the cases ofColumbus, Gray and Chalmers relied upon by the appellant are of limited assistancebecause of the aggravating features of the appellant's offending that is absent in thosecases.12 Arahanga v R, above n 7, at [78].13 Shierney v New Zealand Police [2014] NZHC 2963.14 Otter v New Zealand Police [2015] NZHC 2857.[21] In all the circumstances, I cannot say that the Judge was in error in adopting astarting point of 20 months' imprisonment. The Judge gave a careful and well-reasoned explanation. She said:[11] While I accept that some distinction needs to be drawn between yourentry into the container and entry into the home, the distinction in this case is,in my view, not great. While there was a reduced chance of your disturbingthe occupants of the home during your early hours burglary nonetheless youtook from them a significant amount of personal items which had strongsentimental value for them. Although you did not enter their house the effecthas nonetheless been feelings of a significant invasion of privacy and loss ofpersonal property. It is more by chance than good fortune that you had nocontact with the victims during the course of your crime. I am sure I have nodoubt that if they had heard noises they may have investigated nonethelessand there may well have been an encounter, but I accept that is speculation. Iconsider the appropriate starting point to be one of 20 months' imprisonment.[22] The burglary occurred on a residential property and the occupants' privacyinterests did not end at the front door of their house.15 There was also always a risk ofconfrontation with the occupants who, like all homeowners, would naturally challengeany stranger on their property. As the Court of Appeal noted in Arahanga:16Burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.I therefore agree with the Judge that the distinction between entry into the containerand entry into the house is not great.[23] I also cannot say that the Judge was in error in uplifting the starting point of20 months' imprisonment by six months to reflect the appellant's six previousconvictions for burglary over a seven-year period and his other dishonesty offending,which included four receiving convictions.17 The uplift was, however, on the highside because the appellant's last burglary conviction was in 2010 and he had onlyreceived sentences of imprisonment of 15 months on one charge and eight months ontwo other charges.18 However, the Judge did say that the uplift also reflected the factthat at the time the appellant was subject to a sentence of intensive supervision which15 See James v R CA62/05, 4 July 2005 at [33].16 Arahanga v R, above n 7, at [78].17 R v Columbus, above n 8, at [16], citing Senior v Police (2000) 18 CRNZ 340 (HC). See alsoGorgus v R CA706/2015, 19 October 2016 at [4] and [10].18 See R v Stevens [2009] NZCA 190; and Pilum v Police [2012] NZHC 1593.was designed to help him with his drug dependency and that he was subject to a come-up-to-call-upon sentence.19[24] A minor uplift to reflect these factors is permissible and warranted in this case.[25] There is no quarrel with the discount (of approximately 23 per cent) given forthe appellant's guilty plea.[26] In all the circumstances, the appeal is dismissed. I note that the appellant hassubsequently pleaded guilty to the aggravated robbery of a Wendy's Restaurant on29 April 2018, two and a half months before the burglary and is due to be sentencedfor this further offending on 23 August 2019. A cumulative sentence should beimposed after having regard to the totality principle.________________________________Woolford J19 See McCreath v R [2014] NZCA 142 at [9] and [31].