WOOD-OLSEN v NEW ZEALAND POLICE [2020] NZHC 510

WOOD-OLSEN v NEW ZEALAND POLICE [2020] NZHC 510 [13 March 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-190[2020] NZHC 510JOSHUA DOUGLAS WOOD-OLSENvNEW ZEALAND POLICEHearing: 12 March 2020Counsel: C Nolan for AppellantJ Whitcombe for RespondentJudgment: 13 March 2020JUDGMENT OF CHURCHMAN JIntroduction[1] Between September 2018 and July 2019, Mr Wood-Olsen (appellant)committed a number of offences, including theft, burglary, driving offences, theft ofmail, using an altered document with intent to defraud and possession ofmethamphetamine.1 The offences are covered in detail below. He was sentenced on15 separate charges some of which were representative.[2] On 6 December 2019, Mr Wood-Olsen was sentenced for these offences at theDistrict Court. District Court Judge Garland imposed a total sentence of imprisonmentof three years and two months for the lead charges of burglary and using a documentwith intent to defraud, as well as issuing smaller, concurrent sentences for the other1 Police v Wood-Olsen [2019] NZDC 24689 at [1].charges.2 The Judge also ordered that Mr Wood-Olsen pay reparation for the itemsstolen and the money derived from forged cheques.[3] Mr Wood-Olsen now appeals the sentencing decision of the District CourtJudge under s 244 of the Criminal Procedure Act 2011, on the basis that the sentenceimposed was manifestly excessive.BackgroundFactual background[4] Mr Wood-Olsen's offending can be divided into a number of categories.Firstly, the shoplifting offences. These include theft of:(a) body butter valued at $14.04 from New World Woolston, Christchurch,on 26 June 2018;(b) a television valued at $849 from the Warehouse Eastgate, Christchurch,on 1 September 2018;(c) a television valued at $999 from the Warehouse Eastgate, Christchurch,on 16 September 2018;(d) meat valued at $174.62 from New World Stanmore Road, Christchurch,on 29 September 2018;(e) meat valued at $160 from New World Rangiora, on 26 December 2018;and(f) firewood and charcoal valued at $680 from Z Energy Brougham Street,Christchurch, on 15 March 2019.[5] Secondly, the mail offences. Between 13 and 19 July and 26 and 29 July, anumber of standalone New Zealand Post post-boxes were broken into in the2 Police v Wood-Olsen, above n 1, at [24].Christchurch, Kaiapoi, Dunsandel and Ashburton areas. Mr Wood-Olsen, with his co-offender, broke into these boxes, stole the contents and searched through them forcheques, cash and items of value. Between 15 and 27 July 2019, Mr Wood-Olsenaltered the writing on several of these cheques to pay cash instead of the payee, forgedthe victim's signature, and then cashed in these cheques at different banks. In total,Mr Wood-Olsen cashed in a total of $1,323.25 from four cheques. The banks havecompensated all of the customers for the funds stolen, and now seek reparation for themoney they have paid by way of compensation. Mr Wood-Olsen was charged withuse of an altered document with intent to defraud, unlawfully opening postal articlesand theft of mail.[6] Thirdly, Mr Wood-Olsen was charged with possession of methamphetamineand a pipe for methamphetamine use on 30 July 2019.[7] Fourthly, the driving offences. On 21 May 2019, Mr Wood-Olsen was drivingwith his partner in Christchurch and was stopped by the Police. The Police discoveredthat Mr Wood-Olsen's vehicle was not fitted with an alcohol interlock device, despitethis being a requirement of the alcohol interlock licence he had been subject to since23 January 2019. The Police advised Mr Wood-Olsen that his car would need to beimpounded. Mr Wood-Olsen then obstructed the Police from impounding the vehicle.Despite being warned repeatedly by the Police, Mr Wood-Olsen held his partner insidethe car so that it was difficult for the Police to extract either of them, leading the Policeto arrest Mr Wood-Olsen, who continued to resist even when told to put his handsbehind his back. Mr Wood-Olsen was subsequently charged with driving contrary toan alcohol interlock licence, and obstruction of a Police officer.[8] Fifthly, the burglary offence. On 25 May 2019, Mr Wood-Olsen and his partnerwere located at a construction site in Christchurch by the Police. The Police, havingseen Mr Wood-Olsen's partner looking through a chain-linked fence at the site,became suspicious and subsequently searched the site, locating Mr Wood-Olsencrouched behind a building trying to conceal himself. Mr Wood-Olsen's face wascovered with a black cloth face wrap and he was holding a pair of bolt-cutters.Although he had no lawful authority to be on the site, Mr Wood-Olsen refused tocomment when asked for an explanation.[9] Finally, the breach of a community detention sentence. On 14 December 2018Mr Wood-Olsen was sentenced to community detention as a result of unpaid fines.This sentence was breached by Mr Wood-Olsen on 30 December 2018 after heremoved his tracker and absconded from the detention address for eight days.Provision of Advice to Courts report[10] The report indicated that while Mr Wood-Olsen's most-recently proposedaddress was technically suitable for an electronically-monitored sentence, there wereconcerns about his ability to cope with the restrictive measures of home detentiongiven his impulsive tendencies. The report also noted that home detention may impacton Mr Wood-Olsen's ability to pursue employment. The seriousness of Mr Wood-Olsen's charges were acknowledged, but it was observed that he has served fourmonths on remand in custody, which has allowed him to become drug-free, and thathe has strong support from his aunt (at whose address he proposes to live) and hismother. Consequently, the report recommended intensive supervision (in order toallow Mr Wood-Olsen to engage with rehabilitative interventions), but with theadditional sanction of community detention in order to limit his access to illicitsubstances. It was also recommended that Mr Wood-Olsen be ordered to pay anyreparation sought.[11] The report observed that Mr Wood-Olsen had accepted the charges against himand explained his offending by noting that he had relapsed into methamphetamine useand offended in an attempt to fund this use. He was willing to write New Zealand Posta letter of apology and pay any reparation sought. He was confident that he would beable to re-secure employment as a shearer, sentence permitting. The report finallynoted that despite the technical suitability of the proposed address for an electronicallymonitored sentence, Mr Wood-Olsen's mother was also registered at the address onelectronically-monitored bail (facing a charge of burglary) and that the address had anumber of previous call-outs for family harm matters and dishonesty offences.District Court decision[12] The Judge, after discussing Mr Wood-Olsen's charges and Provision of Adviceto Courts report, then set out his approach to sentencing:3In sentencing you Mr Wood-Olsen, I need to bear in mind the purposes andprinciples of sentencing set out in ss 7 and 8 Sentencing Act 2002. I amparticularly mindful of provisions of s 16. The approach to sentencing that Itake is to identify the different types of offences committed on the variousoccasions and to assess your level of culpability and the starting point inrelation to each. I will then accumulate those sentences before taking intoaccount the totality principle.[13] The Judge then adopted starting points for each of the categories of offences:(a) The Judge adopted a starting point of 12 months' imprisonment for thetheft charges (excluding the theft of mail) on the basis that Mr Olsen-Wood stole items on six separate occasions, and the total value of theitems stolen ($2876.66).4(b) The starting point for the burglary was 18 months' imprisonment.5 TheJudge noted that the maximum penalty for this offence was 10 years'imprisonment. It was observed by the Judge that burglary and lootingwere particularly common issues on building sites during the rebuild ofChristchurch following the earthquakes, with large quantities of toolsand construction material being lost. The Judge considered this to be a"serious aggravating factor" in relation to the burglary, alongside thefact that Mr Wood-Olsen entered the site at night with bolt cutters. Itwas noted however, that nothing had been taken at the time Mr Wood-Olsen was apprehended. The Judge referred to the case of Arahanga vR, where the Court of Appeal stated that a starting point of 18 months'imprisonment was at the "low end" of residential burglaries, and thateven though this was not a residential burglary, it had the "seriousaggravating factor" mentioned above.63 Police v Wood-Olsen, above n 1, at [15].4 At [16].5 At [17].6 At [17].(c) The starting point for the mail offences was 18 months' imprisonment.7It was noted that the theft of mail offence carried a maximum of threemonths' imprisonment, the offence of unlawfully opening mail carrieda maximum penalty of six months' imprisonment, and the offence ofusing an altered document with intent to defraud carried a maximumpenalty of 10 years' imprisonment. The Judge stated that the offendingwould have caused disruption, inconvenience and expense to thevictims' lives, and involved a serious breach of trust. It was assertedthat there is no tariff case for offending of this kind.8 The Court ofAppeal decision in R v Varjan was referred to, where the Court heldthat there is no established benchmark in dishonesty offending.9 Thecase of Tiopira v P was also cited, where Lang J held that as a generalproposition, a starting point of between 12 to 18 months' imprisonmentappeared to be the norm where offending resulted in losses of around$2,000-$3,000, where the offender was making use of multiple stolencheques.10(d) The Judge then noted the maximum sentence of imprisonment for theother offending and set a starting point for all of them combined at sixmonths' imprisonment.11[14] The combination of these starting points led to a total overall starting point offour and a half years' imprisonment. It was then observed that, considering theprinciple of totality, the overall starting point should be reduced to four years'imprisonment, to ensure a starting point that was not in excess of what was necessaryto adequately meet the purposes and principles of sentencing.12[15] The Judge then considered the aggravating and mitigating factors.13 Withregard to aggravating factors, the Judge held that the main aggravating factor was7 At [20].8 At [19].9 At [19].10 At [19].11 At [21]-[22].12 At [22].13 At [23]-[24].Mr Wood-Olsen's prior convictions (including prior convictions for theft, drink-driving and breaching community work sentences). Mr Wood-Olsen's sentence wasuplifted by two months on this basis. With regard to mitigating factors, the Judgenoted that Mr Wood-Olsen had entered guilty pleas for some of his charges, whichwarranted a reduction of one year. This led to a final sentence of three years and twomonths' imprisonment.14 The sentence was imposed on the lead charges of burglaryand using a document with intent to defraud, with concurrent sentences imposed onthe remaining charges.[16] The Judge also made orders for Mr Wood-Olsen to pay reparations for thestolen items and cashed cheques.Position of the partiesMr Wood-Olsen[17] Mr Nolan, counsel for Mr Wood-Olsen, submitted that the final sentenceimposed by the District Court Judge was manifestly excessive for two reasons. Firstly,the starting point adopted by the Judge was too high, having regard to thecircumstances of the offending, the offender and the relevant authorities. Secondly,the Judge did not impose the least restrictive sentence in the circumstances.[18] With regard to the first reason, counsel asserted that there is no 'guideline' casefor burglary sentencing, referring to the Court of Appeal in Arahunga v R, who did notset a tariff for burglary because the range of circumstances in which the offence couldbe committed was so varied.15 However, counsel did acknowledge that following R vNguyen, there are a number of factors relevant to the seriousness of burglary offending,including the degree of planning and sophistication in the offending, the nature of thepremises entered, the kind and value of property stolen, damage done, the impact andpotential impact upon occupants or owners of property, and the extent of the offendingwhere multiple burglaries are involved.1614 At [24].15 Arahunga v R [2012] NZCA 480 at [78].16 R v Nguyen CA110/01, 13 June 2001 at [17].[19] Counsel submitted that given these factors, the burglary in the present casewarranted a starting point of 12 months because it occurred in commercial (rather thanresidential) premises and no items were taken.[20] Counsel then referred to several cases of dishonestly using a document wherea lower starting point was imposed than the current case. In particular, Baker v Policewas cited, where Woodhouse J observed that "those cases, in broad terms, indicate thatthe starting point for this offending, having regard to all of its circumstances, might bebetween eight to 12 months rather than three years".17 However, that case was relatedto dishonestly using or obtaining a credit card under s 228 of Crimes Act 1961, asopposed to using an altered document with intent to defraud under s 258 of the CrimesAct. It was ultimately submitted that having regard to the totality principle, anappropriate starting point for all offences was 30-36 months' imprisonment.[21] With regard to the second reason, counsel referred to the Provision of Adviceto Courts report, which recommended a sentence combination of community detentionand intensive supervision, and that this would allow Mr Wood-Olsen to engage incontinued rehabilitation. It was submitted that the Judge did not consider a sentenceof home detention due to the length of the sentence imposed, but with the suggestedlower starting point further reduced by mitigating factors to 22-24 months, the Judgecould have imposed home detention as the least restrictive sentence under s 8(g) of theSentencing Act 2002.[22] Mr Nolan, in his oral submissions also emphasised the point that, at the timeof the offending, the appellant was a methamphetamine addict. He submitted thatthere was a causal nexus between the addiction and at least some of the offending andthat this should have resulted in the Judge giving a discount for this factor.The Police[23] Mr Whitcombe, counsel for the Police, submitted that the Judge had not erredin imposing the end sentence that he did, as it was within the appropriate range.Counsel mainly focused on how the Judge applied the starting point to each offence17 Baker v Police HC Auckland CRI-2009-404-122, 24 August 2009 at [10].and acknowledged that while the overall starting point of four years six months'imprisonment was "stern" it was within the appropriate range and was mitigated by a"generous" discount for guilty pleas.[24] Turning to the specific offences, counsel conceded that the starting point of12 months' imprisonment for theft offences was potentially outside the availablerange, and that a starting point of six to nine months may have been more appropriate.Counsel referred to Samuels v Police, where Cooke J imposed a starting point of sixmonths' imprisonment for one charge of theft over $1000 and seven charges of theftunder $500.18 Counsel also referred to Cooke J's useful summary of the starting pointsin recent analogous cases:19(a) In Henry v Police, the appellant pleaded guilty to 13 charges of theft,breaching release conditions and possession of methamphetamine.Eight of the shoplifting charges were for theft under $500 and theremaining five for theft between $500 and $1000. Six of theshoplifting charges involved theft from six different stores on one day,and the remaining seven charges arose over a period of eight months.The total value of the stolen property was $5,568.23. On appeal,Clark J held that a six month starting point for the spree offendingwould have been appropriate, and the end sentence of nine months'imprisonment was not excessive. That sentence included discountsfor time spent on EM bail and timing of the charges, along with forguilty pleas.(b) In McKenzie v Police, the appellant pleaded guilty to four charges oftheft under $500, two charges of failure to answer bail and two ofbreaching conditions. Brown J in the High Court held that an endsentence of 12 months' imprisonment was excessive and replaced itwith an end sentence of six months' imprisonment. A starting pointof six months was appropriate for the theft charges with uplifts of twomonths for the non-compliance charges and one and a half months forcriminal history, with discounts allowed for mental health issues andguilty pleas.(c) In McMurtrie v Police, the appellant pleaded guilty to six charges oftheft (five under $500 and one between $500 and $1000) and onecharge of possession of cannabis. In the High Court Clifford Jconsidered that a starting point of six months for all the theft offendingwould be appropriate, with an uplift of one month for offending whileon bail and a cumulative sentence of one month on the cannabischarge, plus a discount for guilty plea. Clifford J thus quashed the endsentence imposed in the District Court of 12 months' imprisonmentand substituted a sentence of six months' imprisonment.18 Samuels v Police [2019] NZHC 694 at [22].19 Samuels v Police, above n 18, at [19].[25] With regard to the burglary offences, it was submitted that the starting point of18 months' imprisonment, while being "stern", was within the range in thecircumstances of this case. Counsel referred to R v Stevens and Arahanga v R(discussed in [34] and [36] below), as well as Elers v R, where the appellant and twoassociates entered commercial premises and stole two batteries valued at $150, withGrice J upholding a starting point of 16 months' imprisonment on appeal.20[26] With regard to the mail offences, counsel submitted that 18 months'imprisonment was within range. Counsel referred to Linford v Police, where theappellant had fraudulently received and used four credits, obtaining a total of$4,508.59.21 On appeal, Brewer J observed that a starting point of 18 months'imprisonment was in range.22 Counsel also referred to Te Au v Police, where theappellant faced seven charges of using cheques from a stolen chequebook, obtainingapproximately $2,000.23 Wild J held that a starting point of eight months'imprisonment was appropriate as there were only two victims (one being a large bank)and the offending was relatively minor.24 It was submitted that the current case wasmore serious than Te Au due to the level of premeditation and sophistication, as wellas the greater number of victims, justifying a starting point of 18 months'imprisonment.[27] Counsel also submitted that an additional six months' imprisonment for theremaining charges was appropriate in this case and was consistent with the principleof totality.Approach to appeal[28] This appeal is brought under ss 244 and 250 of the Criminal Procedure Act2011. Under s 250, an appeal against sentence is an appeal against a discretion andmust only be allowed if the Court is satisfied that, for any reason, there was an errorin the sentence imposed and a different sentence should have been imposed.25 The20 Elers v R [2018] NZHC 497 at [16].21 Linford v Police [2017] NZHC 2166 at [4].22 Linford v Police, above n 21, at [17].23 Te Au v Police HC Nelson CRI-2007-442-19, 10 December 2007 at [3].24 Te Au v Police, above n 23, at [14].25 Tutakangahau v R [2014] NZCA 279.focus is on the final sentence and whether that was in the available range, rather thanthe exact process by which it was reached.26Applicable case lawSection 258 – Using an altered document with intent to defraud[29] In R v Varjan, the Court of Appeal observed that there is no establishedbenchmark for dishonesty offending, given that the circumstances of, and culpabilityin, offences of dishonesty vary widely.27 The Court did note a number of factors toassist in determining culpability:28[22] Culpability is to be assessed by reference to the circumstances andsuch factors as the nature of the offending, its magnitude and sophistication;the type, circumstances and number of the victims; the motivation for theoffending; the amounts involved; the losses; the period over which theoffending occurred; the seriousness of breaches of trust involved; and theimpact on victims.[23] It is in the assessment of culpability that comparison with other casesis to be undertaken. Matters of mitigation such as reparation, co-operationwith investigators, plea, remorse and personal circumstances necessarily mustbe assessed in each particular case.[30] In Sahib v Police, the High Court recognised the above observation in Varjanas the leading statement for dishonesty offences, and made the following furtherobservations in the context of s 258 offending:29The maximum penalty for the altering a document charge was 10 years'imprisonment. The maximum penalty for the charges of theft by a person ina special relationship was seven years' imprisonment. However, given thescale of the offending and the number of charges these maximums are oflimited assistance. Sentencing exercises of this type often involve a numberof charges. The Court is always concerned to establish the gains enjoyed by adefendant at the time of the frauds, and then the net loss to victims at the timeof the sentencing of the defendant. Future reparation will also be a factor. Anaccurate understanding of the amounts arguably taken and the net amountslost are important in assessing culpability. The net amount of loss and the netgain to the offender is central to the assessment of culpability, as that is ameasure of the harm to the victims and the community.26 Ripia v R [2011] NZCA 101 at [15].27 R v Varjan CA97/03, 26 July 2003 at [21].28 R v Varjan, above n 27, at [22]-[23].29 Sahib v Police [2012] NZHC 3324 at [10].[31] Sahib concerned the theft of trust money by a trustee using altered documents(the thefts totalling over $1 million), and consequently the starting point imposed (fouryears) was much higher than this case.30[32] Tiopira v Police concerned the use of different stolen credit cards by thedefendant to obtain money and goods to the value of $11,606.21.31 Lang J observedthat upon assessment of cases where an offender has made multiple use of stolen creditcards or cheques, "as a general proposition, a starting point of around 12 to 18 monthsimprisonment will be appropriate where the offending results in losses of around$2,000 to $3,000".32[33] Finally, in Barakat v Police, the offender had dishonestly used an associate'scredit and Eftpos cards to withdraw $2600 (although $1,600 of the withdrawn cashwas recovered, so the total loss was only around $1,000).33 McKenzie J provided auseful summary of cases where credit cards and chequebooks were used or altereddishonestly, and the starting points imposed in those cases:34Te Au v Police involved seven charges of using cheques from a stolenchequebook, involving a little over $2,000. A 15 month starting point wasadopted on sentencing. On appeal, that starting point was reduced to eightmonths. Singh involved 13 counts of using credit cards fraudulently to obtainabout $3,000. A sentence of two years imprisonment imposed after trial, wasfound on appeal to be outside the available range and manifestly excessiveand a sentence of 18 months imprisonment was substituted. The Court ofAppeal noted that there is no readily discernible sentencing pattern in casesconcerning similar dishonesty offending. I have also considered a number ofother comparable cases. In Haua v Police HC WNCRI 2007-485-107, theappellant had stolen a wallet and used a credit card from it to obtainapproximately $4,000. The starting point of 18 months was reduced on appealto 12 months by Clifford J. In Keenan v Police CHCH CRI 2007-409-000097the offender had stolen a credit card and a cash card and used them on a totalof 31 occasions to obtain a total of approximately $5,000. On appeal FogartyJ identified and upheld a starting point of 12 months. In Pentecost v PoliceHCCHCH A127/01 there were two separate series of offences involving, inthe first series, use of a stolen credit card to obtain $3,400 and, in the second,use of a stolen card to obtain a further $600. A total sentence of 15 months,after guilty pleas, was upheld on appeal but William Young J (as he then was)expressed himself as "truly troubled whether a starting point of 22-23 months30 Sahib v Police, above n 29, at [2]-[3].31 Tiopira v Police [2012] NZHC 1720 at [3].32 Tiopira v Police, above n 31, at [12].33 Barakat v Police HC Palmerston North CRI-2008-454-35, 14 August 2008 at [2].34 Barakat v Police, above n 33, at [10].could be regarded as justified on a totality basis for offending which involvedonly $4,000".Section 213 – Burglary[34] Counsel for Mr Wood-Olsen cited the factors in R v Nguyen above, whichincluded the nature of the premises entered, and the value of the property stolen.Consequently, the fact that Mr Wood-Olsen entered a commercial construction site, asopposed to residential premises, is relevant to the imposition of the sentence in thiscase. In Arahanga v R, the Court of Appeal held that burglary of a domestic residenceis a significant aggravating feature at sentencing, due to the heightened risk ofconfrontation with the occupants.35 This indicates that the Courts may take a stricterapproach to sentencing for burglary when it involves residential premises, as opposedto commercial premises.[35] In Devlyn v R, the defendant was convicted of four charges of receiving stolenproperty and two charges of burglary (at commercial premises) of goods totalling$4,900.36 The Judge at first instance imposed a starting point of 18 months'imprisonment for the burglary charges, which the Court of Appeal held to be in theavailable range.37[36] In R v Stevens, the defendant was charged with burglary, possession of anumber of illicit drugs including methamphetamine, and possession of a taser stungun.38 The burglary charge involved the defendant stealing $350 of copper pipingfrom a commercial premises.39 While the Judge at first instance did not indicate astarting point for the burglary and imposed a total sentence of three years'imprisonment, the Court of Appeal found this to be manifestly excessive, and usefullyobserved why a starting point of no more than 18 months' imprisonment for theburglary would be justified:40We accept that the burglary had the aggravating features the Judge identified.Theft of copper piping from the interior and exterior of buildings imposes35 Arahanga v R, above n 15, at [78].36 Devlyn v R [2013] NZCA 462 at [21].37 Devlyn v R, above n 36, at [21].38 R v Stevens [2009] NZCA 190 at [1].39 R v Stevens, above n 38, at [3].40 At [14].considerable inconvenience on property owners. That said, the stolen metalhere was of low value. Overall, we consider that an appropriate starting pointwould have been no higher than 18 months imprisonment.AnalysisBurglary[37] The imposition of an 18-month starting point for burglary of a commercialpremises where nothing was actually stolen is at the upper end of the range, even withthe 'aggravating factor' of post-earthquake Christchurch construction sites beingparticularly vulnerable. A relevant factor in this case is that the appellant wasinterrupted before he was actually able to take anything. However, this was not anopportunistic offence. The appellant came well prepared with bolt cutters and a facecovering. This indicated a degree of planning and preparation. These are aggravatingfactors.[38] The Court of Appeal in R v Stevens indicated that 18 months' imprisonment forburglary of items from a commercial premises (that had a very low total value) couldstill be within the appropriate range.41 In Devlyn v R, the Court of Appeal also held astarting point of 18 months for two burglary charges to be within range.42[39] I accept the submission of Mr Whitcombe that while there are similar caseswithin a range of 12-18 months, the critical thing is that, although this case is at thetop of the range, it is still within the range. I therefore conclude that, while, severe,the 18-month starting point is not beyond the range. It is also necessary to considerthis starting point in the context of the totality of the offending to ensure that it has notcontributed to an overall sentence disproportionate to the criminality involved. I willreturn to that later.Dishonesty re mail[40] Although there appear to be few cases concerning this type of mail theft,analogous cases relating to credit cards or cheques discussed above indicate that18 months' imprisonment is an appropriate starting point for the offending in this case.41 R v Stevens, above n 38.42 R Develyn, above n 36.Although the cases relating to dishonest use of a credit card are helpful, my view isthat the fact that the cheques involved here were obtained by breaking into letter boxesand systematically going through the mail inside is an aggravating factor. It is activitythat inconveniences all those whose mail was interfered with and is likely to haveaffected the confidence in the mail system of those whose cheques were taken. Thereis also some sophistication in the use of a small safe to hide the cheques. These areaggravating features.[41] On the basis of cases such as Lang J's decision in Tiopira v Police43 and thecases summarised by MacKenzie J in Barakat v Police,44 a starting point of 18 monthsis justified, although again at the upper end of the range.Theft (non mail charges)[42] There are six theft charges, five from supermarkets and one from a servicestation. They cover the period 26 June 2019 to 15 March 2019.[43] The date of the last offence is relevant as the appellant took advantage of thechaos caused by the mosque shootings to help himself to product left outside a servicestation after staff had been sent home following the shootings. He took so much ofthe product that he had to make two trips to fit it all in. It is also an aggravating featurethat the various thefts were not a one-off spree of offending but a repeated pattern ofbehaviour over nine months.[44] The date of the 26 December 2018 offence is also relevant as less than twoweeks previously the appellant had been sentenced to community detention. A numberof the other offences had also been committed while the appellant was on bail. Theseare aggravating features. They do not seem to have been specifically acknowledgedas such by the Judge.[45] However, even if all the aggravating factors are taken into account based onthe cases discussed in [23] above, a 12-month starting point is too high. Nine monthswould be more appropriate. Again, the finding does not automatically mean that the43 Tiopira v Police, above n 31.44 Barakat v Police, above n 33.overall sentence is excessive, but it needs to be considered when assessing the overallcriminality and the proportionately of the sentence.Other offences[46] The other matters before the Court were driving related, the offence ofbreaching his sentence of community detention by removing his tracker bracelet andabsconding from the detention address for eight days, obstructing Police andpossession of methamphetamine and drug utensils.[47] The appellant has one prior driving while suspended conviction and three prioralcohol related driving convictions and two prior breach of community workconvictions. These are aggravating factors.[48] The Judge only gave an uplift of six months for all of these offences. That isentirely appropriate. They were all discrete matters of a different nature to the rest ofthe offending. Given the number of the defendant's prior alcohol related drivingoffences and the fact that this was his third conviction for breaching communitydetention, denunciation was called for in respect of these offences.Mitigating factors[49] The Judge gave what was effectively a 24 per cent discount for guilty pleas.However, not all the guilty pleas were entered at the first opportunity and trial dateshad been set for some of the charges. In these circumstances, the discount given wasgenerous.[50] Mr Nolan submitted that the Judge should have given credit or the fact that,during the four-month remand period, the appellant had become drug-free. However,as the appellant was in custody for this four-month period any specific credit that hemight have been entitled to is significantly less than would have been the case if hehad achieved this while still in the community. The Judge could have had regard tothis rehabilitative effort under s 8(4) of the Sentencing Act 2002. However, any creditwould have been minor, and he cannot be criticised for not doing so.[51] This brings me to the question of whether a specific discount should be givenfor what is said to have been the defendant's methamphetamine addiction. There isno doubt that in appropriate cases, the personal circumstances of a defendant,including a methamphetamine addiction may support a discount of an otherwiseappropriate sentence.45 However, causation is required. As the Court of Appeal saidin Zhang v R: "Non-causative addiction will be of little mitigatory relevance."46[52] The Judge here gave no discount for the appellant's asserted methamphetamineaddiction. That is hardly surprising. He appears to have had almost no evidence aboutit. It is mentioned in two lines in the PAC report which records the appellant havingsaid to the Probation Officer, "He referred to having 'relapsed quite heavily' intomethamphetamine use and the need to fund this as the explanation for the offending."Significantly, the PAC report itself does not mention this as an "Offending-RelatedFactor" but, instead, lists "Friends and Associates; Attitudes and Alcohol Use."[53] In the absence of evidence of a causal connection between the appellant'smethamphetamine use and the offending (beyond his assertion that he committed thedishonesty offending to obtain funds which he spent on drugs), the Judge cannot becriticised for not having specifically addressed this issue.Totality[54] The final question to consider is whether, in light of the findings I have madeabout the appropriate starting points for the various groups of offending, in particularmy finding that the starting point for the theft offending was three months too high,the Judge properly implemented the totality principle.[55] The Judge recognised that it was necessary to make some adjustment to thestarting point and reduced that by six months to four years. He then applied furtherdiscounts to reflect factors personal to the appellant to arrive at an end sentence ofthree years two months.45 See Zhang v R [2019] NZCA 507; Matthews v R [2019] NZCA 208 at [7]; and Martel v R [2018]NZCA 305 at [30].46 Zhang v R above n 45, at [147].[56] I have arrived at a starting point three months lower than the Judge. Thequestion is whether that makes a difference to the totality of offending that renders thesentence excessive.[57] Two sections of the Sentencing Act are relevant. Section 84 provides guidanceon the use of cumulative and concurrent sentences. Section 84(1) states thatcumulative sentences are generally appropriate if the offences are different in kind ornot a connected series of offences. Here, the different groups of offences dealt withby the Judge are clearly different in kind. They also occurred at different times andlocations and involved many different victims. Cumulative sentences were thereforeappropriate.[58] Section 85 directs the Court to consider the totality of the offending. Thismeans that even if cumulative sentences were otherwise appropriate, they must notresult in a total period of imprisonment wholly out of proportion to the gravity of theoverall offending. Unless the aggregated end sentence is "wholly out of proportion tothe gravity of the offending" no adjustment is required.47[59] Here, the Judge appropriately recognised that a cumulative starting point offour years and six months would have been disproportionate and reduced it by sixmonths. That is a significant reduction.[60] However, given the different starting point that I have arrived at in respect ofthe theft offences, it is necessary to adjust the overall starting point from four years sixmonths down to four years three months. A six-month adjustment to reflect the totalityprinciple produces a starting point of three years nine months.[61] I apply the same discounts and uplifts as the Judge. This produces an endsentence of two years and 11 months' imprisonment. As this is longer than two years,no consideration of home detention arises. In any event, the appellant's history ofbreaches of community-based sentences would have rendered him an unsuitablecandidate for a community-based sentence.47 Ashcroft v R [2014] NZCA 551 at [32].Result[62] The appeal is allowed. The sentence of imprisonment is reduced from threeyears two months to two years 11 months.Churchman JSolicitors:Raymond Donnelly & Co, Christchurch for Respondentcc: C Nolan, Barrister, Christchurch for Appellant