THOMAS v POLICE [2020] NZHC 273

THOMAS v POLICE [2020] NZHC 273 [25 February 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-45[2020] NZHC 273BETWEEN JUAN THOMASAppellantAND NEW ZEALAND POLICERespondentHearing: 25 February 2020Appearances: Appellant on own behalfR Annandale for the RespondentJudgment: 25 February 2020ORAL JUDGMENT OF GORDON JSolicitors: Crown Solicitor, WhangareiCopy To: AppellantIntroduction[1] The appellant, Juan Thomas, was sentenced to eight months' home detentionfollowing conviction on two counts of assault by male on female1 (three months' homedetention) and three charges of burglary (five months' home detention).2 He wasconvicted and discharged on a count of breach of community work, which had sincebeen completed. Reparations of $1,050.00 were ordered to be paid to the victims ofthe burglaries.[2] He now appeals against sentence on the grounds the sentence was manifestlyexcessive because the judge did not give sufficient weight to the period on EM bailand time in custody.Factual background[3] On the morning of 19 May 2018, Mr Thomas was at home with his then partner.At 9.10am, the police received a call from a concerned resident regarding a domesticincident occurring at Mr Thomas' address. During the course of this incident,Mr Thomas was seen outside the house acting in an aggressive manner towards hispartner, causing her to run away. Mr Thomas and his partner returned to the housetogether but she was later found by police in a distressed state cowering in the house.She had dried blood around her mouth and, following examination, was found to havea cut lip and bruising to her face, legs and arms.[4] Mr Thomas was arrested and granted bail. A condition of his bail was that hewas not to have contact with the complainant. On 18 August 2018, Mr Thomas wasat her home. He had been showering and asked her to give him her phone so he coulduse it. She refused to do so and reminded him that he was not permitted to be at herhouse. Mr Thomas backed the complainant into a bedroom and blocked the exit. Hethrew an object against the wall before taking her by the neck and shoulders andpressing her to the ground. She received scratches to her neck and shoulder.Mr Thomas stood over her while she tried to protect herself. A third party at the house1 Crimes Act 1961, s 194(b): maximum penalty of two years' imprisonment.2 Crimes Act 1961, s 231(1)(a): maximum penalty of 10 years' imprisonment.intervened to stop the incident and Mr Thomas left the house. The complainantconsidered a protection order at this point but one was not pursued.[5] The burglaries occurred on 1 August 2018 while Mr Thomas was on bail forthe first assault and before the second assault. Along with two others, Mr Thomasburgled three properties. None of the victims know Mr Thomas. A trailer wasremoved from the first, a number of power tools and other equipment from the second(including a leaf blower and safety equipment) and power tools and other equipmentfrom the third (including a lawnmower, line trimmer and petrol containers). Thisequipment was loaded into the stolen trailer and taken to Mr Thomas' then residence.In the course of responding to the domestic incident on 18 August 2018, the policelocated stolen property at Mr Thomas' address.District Court decision[6] On 3 December 2019, Mr Thomas was sentenced in the Whangarei DistrictCourt.3 There was some confusion as to whether he had received a sentenceindication, but he was sentenced partly by reference to a sentence indication receivedby his co-offenders.[7] Judge McDonald outlined the background facts, as above, and considered thevictim impact reports given by the burglary victims. The Judge considered the firstassault event was at the lower end of the scale. The incident involved pushing and thecomplainant was left with a cut lip. The second assault event was more seriousbecause it involved a breach of Mr Thomas' bail conditions, grabbing the complainant,throwing her to the ground and standing over her. The offending only stopped throughthe intervention of a third party. In respect of that assault a starting point of six monthsimprisonment was considered appropriate by the Judge.[8] As to the burglaries, the Judge described them as planned, especially as thetrailer was taken first to facilitate the subsequent burglaries. The Judge set a startingpoint of 18 months imprisonment based on a sentencing indication which could not be3 Police v Thomas [2019] NZDC 24402.found on the file, but which Mr Thomas said he had received.4 The Judge also hadregard to the sentencing of the other defendants.[9] The Judge noted that Mr Thomas had been the subject of three pre-sentencereports. The first two recommended a sentence of imprisonment. However, due tothe passage of time between his first appearance and the sentencing hearing,Mr Thomas had not only completed a number of activities which indicated genuineremorse, he had also become a father in that time. The Judge observed his livingenvironment was more stable. The pre-sentence report now recommended homedetention and the Judge adopted that recommendation.[10] The Judge adjusted the starting point in the following manner:(a) No uplift for previous convictions;(b) Deduction of 20 per cent for Mr Thomas' guilty plea because the pleawas "reasonably late" in time;5(c) Deduction of 10 per cent was justified for the restrictive bail conditions;(d) Unspecified deduction for youth (which was, based on the finalsentence, seemingly in the region of one third on each starting point).[11] The Judge imposed the following sentences:6(a) For the two assault charges, three months' home detention;(b) For the two burglary charges, five months' home detention to be servedcumulatively (i.e. a total of 8 months' home detention);(c) Reparations of $1,050.00 to the burglary victims.74 At [13].5 At [16].6 At [17].7 At [18].Submissions[12] Mr Thomas' single ground of appeal is that the sentence was manifestlyexcessive. His notice of appeal specified "that the judge didn't give sufficient weightto the 11 months on electronic bail + time in custody". Today Mr Thomas appearedon his own behalf and addressed the Court on that issue.[13] The Crown has filed written submissions opposing the appeal andMr Annandale appears today on behalf of the Crown. He submits that the sentenceimposed was within the range of sentences available and could be consideredreasonable. Mr Annandale notes that reports received in the District Court indicatedthat a custodial term was appropriate. Mr Annandale submits an appropriate startingpoint of six months' imprisonment for the assaults plus 18 months for the burglary(including uplift for breach of conditions), and then reductions for guilty pleas,restrictive bail, and youth (of around one third) equate to 16 months of imprisonment.As such, eight months of home detention is well within the appropriate range.Approach to appeals against sentence[14] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow theappeal if it is satisfied that there is an error in the sentence imposed on conviction andthat a different sentence should be imposed.[15] In determining whether to impose a different sentence, the Court does notsimply substitute its own view for that of the original sentencing Judge.8 Rather, itmust be shown that the sentence is manifestly excessive or wrong in principle.9 Thefocus is on the end result rather than the process by which the sentence was reached.10Discussion[16] The process used in the District Court sentencing is not easily followedmathematically. The Judge set a six month starting point on the assault charges and18 month on the burglaries, deducted 20 per cent for guilty pleas alongside 10 per cent8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].9 At [30]–[35]; and Te Aho v R [2013] NZCA 47 at [10].10 Tutakangahau v R, above n 8, at [36].for restrictive bail terms and "something for your youth". As noted, this latter discountwas seemingly in the region of one third. Given the youth discount was not specified,it is difficult to tell whether any adjustment was made in substituting a sentence ofhome detention for one of imprisonment.Setting the starting point in male assaults female cases[17] The Court of Appeal discussed the starting point for sentence on a charge ofmale assaults female in Wallace v R.11 The decision notes that there is no tariffdecision on this type of offending and the determination of a starting point depends onthe particular circumstances of the assault.[18] In R v Reihana the Court of Appeal considered a relatively serious instance ofmale assaults female offending. The appellant entered the complainant's home and,in anger, punched her unexpectedly. The Court of Appeal decided this offendingjustified a sentence of five months' imprisonment with leave to apply for homedetention where the appellant had no prior convictions for violence.12[19] In Nixon v R an appellant told a female resident to leave the premises, thengrabbed her by her top and pushed her out the door causing her to fall onto concrete,where he kicked her three times, causing bruising and requiring her to use crutches forsix days.13 The Court of Appeal upheld a sentence of 12 months' imprisonment,although the Court described it as "firm".14[20] In Puata v Police an appellant pleaded guilty, accepting a set of facts in whichhe was asked to leave during an argument with his sister (at his home address), thenpushed her multiple times, causing her to stumble, and then struck her in the face andhead several times, causing her to fall.15 He continued to act aggressively, and she hithim with a ceramic pot and barricaded herself in another room with her children. TheHigh Court considered a starting point of six months' imprisonment was appropriate.1611 Wallace v R [2012] NZCA 546.12 R v Reihana CA143/03, 3 July 2003 at [45].13 Nixon v R CA87/01, 19 June 2001.14 At [26].15 Puata v Police [2016] NZHC 1323.16 At [18].[21] I consider that indicating a starting point of six months' imprisonment forMr Thomas' offending was not excessive. There were two assaults. The second inparticular involved intimidating behaviour, with Mr Thomas remaining present despitea bail condition and the victim's requests that he leave, and pressing her to the groundby the neck. I consider this was a similar level of severity to the offending inPuata v Police, taking account of the fact the second offending occurred during abreach of a bail condition resulting from similar offending.Setting the starting point in burglary cases[22] There is no guideline decision for burglary offending. As noted by this Court,choosing a starting point for a burglary sentence is perplexing.17 And the Court ofAppeal has specifically declined to provide sentencing tariffs for this offending.18 Therange of circumstances in which a burglary can be committed are too varied — it canrange from "well planned and executed heists of valuable property to the opportunistictaking of a low value item by entry through an open window or unlocked door".19[23] In Senior v Police, the Full Court of the High Court identified three categoriesof burglars: the first-time burglar, recidivist burglar and spree burglar.20 However, inR v Southon, it was noted that the analysis of sentencing patterns provided in Seniorshould not be regarded as providing indicative sentencing levels for recidivistburglars.21 Senior appears to imply that the starting point should be fixed by referencenot only to the current offence but also to the offender's previous history.22 However,this is contrary to the normal methodology for fixing a starting point, which is todetermine the sentence appropriate for the offending, prior to considering aggravatingand mitigating factors relevant to the offender. Thus, as the Court of Appeal noted, insentencing for burglary, as for other offences, the circumstances of the offendingpredominate when fixing the starting point.2317 Blissett v Police [2013] NZHC 156 at [27].18 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].19 Blissett v Police, above n 17, at [27].20 Senior v Police (2000) 18 CRNZ 340 (HC) at [25].21 R v Southon (2003) 20 CRNZ 104 (CA) at [104].22 Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at[SAC10.01].23 R v Columbus [2008] NZCA 192 at [14].[24] In assessing the criminality of the particular offending, relevant considerationsinclude:24(a) the degree of planning and sophistication;(b) the nature of the premises entered;(c) the kind and value of property stolen;(d) damage done;(e) the impact and potential impact upon occupants or owners of theproperty entered; and(f) the extent of the offending, where multiple burglaries are involved.[25] In Arahanga v R the Court of Appeal stated:25[B]urglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months' to two years and sixmonths' imprisonment.(footnotes omitted)[26] In Gray v Police the appellant pleaded guilty to charges of burglary, receiving,theft and failure to answer bail, each arising from discrete incidents.26 The burglaryinvolved squeezing through a gap in the property's fence with an associate, openingthe sliding door of a work van parked there, and stealing power tools worthapproximately $5,500. Mr Gray also stole a mountain bike valued at $899 fromanother property. In that case this Court considered an appropriate starting point was12 months' imprisonment, on the basis that the offending was opportunistic andunplanned but still involved an associate and $5,500 in value taken and not24 R v Nguyen CA110/01, 2 July 2001 at [17]; and Luke v Police [2013] NZHC 3175 at [13]–[14].25 Arahanga v R, above n 18.26 Gray v Police [2018] NZHC 3245.recovered.27 Also somewhat mitigating was that Mr Gray did not enter the domesticdwelling house.[27] In R v Columbus an appellant had pleaded guilty to one charge of burglary, twocharges of theft, one charge of possession of cannabis and one charge of possession ofa pipe.28 He had forced open the vehicle access door of a garage at a residentialproperty, causing damage. He then stole a mountain bike, gardening tools and a toolbox. The Court of Appeal described the burglary as "at the minor end of the scale",and as spontaneous because the defendant wanted money.29 While the owner suffereda sense of emotional violation and limitation of loss, an appropriate starting point wasnot more than one year's imprisonment.30[28] In Blissett v Police an appellant had been convicted of charges of burglary,receiving and possession of a glass pipe for the purpose of consumingmethamphetamine.31 He entered the outside area of a domestic dwelling during thedaytime and attempted to force open a window. When the window broke, he left thescene. A few weeks later, again during the daytime, the defendant and an associatehad broken into a domestic residence and took personal property, including a cameraand items of jewellery, with a total value of $2,000. The High Court considered thetiming and relatively low value of items taken placed the burglary at the low end ofthe scale.32 The involvement of an accomplice and some planning were aggravating,as was the damaging of property inside the premises and that property was notrecovered.33 The Court considered the offending more serious than in Columbus, witha starting point between 16 and 18 months' imprisonment being appropriate – theCourt settled on 17 months.34[29] In Marsh v R the appellant and two accomplices drove to a property, forcedopen the doors and entered the house.35 Once inside, $90,000 of property was27 At [37].28 R v Columbus [2008] NZCA 192.29 At [16].30 At [16].31 Blissett v Police [2013] NZHC 156.32 At [37].33 At [37].34 At [45].35 Marsh v Police [2010] NZCA 445.removed and loaded into a car. A co-offender also stole a car from the garage. Nexthe walked to another property intending to burgle it but was confronted by the ownerand left. He then broke into the neighbouring property that night through the garage,stealing a television set and an iPod valued at $2,820. On a third occasion he burgledanother property by forcing open the doors, removing a television and computeroutside, where he waited for an accomplice to pick him up, but was apprehended bypolice. Regarding the first offending, the Court considered Mr Marsh was the leadoffender, who had a long history of offending and was on parole at the time of the firstoffence.36 This justified the initial starting point of three and a half years'imprisonment.37 Alongside the other burglaries, committed while on bail, an upliftedstarting point of five years' imprisonment was fully appropriate.38 The accomplice inthe first offending was given a starting point of two years and three months'imprisonment, on the basis that he was not a serial offender and was not the leadoffender but simply loaded the car with stolen goods.39[30] In Rigby v R the appellant pleaded guilty to two charges of burglary, threecharges of dishonest use of a document, two charges of theft and one charge of failureto answer bail.40 The first burglary involved entering a private dwelling through abedroom window and taking jewellery estimated to have a value of $15,000 and otheritems including clothing, shoes and a watch collectively worth around $1,000. Thesecond burglary involved the appellant and two co-defendants arriving at a property,with two of them removing a number of pairs of shoes to their car (where the thirdkept watch), and then re-entering the property, at which point the occupiers arrivedhome and confronted them, causing Ms Rigby and her co-offender to flee. The Courtconsidered a starting point of two years and four months' imprisonment wasappropriate on the burglary charges.41[31] In terms of the type of offending, Mr Thomas' offending appears to be ofmoderate severity. There were three burglaries of addresses that appear to have been36 At [11].37 At [10].38 At [13].39 At [10].40 Rigby v R [2018] NZHC 478.41 At [24].targeted beforehand while Mr Thomas was on bail for a different offence. Mr Thomaswas one of three burglars. They entered private property and took items which hadsome financial value, and at least the loss of the trailer was was significant for itsowner. The use of the trailer stolen at the first premises indicates some measure ofplanning. I note that the burglars did not enter the actual residences of the threelocations, and only stole property from behind one house and the garages of twoothers. However, it is aggravating that the burglars continued, going to a third address,after having been spotted at the second.[32] I consider this offending was notably more serious than that in Gray andColumbus, less serious than Marsh and somewhat similar in severity to Blissett. Whilethe particular facts are distinct, the level of severity is somewhat analogous. Theoffending is more serious, in that it occurred at night and involved two accomplices aswell as progressing across three different residences. Like Blissett it involved somemeasure of forward planning. Unlike in Blissett there was no entry of the actualdwellinghouse – though the burglaries were around the residences and in the garage,sufficient to awaken one of the victims. For a run of three burglaries I consider that18 months' imprisonment was within the range available to the Judge.Personal features of the appellant[33] Judge McDonald indicated an intention to give Mr Thomas home detentionbased on the final pre-sentence report. As already noted, the Judge made deductionsof 20 per cent for the guilty plea, despite it coming "reasonably late", 10 per cent forrestrictive bail terms, and "something for youth".42 He then imposed final sentencesof three months' home detention on the assault charges and five months' homedetention cumulative on the two burglaries, alongside the reparations which were notchallenged. As I have already indicated, it is not clear whether this final substitutioninvolved reducing the totals he had reached.[34] The only discount directly challenged in the appellant's appeal is the 10 percent for restrictive bail, which Mr Thomas says should have been higher to reflect11 months split between EM bail and time in custody. The Court of Appeal in42 Police v Thomas, above n 3, at [16].R v Chea confirmed that there is no strict rule or mathematical formula for the levelof discount to be granted for time spent on EM bail.43 In R v R the Court of Appealsaid that, where 12 months was spent complying with EM bail on very restrictiveconditions a discount of four to six months was potentially available – though in thatcase adjusting accordingly would have still amounted to tinkering, as the imposedsentence was within the acceptable range, albeit at the upper end.44[35] In my view, that is the case here. The Judge reached a final sentence of homedetention having taken into account time spent on restrictive bail terms. I do notconsider it could be said a sentence of eight months' home detention, arising fromcharges of some seriousness, is manifestly excessive.[36] Once it has been deemed appropriate to impose a sentence of imprisonment ofless than 24 months a Judge exercises a discretion as to whether it's appropriate tosubstitute that sentence for one of home detention. There is no mathematical approachto imposing a sentence of home detention either. Determining the length of a termrequires an evaluative assessment of all the circumstances relevant to the offender andconsistent with the purposes and principles of the Sentencing Act 2000. That isinherently a somewhat discretionary exercise based on the assessment made by theCourt.[37] While it might have been available to the District Court Judge to impose aslightly lesser sentence, I do not consider it can be said that the sentence of eightmonths' home detention imposed was outside the available range.Result[38] The appeal is dismissed.___________________________________Gordon J43 R v Chea [2016] NZCA 207 at [110].44 R v R [2017] NZCA 210 at [14].