ARBUCKLE-McCREATH v NEW ZEALAND POLICE [2020] NZHC 2893

ARBUCKLE-McCREATH v NEW ZEALAND POLICE [2020] NZHC 2893 [4 November 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-476-19[2020] NZHC 2893BETWEEN KALYM MICHAEL ARBUCKLE-McCREATHAppellantAND NEW ZEALAND POLICERespondentHearing: 03 November 2020Counsel: K M Henry for the AppellantA R McRae for the RespondentJudgment: 4 November 2020JUDGMENT OF DOOGUE J[1] On 9 September 2020, Judge Mark Callaghan sentenced the appellant,Kalym Arbuckle-McCreath, to three months' community detention and nine months'supervision on two charges of burglary,1 and one charge of intentional damage.2[2] For the sentence of community detention, the Judge imposed a curfew from7 pm on a Friday until 7 am on a Saturday, and from 7 pm on a Saturday until 7 am ona Monday. Mr Arbuckle-McCreath appeals his sentence, and challenges only thelength of his curfews as being manifestly excessive.Factual background[3] On 22 August 2019, Mr Arbuckle-McCreath and an associate drove to thevictim's farm in the Maniototo area. Mr Arbuckle-McCreath entered the property and1 Crimes Act 1961, s 231(1)(a); maximum penalty of ten years' imprisonment.2 Section 269; maximum penalty seven years' imprisonment.walked to an open bay shed, where he knew farm vehicles were located. He removeda Toyota land cruiser valued at $50,000, and his associate drove it towards Alexandra.Mr Arbuckle-McCreath remained in the area as a lookout, and then followed hisassociate in a separate vehicle.[4] At another address, Mr Arbuckle-McCreath discarded a dog box from the rearof the land cruiser, and then continued driving. Mr Arbuckle-McCreath and hisassociate then arrived at Little Valley Station in Alexandra and drove to a largeshipping container located on the property, and forced the lock on the container. Theytook a number of items before leaving the property, including a Can-Am quad bike,two Yamaha off road motorbikes, a further 2017 off road motorbike, a water pump,and a large quantity of tools and equipment. The value of the combined property takenwas about $25,000.[5] They then drove to Pleasant Point, where they met with another associate andarranged for the motorbikes and land cruiser to be sold in Christchurch.[6] On 22 October 2019, the police located the Can-Am quad bike stashed awayon the side of Little Valley Road. It was in good condition and had not sustained anydamage, but the key was never located. Mr Arbuckle-McCreath's address wassearched on 25 October 2019, and during the course of that search a number of itemsstolen from Little Valley Station were located, including a motorbike helmet and otherassorted tools.[7] Mr Arbuckle-McCreath was arrested on 4 November, and following that arrestthe police located numerous tools and batteries stolen from Little Valley Station.When spoken to, Mr Arbuckle-McCreath stated that all the items at his address hadbeen left by associates.[8] On the intentional damage charge, Mr Arbuckle-McCreath went to anindustrial property in Oamaru on 4 November 2019, and cut the padlocks on acontainer which was storing household goods.The District Court decision[9] The Judge identified the burglaries as the lead offences. He found anaggravating feature of the offending was the presence of planning and premeditation,because Mr Arbuckle-McCreath's associate obviously knew where the land cruiserwas. The Judge noted the vulnerability of farm properties to burglaries due to theimpossibility of alarming these properties and storage facilities to the same extent thata business might be able to do in a city. He adopted a starting point of 28 months'imprisonment, due to the planning and the fact of there being two burglary charges.He did not apply any uplift for the unrelated charge of intentional damage.[10] As to mitigating factors, the Judge recognised that the offending was"occasioned by drug related addictions that [Mr Arbuckle-McCreath] had", andaccording to Zhang v R, a discount of 15 per cent was appropriate.3 The Judgeconsidered Mr Arbuckle-McCreath was entitled to a discount as he was in the throesof his drug addiction, to such an extent that he was probably not functioning in life ashe would have prior to his addiction. The Judge then gave the full 25 per cent discountfor Mr Arbuckle-McCreath's guilty plea. This, the Judge said, was a total discount ofabout 40 per cent, which brought the sentence down to 18 months. A further threemonths was deducted to recognise Mr Arbuckle-McCreath's having been in custodyfor three months.[11] The Judge acknowledged this brought the sentence within the range of homedetention and that a home detention sentence of between seven and seven and a halfmonths was indicated. He noted Mr Arbuckle-McCreath had been on electronicallymonitored bail (EM bail) for "that period of time of seven months". However, theJudge rejected counsel for Mr Arbuckle-McCreath's suggestion for a sentence ofsolely supervision. He said this did not meet the purposes and principles of sentencingfor such serious burglaries. He therefore imposed a three month period of communitydetention with a curfew from 7 pm on a Friday until 7 am on a Saturday, and from7 pm on a Saturday until 7 am on a Monday. In addition, the Judge imposedsupervision for nine months with special conditions directed at drug rehabilitation.3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.[12] Finally, the Judge ordered reparation for the burglaries and indicated thatoutstanding fines would be remitted on the completion of 100 hours community work.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.4 As the Court of Appeal mentioned in Tutakangahau v R, an appellatecourt "will not intervene where the sentence is within the range that can properly bejustified by accepted sentencing principles".5 It is only appropriate for this Court tointervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.6 The focus of anappellate court must "primarily be on the appropriateness of the end sentence, not themeans by which that end sentence has been reached".7Issues on appeal[14] Ms Henry, for Mr Arbuckle-McCreath, submitted that Mr Arbuckle-McCreathtakes no issue with the type or length of the sentences that were imposed. Shesubmitted that he only sought to challenge the length of the curfews. She submittedthese are manifestly excessive given the length of time he has already spent in custodyand on EM bail, and that his personal circumstances (having a young daughter andwanting to seek dairy farm work) make these curfews excessive.[15] Ms Henry submitted the curfew should be varied to be between 8 pm to 3 am,to allow Mr Arbuckle-McCreath to spend time with his Timaru based seven year olddaughter on Saturdays, as well as seek dairy farm work, which would entail earlymorning starts and possibly late finishes.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 483 at [36].6 Ripia v R [2011] NZCA 101 at [15].7 Skipper v R [2011] NZCA 250 at [28].[16] Mr McRae, for the Crown, submitted the appeal must fail becauseMr Arbuckle-McCreath cannot show that the curfew period was manifestly excessiveor wrong in principle. He submitted the Judge took into account the timeMr Arbuckle-McCreath spent on EM bail and noted that the Judge had no evidencebefore him as to any difficulties that might arise in relation to visitation ofMr Arbuckle-McCreath's daughter and work schedules.[17] Mr McRae submitted Mr Arbuckle-McCreath's concerns would more properlybe dealt with by way of an application for a variation of his community detentionsentence under s 69I of the Sentencing Act.Analysis[18] Section 69I of the Sentencing Act provides:69I Variation or cancellation of sentence of community detention(1) An offender who is subject to a sentence of community detention, ora probation officer, may apply, in accordance with section 72, for anorder under subsection (3) on the grounds that—(a) the offender is unable to comply, or has failed to comply, withany conditions of the sentence; or(b) the curfew address is no longer available or suitable becauseof a change in circumstances; or(c) having regard to any changes in circumstances since thesentence was imposed and to the manner in which theoffender has responded to the sentence,—(i) the rehabilitation and reintegration of the offenderwould be advanced by the suspension or variation ofthe curfew period; or(ii) the continuation of the sentence is no longernecessary in the interests of the community or theoffender.(2) A probation officer may apply for an order under subsection (3) if anoffender, who is subject to a sentence of community detention, isconvicted of an offence punishable by imprisonment.(3) On an application under subsection (1) or (2), the court may, if it issatisfied that the grounds on which the application is based have beenestablished,—(a) suspend or vary the curfew period; or(b) vary the curfew address; or(c) cancel the sentence; or(d) cancel the sentence and substitute any other sentence(including another sentence of community detention) thatcould have been imposed on the offender at the time that theoffender was convicted of the offence for which the sentencewas imposed.(3A) When an application is made under this section on the groundspecified in subsection (1)(b) and there is no suitable alternativecurfew address available, the court may do either or both of thefollowing things:(a) issue to a constable a warrant for the offender's arrest:(b) bail the offender or remand the offender in custody if theapplication cannot be determined immediately.(4) When determining a substitute sentence to be imposed undersubsection (3)(d), the court must take into account the portion of theoriginal sentence that remains unserved at the time of the order.(5) If the court cancels the sentence, the sentence expires on the date thatthe order is made or on any other date that the court may specify.(6) If an application is made under this section for the suspension orvariation of the curfew period, a probation officer may suspend thecurfew period until the application has been heard and disposed of.[19] Section 69I provides the proper avenue for Mr Arbuckle-McCreath to seek tovary his curfew hours on the basis of factual circumstances that were not before theJudge at sentencing, though it will be for Mr Arbuckle-McCreath to show that thesematters amount to a change in circumstances.[20] Alternatively, in so far as the concern about his ability to seek dairy farmemployment with its irregular hours is concerned, Mr Arbuckle-McCreath could alsoseek the permission of his probation officer to leave his curfew address during thehours of his curfew period "to seek or engage an employment" under s 69E(2)(c)(i) ofthe Sentencing Act.Conclusion[21] Given the substance of these concerns was not raised before the Judge in theDistrict Court, Mr Arbuckle-McCreath cannot show that this curfew period wasmanifestly excessive or wrong on principle.[22] He has recourse to an application to the District Court to vary his curfew periodand the ability to seek the permission of his probation officer to leave his addressduring curfew for employment purposes.[23] An appeal to this Court was not the appropriate course of action here.Result[24] The appeal is dismissed.Doogue J