CHALMERS v NEW ZEALAND POLICE [2017] NZHC 1434

CHALMERS v NEW ZEALAND POLICE [2017] NZHC 1434 [26 June 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2017-425-15[2017] NZHC 1434BETWEEN KANE ALLAN CHALMERSAppellantAND NEW ZEALAND POLICERespondentHearing: 21 June 2017Appearances: T J McCullum for AppellantR W Donnelly for RespondentJudgment: 26 June 2017JUDGMENT OF NICHOLAS DAVIDSON JSummary of appeal[1] The appellant pleaded guilty to two counts of burglary. He was sentenced to 12 months imprisonment in the District Court on 20 April 2017 and given leave to apply for a substituted sentence of home detention. He appeals against the sentence on the basis that it was manifestly excessive. There was and is little or no chance of his finding a suitable address for home detention, so that for this appeal he will serve out his sentence of imprisonment as there are no other viable sentences available, for reasons which follow.Principles on appeal[2] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011 ("the Act"), and determined in accordance with s 250 of that Act. This Court may only allow an appeal against sentence if it is satisfied that there has beenan error in the imposition of the sentence, and in that event, a different sentence should be imposed.1[3] If the sentence under appeal may be justified having regard to the sentencing principles, this Court will not substitute its own views. Only if the sentence is"manifestly excessive" should the Court interfere with the exercise of the Judge'sdiscretion. As Toogood J said (citing Ripia v R2) in Larkin v Ministry of Development:3[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.[4] In Tutakangahau v R,4 the Court of Appeal held that:5the focus is on the sentence imposed rather than the process by which thesentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.District Court Sentencing[5] In early February 2016, the appellant visited a "semi-rural" property inInvercargill. He stole a tractor radiator and battery, together valued at $550, and sold the steel to a scrap metal merchant. The next week he returned and entered the unoccupied house. He stole property valued at $3,500, including $2,000 in coins.The Judge referred to his "small history" of related offending, which included twoconvictions for theft of property under $500 in 2016 and a conviction for common assault. The appellant's homelessness at the time of the offending was unfortunate, as the home he lived in was lost in a fire. The Judge sympathised, but it did not excuse his offending.[6] Overall, the Judge considered that the gravity of the appellant's offending was "substantial", and warranted an adjusted starting point of 16 months imprisonment, which reflected aggravating factors. The same property was burgled1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Ripia v R [2011] NZCA 101 at [15].3 Larkin v Ministry of Development [2015] NZHC 680.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 At [36].twice, and the Judge said there was premeditation on the second occasion when the appellant returned to the property and broke into an unoccupied house. The property was not treated as a dwelling house as it was unoccupied, so the offending was not inthe nature of a "home invasion". There were no other aggravating factors. Some of the items not recovered had sentimental value.[7] The appellant was given credit for his early guilty pleas and a degree of understanding and acceptance of responsibility, which warranted a discount of four months. Home detention was an appropriate sentence but a suitable address was not available. There had been attempts to find an address which resulted in delays to sentencing. A sentence of 12 months imprisonment was imposed,6 with leave given to apply for a substituted sentence of home detention under s 80I of the Sentencing Act 2002. There is still no suitable address available.Grounds of appeal[8] The appellant's primary ground of appeal is that the sentence was manifestly excessive because the Judge's starting point of 16 months imprisonment was too high.[9] There is no tariff case for burglary. Counsel for the appellant, Ms McCallum, refers to R v Columbus, where a starting point of 12 months was held appropriate for breaking into a garage attached to a residential dwelling and stealing a mountain bike and various tools.7 Ms McCullum submits that the offending in the case on appeal is less serious, and warranted a starting point in the region of eight months, to which the 25 per cent discount for early guilty pleas would apply.[10] The appellant thinks that he was "unlucky" to be charged with two counts ofburglary, as the first charge was more 'correctly' a theft charge and a representative charge for all offending might have been laid. However, as two charges of burglary were laid to which he pleaded guilty, that was the basis on which the appellant had to6 With standard and special release conditions (those included in the pre-sentence report) to apply for six months from the sentence expiry date.7 R v Columbus [2008] NZCA 192.be sentenced. His culpability was properly a matter to be reflected in the Judge'sassessment of the facts.[11] The appellant refers to "additional background circumstances", that the sentencing Judge was visiting Invercargill, and that the delay in sentencing wasbecause "a sentence of community work and community detention was being considered". The appellant had identified three potential addresses, but these were unavailable through no fault of his own. The Judge was not bound by what the appellant says is an inference that community detention was the appropriate outcome. Community detention and community work were certainly potential outcomes, but the inquiry on appeal is whether the Judge's decision to impose 12 months imprisonment was wrong.[12] The Judge's decision to grant leave to apply for substitution of sentenceunder s 80I was appropriate as he held home detention would be suitable, and preferable as a matter of principle and discretion. I agree with this conclusion.[13] The respondent, through Mr Donnelly, submitted that the end sentence, with a focus on the starting point, was not manifestly excessive. He refers toSenior v Police, which discusses aggravating factors for this type of offending.8They include behaviour which makes the victim feel "targeted" (including repeated burglaries of the same property, theft of items of high monetary or sentimental value), and "sophisticated" planning and execution. The aggravating factors here are present but mildly so. The Victim Impact Statement by the house owner occupier shows how burglary and the loss of personal items can impact in a telling way even when the house is unoccupied.[14] The Court of Appeal in Arahanga v R said that "dwelling house burglaries at the relatively minor end of the scale" will often attract a starting point in the regionof 18 to 30 months imprisonment.9 The Court was not creating bands of offending. The Judge here rightly proceeded on the basis that, even with the two charges, this offending was within the bracket of "relatively minor" offending. Mr Donnelly says8 Senior v Police (2000) 18 CRNZ 340 at [19].9 Arahanga v R [2012] NZCA 480 at [78].it is analogous with cases where starting points in the region of 15 to 21 months were imposed on appeal.10[15] The appellant has not been imprisoned before, although there is no presumption of gradual escalation in sentence. The starting point reached was clearly within the range normally considered appropriate in cases of offending of this nature, when properly construed in conjunction with relevant authorities. Mr Donnelly says the end sentence of 12 months imprisonment was not manifestly excessive, as it was not outside the available range.[16] Mr Donnelly submits Arahanga provides a broad range of starting points within which the 16 months adopted in this case would fit. Ms McCullum cited the judgment of Panckhurst J in R v Cronin, where the burglary was of a motel, to steal a television for exchange by the defendant.11 It was in that sense premeditated, and targeted offending. It was only the one offence but the offender had a poor criminal record, and the Judge obviously thought he was likely to have been motivated by his drug habit. The District Court Judge adopted a 12 months starting point which Panckhurst J regarded as stern. Ms McCullum analogises the facts of that case and this appeal. She submits the Judge adopted a 16 month adjusted starting point without explanation, other than to recognise the gravity of what he called the"premeditated burglary" on the second occasion, when the appellant returned to break into the house.Analysis[17] The starting point of 16 months might well be regarded as stern in terms ofCronin but Mr Donnelly submits it still lies within range. I reach the same view, that this was a stern adjusted starting point, and thus the end sentence was stern after discounting for guilty pleas. It was particularly stern in its effect as there was no suitable address for home detention. The appellant has not had a suitable address10 Iwikau v Police [2012] NZHC 2027, where 15 months starting point was upheld on a single charge of breaking into a sports club and stealing $2500; Sawtell v Police [2013] NZHC 364, where 18 months was upheld where the appellant broke into an unoccupied hotel and stole two computers; McCormick v Police [2012] NZHC 309, where 21 months was upheld for the appellant breaking into his place of employment and stealing $2000 of items.11 Cronin v Police [2012] NZHC 3498.since the home he occupied was burnt out, and while he had the opportunity to look for a suitable address, none has been found over the course of some months. TheDepartment of Corrections' advice to the Court disclosed this and noted that the appellant was hard to contact.[18] The Judge recognised that home detention was the appropriate sentence and therefore granted leave to apply for home detention, which it seems is nugatory. It appears that this is in part because the appellant does not have support systems, neither family or friends. He is something of a lost soul, and his descent into repeated offending has essentially occurred over the 12 months before sentencing. His homelessness has led him to offend, including the burglaries, the subject of this appeal.[19] I do not consider a community based sentence is realistic. The appellant completed 148 hours of community work, with 62 remaining. The Court is required to impose the least restrictive outcome.12 Specifically, it is the least restrictive outcome that is appropriate in the circumstances and in accordance with the hierarchy of sentences and orders set out in s 10A Sentencing Act 2002. The Court must also take into account any particular circumstances of the offender that meant either the sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.13 TheCourt must also take into account the offender's personal background in imposing asentence or other means of dealing with the offender, whether for partly or wholly rehabilitative purposes. These provisions stand with s 10A Sentencing Act 2002 which affirms that prison is a measure of last resort.14[20] Section 10A of the Act sets out the hierarchy of sentences and orders, from the least restrictive to the most restrictive, and those relevant are those in s 10A(2)(c)-(f).(c) community-based sentences of community work and supervision:12 Section 8(g) Sentencing Act 2002.13 Section 8(h) Sentencing Act 2002.14 R v Rawiri [2011] NZCA 244 at [18].(d) community-based sentences of intensive supervision and community detention:(e) sentence of home detention:(f) sentence of imprisonment.[21] I have held that community based sentences of community work and supervision are not the right outcomes here because of the seriousness of the offending, and the defendant has substantially worked off a previous sentence of community work. Supervision appears to serve no purpose, nor does a community based sentence of intensive supervision and community detention. The appellant has no home. Supervision of someone homeless would be impracticable to undertake. That means the sentence of home detention was appropriate but cannot be served.[22] The purposes and principles of sentencing include the imposition of the least restrictive sentence that is possible. I can find no authority to fit this factual setting, where the Court recognises that home detention and possibly community detention, would be appropriate to fit the facts of the sentencing, and the individual circumstances of the offender, but where that is not available through his own unfortunate circumstances. There is no suggestion that he was or is a drug user, or drank alcohol to excess, simply that he has effectively found himself on the street, living homeless, and getting by with petty offending and, in respect of these two matters, more serious offending particularly on the second occasion.[23] The question is whether the principle of the least restrictive sentence can and should have application in a case such as this, whereby if he had support he would not be imprisoned, as he would have had a community based sentence. This was not a matter before the sentencing Judge as such, and is a point developed on appeal largely because of my concern about the differential in sentence between those who have means and support, and those who do not. That, in my view should be reflected in some way, and I have decided that the appeal should be allowed, in order to impose a lesser sentence of imprisonment, effectively as an element of discount which by orthodox principle should apply before the 25 per cent discount for guilty pleas. This adjustment fits more naturally in a calculation at the end of a discounting process, as a particular circumstance relevant to the overall sentence imposed.[24] Whichever way it is calculated, the appeal should be allowed and a sentence of nine months imprisonment substituted. A good part of the sentence will be served as a result of the appellant being in custody since early April 2017.[25] This result does not fit easily with the appellate principle that the sentence under appeal must be shown to be wrong, because the appeal is allowed on the basis of matters brought to account on appeal, which were not put this way before the sentencing Judge. I do not consider this results in a charter for other sentencings. It is through no fault of his own that the appellant has ended up in this most unfortunate position, and his life was turned upside down by events over about a 12 month period. That will be a relatively unusual factual circumstance.Conclusion[26] Although the Judge did not err in adopting the starting point of 16 months,the end result is manifestly excessive in light of the appellant's personalcircumstances. The appeal is allowed and the sentence of 12 months imprisonment is replaced with nine months imprisonment. The same standard and special release conditions apply, and the balance of community work is suspended..Nicholas Davidson JSolicitors:Southern Law, InvercargillPreston Russell Law, Invercargill