SHERLOCK v NZ POLICE [2021] NZHC 110

SHERLOCK v NZ POLICE [2021] NZHC 110 [9 February 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000182[2021] NZHC 110BETWEEN KARL JOHN SHERLOCKAppellantAND NEW ZEALAND POLICERespondentHearing: 1 February 2021Appearances: N R Wham for AppellantP N M Brown for RespondentJudgment: 9 February 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 9 February 2021 at 4 p.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Mr Sherlock, pleaded guilty and was sentenced in the DistrictCourt to one year and four months' imprisonment on charges of burglary, possessionof an offensive weapon, and breach of community work.1[2] Mr Sherlock appeals the sentence on the grounds that it was manifestlyexcessive.Facts[3] On 23 June 2020, the appellant was sentenced to 100 hours' community work.He completed only 0.5 hours of this sentence, leading to the charge of breach ofcommunity work.[4] The charges of burglary and possession of an offensive weapon arise out ofevents occurring on 14 September 2020. With a co-offender, the appellant travelledto Addington, a commercial suburb of Christchurch, and used a grinder to gain accessto a padlocked container on business premises. Once inside, the appellant stole anXbox game console controller, a glass vase and some scrap metal, which he placed inhis vehicle. The appellant then went back inside the container to obtain further items,during which time the police arrived and arrested him. When police searched hisvehicle, they found an expandable baton, which the appellant admitted was forprotection. These events led to the charges of burglary and possession of an offensiveweapon.District Court decision[5] Judge Couch, the sentencing Judge, in his District Court decision regarded thegravity of the appellant's offending as moderate. In setting a starting point for theoffending, the Judge identified two principal aggravating factors. The first was thatthe appellant travelled to the property at night and with a grinder which was consideredto demonstrate clear premeditation. The second was that the appellant went toconsiderable effort to break into the container, which was secured by a padlock.1 New Zealand Police v Sherlock [2020] NZDC 24141.However, the Judge also noted that the stolen property was immediately recovered andthat, by targeting a commercial area at night, there was little chance of confrontationwith the occupants of the premises.[6] In this context, Judge Couch adopted a starting point on the burglary charge of12 months' imprisonment. Noting the appellant's expandable baton could not have apractical purpose other than to cause harm to others, his Honour applied an uplift offour months for the offensive weapon charge. Further, an uplift of one month for thecharge of breaching community work was applied. This led to a combined total of17 months' imprisonment, which the Judge considered an appropriate adjustedsentence for the totality of the offending.[7] Judge Couch then applied uplifts to the starting point to account for twopersonal aggravating factors. His Honour imposed an uplift of 15 per cent for theappellant's extensive criminal history. A further uplift of five per cent was added toreflect the fact the offending occurred while the appellant was subject to a sentence.[8] The Judge then allowed the maximum discount of 25 per cent for prompt entryof the guilty pleas. This brought the end sentence on the charges of burglary andpossession of an offensive weapon to one year and four months' imprisonment, to beserved concurrently with a sentence of one months' imprisonment for the breach ofcommunity work charge. The Judge ordered destruction of the baton. Section 78(7)of the Sentencing Act 2002 was engaged so that the appellant's sentence of communitywork was suspended.[9] Turning to consider home detention, the Judge first noted no address wasavailable but then said he did not consider any sentence less restrictive thanimprisonment would be appropriate in all the circumstances.Principles on appeal[10] 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.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles.3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4SubmissionsAppellant's submissions[11] Ms Wham, counsel for Mr Sherlock, submits the Judge set an inappropriatestarting point, applied an uplift that was excessive, and failed to give appropriate creditfor mitigating factors.[12] She says first that the starting point for the burglary offending of 12 months'imprisonment is not in range. Having regard to Wratt v Police,5 Ms Wham contendsthat a starting point of six to nine months' imprisonment is justified here.[13] The uplift of four months' imprisonment for possession of the offensiveweapon is suggested as excessive and, according to counsel, should be reduced to oneto three months' imprisonment. Similarly, Ms Wham argues the uplift for previousconvictions is too high. She maintains these uplifts do not take the totality principleinto account.[14] Importantly, it is also claimed that the Judge failed to give sufficient credit forpersonal mitigating factors. In support of this submission, Ms Wham suggests theappellant is entitled to discounts for remorse, for seeking a restorative justiceconference, and for personal circumstances. Total discounts, she says, including25 per cent for Mr Sherlock's guilty plea, ought to total some 35 – 40 per cent.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Wratt v Police [2012] NZHC 3137.[15] The result is that the appellant's position is that an end sentence of betweennine and 12 months' imprisonment is instead appropriate.Respondent's submissions[16] Ms Brown, for the Crown, submits the sentence of one year four months'imprisonment is within range and consistent with cases cited by the defendant in theDistrict Court.6 With respect to the starting point, Ms Brown says this was entirelyappropriate and she maintains the Judge's four month uplift for the possession of anoffensive weapon charge was again within range as the weapon could have inflictedserious harm. Further, she contends the one month uplift for the breach of communitywork charge was appropriate as the appellant had completed merely 0.5 of 100community work hours.[17] In relation to the Judge's uplifts to reflect the fact the offending occurred whilesubject to a sentence and for the appellant's previous convictions, the Crown positionis that the total uplift of 20 per cent (or four months) is appropriate and proportionateto the sentence as a whole. Ms Brown went further and suggested a higher uplift wasavailable given the appellant's history, for which he is described as a "recidivistburglar". In support of this submission, counsel notes that substantial uplifts havefrequently been upheld as appropriate in recidivist burglary cases.7[18] Ms Brown contends too that the Judge was correct in not providing any furtherdiscount for the appellant's personal mitigating factors, of which counsel submits thereis little or no evidence. Alternatively, Ms Brown says that, even if a discount were tobe applied, the difference to the end sentence would be negligible.Analysis[19] The ultimate question is whether the end sentence imposed, here being oneyear and four months' imprisonment, was manifestly excessive. Within that evaluationit is necessary to examine both the total starting point adopted by Judge Couch of6 Craigie v R [2012] NZCA 67; Benson v Police [2018] NZHC 296; Wratt v Police [2012] NZHC3137.7 R v Columbus [2008] NZCA 192 at [14]-[15].17 months' imprisonment and also both his uplift additions to reflect aggravatingfactors relevant to the offender, and any personal mitigating factors, includingMr Sherlock's early guilty plea. The lead offending is the charge of burglary.[20] The Sentencing Act 2002 provides that sentencing is to hold Mr Sherlockaccountable for his offending, to promote a sense of responsibility in him, to denouncehis conduct, to deter him and others from such offending, and to protect thecommunity.8[21] There is no tariff case for burglary. The reason for this, as noted by the Courtof Appeal, is that the circumstances in which burglary can be committed are highlyvaried.9 However, in Senior v Police, the Court set out three categories of offending:the first time, the recidivist, and the spree burglar.10 It emphasised that the length ofthe term of imprisonment to be imposed upon a recidivist will depend on the numberof previous convictions, the number of offences for which the offender is appearingfor sentence, and the presence of aggravating and mitigating factors. However, theCourt of Appeal has doubted its value as a tariff setter.11[22] In R v Nguyen, the Court of Appeal identified a number of factors to beconsidered when determining the criminality of burglary offending. These are: thedegree of planning and sophistication in the offending, the nature of the premisesentered, the kind and value of the property stolen, the damage done, the impact andpotential impact upon occupants or owners of property, and the extent of the offendingwhere multiple burglaries are involved.12 The most significant sentencing purposeswhen sentencing an habitual burglar were considered to be deterrence and communityprotection. The starting point arrived at should reflect the culpability inherent in theoffending by reference to its circumstances.13 In fixing a starting point I have reviewedseveral cases of comparable offending.8 Sentencing Act 2002, s 7(1).9 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].10 Senior v Police (2000) 18 CRNZ 340 at [23].11 R v Southon (2003) 20 CRNZ 104, at [13].12 R v Nguyen CA110/01, 2 July 2001 at [17].13 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [28] and [32].[23] In R v Stevens14 the appellant pleaded guilty to a burglary of commercialpremises where he was formerly employed as a cleaner. He took advantage of the facthe had keys to the building and was able to deactivate the security system. He stoleseveral metres of copper piping worth approximately $350, although it was almostimmediately recovered. Taking into account the aggravating features ofpremeditation, breach of trust, and the inconvenience inherent in the theft of internalpiping, the Court considered a starting point of no higher than 18 months'imprisonment was warranted.[24] In Craigie v R,15 the appellant and his co-accused burgled a machinery store,taking items of a total value of $600, while the appellant's ex-partner acted as alookout. The Court characterised the offending as premeditated and planned, notingthe appellant exploited the opportunity afforded by his ex-partner living opposite thepremises to identify the target and then assist as lookout. Here, a starting point of12 months' imprisonment was regarded as appropriately available. This demonstrateda greater degree of premeditation than is apparent in this case.[25] In Wratt v Police the appellant parked his car opposite Bunnings Trade Storein Napier and used wire cutters to cut the perimeter fence and enter the yard.16 Hethen cut a tie from a bundle of decking timber, took four lengths of timber and threwthem over the fence, collected them and placed them in his vehicle. When he wasabout to drive off, police stopped and arrested him. The appellant had over50 convictions for dishonest offending. The Judge decided, at the highest, a six tonine months' imprisonment sentence could have been justified.[26] In Benson v Police, the appellant broke into a Subway restaurant using abuilder's claw hammer with the intention of taking money from the till.17 However,he fled upon realising the till was empty. The damage to the restaurant door wasestimated to cost $1,000. The Judge noted, first, that the use of the claw hammerindicated some element of premeditation that was short of sophisticated pre-planningand, secondly, that the restaurant was closed so there was no risk of confrontation.14 R v Stevens [2009] NZCA 190.15 Craigie v R, above n 6.16 Wratt v Police, above n 5.17 Benson v Police, above n 6.The description of the appellant as a recidivist offender was justified given his historyof over 50 convictions but he was not regarded as a professional burglar. As no itemsof value were actually taken, the Judge characterised the offending as "at the minorend of the scale"18 and considered a starting point of around 12 months would havebeen at the upper end of the available range.[27] In light of these authorities, the starting point of 12 months for the lead offenceof burglary, in my view, is perhaps stern but it is within range. With six previousconvictions for charges of burglary, the appellant qualifies to be regarded as arecidivist offender, albeit at the lower end of the scale. The Judge was right tocharacterise his offending as premeditated, as the appellant travelled to the commercialproperty at night with a cordless grinder. Although the appellant demonstrated a lesserdegree of premeditation than in Craigie, in which there was an element of mutual co-ordination, the appellant's possession of both a grinder capable of successfullybreaking into the container's padlock, and an expandable baton capable of harmingothers upon any confrontation, indicates a degree of pre-planning similar to Benson.The kind and value of the property stolen (although the exact value was not specified)and the commercial nature of the premises entered, are also analogous to the casesmentioned above. All this suggests, in my view, that a starting point of 12 months'imprisonment was one reasonably available to Judge Couch here.[28] And, in my view, the Judge's combined five month's uplift for the possessionof an offensive weapon and breach of community work charges was appropriate andtook into account the totality of the offending. Although no confrontation eventuated,the appellant's possession of the expandable baton heightened the risk of danger toothers posed by the offending. Further, the uplift is consistent with the sentencingpurposes designated as most significant for recidivist burglary of deterrence andcommunity protection. Hence, as I see the position, the overall starting point of17 months' imprisonment was not excessive.[29] As I have noted, the Judge then applied an uplift of five per cent to reflect thepersonal aggravating factor that the offending occurred whilst the appellant was18 At [35], citing R v Columbus [2008] NZCA 192.subject to sentence. In my view, this uplift was not excessive. It was consistent withthe purposes in the Sentencing Act of holding Mr Sherlock accountable and promotingin him a sense of accountability for harm done.[30] Judge Couch also applied an uplift of 15 per cent to account for Mr Sherlock'slengthy criminal history. This history includes six previous convictions for burglary,seven for receiving (most recently in 2019), offences of dishonesty (most recently theftfrom a dwelling in June 2020), and three convictions for possession of offensiveweapons (most recently in 2016). Much of the appellant's offending is reasonablyhistoric. To his credit, Mr Sherlock appeared to be on a desistance pathway between2008 and 2016. However, in the context of overall recidivist burglary cases, in whicha greater emphasis is placed on previous convictions, a 15 per cent uplift could beconstrued as lenient. In Curtis v Police,19 the Judge affirmed as appropriate an upliftof a starting point of 20 months' imprisonment by six months (or 30 per cent) to reflectthe appellant's six previous burglary convictions. And, in Leach v Police,20 the Judgefound that an uplift to a starting point of two and a half years' imprisonment of sixmonths (or 20 per cent) in recognition of 10 prior convictions for burglary and a historyof dishonesty was appropriate. On the basis of these authorities I am satisfied theJudge's uplift of 15 per cent was not excessive and well within range. This leads to atotal sentence of 21 months' imprisonment.[31] There is no dispute that the Judge's 25 per cent discount for the appellant'sprompt guilty plea was appropriate. This meant the adjusted sentence reached wasone of 16 months' imprisonment.[32] The primary issue in this appeal is whether the Judge erred in providing nofurther credit for what are described as the appellant's personal mitigating factors. Thedetailed pre-sentence report sets out that the appellant suffers from ongoing cognitiveissues stemming from a significant brain injury following a car accident at age 19.After the accident, Mr Sherlock had to re-learn how to walk due to damage to thefrontal lobe and spine. As a result of a bone growth protruding into his brain it isreported that he had lost 12 per cent of his frontal lobe. In addition, Mr Sherlock19 Curtis v Police [2019] NZHC 1623.20 Leach v Police [2016] NZHC 1565.suffers PTSD following from the initial car accident, the symptoms of which escalatedafter he was first on the scene at the site of a bus crushed during the February 2011Christchurch earthquake. The appellant also has a history of seizures and a raft ofother injuries that mean he lives with chronic pain, for which he has sought illicitmedication through methamphetamine. Mr Sherlock's mother reports that thesephysical and mental impairments, especially damage to the frontal lobe, have impactedsignificantly on Mr Sherlock's impulsiveness and consequential thinking abilities and,along with his sense of entitlement and substance abuse, have contributed toMr Sherlock's propensity to offend. The author of the pre-sentence report assessesMr Sherlock as being at low to moderate risk of reoffending, although theconsumption of alcohol and illicit substances would increase this risk.[33] Section 9(2) of the Sentencing Act 2002 provides that the Court must take intoaccount, to the extent that it is applicable, that the offender has, or had at the time theoffence was committed, diminished intellectual capacity or understanding.[34] The Court of Appeal in Edri noted the finding of the High Court in that matterthat:21Although any close correlation between the nature of the mental illness andthe extent of discount is often difficult to discern, predictably the relativeseverity of the mental illness suffered by an offender, and the closeness of thecausal link between the illness and the offending, are relevant considerationsin identifying an appropriate discount for mental illness.[35] Mr Sherlock, it seems, has a mental condition, and, by rendering him moresusceptible to acting impulsively and with diminished capacity to immediate and fullyunderstand his actions' consequences, it played some role in his offending. Althoughthe Court was not presented with extensive medical evidence beyond the pre-sentencereport, as I see it, a discount should have been given to reflect Mr Sherlock's reducedmoral culpability. The issue is what the extent of that discount should be.[36] In Blackwood v R,22 the defendant suffered ongoing effects from a traumaticbrain injury consequent upon a serious car accident. These included difficulty21 Edri v R [2013] NZCA at [25], cited in Hape-Kino v R [2017] NZHC 2599 at [41].22 Blackwood v R [2011] NZCA 143.regulating his behaviour and with skills described as "executive functions", such asimpulsivity and inflexible thinking. After being remanded in prison, the defendantwas suicidal and banged his head against walls. Evidence was provided that frontallobe damage and executive dysfunction can pose a "considerable barrier to effectivesocial and working life". The Court acknowledged it was uncertain the extent to whichthe defendant's head injury had a role in his sexual offending, but it was satisfied ithad some role. He was aged 19 at the time of the offending. A discount in the vicinityof 40 per cent was considered appropriate in the circumstances.[37] I do not consider that the causal link between Mr Sherlock's brain injury andthe offending here was as strong as that which prevailed in Blackwood. The defendantin Blackwood laboured under a greater degree of cognitive impairment thanMr Sherlock. Moreover, a greater time has elapsed between the injury andMr Sherlock's offending and Mr Sherlock has demonstrated himself capable ofrestraint in the past. As to this, by way of example, Mr Sherlock, following hiscompletion of the Medium Intensity Rehabilitation Programme in 2009, was subjectonly to two driving convictions in the period until 2016. Hence, though the cognitiveimpairment of his brain injury is ongoing, it seems Mr Sherlock can plan and controlhis affairs such that he can hold back his impulsivity although it seems he can alsopremeditate a criminal act. Coupled with the absence of youth in his case(Mr Sherlock is aged 44), in my view, a discount of 10 per cent for Mr Sherlock'smitigating personal circumstances is appropriate here.[38] Furthermore, I am satisfied that Mr Sherlock's expressions of remorse and hisrehabilitative prospects justify a further discount which I set at five per cent.Mr Sherlock has stated he accepts full responsibility for his actions and is willing toundergo assessment for residential treatment. He reports having benefitted fromrehabilitative treatment in the past, and he shows insight into the contribution ofsubstance abuse to his offending. Mr Sherlock also hopes to regain some capacity foremployment through seeking ACC support and plans an appointment with SouthRehab Centre to manage his chronic pain. I am hopeful such a focus on treating hissubstance abuse and regaining capacity for employment might provide the structureand purpose that will keep Mr Sherlock on the desistence pathway.[39] While I consider the Judge should have applied a discount for personalmitigating factors, remorse and rehabilitative prospects and I would have applied adiscount of 15 per cent, I must take into account here the generous discount for MrSherlock's guilty plea. The question on appeal must always be whether the endsentence is manifestly excessive. Using the Moses v R methodology,23 if I uplift theoverall starting point sentence, noted at [28] above, of 17 months' imprisonment by20 per cent for prior convictions and offending subject to sentence as the Judge did,but then reduce it by 40 per cent (being a 15 per cent discount for personal factors,remorse and rehabilitative prospects and 25 per cent for guilty plea), there would bean overall reduction on the starting point of 20 per cent. That leaves an end sentenceof 13 months' imprisonment.[40] I am satisfied that the difference between this sentence and the sentenceimposed is sufficiently material to warrant intervention by this Court. I conclude thatthe end sentence was manifestly excessive. It is significant that the sentence wouldremain one of short-term duration, with home detention thus a possibility. Theappellant does not appear to have a suitable home detention address at this stage. Iwould, however, encourage Mr Sherlock to apply for home detention at a residentialtreatment facility should such an address become available (as the pre-sentence reportrecommended at page 6 under the heading "Sentence Comment").Conclusion[41] The appeal is allowed. The overall sentence on the charges of burglary andpossession of an offensive weapon of one year and four months' (16 months)imprisonment is quashed and replaced with a sentence of one year and one months'(13 months) imprisonment, with leave to apply for home detention. The concurrentsentence of one months' imprisonment for the breach of the community work chargeis to remain....................................................Gendall J23 Moses v R [2020] NZCA 296.Solicitors:Michael Starling, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch