IVAR v NEW ZEALAND POLICE [2021] NZHC 493

IVAR v NEW ZEALAND POLICE [2021] NZHC 493 [12 March 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000009[2021] NZHC 493BETWEEN LANCE IVARAppellantAND NEW ZEALAND POLICERespondentHearing: 11 March 2021Appearances: A M S Williams for AppellantP N M Brown for RespondentJudgment: 12 March 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 12 March 2021 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Mr Ivar, pleaded guilty to a charge of burglary, four charges oftheft (one of which is a representative charge), a charge of breach of a sentence ofsupervision, a charge of possession of a pipe for methamphetamine use, three chargesof breaching District Court bail, one charge of breaching police bail and a charge oftrespass.1 He was sentenced to 30 months' imprisonment.21 Police v Ivar [2021] NZDC 428.2 At [27]-[28].[2] Mr Ivar appeals his sentence on the grounds there was excessive uplift forcharges beyond the lead offence, the principle of totality was not considered, the upliftto reflect Mr Ivar's previous convictions was too high, and the Judge failed to givecredit to Mr Ivar for his personal circumstances and personal mitigating factors.Facts[3] On 3 November 2019 Mr Ivar entered The Warehouse at Richmond. Heremoved a bottle of perfume valued at $79 and hid it down his pants. Mr Ivar thenwent to the clothing section and removed a pack of two singlets valued at $14 and apack of three pairs of underwear valued at $30. He removed the packaging from theseitems and hid them down his pants. Mr Ivar attempted to walk out through theentrance, avoiding the checkout area, without making any effort to pay for the items.He was challenged by a member of staff and gave the perfume back. When challengedon the other items he ran from the store.[4] Between 3.30 pm and 6 pm on Friday 8 November 2019 Mr Ivar went to aresidential address in Motueka. The people at the address were known to him. Whilethe victims were out Mr Ivar entered the house by breaking a laundry window. Hetook a PlayStation 4, some PlayStation games and a security camera before leavingthe address.[5] On 12 December 2019 Mr Ivar went to the Pak 'n Save premises in NorthlandsMall in Christchurch. He selected two trays of porterhouse steak, valued at $51.94,placed them in the front of his pants and walked out of the store without paying forthem. Mr Ivar was trespassed from Northlands Pak'nSave that day.[6] On 8 March 2020 Mr Ivar was arrested in regard to the matters detailed above.While being searched, a pipe used to smoke methamphetamine fell to the ground andbroke.[7] On 9 August 2020 Mr Ivar went back to the Pak'nSave Northlands he wastrespassed from and remained inside for some 10 minutes. He took two cans of energydrink valued at $3.59 and hid them in his jacket pocket. Mr Ivar then went to thecheckout to pay for another item, but his card was declined. He left the store withoutpaying for the energy drinks.[8] On Tuesday 21 August 2020 Mr Ivar and a co-offender walked alongRountree Street and removed numerous pieces of mail from various mailboxes. Theythen walked along Hanrahan Street and later Newnham Street, where they continuedto open mailboxes and take mail. Mr Ivar and his co-offender were located in the areaby police in possession of all the mail they had taken. Mr Ivar initially told the policeit was his mail but then changed his explanation to say he was carrying the mail forhis co-offender.[9] Mr Ivar was sentenced to nine months' supervision on 7 October 2019following conviction on charges of breaching community work, failing to answerDistrict Court bail and two charges of driving whilst disqualified (third or subsequent).On 9 January he failed to report as instructed and has not reported since. Mr Ivar thenfailed to report on four further occasions. The District Court Judge was told numeroustexts and telephone calls were made to Mr Ivar in this period to encourage him toreport. On 11 October 2019 Mr Ivar was referred to a short motivational programmeto address his difficulties with reporting and compliance with offending related specialconditions. He was initially seen by a programme staff member on14 November 2019, but was exited on 12 December 2019 due to non-attendance. Noexplanation was given for Mr Ivar's failure to attend. His sentence was due to expireon 6 July 2020.District Court decision[10] Judge Garland considered Mr Ivar's criminal history, his reportedacknowledgement of addiction problems (although Mr Ivar was also said to takeminimal ownership for this behaviour), the screening test that indicated a high levelof risk for methamphetamine use and the probation officer's statement that Mr Ivardemonstrated little remorse for his dishonesty offending. In relation to the burglary ofa residential address, the Judge noted Mr Ivar's explanation that he decided to burglethe house because he was angry with the neighbours and people visiting them.[11] The Judge noted the probation officer's statement that Mr Ivar's compliance inthe community is poor, having amassed a total of 21 convictions for non-compliance.He also owed over $15,000 in fines and enforcement costs. The Judge also had regardto the probation officer's comments which said Mr Ivar shows pre-sentence motivationbut based on his compliance history, his ability to comply with sentence conditionswas assessed as low.[12] The Judge considered submissions on the length of time since Mr Ivar's lastdishonesty convictions and the fact his last burglary offending was in 2011. Mr Ivar'sengagement in He Waka Tapu for rehabilitative intervention and the plan in place toassist him after potential release was also considered, as was his reported acceptancethat his offending was driven by alcohol, drug use and an unstructured lifestyle.[13] Judge Garland identified the lead offence as burglary. He considered theauthority of R v Nguyen3 and the statement in Arahanga v R4 suggesting that dwellinghouse burglaries usually attract a starting point of 18 month's to 2 years and 6 months'imprisonment. The Judge considered Mr Ivar's motivation of revenge or spite anaggravating factor and inferred emotional harm on the part of the victims. The startingpoint adopted for the burglary offence was 20 months' imprisonment.[14] For the charges of theft and trespass the Judge applied an uplift of six months'imprisonment. For the four charges of failing to answer bail and one of breaching asentence of supervision an uplift of four months' imprisonment was applied. Thecharge of possession of a pipe for methamphetamine use was found to attract a startingpoint of one month imprisonment but was dealt with concurrently rather than beingadded cumulatively. Overall the starting point was one of 30 months' imprisonment.[15] Lastly, the Judge considered Mr Ivar's past convictions warranted an uplift ofsix months' imprisonment. He found the guilty pleas Mr Ivar entered warranted areduction of six months' imprisonment.3 R v Nguyen CA 110/01, 2 July 2001.4 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].Principles on appeal[16] 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.5 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".6 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.7SubmissionsAppellant's submissions[17] Mr Williams, for Mr Ivar, accepts the starting point adopted by Judge Garlandin respect of the charge of burglary but submits the uplift for the charges of theft,trespass, failing to answer bail and breach of supervision were too high. He submitsthe Judge erred by not considering the principle of totality and not adjusting the globalstarting point to reflect this principle.[18] In relation to the uplift for aggravating factors personal to the offender,Mr Williams submits the uplift to reflect Mr Ivar's previous convictions wasexcessive.[19] Conversely, Mr Williams submits the Judge erred by failing to give credit forMr Ivar's personal circumstances and personal mitigating factors. In the pre-sentencereport Mr Ivar indicated he is willing and motivated to attend intervention for drug useand has engaged in He Waka Tapu, an organisation that provides drug and alcoholrehabilitative services. Staff from He Waka Tapu were present at Mr Ivar's sentencingand had worked with Mr Ivar to create a plan for him if he was released from custody.5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].He also notes the discussion in Zhang v R regarding the discount of up to 30% thatmay logically arise from diminished culpability related to addiction.8[20] Overall, Mr Williams submits the appropriate end sentence was in range for anelectronically monitored sentence. Although Mr Ivar did not have an address availablefor the purpose of electronic monitoring at the time of sentencing, leave to apply forhome detention would have been appropriate in this case.Respondent's submissions[21] Ms Brown, for the respondent, submits the uplift applied by Judge Garland inrelation to Mr Ivar's theft and trespass charges was appropriate. In support of this shereferred to the cases of Mckenzie v Police,9 McMurtrie v Police10 and Garrett vPolice,11 where sentences of six months were imposed on theft charges. Ms Browncompared these cases to the present offending, arguing the present offending is moreserious than these authorities. She notes two of the thefts were against the same victim,notwithstanding a trespass order being in effect. Each theft involved a high degree ofpre-meditation. She also notes the theft of mail was a representative charge andinvolved a "spree of thefts" rather than opportunistic offending. In respect of the upliftfor failure to answer bail and breach of intensive supervision, Ms Brown submits thereis a repeated pattern of failure to answer District Court bail and Mr Ivar's engagementwith the sentence of intensive supervision was virtually non-existent.[22] On the issue of totality, Ms Brown accepts the Judge did not explicitly considerthis but submits the end sentence is not wholly out of proportion with the gravity ofthe overall offending. She notes the offending occurred while Mr Ivar was on bail,involved the serious charge of burglary and that Mr Ivar has a history of dishonestyoffending. Ms Brown notes the credit of about 17 pert cent (6 months) that was givento Mr Ivar for his guilty plea at a relatively late stage and Ms Brown submits this levelof credit is generous.8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [149].9 McKenzie v Police [2015] NZHC 2742.10 McMurtrie v Police [2015] NZHC 1031.11 Garrett v Police [2019] NZHC 1411.[23] Ms Brown submits the uplift of six months for previous offending was withinrange. Mr Ivar has six previous conviction for burglary. Although the last burglaryconvictions were in 2011, she notes Mr Ivar also had two convictions in 2018 forobtaining by deception.[24] Ms Brown submits the Judge was correct not to apply any credit for personalmitigating factors. She references the Judge's assessment of Mr Ivar's pre-sentencereport and concludes from this that no credit is appropriate on account of remorse forthat offending. Ms Brown submits no discount for Mr Ivar's admitted addiction tomethamphetamine should be given as Mr Ivar reported this use began in January 2020,which was prior to much of the offending, so the requisite nexus between this addictionand this offending is not established.[25] Accordingly, Ms Brown submits the end sentence was within the rangeavailable to the District Court.Analysis[26] The District Court Judge was correct in considering the burglary as the leadcharge and the starting point of 20 months' imprisonment in relation to this charge waswell within range having regard to Arahanga v R.12 Indeed, Mr Williams does notchallenge this component of the sentence.[27] The District Court Judge imposed an uplift of six months for the charges oftheft and trespass having regard to the aggravating features of that offending. On thefour charges of failing to answer bail and the breach of a sentence supervision theJudge applied a four-month uplift, noting the sentence of supervision was "virtuallynot performed at all".13 This makes a total of 10 months' uplift for a multiplicity ofcharges beyond the lead offence. I do not see this as excessive. These charges includedquite separate and potentially serious offending, especially in regard to the theft ofmail from multiple victims.12 Arahanga v R, above 4, at [78].13 Police v Ivar, above n 1, at [24].[28] The overall starting point is therefore 30 months. It would be open to makesome allowance for totality and it is accepted the District Court Judge made no explicitreference to this. He did however impose a concurrent sentence on one charge whichdemonstrated he was alive to the overall length of sentence imposed. The critical issuethough is whether an overall starting point of two years and six months is within range,for the offending involved. Given the combination of the lead offence being theburglary of a residential home and the number of other dishonesty offences committedon separate occasions, I consider it is.[29] The Judge then considered the aggravating and mitigating factors personal toMr Ivar. He noted Mr Ivar has an extensive past history that includes 16 convictionsfor dishonesty offending and six previous convictions for failing to answer DistrictCourt bail. The District Court Judge considered a six month uplift was appropriate forthis. The Judge then allowed a six month discount (almost 20 per cent) for Mr Ivar'sguilty pleas to all of the charges that were entered "very late".14 Even if the six monthsadded to the sentence was at the high end, this was balanced by a lenient approach tothe discount for the guilty pleas and does not lead to a manifestly excessive sentence.[30] A further discount was sought for Mr Ivar's drug addiction issues relying onthe following statement from the Court of Appeal's decision in Zhang.15 addiction may logically give rise to a discount of up to 30 per cent of thesentence depending on the extent to which it mitigates moral culpability forthe offending. There is we acknowledge a degree of arbitrariness in that figure,and it can be indicative only. It is not to be regarded as an absolute upper limit.In some cases, a sentencing judge may well have grounds to conclude thatthere is no material difference between the mitigating impact of the addictionpresented and a serious mental health disorder. In such a case a greaterdiscount could not be condemned as unduly lenient, although clear reasonsought to be given for that course being taken.[31] The probation officer identified drug use as an offending related factor and ascreening test indicated Mr Ivar had a high level of risk for methamphetamine use.However, Mr Ivar stated he started using methamphetamine in January 2020. Theburglary charge and one charge of theft occurred before this and the motive Mr Ivargave for the burglary charge was unrelated to addiction. The remaining charges all14 Police v Ivar, above n 1, at [28].15 Zhang v R, above n 8, at [149].took place during or after January 2020. However, there is no evidence directly linkingthat offending to the methamphetamine use. They are not crimes carried out for thepurpose of supporting an addiction. Rather, they are a continuation of the crimes hehas been committing throughout his adult life, involving crimes against property, anddisobedience and disregard of court orders. In my view, there is no basis for a discountto apply for this factor.[32] I accept the conclusion in the pre-sentence report that Mr Ivar displayed littleremorse for his dishonesty offending. No discount is available for this.[33] Overall, I consider the sentence was within range and reflected the principlesof deterrence and denunciation in respect of a recidivist offender who showed no realremorse and only superficial commitment to change.Conclusion[34] The appeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:S M H McManus, Barrister, Christchurch