TURNBULL v NEW ZEALAND POLICE [2018] NZHC 671

TURNBULL v NEW ZEALAND POLICE [2018] NZHC 671 [13 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000041[2018] NZHC 671BETWEEN LEVI TURNBULLAppellantAND NEW ZEALAND POLICERespondentHearing: 9 April 2018Appearances: Scott Brickell for the AppellantSam Teppett for the RespondentJudgment: 13 April 2018JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 13 April 2018 at 10:30 ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] The appellant, Levi Turnbull, pleaded guilty to charges of burglary1 andunlawfully opening a postal article.2 At the District Court at Auckland,Judge D J Sharp sentenced Mr Turnbull to 23 months' imprisonment.3 He nowappeals that sentence on the basis that the starting point was excessive and the Judgeerred in not commuting the sentence to one of home detention.Background[2] The factual background set out below is drawn from the summaries of fact foreach of the charges.Burglary[3] At about 10:25 pm on 18 July 2017 Mr Turnbull jemmied open the front doorof a residential address in Panmure, Auckland. Once inside he rummaged throughdrawers and removed various electronic items which he placed in a backpack.[4] After he had been in the house for about five minutes the complainant arrivedhome. To her surprise she saw that the front door was wide open and the lights on.She went inside and found Mr Turnbull in the kitchen. She immediately contacted thePolice who arrived shortly afterwards. Mr Turnbull was found in the front yard of thehouse. By way of explanation Mr Turnbull said, "I am sorry. I didn't mean to do it."[5] At the time of the burglary Mr Turnbull was subject to standard releaseconditions relating to a sentence imposed in April 2017 for a previous burglary andother dishonesty offending.Unlawfully opening a postal article[6] About two months later, on 2 September 2017, Mr Turnbull was walking alongSwanson Road, Ranui, when he was seen looking into letterboxes. The Police were1 Crimes Act 1961, s 231(1)(a). The maximum penalty is 10 years' imprisonment.2 Postal Services Act 1998, s 23. The maximum penalty is six months' imprisonment, or a fine notexceeding $5,000.3 Police v Turnbull [2018] NZDC 3056.called and found Mr Turnbull in a nearby reserve. He admitted his actions and handedover a driver's licence and an AA card which he admitted had been taken from themail.[7] At the time Mr Turnbull was still subject to the standard release conditions andwas also on bail for the previous burglary.[8] On 30 October 2017 he pleaded guilty to both charges.District Court decision[9] Judge Sharp adopted a starting point of 24 months' imprisonment. He arrivedat that figure by first acknowledging the following:(a) the danger and risk inherent in burglaries of domestic dwellings, whichthe Judge found came to fruition when the victim arrived home;(b) the degree of premeditation and planning; which the Judge found waspresent given Mr Turnbull's history of burglary; and(c) the impact on the victim.4[10] He also referred to a number of comparable cases which due to a transcribingerror are not referred to in the sentencing notes. Helpfully, however, Mr Brickell hasidentified them. They are Stepanicic v R,5 R v Tinomana,6 and Tepania v Police.7Referring to those decisions and the leading Court of Appeal decision inArahanga v R,8 Judge Sharp concluded the 24 month starting point was appropriate,uplifted by six months to reflect the postal offence which was committed while onbail.4 Unsurprisingly the victim described herself as being very scared to enter her home after being out.She is worried, cannot sleep and becomes fearful at any noises heard at night.5 Stepanicic v R [2015] NZCA 211.6 R v Tinomana [2017] NZHC 794.7 Tepania v Police [2013] NZHC 2327.8 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.[11] He then applied a further uplift of three months to account for Mr Turnbull'srecidivist tendencies, stating that such a course was necessary for the purposes ofprotection of the public.[12] Judge Sharp then turned to consider the mitigating factors. He gave a discountof three months to acknowledge Mr Turnbull's rehabilitative efforts and prospects.This recognised Mr Turnbull's apparent insight into some of the underlying issueswhich influenced his offending, including alcoholism. The Judge acknowledged hehad found employment and had been affected by his father's ill-health.[13] He then considered the submission that Mr Turnbull should be granted homedetention, concluding he could not adopt that course given Mr Turnbull's significanthistory of burglary offending.[14] Mr Turnbull was thus sentenced to 23 months' imprisonment on the burglarycharge, to be served concurrently with a four month sentence for the postal offence.Appellate principles[15] This is a first appeal against sentence. Section 250(2) of the CriminalProcedure Act 2011 ("CPA") provides the appeal must be allowed if the Court issatisfied that for any reason there is an error in the sentence imposed, and a differentsentence should be imposed.9[16] The touchstone is whether the sentence imposed is manifestly excessive.10 Thefocus is on the sentence imposed, rather than the process by which it was reached.11Grounds of appeal[17] Mr Turnbull appeals against the sentence imposed on two grounds:(a) the starting point was too high, having regard to previous sentencingfor offending committed in similar circumstances; and9 Criminal Procedure Act 2011, s 250(2).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].11 At [36].(b) the Judge erred in not substituting the short sentence of imprisonmentfor a sentence of home detention.[18] I shall address each of these grounds in turn.Was the starting point excessive?[19] Mr Brickell submits the starting point fixed by Judge Sharp was not consistentwith starting points imposed in cases involving similar offending. An analysis of thecase law the Judge referred to is required.[20] It is not in dispute that while there is no guideline judgment for burglarysentencing, Aranhanga sets the frame. Relevantly, the Court of Appeal stated:12"This Court has deliberately not set a tariff for burglary because the range ofcircumstances in which the offence can be committed is so varied. Burglaryof a domestic residence is a significant aggravating feature at sentencing dueto the heightened risk of confrontation with the occupants. Dwelling houseburglaries at the relatively minor end of the scale tend to attract a starting pointof approximately 18 months' to two years and six months' imprisonment."[21] The Judge considered cases within that category of burglary offences, andlikewise Mr Brickell and Mr Teppett have helpfully referred me to cases where thestarting point adopted was proximate to the range stated by the Court of Appeal.[22] In Stepanicic, the Court of Appeal resentenced an offender on two charges ofburglary relating to separate residential burglaries, both occurring in the early hours ofthe morning. The first burglary occurred at a residential address while the victim wasat home and in bed. Mr Stepanicic entered and stole a number of personal items. Thevictim woke up and saw Mr Stepanicic crawling along the floor at the foot of her bed.Believing it to be her son, she went back to sleep. The second burglary occurredshortly after, at about 6:00 am. Again, Mr Stepanicic entered the house of a femalevictim who was in bed. He ripped the latches off the kitchen window to enter, andtook several items of value.12 Aranhanga v R, above n 8, at [78] (footnotes omitted).[23] A starting point of two years was adopted, the Court accepting the relevantaggravating factors were that both burglaries were of residential properties; theyoccurred at night when people were in their homes, with the attendant risk of actualdanger or confrontation; a number of personal items were stolen; and the offendinghad significant effect on the peace of mind of the occupants.13[24] In Tepania v Police, Priestley J on appeal adopted a starting point of between22 and 24 months for one incident of burglary involving entry, while drunk, into aresidential property in the early hours of the morning. The victim was disturbed anda struggle ensued. No property was taken, but the victim suffered some injuries.Priestley J, assessing the offender's culpability, commented:14" this was an unwarranted nocturnal intrusion into a private dwelling. Itwas fuelled by alcohol and relatively spontaneous. The appellant's target waslimited to alcohol. Home invasions are, of course, potentially dangerousbecause they can lead to confrontations where frequently the occupants areassaulted and terrified. In this case there was indeed a struggle, during whichboth participants were injured. The victim, on his own admission, had to berestrained from inflicting further damage on the appellant. No property wastaken."[25] The struggle and the impact on the victim and his family were viewedimportant factors in the Judge's assessment.15[26] In R v Tinomana, Edwards J allowed an appeal against sentence, finding astarting point of two years ought to have been adopted. That case involved twoburglaries, as well as other dishonesty offending, a wilful damage charge and a chargeof breach of community work. The first incident of burglary involved Mr Tinomanaapproaching a property at about 7.00 pm and punching the glass window. Hecontinued to a nearby residence where both occupants were home, entering through aranch slider. He encountered the female victim and asked her for money. Shescreamed out to her husband who was asleep. Mr Tinomana left the property whenthe husband yelled at him to leave, but then turned and charged at the man whileholding an unknown object in his hand. He punched and kicked the door causing theglass to smash. No property was taken. The second burglary occurred a number of13 Stepanicic v R, above n 5, at [7], [9].14 Tepania v Police, above n 7, at [53].15 At [54].months later in the early evening. Mr Tinomana's associate entered the back yard ofa residential property and stole various items he found inside the house including alaptop and a credit card.[27] Edwards J undertook a careful review of the authorities. She commented thatthe fact Mr Tinomana's offending involved an actual confrontation with the occupantsof the house, which caused them great distress, made his offending more serious thanthat in Stepanicic, but accepted that the starting point in Stepanicic reflected twoburglaries, where property was taken, whereas no property was taken byMr Tinomana.16 She also commented the starting point adopted in Tepania suggestedthe Judge's starting point (two years and six months) was too high.17[28] I agree with Mr Brickell that the offending in Stepanicic was, at least in certainrespects, more serious than that in the present case. It involved two instances ofburglary where valuable goods were taken. In contrast Mr Turnbull took nothing fromhis single burglary. However, a significant risk of confrontation was present in bothcases. That in the present case there was an actual confrontation between Mr Turnbulland the victim elevates the seriousness. However, despite this I regard the instantoffending as marginally less culpable than that in Stepanicic.[29] I am also satisfied Mr Turnbull's offending was less serious than that inTepania and Tinomana. The physical struggle was plainly a serious aggravating factorin Tepania, while the physical damage and threats which were present in Tinomanaalso elevated the seriousness. Rather than engaging in physical violence or offeringthreats when confronted by the victim, Mr Turnbull exited the residence but did notleave the property.[30] Mr Teppett, for the Crown, referred me to two further cases in which startingpoints of two years and six months, and two years and nine months, respectively, wereadopted. In my view neither case is apposite. In Lamatoa v R, the appellant wasinvolved in two residential burglaries, from which property valued at about $6,00016 R v Tinomana, above n 6, at [33].17 At [35].was taken.18 Nation J found the burglaries were premeditated and in the nature of aspree. The starting point also reflected a receiving charge which the Judge describedas "serious" and "brazen".19 Meanwhile, as Mr Teppett concedes, the 33 monthstarting point adopted in Sullings v Police reflected the appellant's extensive criminalrecord.20 Aggravating factors making that offending more serious than the presentincluded a threat to "smash" the victim, and the appellant's decision to pour down thesink medication used by the victim to treat her infant daughter's chronic illness.21[31] It is apparent from the foregoing that I consider Judge Sharp erred in adoptinga two year starting point.[32] The primary aggravating factors in Mr Turnbull's offending, the actualconfrontation with the victim, and the clear impact his offending has had on her, wererightly treated as serious by the Judge. But the offending did not involve the otheraggravating factors which elevated the culpability in the cases referred to me.[33] Mr Brickell submits a finding of premeditation is not available on the agreedfacts, and cannot be founded on Mr Turnbull's history of dishonesty offending. AsMr Brickell points out, there is an indication in the PAC report that Mr Turnbull wasdrunk at the time of the offending, and his post-offence conduct is not what wouldordinarily be expected of an assailant in a premeditated burglary. However, the use ofan instrument to force open the front door is indicative of some level of planning.Despite this I am satisfied Mr Turnbull's offending was more opportunistic thanplanned.[34] Moreover, while Mr Turnbull's recidivism clearly warranted attention, that wasthe subject of a further three month uplift. In the circumstances of this case the merefact that Mr Turnbull has previous convictions for burglary does not logically lead toa conclusion that the index offending was planned or premeditated. Plainly18 Lamatoa v R [2017] NZHC 2375.19 At [30]. The Judge found the items received, valued at $3,000, were likely to have been from anearlier burglary by the appellant's co-offender. He also found the appellant likely had detailedknowledge of how the property received was stolen.20 Sullings v Police [2017] NZHC 601.21 At [15]-[17].Mr Turnbull's history reveals he has a propensity to commit burglary, but that does notassist in discriminating between opportunistic or premeditated offending.[35] In any event, of the cases cited to me Mr Turnbull's offending is mostcomparable to that in Stepanicic in terms of its seriousness, and does not exhibit thekind of aggravating features in the other cases cited to me which justified startingpoints of more than 24 months.[36] Assessing the matter afresh, in my view a starting point of 20 months,somewhat lower than the 24 months in Stepanicic, is called for. Indeed, I did notunderstand Mr Brickell to seriously suggest otherwise. But he submitted that the sixmonth uplift to account for the postal charge and the fact that the offending took placewhile Mr Turnbull was on bail was excessive. Furthermore, he submitted when thisuplift is combined with the three month uplift on account of Mr Turnbull's previousoffending the result is excessive.[37] Mr Teppett rightly accepts the six month uplift for the postal charge was stern,indeed very stern, particularly given the maximum penalty. However, that uplift alsoincluded a recognition that the offending took place while he was on bail and wascommitted while Mr Turnbull was subject to release conditions imposed following hisconviction for a previous burglary (a factor not explicitly referred to by the Judge).This combination justified a discrete uplift. However, taken in context I am satisfiedthe six month uplift was excessive. A four month uplift was appropriate.[38] The other uplift of three months was given on account of Mr Turnbull'sprevious offending. Prior to the present charges Mr Turnbull had previously beenconvicted and sentenced on three earlier occasions for burglary. While that is arelatively modest total, these convictions stand beside numerous convictions fordishonesty offending. In my view it cannot be said that a three month uplift in thesecircumstances is anything other than an orthodox and appropriate application of therelevance sentencing principles including the need to protect the community. For thesereasons I am satisfied that the appropriate global starting point is 27 months'imprisonment.[39] Turning to mitigating factors, no issue is taken with the three month discountfor prospects of rehabilitation. I agree with Judge Sharp that a compassionateapproach was appropriate. It is heartening that Mr Turnbull has participated in aprogramme with the Community Alcohol and Drug Service ("CADS"). He also self-reports no alcohol use since December 2017. That commitment to self-improvement,coupled with Mr Turnbull's success in finding a job and factoring in his father'sillness, justified a discrete three month discount.[40] The Crown accepts the full 25 per cent discount for early pleas was available.This equates to a seven month reduction resulting in an end sentence of 18 months'imprisonment.Should a sentence of home detention have been substituted?[41] I now turn to consider whether the Judge erred by declining to commute thesentence to one of home detention.[42] Judge Sharp declined to commute Mr Turnbull's sentence to one of homedetention on the basis there was a need for deterrence, and that given Mr Turnbull'ssignificant history of offending a sentence of imprisonment was called for.[43] Mr Brickell's criticism is that in exercising his discretion not to commute thesentence to home detention the Judge was plainly wrong. He placed too muchemphasis on deterrence and denunciation and failed to give sufficient weight to theevidence that imprisonment has failed to deter Mr Turnbull from re-offending. Hesubmits Mr Turnbull is remorseful, has successfully completed CADS and has notconsumed alcohol since December 2017. All these factors, Mr Brickell submits,operate against the imposition of a full-time custodial sentence and that the lessrestrictive outcome of home detention is appropriate.[44] There are undoubtedly factors which operate in favour of a sentence of homedetention. Mr Turnbull has taken some positive steps towards rehabilitation, includingaddressing his underlying issues with alcohol and gaining employment. Additionally,being released on home detention would allow him to spend time with his ailing fatheralthough I note Mr Brickell responsibly advises me that Mr Turnbull's father's healthhas improved somewhat. I accept that under the Act's scheme, a sentence ofimprisonment cannot be imposed for the purpose of assisting an offender'srehabilitation.22[45] But there are important factors in operation which in my view prevent me fromcommuting Mr Turnbull's sentence. First, there is the need to denounce his conduct,deter him, and protect the community. I accept denunciation and deterrence are bothserved by home detention.23 But Mr Turnbull's history of similar offending heightensthe need to impose a sentence which will protect the community.[46] Secondly, and relatedly, imprisonment has not deterred Mr Turnbull from re-offending. As Priestley J observed in Tepania it is contrary to the hierarchy ofsentences prescribed by the Act to impose a less restrictive sentence for burglary whenthe more onerous sentence of imprisonment has failed to produce the desired result.24[47] Thirdly, in certain cases a history of failure to comply with Court orders insimilar circumstances will militate against a sentence of home detention.25 One matterof concern is that the most recent spate of offending occurred while Mr Turnbull wassubject to release conditions, and the postal offence occurred while he was on bail forthe burglary. Mr Turnbull has also previously breached conditions of communitydetention and supervision. Given his history of breaching Court-ordered conditions,and offending while subject to Court orders, I cannot be confident Mr Turnbull willserve a sentence of home detention without incident. These factors necessarily meanI am not satisfied the protection of the community can be achieved by any sentenceexcept one of imprisonment.[48] For completeness, I have not ignored Mr Brickell's proper submission that inthe long run, the community is best protected by Mr Turnbull receiving a sentencewith a rehabilitative element which will enable him to address his alcohol issues. Thatis a meritorious submission. However, Mr Turnbull's history has forced my hand. Hisrecent participation in CADS provides hope that he is properly committed to22 Sentencing Act 2002, s 16.23 Fairbrother v R [2013] NZCA 340 at [30].24 Tepania v Police, above n 7, at [59].25 Hampton v Police [2014] NZHC 2423 at [28]-[29].addressing the underlying causes of his offending. Mr Brickell advises me from thebar that unlike prisoners serving longer terms of imprisonment, prisoners such asMr Turnbull who are serving short terms are not generally afforded the opportunity toengage or participate in pre-release rehabilitative programmes. If that is the case it isunfortunate. Given that alcohol abuse appears to lie at the root of Mr Turnbull'soffending coupled with the evidence he now appears to be addressing his addiction, Iwould hope and expect the prison authorities would ensure that prior to his releaseMr Turnbull receives some form of appropriate counselling. That is particularlyrelevant given the comments in the PAC report recommending such a course.Result[49] The appeal against sentence is allowed in part.[50] The sentence of 23 months' imprisonment is quashed and substituted with asentence of 18 months' imprisonment.[51] I decline to commute Mr Turnbull's sentence to one of home detention.Moore JSolicitors/Counsel:Mr Brickell, AucklandMeredith Connell, Auckland