LAWSON v POLICE [2016] NZHC 1158

LAWSON v POLICE [2016] NZHC 1158 [31 May 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-045[2016] NZHC 1158BETWEEN MANA LAWSONAppellantAND NEW ZEALAND POLICERespondentHearing: 11 April 2016Appearances: R L Brown for AppellantH D Benson-Pope for RespondentJudgment: 31 May 2016JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 31 May 2016 at 3pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Public Defence Service, AucklandKayes Fletcher Walker, AucklandSummary[1] The appellant, Mr Mana Lawson, appeals the sentence of 24 months'imprisonment imposed upon him as being manifestly excessive, on the grounds thatthe starting point adopted by the sentencing Judge was too high, and that the mitigatingfactors of his youth, remorse and willingness to participate in restorative justice andrehabilitative programmes, were not adequately considered and reflected in thesentence imposed.Factual background[2] The appellant entered pleas of guilty to 23 charges of burglary, unlawfullytaking a motor vehicle, driving while disqualified, driving in a dangerous manner, andfailing to stop. These charges arose from a series of events that took place on 7 June2015 which are described in the Police summary of facts in respect of which theappellant's pleas of guilty were entered.[3] At about 9 pm on Sunday 7 June 2015, the owner of a Toyota Camry vehicleleft it parked and locked on the roadside near his residence in Clendon, from where itwas subsequently stolen.[4] Later that same night at about 10:45 pm, the appellant and an associate drovethe stolen Toyota to a Z service station located in Wiri Station Road. The servicestation was closed, having been secured for the night at about 10 pm.[5] Both the appellant and his associate had disguised themselves with bandanascovering their faces and gloves on their hands. One of them carried a set of boltcutters. They smashed the automatic door at the front of the service station andentered. One immediately went to the cigarette display while the other followedcarrying a black rubbish sack.[6] The security system was activated by their entry, resulting in a loud alarm beingsounded and the room filling with smoke. Both offenders then bolted withoutmanaging to take anything, and departed in the stolen vehicle with the appellantdriving.[7] Police officers in a passing patrol vehicle heard the alarm going off at theservice station, and saw the smoke and the departing vehicle. Suspecting the occupantsto have been involved in the break in, the Police officers decided to stop the vehicleand turned on the patrol car's flashing lights. The appellant failed to stop andaccelerated away, driving at a speed of up to 90 km/h in the 60 km/h speed limit area,on the wrong side of the road, and finally stopping on the wrong side of the road,where both he and his associate got out of the vehicle and ran off before beingapprehended a short distance away.[8] The appellant is aged 23,1 and has 34 previous convictions, including nine forunlawfully taking a motor vehicle, and six for burglary. He has two convictions forbreaching home detention and community work.District Court decision[9] Having earlier entered pleas of guilty to the charges, on 22 January 2016, theappellant appeared in the Manukau District Court before Judge Winter and wassentenced to 24 months' imprisonment on the charges of burglary; unlawfully takinga motor vehicle; dangerous driving; driving while disqualified; and failing to stop.[10] The Judge considered the aggravating factors of the burglary to demonstrate ahigh degree of planning and premeditation as shown by the taking of the motorvehicle; the wearing of a disguise to conceal his face; the use of gloves to cover hishands in order to avoid detection; and the use of bolt cutters and a black sack. TheJudge noted that the appellant had a history of substance abuse with an addictivepersonality, and that the offending was likely motivated to get money from the sale ofcigarettes to satisfy his drug habit.[11] In deciding on the appropriate starting point, the Judge found Senior v Policeto be particularly helpful.2 He considered that there was a need for him to choose astarting point that reflected the particular aggravating features of an individualcommercial burglary. He said that while he appreciated that a starting point for1 The appellant's date of birth is 28 July 1992.2 Senior v Police (2000) 18 CRNZ 340 (HC).commercial burglaries could be lower than for residential burglaries, he consideredthat he was required to focus on the aggravating features of the offending which werevery serious indeed.[12] The Judge selected a starting point of 24 months' imprisonment. He then addedan uplift of two months for the dangerous driving and driving whilst disqualifiedoffences, and a further uplift of four months to reflect the appellant's previous historyof offending and the fact that the offending had occurred very shortly after theappellant's release from imprisonment on another burglary charge. The Judge alloweda 20 per cent discount for the guilty pleas, resulting in a final sentence of 24 months'imprisonment. Home detention was not available. Six months' disqualification wasalso imposed for the driving offending.3Appellant's submissions[13] Counsel for the appellant, Ms Brown, submits that the starting point adoptedof 24 months' imprisonment was too high, and that a starting point of 12 to 18 monthswould have been appropriate. She says that the aggravating features of the offendingwere that it occurred at night; there was some degree of planning and premeditation;and some damage was done. However, she submits that there was no risk ofconfrontation with the occupants of the service station as the offending occurredoutside of business hours, and she describes the offending as not being sophisticatedin the nature of "smash and grab" offending. Though some damage was caused, noproperty was in fact taken.[14] Ms Brown submits that the appellant's youth should have been considered asa mitigating factor. She says that the offending in this case is consistent with theimpulsive behaviour typically associated with youth, and because the appellant hassubstance abuse issues and an addictive personality, he is more vulnerable to this typeof offending as a means of feeding his drug habit. A discount for youth can be justifiedand based purely on the neurological differences between young people and adults,3 The Judge imposed a six month period of disqualification on the driving whilst disqualified chargeand a further six months on the dangerous driving charge, before saying that there was in all, adisqualification period of 9 months starting from the day of sentence. The appellant does notchallenge that part of the sentence imposed.and can be appropriately applied even where there is no prospect of rehabilitation andwhere there are many previous convictions. She submits that a discount of around 10per cent may be available.4[15] Additionally she refers to the appellant being willing to attend a restorativejustice conference (which did not go ahead due to factors outside his control) and thathe wrote a letter to the Court expressing his remorse to the victims of his offending.Counsel notes that the appellant had also completed a number of courses while incustody and expressed his willingness to attend a drug and alcohol rehabilitationprogramme. In the circumstances, she submits, some discount for remorse andrehabilitation should have been allowed by the Judge.[16] Accordingly, counsel submits that a starting point in the region of 12 to 18months' imprisonment is appropriate, with an uplift of a total of nine months'imprisonment to reflect the totality of the offending and the appellant's previousconvictions, resulting in an adjusted starting point of 19 to 25 months' imprisonment.From that starting point, in addition to a 20 per cent discount for the guilty pleas, afurther discount of 15 to 20 per cent should be available. This would result in a finalsentence of 11.5 to 16.5 months' imprisonment.Respondent's submissions[17] For the Crown, Mr Benson-Pope submits that the sentence imposed was withinthe range and should be upheld. Though the Judge referred to Senior, he did not takethe approach used there of considering previous convictions when setting the startpoint. He submits that the appellant's offending was characterised by sophisticatedplanning, multiple offenders, and at least some risk of confrontation with servicestation or security staff, because the station could well have been attended at the timeof the burglary. The current offending should be seen as sitting between the offendingin the cases of Moses v Police and Rangi v Police, such that a starting point between18 and 30 months is appropriate.5 Even if the starting point chosen was excessive, the4 Rule-Winiata v Police [2014] NZHC 894.5 Moses v Police HC Whangarei CRI-2011-488-6, 24 March 2011; Rangi v Police [2013] NZHC465.uplifts applied by the Judge were conservative, and consequently, the end sentencewas appropriate in comparison with other authorities.[18] As regards the mitigating factors identified and relied upon by the appellant,the Crown submits that there is no presumption in favour of a discount for youth;6 andthat the appellant's extensive and relevant criminal history, the gravity andpremeditated nature of the offending, and the appellant's risk of reoffending, offsetany potential discount for youth. The Judge was entitled to be sceptical of theappellant's expression of remorse given the lack of any concrete measures such asvoluntary reparation payments and having regard to his criminal history, and for thatreason, he was not entitled to a discount for remorse.Approach to appeal[19] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[20] In any other case, the Court must dismiss the appeal.7[21] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.8 Further, despite s 250 making no express reference to"manifestly excessive", this principle is "well-engrained" in the court's approach tosentence appeals.96 Citing Huata v R [2013] NZCA 470 at [32].7 Criminal Procedure Act 2011, s 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].9 At [33], [35].[22] The approach to be taken under the former Summary Proceedings Act was setout in R v Shipton:10(a) there must be an error vitiating the lower court's original sentencingdiscretion. The appeal must proceed on an error principle;(b) to establish an error in sentencing, it must be shown that the Judge inthe lower court made an error, whether intrinsically or as a result ofadditional material submitted to the appeal court; and(c) it is only if an error of that character is involved that the appeal courtshould re-exercise the sentencing discretion.[23] The High Court will not intervene where the sentence is within the range thatcan properly be justified by reference to accepted sentencing principles. Whether ornot a sentence is manifestly excessive is to be determined having regard to the sentenceactually imposed, rather than the process by which the sentence is reached.11[24] In order to determine the appropriateness of the sentence, I must undertake thesentencing exercise afresh.The starting point of 24 months[25] There is no tariff case for burglary offending. The Court of Appeal inArahanga v R observed:12[78] This Court has deliberately not set a tariff for burglary because the range ofcircumstances in which the offence can be committed is so varied. Burglary of adomestic residence is a significant aggravating feature at sentencing due to theheightened risk of confrontation with the occupants. Dwelling house burglaries at therelatively minor end of the scale tend to attract a starting point of approximately 18months' to two years and six months' imprisonment.10 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].11 Ripia v R [2011] NZCA 101 at [15].12 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 (footnotes omitted).[26] Having considered the authorities referred to by both the appellant13 and theCrown in their submissions, and such other authorities as I found of assistance,14 I findthat there is a fairly broad sentencing range for this type of burglary. The range extendsbetween 18 months at the low end and two years, six months at the high end, withmany of the starting points at the lower end of that range. Ikahihifo is the most similar13 As counsel points out, residential burglaries are inherently considered to be more serious thanburglaries of non-residential premises due to the increased degree of intrusion and likelihood ofconfrontation with occupants.14 Moses v Police, above n 5: the offender went to a commercial food premises in the early hours othe morning. Using his hands and feet he smashed a window to gain entry, before taking $2,600worth of cigarettes and tobacco, none of which was recovered. On appeal to the High Court,White J adopted a starting point of two years, six months' imprisonment, taking into account thenature of the entry to the premises, the value of the unrecovered goods, and the absence of anyviolence.Tuffey v Police [2014] NZHC 591: the appellant and an associate went to the associate's father'shouse knowing he was away overseas. They used bold cutters to break into the garage and tooktwo motorbikes, a large number of tools and a large quantity of diesel. The total value of theproperty stolen was about $40,000. There was no risk of confrontation with the occupiers.Venning J considered that having regard to the circumstances of the offending and value of theproperty taken, without taking account of Mr Tuffey's personal circumstances which included anextensive history of prior offending, the case would not have warranted a starting point of morethan two years, six months' imprisonment.Ikahihifo v Police [2012] NZHC 3553: the appellant and an associate used a jemmy to force openthe front door of a supermarket at 4am, breaking the door in the process. They then filled a woolsack with $20,000 worth of cigarettes and tobacco and drove away. They were apprehended bythe Police soon afterwards and all the stolen property was recovered. Wylie J described thecircumstances of the burglary as involving some planning and premeditation, but said it was notsophisticated. There was little or no risk of confrontation with occupiers; and although propertyof significant value was taken it had all been recovered. On appeal, the High Court substitutedand adopted a starting point of 20 months' imprisonment;Rangi v Police, above n 5: the appellant entered commercial premises by climbing through a holein a padlocked wire mesh gate at night. He then smashed an office window to gain entry. He thensearched the premises for cash before being discovered by a security guard. There was aconfrontation but no violence. Following the decisions in R v Stevens and R v Brown, Fogarty Jadopted a starting point of 18 months imprisonment, but proceeded to apply a greater uplift thanthat used by the sentencing Judge to reflect Mr Rangi's extensive list of previous convictions forburglary. Fogarty J noted that Mr Rangi, aged 32 years, had 27 previous convictions for burglary,as well as having other convictions. He applied an uplift of 12 months to reflect that history.R v Stevens [2009] NZCA 190: premeditated burglary of a commercial premises using keys andan alarm code which had been misappropriated. The Court of Appeal imposed a start point of 18months' imprisonment.Rapira v Police [2015] NZHC 699: offender smashed a bar window, broke in and took somealcohol which he then shared with a 15 year old. When in Court, being remanded in custody, theappellant ran from the dock and left court. He was apprehended in an alley next to the Courthouse.He faced two charges of burglary as well as escaping from custody (sentenced cumulatively);disorderly behaviour; and supplying alcohol to a minor. The starting point for the burglaries wastwo years six months, held on appeal to be within range but "stern".Ware v Crown Law Office [2015] NZHC 704: broadly the offending related to the theft inNovember 2013 of plants, materials and appliances from properties under construction. At leastone burglary was committed with a co-offender. The offender attempted to sell the stolen propertyto associates. Losses were valued at $33,000 but the offender disputed this saying it was worthabout $4,000. The Court on appeal agreed and called the value "low". A starting point betweenone year and one year, six months would have been appropriate.case in terms of the actual burglary offending, in that there were two offendersinvolved, a very minor risk of confrontation, some planning, and damage to propertybut all items taken were recovered. Here, the offending occurred at night when theservice station was closed, and consequently, I disagree with the Crown's submissionthat there was a risk of confrontation. At 20 months' imprisonment, the starting pointadopted in Ikahihifo was slightly lower than in the present case.[27] However, in contrast to the offending in Ikahihifo, in this case, the planningwas much more deliberate. Here, Mr Lawson and his associate equipped themselveswith a stolen vehicle, and presumably did so in order to arrive at and depart from thescene of their offending quickly so as to avoid apprehension. By using, and no doubtabandoning, the stolen vehicle as soon as they had made their getaway, they weregoing to enhance their prospects of avoiding apprehension.[28] They wore bandanas over their heads and faces, and gloves on their hands, toconceal their identities from CCTV and security cameras, and took with them the boltcutters and the plastic bag to cut through any lock and carry away any stolen items.[29] Taken together, those measures relating both to planning and execution of theoffending and thereafter to avoid apprehension and identification, place this offendingon a more serious level than those cases where an 18 months or even 20 monthsstarting point was applied, notwithstanding that in this case, Mr Lawson and hisassociate failed to take any property away with them when they fled the scene.[30] I am satisfied that the 24 month starting point selected by the Judge, whilstperhaps on the high side, was nevertheless within the available range. The Judge'sassessment as to the gravity of the offending was a matter for his determination andhe clearly saw it as being of a serious nature warranting the selection of a starting pointtowards the upper level of the range. In doing so he made no error that would warrantthis Court interfering.Totality and previous convictions[31] Having regard to the appellant's prior offending, the totality uplift seemsentirely justifiable, indeed conservative. The Judge applied an uplift of four monthsto reflect the appellant's prior offending. As noted, the appellant at 23 years old has anextensive history: six burglary convictions; eleven convictions for unlawfully takingmotor vehicles; a conviction for unlawfully getting into a motor vehicle; a convictionfor unlawfully interfering with a motor vehicle; as well as a conviction for theft froma vehicle. Other convictions are for driving dangerously, failing to stop, and failing tostop to ascertain injury following an accident. Although there are still moreconvictions, those mentioned are all relevant to the Court's assessment of theappropriate uplift to reflect his prior offending. In particular, I note that the appellantobtained a conviction for burglary in relation to offending that occurred in 2013, andwas sentenced to imprisonment for 12 months in August 2014, so he was not long outof prison at the time of this offending in June 2015.Should the Judge have allowed a discount to recognise the appellant's youth?[32] Discounts for youth are available where appropriate, to recognise theneurological differences which give young people, until their mid-twenties, reducedimpulse control and decision making capacity as compared to more mature adults; andto recognise the greater potential for rehabilitation of young offenders in some cases.15Those factors are to be balanced against the seriousness of offending and prospects ofrehabilitation. There is no fixed discount.16[33] In the present case, the offending was planned and serious, and there is anextensive offending history. However, discounts have been given in other cases onreasonably serious charges even where there is a substantial history of offending.17[34] In Pouwhare v R, the Court of Appeal commented on the issue of youth as asentencing factor:[83] In the end, a judge sentencing a young person under the Sentencing Actmust always weigh the young person's age and the reasons why he or sheoffended, against the seriousness of his or her offending, and prospects ofrehabilitation. Sometimes a young person's age will be a mitigating factor ofhigh perhaps decisive, significance not to be circumscribed by any fixed outer15 See Churchward v R [2011] NZCA 531 at [76] -[92].16 Pouwhare v R [2010] NZCA 268 at [83]; Churchward, above n 15, at [84].17 See Rarere v Police HC Napier CRI-2012-441-8, 26 April 2012; R v Alletson [2009] NZCA 205.percentage. Equally, there can be no warrant for saying that youth, of itself,must always prevail as the paramount value on sentence, or that youth alonecan justify radically reducing the sentence which would otherwise be proper.[35] Although in the present case, the appellant was 22 years old at the time of theoffending and 23 years old when sentenced, and thereby still of an age that can bedescribed as young, I do not consider that in the circumstances of this offending, hisyouth is a factor that warrants or calls for the allowance of a sentencing discount. Thereality is that the appellant has been a frequent offender since he was 17. From hisfirst conviction in October 2009, he has been convicted on 34 occasions. He hasthereby demonstrated that, despite numerous prior opportunities for rehabilitation, hehas chosen to reoffend. His offending on this occasion was not spontaneous, nor wasit undertaken in circumstances where lack of impulse control was a factor. Here, hewent about breaking into and stealing a motor car, preparing himself for the burglaryby means of employing the use of a bandana to mask his face and had obtained thepair of bolt cutters and bag to carry out the burglary and removal of valuable property,before making a planned getaway. Having regard to that conduct, I see no basis uponwhich the Judge could have concluded that a discount to recognise the appellant's agewas required, and by not making such an allowance the Judge made no error.Remorse and rehabilitation[36] Discounts for remorse and rehabilitation are discretionary and those forremorse, in particular, depend on the Judge's assessment of genuineness.18 As such,the Judge was quite entitled not to give any credit or discount for remorse. Whileperhaps it would have been preferable for the Judge to have noted in his sentencingremarks the appellant's efforts at expressing his remorse, his failure to do so does notamount to an error that requires this Court's intervention. The appellant wrote a"remorse letter to the victims" and a letter to the sentencing Judge, both of which wereconsidered by the Judge. Despite the appellant's expressions of remorse, and wish tobreak his "cycle of crime", those letters and their contents must be viewed in thecontext of his history of repeated offending, and there was nothing about the contentsof the letters that would have provided any basis for the Judge to view those18 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]-[64].expressions as warranting a discount to recognise the appellant's remorse.[37] As to rehabilitation, while the appellant does appear to be making some efforts,once again, his criminal history would inevitably have led the sentencing Judge toquestion how genuine or real those efforts really were. There is no indication that theJudge failed to have regard to the issue of the appellant's rehabilitation and I find noerror by the Judge in failing to specifically mention it. In the circumstances, even ifthe Judge had decided to give a discount to the appellant to recognise his rehabilitativeefforts and to encourage him, it could only have been a very modest one and wouldnot have resulted in a significantly lesser sentence. In such circumstances I consider itwould inappropriate for me to "tinker" with the sentence.Result[38] For the reasons given, this appeal is dismissed._____________Paul Davison J