Brown v NZ Police [2017] NZHC 632

Brown v NZ Police [2017] NZHC 632 [4 April 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-061[2017] NZHC 632BETWEEN MARK BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 4 April 2017Appearances: P Tomlinson for AppellantT Clark for RespondentJudgment: 4 April 2017ORAL JUDGMENT OF TOOGOOD JIntroduction[1] On 6 March 2017, Mark Brown pleaded guilty to, and was sentenced by Judge G A Fraser on:(a) One charge of burglary,1 committed on or about 8 October 2016, for which the end sentence was three years' imprisonment;(b) One charge of male assaults female,2 committed on or about 22 March 2016 for which the end sentence was 3 months'imprisonment; and(c) One charge of breach of bail,3 committed on or about 2 May 2016 forwhich the end sentence was 1 month's imprisonment.The sentences are to be served concurrently.[2] Mr Brown now appeals on the grounds that the total effective sentence was manifestly excessive.Factual backgroundBurglary[3] At around 7.30am on Saturday 8 October 2016, the burglary victim lockedand secured her home address on Yarborough Street, St Mary's Bay. She gave noone, and certainly not Mr Brown, permission to enter the house. Sometime between 7.30am on Saturday 8 October and 3.40pm on Monday 10 October 2016, Mr Brown entered the address by climbing onto the second storey of the dwelling and gained entry through the main bedroom. He jemmied open the window using a tool of some unknown description and, once inside, ransacked the house. He stole a large1 Crimes Act 1961, s 231; maximum penalty 10 years' imprisonment.2 Crimes Act, s 194(b); maximum penalty 2 years' imprisonment.3 Bail Act 2000, s 38(a); maximum penalty 1 year imprisonment, or $2000.00 fine.quantity of personal belongings valued in total at $7,358.98. This property has never been recovered. The damage to the dwelling and fittings cost $7,710.00 to repair.[4] Mr Brown accepts that this was a domestic burglary which occurred at night. Nobody was present at the time. The victim impact statement indicates that the gross intrusion into her home has had a serious psychological impact on the victim. The violation of her privacy, aggravated by the strewing of her underwear throughout the house, has left her feeling unsafe and anxious in her own home.Male assaults female[5] Mr Brown had been in a domestic relationship with the assault complainant for around six months. When an argument occurred between them in March 2016, he punched her in the right cheek with a closed fist and then grabbed her by the shoulders, shaking her violently. Subsequently, Mr Brown tried to pull the complainant from a vehicle, as the police arrived. Mr Brown was on bail for this offence when he committed the burglary in October 2016.Breach of bail[6] On 2 May 2016, Mr Brown, having been released on bail, failed without reasonable excuse to attend the Court as specified in the bail notice.District Court sentence[7] Taking the burglary as the lead offence, Judge Fraser considered the aggravating factors to be unlawfully entering a dwelling place; being on bail for the assault charge when committing the burglary; the harm to the victim; the ransacking and damage to property at entry points and inside the house, and the significant value of goods taken and not recovered. The Judge noted particularly the need for denunciation and deterrence in sentencing for burglary, in recognition of the seriousness of the offending and the need to protect the community. Judge Fraser considered the least restrictive appropriate sentence to be one of imprisonment.[8] The Judge referred to Walker v Police4 and the authorities considered in thatcase and set a starting point of two and a half years' imprisonment. This was upliftedby 18 months for previous offending, some 118 prior convictions in all, including convictions for offences of violence and other dishonesty. The Judge specifically recognised the need not to punish Mr Brown again for prior offending.[9] The Court found there were no mitigating factors relating to the offending, except perhaps that it was fortunate no one was at the address. The Judge noted significant prior offending as a personal aggravating feature, but accepted credit should be given for Mr Brown's early guilty plea and some remorse. The Judge regarded Mr Brown's professed desire to rehabilitate, however, as being motivatedby a desire to mitigate the likely sentence. He preferred the view of the probation officer, who assessed Mr Brown as having low motivation and lack of insight.[10] Judge Fraser declined to uplift the overall sentence to recognise the assault and bail breach convictions. Having reached a starting point of four years' imprisonment to mark the offending and the prior history, the Judge gave a full 25 per cent discount for the early guilty plea, resulting in a three-year end sentence.Grounds of Appeal[11] Mr Brown appeals on the basis that there was an error in the sentence imposed, as the sentence was manifestly excessive because:(a) the starting point was too high; and(b) the uplift for previous convictions was too high.Principles in an appeal against sentence[12] Section 250(2) of the Criminal Procedure Act 2011 requires the Court to allow a sentence appeal if satisfied that:4 Walker v Police HC Wellington CRI-2007-485-74, 29 August 2007.(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[13] In any other case, the Court must dismiss the appeal.5[14] An error includes a finding that a sentence was manifestly excessive.6 The approach to be followed is that set out in R v Shipton:7(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 in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court;(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.[15] Moreover, it is the end sentence which is important from the appellate perspective. 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 assessed in terms of the sentence given, rather than the process by which the sentence is reached.8Submissions for the appellant[16] In support of the appeal, Mr Tomlinson submits that the starting point of twoyears and six months' imprisonment was manifestly excessive or, if not consideredso, was at the extreme of the starting point range available taking into account the two lesser offences. He argues that "there was nothing out of the ordinary" in this5 Criminal Procedure Act 2011, s 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27], [33] and [35].7 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].8 Ripia v R [2011] NZCA 101 at [15].burglary and that a starting point of two years would have been appropriate by reference to other cases which he cited.[17] Counsel further submits that the uplift of 18 months, being 60 per cent in excess of the starting point, was manifestly excessive. He submits that nine to 12 months would have been appropriate; there was no particular aggravating feature that justified an 18-month uplift, given that Mr Brown's most recent violent offencewas in 2003 and he was convicted of "other dishonesty" in 2005. It is submitted thatby taking such a high starting point and following with such a high uplift, there has effectively been double-counting, which resulted in the Judge erring in the final sentence.Submissions for the respondent[18] The respondent largely adopts the reasoning of the District Court Judge and supports his approach. Acknowledging that the end sentence was a stern one, Mr Clark points to Mr Brown's conviction for two burglaries in 2013, for which hewas sentenced to two years' imprisonment, and his very long history of offending, asjustifying the 18-month uplift for previous convictions.Law[19] There is no tariff case for burglary, as the Court of Appeal has taken the view that the range of circumstances in which the offence can be committed is highly variable.9 In Arahanga the Court of Appeal identified that burglary of a domestic dwelling is a significant aggravating factor, because of the risk of confrontation.10Accordingly, the Court said that dwelling house burglaries "at the relatively minor end of the scale" attract a starting point of between 18 months' to two years and six months' imprisonment.119 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].10 At [78].11 At [78].Analogous cases[20] I have considered but do not propose to recite the numerous cases referred to by counsel.12 They provide examples of the application of the now well-understood principles but they demonstrate also how variable the circumstances of burglary offending can be.DiscussionStarting point for the offending[21] Viewed in the light of the cases discussed by counsel, Mr Brown's offendingmust be regarded as being a serious burglary which was certainly more than minor. The relevant aggravating factors are:(a) unlawful entry into a dwelling house;13(b) offending at night;(c) forced entry followed by an invasive ransacking of several of the rooms in the house;(d) the extensive damage to the property, namely at the entry point, with the need to repair windows and curtains;(e) the substantial value of the items stolen and not recovered, including items of sentimental value, which are irreplaceable;(f) the psychological impact on the victim who no longer feels safe and secure in her own home. The Court must not underestimate the12 Te Huna v Police HC Wanganui CRI-2006-483-1 21 February 2006; Wathey v Police HC Rotorua CRI-2006-463-118, CRI-2006-463-119, CRI-2006-463-120, CRI-2007-463-5, 20 March 2007; R v Subritzky [2007] NZCA 75; R v Povey [2009] NZCA 362; Nelson v Police[2012] NZHC 2266; Johnstone v Police [2012] NZHC 551; Blisset v Police [2013] NZHC 156;Regan v Police [2016] NZHC 161.13 Sentencing Act 2002, s 9(1)(b)emotional harm suffered by a female victim whose intimate personal belongings are violated; and finally(g) the offence having been committed while on bail is of a more serious kind.[22] Having regard to the range identified in Arahanga for offending that is"relatively minor", the starting point of two years and six months' adopted in theDistrict Court, while stern, cannot be held to be outside the range available to the Judge.Previous convictions[23] I am satisfied, despite Mr Tomlinson's suggestion to the contrary, that the Judge was not influenced by Mr Brown's previous convictions in setting the initialstarting point. I consider the Judge properly applied the orthodox approach, described by the Court of Appeal in R v Columbus, of fixing a starting point by reference only to the index offending and then uplifting from the starting point to recognise previous convictions as an aggravating factor.14[24] Mr Brown is nearly 44 years old. He has 35 previous convictions for burglary, the first six having been committed in a spate in 1988 when he was aged only 15. Since then he has accumulated convictions for violent offending, including assaulting a female, drugs, other dishonesty, and for failing on bail. An uplift of 18 months must be regarded as high and another judge in all the circumstances might have considered 12 to 15 months to be more easily justifiable. I note, however, Mr Clark's reference to an uplift of 18 months in Skipper v R for recidivist burglary which also took account of offending while on bail.15 In this case the appellant has an appalling record.[25] It is relevant also that Judge Fraser could have uplifted the end sentence by several months to recognise the assault and breach of bail convictions and to markMr Brown's continuing breaches of court orders.14 R v Columbus [2008] NZCA 192 at [19] – [20].15 Skipper v R [2011] NZCA 250 at [27].[26] Looked at in the round, a sentence of four years' imprisonment beforepersonal mitigating factors are applied was undoubtedly at the top of the range available. Having regard to the serious nature of this burglary, and considering the unnecessary damage and ransacking of the house as aggravating features, I do not consider the starting point of four years to be manifestly excessive.Personal mitigating factors[27] The Judge was entitled to reject Mr Brown's expression of remorse as beingshallow, and his longstanding addiction to methamphetamine provides an explanation for, but does not excuse, the offending. The Judge was entitled to expect that the stern sentence imposed might persuade Mr Brown, at last, to firmly resolve to bring his criminal career to an end. Harsh sentences are indeed a blunt instrument for denouncing and, in particular, seeking to deter offending of this kind. But as the Judge said to Mr Brown, his future is in his hands.[28] Given the very early guilty plea, the full 25 per cent discount wasappropriate, resulting in the end sentence of three years' imprisonment which wasimposed.Decision[29] I dismiss the appeal.............................................. Toogood J