SINCLAIR v NEW ZEALAND POLICE [2020] NZHC 3091

SINCLAIR v NEW ZEALAND POLICE [2020] NZHC 3091 [23 November 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000062[2020] NZHC 3091BETWEEN MATT DYLAN SINCLAIRAppellantAND NEW ZEALAND POLICE ANDDEPARTMENT OF CORRECTIONSRespondentsHearing: 18 November 2020Appearances: C G Nolan for AppellantP N M Brown for RespondentsJudgment: 23 November 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 23 November 2020 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate23 November 2020Introduction[1] On 21 April 2020 Judge Garland sentenced Matt Sinclair to three years andfour months' imprisonment on a number of charges: one of burglary, 10 of theft, two ofdishonest use of a document, one of attempted dishonest use of a document, three ofintentional damage, two of breach of District Court bail and one of breaching hisrelease conditions.1 He appeals his sentence on the basis it is manifestly excessivebecause the Judge's uplift for previous convictions was too high, and the Judgewrongly declined to make any discounts for addiction, deprivation and remorse.Facts[2] The ten theft charges relate to thefts between 17 February 2019 and21 December 2019. Mr Sinclair stole petrol, liquor and beer, clothing, and electricalequipment from nine different businesses and two individuals. The value of the itemsstolen was over $10,000.[3] Mr Sinclair was convicted for the dishonest use of a document charges andattempted dishonest use of a document charges between 5 March 2019 and10 July 2019. In this period on three separate occasions he broke into unattended carsand stole either bank or petrol cards which he used or attempted to use to purchasepetrol.[4] The two charges of breaching District Court bail and one of breaching hisrelease condition relate to Mr Sinclair's failure to answer district Court bail on both5 June 2019, and 1 November 2019 and his failure to report to the Parole Board on6 June 2019 as required as a condition of his release on a previous burglary charge.[5] The intentional damage charges relate to an incident on 18 March 2019 whena police patrol car spotted Mr Sinclair in Timaru standing next to a car that theyascertained had false plates. When the police approached the car Mr Sinclair enteredthe front passenger seat of the vehicle and his associate drove away. The policeactivated their red and blue flashing lights, but Mr Sinclair's vehicle sped away. Thepatrol car pursued the vehicle and in an attempt to stop the patrol car Mr Sinclair threwZ nails onto the road at an intersection. The Z nails punctured two of the patrol car'styres and two other road users suffered tyre punctures.[6] The burglary charge was committed on 26 December 2019. In the lateafternoon Mr Sinclair climbed over a fence into the rear courtyard of a clothing store1 Police v Sinclair [2020] NZC 6717.on Bryndwr Road. The shop was closed but some of the clothing was in the courtyardsecured by a padlocked plastic windbreak. Mr Sinclair pulled up the plastic windbreakcausing the zip to break, he took 14 shirts, a pair of Timberland shoes and a brownbag. The items were worth $1,190 and the damage will cost around $200 to repair.District Court decision[7] Judge Garland first considered Mr Sinclair's personal circumstances. TheJudge noted at a young age Mr Sinclair was involved with an allegation which placedhim in an environment where offending was likely to occur. Judge Garland recognisedthe submissions for Mr Sinclair that he had genuine remorse, was receivingcounselling and needed to address his methamphetamine addiction as much of his drugaddiction was due to self-medication to address past trauma. The probation officer inhis report noted there was no evidence Mr Sinclair had empathy towards his victimsor the emotional component necessary for remorse.[8] However, the Judge also recognised Mr Sinclair continued to offend as anadult, has amassed 41 charges over 16 years all of a similar nature, and has spent asignificant time in an institutional system. Peer association, lifestyle and offendingsupportive attitudes continued to influence Mr Sinclair to offend. The Judgeacknowledged Mr Sinclair's desire to turn things around but referred to the factMr Sinclair had previously expressed similar desires but faced real difficulty inbreaking the cycle.[9] The Judge considered the various options available to Mr Sinclair. Theprobation officer recommended Odyssey House (although admissions had been placedon hold due to COVID-19). There were also various rehabilitative programs availableto him in prison.[10] Judge Garland considered the 10-month period where Mr Sinclair committed21 separate offences many whilst on bail were premeditated and calculated. He tookthe burglary as the lead offences and noted it was a vulnerable commercial premises.Mr Sinclair's previous theft from the same premises was an aggravating factor leadingto a starting point of 18 months' imprisonment for that shoplifting and burglary charge.[11] The Judge provided a starting point of 18 months for the remaining dishonestyoffending involving property worth $8000. A starting point of three months'imprisonment was taken for the wilful damage charges and a starting point ofthree months' imprisonment for the breach of District Court bail and breach of releaseconditions was also adopted. This provided an overall starting point of three and ahalf years' imprisonment. The Judge provided an uplift of one year to account forMr Sinclair's history of dishonesty offending including 18 convictions for burglary,two for receiving stolen property, some convictions for theft and four convictions forbreaching release conditions and offending on bail.[12] Judge Garland then provided a reduction of 14 months for Mr Sinclair's guiltyplea despite the late entry of the plea, leading to an overall sentence of three years andfour months' imprisonment. The Judge also imposed concurrent sentences ofimprisonment on the remaining charges.Principles on appeal[13] 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, "[an appellate] court 'will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles'".3It is only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and not justified by the relevantsentencing principles.4 The focus of an appellate court must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached".52 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 Skipper v R [2011] NZCA 250 at [28].SubmissionsAppellant's submissions[14] Mr Nolan, for Mr Sinclair, submits the 12-month uplift for Mr Sinclair'sprevious convictions was excessive as the Judge took into account some ofMr Sinclair's previous convictions which are unhelpful to the sentencing exercise.Fourteen of the burglary convictions were historic. Citing Beckham v R, Mr Nolansubmits a previous conviction does not justify an increase in sentence.6 Mr Nolan alsocites Wipa v R which stated:7[a] sentence ought to be based primarily on the facts of the offence for whichthe offender is being sentenced; any uplift must be kept in proportion; and thesentence must not be increased merely because of a previous conviction, forthat would be to increase the sentence imposed on the previous occasion.For these reasons Mr Nolan submits the uplift of 12 months for previous history wastoo high in the circumstance.[15] Mr Nolan submits Judge Garland did not take into account Mr Sinclair'spersonal mitigating factors related to addiction, deprivation and remorse and thesefactors warrant a 30 per cent reduction in the sentence. First Mr Nolan submits thereis a causative link between Mr Sinclair's offending8 and his addiction and the currentoffending was due to a relapse into his methamphetamine addiction but that he hasshown insight into his substance abuse and need to address past trauma. He has takenadvantage of an Odyssey House Programme, has been approved re-entry on releaseand has good prospects of rehabilitation.[16] Second, Mr Nolan submits the circumstances of Mr Sinclair's upbringingwarrant a significant discount, he suffered a traumatic event aged 14, was placed in aBoys Home where he suffered abuse and this trauma impacted on his mental health.Mr Sinclair developed Post Traumatic Stress Disorder which perpetuates his drug use.6 Beckham v R [2012] NZCA 290 at [84].7 Wipa v R [2018] NZCA 219 at [26] footnotes omitted.8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [144]-[149].[17] Third, Mr Nolan submits if a Judge finds genuine remorse is demonstrated thensentencing credit should be given separately from the guilty plea credit.9 AsMr Sinclair sought restorative justice with his victims, has expressed genuine remorseby wishing to apologise and has sent a letter to the Court, genuine remorse has beenshown.[18] Mr Nolan therefore submits the appropriate sentence to be:(a) a starting point of 18 months' imprisonment for the burglary charges;(b) an uplift of 18 months on the remaining charges;(c) an uplift of three months for offending for previous convictions;(d) a credit for personal mitigating factors of 30 per cent; and(e) a 20 per cent credit for a guilty plea.This calculation provides an end sentence of 24 months' imprisonment with leave toapply for a sentence of home detention to a residential drug programme.Respondent's submissions[19] Ms Brown submits the starting point of three years and six months was withinrange as the burglary could have attracted an 18 month starting point in isolation,10 thefurther 18 months for the 13 dishonesty offences including three thefts over $1000 andcharges of using a document was within range, and the uplifts for the wilful damage,breaching release conditions and failing to answer bail charges, while stern, were notmanifestly excessive. Any interference, she submits, would amount to tinkering.[20] Addressing the uplift for previous convictions, Ms Brown submits the Courtof Appeal has noted.119 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].10 Senior v Police (2000) 18 CRNZ 340 (HC); Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189at [78]; Stepanicic v R [2015] NZCA 211.11 Ripia v R [2011] NZCA 101 at [10].[t]he extent then to which such convictions are taken into account, and themanner in which they are taken into account, is a matter initially for thesentencing judge. On appeal, an assessment of the judge's evaluation willinevitably take place within the context of an inquiry into whether the finalsentence is of an available type, and if so, whether it has been shown to bemanifestly excessive. No specific rules can or should be prescribed.[21] Mr Sinclair has four convictions for breaching release conditions and bail,two for receiving, two for theft and 22 for burglary. While acknowledgingMr Sinclair's youth at the time he committed 18 burglaries between 2003 and 2004,Ms Brown submits for the four other burglaries committed from 2006 to 2016 he wasbetween 20 and 30 years old with limited gaps between periods of imprisonment.Mr Sinclair was on release conditions for his 2016 burglary conviction at the time ofthe current offending. Ms Brown submits previous dishonesty convictions have oftenbeen treated as a component of burglary because they are directly relevant to assessingan offender's culpability.12 Care must be taken not to double count13 but substantialuplifts have frequently been upheld in cases of recidivist burglars.14[22] For these reasons Ms Brown submits the starting point of 42 months'imprisonment was not too high and an uplift of 12 months was proportionate to thesentence as a whole. It does not amount to further punishment from his previousoffending.[23] Turning to personal mitigating features, Ms Brown acknowledges theinformation about Mr Sinclair's personal circumstances but submits it was within theJudge's discretion not to afford credit. The Judge clearly considered them as he madereference to Mr Sinclair's substance abuse issues,15 history of trauma16 andrehabilitation options.17 Ms Brown rejects that any discount for remorse was availableas his remorse was questioned by the probation officer. Ms Brown submits even if theJudge had exercised his discretion and applied some credit, stepping back and lookingat the sentence as a whole it is unlikely to have made a significant discount.12 Senior v Police, above n 10 at [27]-[30].13 Singh v R [2011] NZCA 139 at [15].14 R v Columbus [2008] NZCA 192 at [14]-[15].15 Police v Sinclair, above n 1, at [5].16 At [5].17 At [6] and [8].[24] Taking those factors into account Ms Brown submits the end sentence waswithin range and the appeal should be dismissed.AnalysisStarting point[25] There was no dispute that the burglary was the lead charge, nor was there anyparticular challenge taken to the starting point of 18 months on that charge. Given theburglary involved a commercial building, it was premediated, the goods stolen werehigh value, there was damage to the property of the business, and he targeted the samebusiness twice, the starting point of 18 months for this charge was appropriate.[26] Mr Nolan suggests an uplift of 18 months should have been adopted on allother charges. However, I consider the uplift of 18 months for the 13 other dishonestyoffences was within range given they were discrete offences where items of significantvalue were taken. This takes into account the number of offences that were committedover a protracted period, and the fact that many were calculated and premeditated.[27] The wilful damage charges involved the use of Z nails to puncture the tyres ofpatrol vehicles to evade the police. I consider Mr Sinclair's actions in throwing theZ nails could have endangered both the police and other road users. Again, I considera three-month uplift for the wilful damage charges was within range.[28] Finally I consider, the uplift of three months to account for Mr Sinclair'srepeated failure to answer District Court bail and his failure to comply with releaseconditions was within range. As a comparator, the Court of Appeal in Stepanicicapplied an uplift of four months to a two year sentence for burglary to account for thefact Mr Stepanicic was on bail for other offending.18 I therefore consider the globalstarting point of three and a half years' imprisonment was appropriate.18 R v Stepanicic, above n 10, at [10].Uplift for previous convictions[29] At the heart of the appeal is the appropriate uplift for previous offending andthe appropriate discount for Mr Sinclair's personal factors.[30] I accept Mr Nolan's submission that as noted in Wipa v R any uplift must bekept in proportion and the sentence should not be increased just based on the fact ofprevious conviction. It is also important in burglary cases not to double count.However, it is appropriate that an uplift be applied where the previous convictions arerelevant.[31] When discussing uplifts for previous dishonesty convictions in a burglarycontext in Renata v Police Justice Lang noted:19[13] The learned authors of Adams on Criminal Law describe uplifts of upto 25 per cent as "common" in this context.20 Case law supports higher upliftsin relation to offences of dishonesty. Andrews J adopted a 40 per cent uplift inKing v Police;21 whilst Panckhurst J a 50 per cent uplift in Samuels v Policealthough the offending in that case occurred whilst the offender was onparole.22An uplift of 66 per cent was employed by the Court of Appeal in R vColumbus.23 Although I accept another Judge may well have applied a lesseruplift, the cases show that the uplift of 26 per cent was not outside the availablerange.[32] Here Mr Sinclair has a significant history of burglary offending. While someis historic, as Ms Brown points out he has three recent previous convictions in 2013and 2016 for burglaries. These occurred when Mr Sinclair was an adult. Mr Sinclairalso has three recent convictions for breaching post detention conditions and otherrelevant dishonesty offending including a theft conviction in 2014 and two receivingstolen property charges in 2016. Mr Sinclair was also subject to release conditionsfrom his 2016 burglary sentence when he committed this offending starting in early2019.[33] Here the Judge adopted an uplift of 12 months on an overall starting point ofthree and a half years' imprisonment which represents an uplift of 28 per cent. In King19 Renata v Police [2018] NZHC 2673.20 Simon France (ed) Adams on Criminal Law (online ed, Westlaw) [at SA9.15(6)].21 King v Police [2014] NZHC 2946.22 Samuels v Police [2014] NZHC 1134.23 R v Columbus, above n 14.v Police, the starting point for Mr King's burglary offending was reduced to two anda half years, but the Court of Appeal accepted that a 12 month uplift to account forMr King's previous burglary and dishonesty convictions was appropriate.24[34] Like Mr Sinclair, Mr King had a history of burglary offending (45 previousconvictions) but it was mostly historic from the early 1990s. Mr King only hadtwo recent burglary convictions from 2008 and 2005. While just a single example, Iconsider it confirms that the uplift in this case was not out of range, particularly havingregard to the analysis in Renata v Police.25Discount for personal factors[35] In determining the correct sentence, a judge must consider the personalcircumstances of the offender including their personal family, whānau, community andcultural background.26 While personal deprivation is not a specific mitigating factorin s 9 Sentencing Act 2002 the Court is entitled to consider "any other aggravating ormitigating factor [it] thinks fit".27 Zhang v R noted that the moral culpability of theoffending may be diminished in the case of causative addiction.28 Here, as noted bythe trial judge and the pre-sentence report writer, Mr Sinclair uses methamphetamineto address past trauma. This self-medicating via methamphetamine makes the cycleof drug use "hard to break". In a letter to the court Mr Sinclair stated he offended topurchase the methamphetamine to feed his addiction. While he has previouslyengaged with programmes with Odyssey House he relapsed due to a recent trauma.Mr Sinclair stated he was spending $200-$300 a day on methamphetamine.[36] It is clear the sentencing Judge was aware of these factors in his sentencing.However, given the evidence that methamphetamine drove his offending and that hisaddiction was linked to his background and past trauma, I consider Mr Sinclair shouldhave received a discount for these relevant factors. I consider a 10 per cent discountfor personal mitigating factors was warranted.24 King v Police, above n 22.25 Renata v Police, above n 19.26 Sentencing Act 2002 s 8(i).27 Section 9(4)(a).28 Zhang v R, above n 8, at [137]-[138].[37] I do not, however, consider Mr Sinclair has reached the threshold where anindependent discount for remorse was warranted. As ruled by the sentencing Judge:29While saying he regretted his actions, the probation officer opined that therewas a lack of emotional component which would identify Mr Sinclair as beingremorseful. The probation officer says there is no evidence of empathytowards the victims of his offending, even though he had been in custody forseveral months at the time the report was written and had had time to reflecton the impact of his offending on the victims.Guilty plea discount[38] While no issue was taken with the guilty plea discount, I consider it is relevantto the question of whether the end sentence was within range. Given the relativelylate entry of a guilty plea, I consider a 20 per cent discount on the starting point wouldhave been appropriate. However, the Judge gave a discount of 14 months. If this istaken as a percentage of the starting point, following the sentencing methodology inMoses, it represents a discount for a guilty plea of 33 per cent.30 That is well beyondthe available range confirmed in Hessell.31Overall end sentence[39] While I consider the Judge should have applied a discount for personalmitigating factors, and I would have applied a discount of 10 per cent, I must take intoaccount the particularly generous discount for Mr Sinclair's guilty plea, as the questionon appeal is whether the end sentence is manifestly excessive. Using the Mosesmethodology, if I uplift the sentence of three years six months by 12 months for priorconvictions (or 28.6 per cent) as the Judge did, but then reduce it by 30 per cent (beingthe 10 per cent discount for personal factors and 20 per cent for guilty plea), therewould be a reduction on the starting point sentence of three years six months of1.4 per cent, or just over two weeks.[40] I am satisfied that the difference between this sentence and the sentenceimposed is not sufficiently material to warrant intervention by this Court and the endsentence was not manifestly excessive.29 Police v Sinclair, above n 1, at [6].30 Moses v R [2020] NZCA 276, (2020) 29 CRNZ 381.31 Hessell v R, above n 9, at [75].[41] Accordingly, the appeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:C Nolan, Barrister, Christchurch