HOWLETT v NEW ZEALAND POLICE [2018] NZHC 1850

HOWLETT v NEW ZEALAND POLICE [2018] NZHC 1850 [24 July 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-000017[2018] NZHC 1850BETWEEN MICHAEL PHILLIP NIMARATAHOWLETTAppellantAND NEW ZEALAND POLICERespondentHearing: 24 July 2018 (via AVL at Wellington)Counsel: W R Hawkins for AppellantF E Cleary for RespondentJudgment: 24 July 2018JUDGMENT OF COLLINS JIntroduction[1] This judgment explains why I am dismissing Mr Howlett's appeal against asentence of one year and 10 months' imprisonment imposed upon him on 1 May 2018by Judge Adeane in the District Court at Napier.1 That sentence was for a series ofcharges:(1) two charges of burglary;2(2) one charge of possession of a methamphetamine pipe;31 Police v Howlett [2018] NZDC 8564.2 Crimes Act 1961, s 231(1)(a); maximum penalty 10 years' imprisonment.3 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year's imprisonment.(3) one charge of receiving stolen property;4(4) two charges of theft (under $500);5(5) one charge of unlawfully taking a vehicle;6(6) one charge of failure to answer court bail;7(7) one charge of failure to answer police bail;8 and(8) one charge of failure to report for community service.9[2] Mr Howlett appeals his sentence on the grounds that Judge Adeane failed togive adequate discount for personal circumstances, and failed to properly considerhome detention. As a result, the end sentence is said to be manifestly excessive.[3] The appeal is brought out of time. Mr Hawkins, counsel for Mr Howlett,explains that he was instructed outside the 28-day period, and was not counsel forMr Howlett before the District Court. The Crown accepts that no prejudice arises fromthe appeal being heard out of time. I therefore grant Mr Howlett's application forleave to appeal out of time.Background[4] On 29 August 2017, Mr Howlett hired a Toyota Camry from Eurocar Rentalsat Napier Airport. He failed to return the vehicle on its return date of 7 September2018 and Eurocar was unable to make contact with Mr Howlett. Mr Howlett wasstopped by police driving the vehicle in Hastings, and was arrested. The vehicle wasworth $35,000.4 Crimes Act 1961, ss 246 and 247; maximum penalty three months' imprisonment.5 Sections 219 and 223(d); maximum penalty three months' imprisonment.6 Section 226(1); maximum penalty seven years' imprisonment.7 Bail Act 2000, s 38(a); maximum penalty one year's imprisonment.8 Section 38(a); maximum penalty three months' imprisonment.9 Sentencing Act 2002, s 71(1)(a); maximum penalty three months' imprisonment.[5] On 6 October 2017, Mr Howlett stole a backpack and clothing worth $150from The Warehouse, Napier. He placed the items in the backpack, which he also tookfrom the store, while in a changing room and then left the store without attempting topay for them. The stolen items were not recovered.[6] On 22 December 2017, Mr Howlett stole a pair of $170 shoes from RebelSport, Hastings. He put the shoes on in place of his own and left the store withoutattempting to pay. The shoes were recovered.[7] At about 4.00 am on 5 February 2018, Mr Howlett arrived at a Napierbackpackers in a motor vehicle with three associates. He entered the building througha door at the rear of the premises. Mr Howlett took two pairs of shoes, some clothingand a motor bike helmet. He also attempted, but failed, to take a motorbike.Mr Howlett was recorded on CCTV. The stolen items, worth approximately $700,were not recovered.[8] At about 3.40 am on 21 February 2018, Mr Howlett and an associate arrivedat an address in Onekawa, near Napier, in a motor vehicle. The pair spoke to theoccupants of the property, who had come out to see what they were doing. Mr Howlettclaimed to be looking for someone at one of the properties that shared a driveway withthe property in question. The occupants accepted this explanation and directed thepair towards the rear of their property. Mr Howlett then entered their property andtook an air compressor, water blaster and tool box from the shed. Police were calledand Mr Howlett was located in his vehicle, with the stolen property.[9] When police searched the vehicle, they located a methamphetamine pipe andempty point bags. Mr Howlett admitted they belonged to him. Police also foundpersonal documents in a folder, an Adidas backpack and passports. These items hadbeen reported stolen in a residential burglary in Hastings on 12 February 2018.[10] All the above offending occurred while Mr Howlett was subject to releaseconditions for his previous period of imprisonment, ending 16 May 2017.Mr Howlett[11] Mr Howlett is 29 years old. Prior to sentencing, he was unemployed andreceiving a benefit. He has 71 previous convictions, including 24 convictions fordishonesty offending and 27 convictions involving breaches of bail, communitysentences, release conditions and other court imposed conditions. The PAC reportdescribes Mr Howlett's behaviour as impulsive, with little regard for the consequencesof his actions. The report writer assesses his likelihood of reoffending as high becauseof the frequency of his previous offending and his attitude towards that offending. MrHowlett has anti-social influences in his life, however, his grandparents, with whomhe resided prior to sentencing, are a positive influence. Mr Howlett's grandparentsalso care for two of his five children, aged one and four. Mr Howlett was assessed asbeing at a high-risk of using amphetamine type stimulants. The report writerrecommended home detention, despite assessing Mr Howlett's ability to comply witha community-based sentence as low.District Court decision[12] Judge Adeane adopted a starting point of 18 months' imprisonment for the twoburglary charges, with an uplift of six months for the unlawfully taking a vehiclecharge and a further uplift of four months for the remainder of the offending.10 Thisresulted in a total of 28 months' imprisonment. Judge Adeane gave a discount of 25per cent for Mr Howlett's guilty plea, resulting in an end sentence of 21 months'imprisonment.[13] Judge Adeane cancelled the balance of Mr Howlett's community work, andcancelled his outstanding fines. A one month cumulative sentence was imposed forthe cancelled fines. This resulted in an effective end sentence of one year and10 months' imprisonment.10 Judge Adeane convicted and discharged Mr Howlett on the failure to answer bail charges, so it islikely these did not factor into the four-month uplift.[14] Judge Adeane declined to grant home detention for the following reasons:(1) Mr Howlett is a recidivist dishonesty offender, with multiple previousconvictions.(2) Mr Howlett shows little inclination to change his ways.(3) Mr Howlett has numerous convictions for non-compliance with courtorders and sentences.(4) Mr Howlett's offending is, if anything, escalating. Judge Adeanesuspected that this might be because Mr Howlett was falling furtherinto the grips of methamphetamine addiction.(5) The Probation Service assessed Mr Howlett's risk of reoffending ashigh.(6) Mr Howlett's known non-compliance with court orders would makehome detention inappropriate, and it would be unacceptable in the eyesof the public to deal with a recidivist burglar in the way his counseladvocated.Appellate principles[15] Section 250 of the Criminal Procedure Act 2011 provides that an appeal againstsentence is to be allowed if:(1) for any reason, there is an error in the sentence imposed on conviction;and(2) a different sentence should be imposed.[16] Whether the end sentence is "manifestly excessive" continues to be animportant guide to finding an error.11 If the end sentence is within range, then the11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].appellate court will not change it, even if the lower court made an error in the stepstaken when reaching the end sentence.Discount for personal circumstancesSubmissions for Mr Howlett[17] Mr Hawkins submitted that a discount of two months was warranted forremorse. Mr Howlett filed a letter with the Court and there were also letters in supportfrom his grand uncle and his grandmother. These letters are said to highlight MrHowlett's rehabilitative potential. Mr Howlett was also willing to partake inrestorative justice.[18] Mr Hawkins took no issue with the 28-month starting point adopted byJudge Adeane.Submissions for the Crown[19] Ms Cleary, who appeared for the Crown, submitted that Judge Adeane wasentitled not to give any discount for remorse. She said Mr Howlett has notdemonstrated remorse and that, given his long history of dishonesty offending, itwould be natural for the Court to be wary of any remorse expressed by Mr Howlett.[20] Ms Cleary also submitted that the ultimate question is whether the end sentencewas manifestly excessive, regardless of the method used to reach that sentence. Shesaid the end sentence was within range and that Judge Adeane adopted the endsentence proposed by defence counsel in the court below. That sentence is only onemonth different from the end sentence Mr Hawkins submitted would be appropriateon appeal, which Ms Cleary respectfully said would be the epitome of tinkering if Iwere to alter the sentence by such a minor degree.Analysis[21] In his letter to the Court, Mr Howlett apologies to his victims, saying that hehas put himself in their shoes and has realised the effect one stupid decision can have.He also acknowledges the role his methamphetamine addiction has played in hisoffending. He refers to the fact that he is now a father to five children, and that hedoes not wish to miss out on their lives. He talks about working with his probationofficer to address his addictions and offending.[22] I agree with Ms Cleary that it was open to Judge Adeane not to grant a discountfor remorse. There is nothing in the letters that compels the granting of a discount forremorse. The majority of Mr Howlett's letter focuses on his own circumstances ratherthan on the victims, and Mr Howlett has not demonstrated genuine remorse other thanwith a few words. Given his history of dishonesty, some scepticism of the genuinenessof his remorse is warranted. Further, it might just be inelegant phrasing, butMr Howlett only refers to "the victim" and "one stupid decision" in his letter,suggesting he is only apologising for one particular offence rather than all of hisoffending.[23] I also agree that the end sentence was within range. No issue is taken with thestarting point for the burglary charges or the uplifts for the other offending. Given thelarge number of relevant previous convictions, a further uplift would have beenavailable for previous convictions, but none was made. In that case, even if an upliftwas warranted for remorse, the end sentence would still be within range.[24] Accordingly, Mr Howlett has failed to demonstrate that his sentence wasmanifestly excessive on this ground, and so his first ground of appeal fails.Home detentionSubmissions for Mr Howlett[25] Mr Hawkins submitted that Judge Adeane failed to give measuredconsideration to home detention by focusing solely on one sentencing principle to theexclusion of others. He submitted that the PAC report was favourable to Mr Howlettand recommended home detention at his grandmother's address. Mr Hawkinssubmitted that home detention would be suitable because Mr Howlett had expressedremorse and his grandmother was a "pro-social" influence. Mr Hawkins alsoemphasised that Mr Howlett had employment prospects.[26] Mr Hawkins submitted that Judge Adeane was wrong to conclude thatMr Howlett's previous non-compliance ruled out home detention. He referred to thereport writer's observation that Mr Howlett would have a moderate ability to complywith home detention[27] Mr Hawkins submitted that Judge Adeane focused too heavily on the need todenounce12 and deter13 the conduct in question, as opposed to the need to rehabilitateMr Howlett14 and to impose the least restrictive outcome available.15 Mr Hawkinsreferred to two Court of Appeal cases that have emphasised that sentencing Judgeswill err in law if they only take into account deterrence to the exclusion ofrehabilitation.16 Mr Hawkins relied for this submission on Judge Adeane's remark thathome detention would be unacceptable "in the eyes of the public".17Submissions for the Crown[28] Ms Cleary submitted that Judge Adeane did not err in declining to impose asentence of home detention. The reasons largely mirror those referred to by JudgeAdeane. Additionally, Ms Cleary emphasised that Mr Howlett had only just beenreleased from prison in May 2017 and was subject to release conditions and bail forall the relevant charges, yet continued to commit 14 separate offences arising ondifferent occasions within a period of approximately nine months.18 Ms Clearysubmitted that Mr Howlett appears to remain undeterred despite serving a nine-monthsentence of imprisonment.[29] Ms Cleary noted that defence counsel before Judge Adeane recognised that theissue of home detention was "finely balanced". Ms Cleary submitted that while homedetention does have a deterrent effect, such a sentence would be inadequate forMr Howlett who has demonstrated an inability to comply with Court imposed12 Sentencing Act 2002, 7(1)(e).13 Section 7(1)(f).14 Section 7(1)(h).15 Section 8(g).16 Fairbrother v R [2013] NZCA 340 at [29]-[30]; and Manikpersadh v R [2011] NZCA 452 at [8].17 Police v Howlett, above n 1, at [5].18 Mr Howlett's criminal history shows that he was convicted of four additional offences prior to the10 that form part of the current sentencing, all of which arose after he was released from prison inMay 2017.conditions and continued to offend in a recidivist manner despite a previous sentenceof imprisonment.Analysis[30] It is clearly an error of law for a sentencing Judge to only consider deterrenceto the exclusion of rehabilitation. However, it is not obvious that Judge Adeane madethis error. Mr Hawkins emphasises one aspect of Judge Adeane's decision, where hereferred to the views of the public. Judge Adeane also referred to Mr Howlett'spatterns of behaviour and his ability to comply with a sentence of home detention. Itis clear that Judge Adeane believed that Mr Howlett would be unable to comply witha sentence of home detention, and so such a sentence would not suitable for hisrehabilitation.[31] The fact that Judge Adeane made an off-hand remark about the views of thepublic does not detract from this conclusion. Nor was such a remark inappropriate perse; denunciation of the offender's conduct is a legitimate sentencing principle19 and islargely dependent on the views of the public. In Fairbrother v R, the Court of Appealalso emphasised that short term sentences should not be commuted to home detentionin every case, and that it would equally be an error of law for a sentencing Judge toonly consider the principle of rehabilitation.20 Judge Adeane should not be criticisedfor legitimately raising the principle of denunciation.[32] The conclusion that home detention would not be suitable for Mr Howlett'srehabilitation was clearly open to Judge Adeane on the facts. Mr Howlett is a recidivistoffender, he has demonstrated resistance to rehabilitation from previous sentences, andhe has a long-standing pattern of failing to comply with Court orders, includingcommunity-based sentences.[33] The PAC report does not in my view support a sentence of home detention.That report identifies Mr Howlett at a high-risk of reoffending, and he has a low abilityto comply with community-based sentences. The report writer goes on to note that19 Sentencing Act 2002, s 7(1)(e).20 Fairbrother v R, above n 16, at [30].Mr Howlett completed counselling with a Department of Corrections psychologist aspart of his release conditions from his previous prison sentence. The writer regardedthis as evidence that Mr Howlett can comply when motivated and then made the leapthat his ability to comply with home detention should be assessed as moderate. I agreewith Ms Cleary that this conclusion is speculative, and contrary to the rest of the reportand to Mr Howlett's pattern of behaviour, which spans nearly 10 years. The fact thatMr Howlett complied on one occasion is not sufficient to displace such a long-standingpattern of behaviour.[34] Even if home detention were open on the facts, it was a "finely balanced" issueand Judge Adeane had the discretion to decide whether it was appropriate in thecircumstances. That decision was not in error, and cannot be disturbed on appeal.Result[35] The appeal is therefore dismissed.____________________D B Collins JSolicitors:Bramwell Bate Lawyers, Hastings for AppellantCrown Solicitor, Napier