JACKSON v NEW ZEALAND POLICE [2019] NZHC 1123

JACKSON v NEW ZEALAND POLICE [2019] NZHC 1123 [22 May 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-35[2019] NZHC 1123BETWEEN OWEN ANTHONY JACKSONAppellantAND NEW ZEALAND POLICERespondentHearing: 16 May 2019Appearances: AND Garrett for AppellantK Courteney for RespondentJudgment: 22 May 2019JUDGMENT OF MANDER JIntroduction[1] In June last year, Judge Couch sentenced the appellant, Owen Jackson, to25 months' imprisonment on two charges of burglary, a charge of breaching releaseconditions, a charge of failure to answer bail and of possessing methamphetamine.Mr Jackson appeals his sentence alleging it was manifestly excessive when comparedwith the sentence imposed on his co-defendant for the lead offence of burglary.Facts[2] In the early hours of 17 September 2017 Mr Jackson and an associate, RockieRiley, drove to the Whakatu Industrial Park (the Park) in Hastings. They entered thePark in a van towing a trailer. Mr Jackson drove the van to the key card scanner andentered a PIN which opened the gates.[3] Mr Jackson drove the van to the back of a warehouse and stopped at one of thecontainers situated there. The two men used bolt-cutters to gain access to the containerby cutting through a padlock. They took several boxes of almond and coconut milk,boxes of milk and juice and in excess of 160 bottles of protein drinks. They alsolocated and took three motor vehicle shrouds from metal bins behind the warehousevalued at $1,000 each.[4] Mr Jackson and Mr Riley then continued driving around the Park and stoppedoutside the back of another building. They took 306 bottles of water before drivingaway.[5] Between 12 October and 2 November 2017 Mr Jackson failed withoutreasonable excuse to report to his probation officer as required under his conditions ofrelease. In December 2017, he failed to attend court at the District Court at Hastingsin breach of his bail.[6] On 3 April 2018 Mr Jackson was a passenger in a vehicle stopped by police.It was discovered that Mr Jackson had two active warrants for his arrest. A search ofthe vehicle revealed 0.2 g of methamphetamine inside a backpack. Mr Jacksonadmitted to police that the methamphetamine was his and was for his ownconsumption.District Court decision[7] Judge Couch considered Mr Jackson had a "significant relevant [criminal]history". In particular, the Judge noted he had three previous convictions for burglary,the most recent being from 2015, and also noted two previous "serious theft"convictions. Also highlighted by the Judge were Mr Jackson's previous breaches ofrelease conditions and community-based sentences and two previous failures toanswer bail, although these were more than 10 years old.[8] The Judge took the two burglary charges as the lead offences. This offendingwas described as serious, and it was noted that it involved a very high degree ofpremeditation owing to the prior obtaining of the PIN and the fact that the men hadbrought a pair of bolt-cutters with them. The Judge said the pair had stolen asubstantial amount of goods from two locations and that it appeared Mr Jackson hadno ability to pay reparation in the foreseeable future. On the burglary charges, JudgeCouch adopted a starting point of two years' imprisonment.[9] Judge Couch considered the breach of release conditions and the failure toanswer bail charges also amounted to serious offending. It was observed that MrJackson had only been apprehended by chance, after being at large for some fourmonths, and that it was clear he had no intention of meeting his responsibilities toappear in court and comply with his release conditions. A six month uplift wasimposed to mark those offences and his possession of methamphetamine.[10] The Judge imposed a further uplift of four months for the fact the offendingoccurred whilst Mr Jackson was subject to release conditions and for his relevantprevious convictions. From a starting point of two years and ten months'imprisonment, Judge Couch extended a nine month credit for Mr Jackson's "prompt"guilty plea (approximately a 26.5% discount). This resulted in the end sentence of twoyears and one month's imprisonment.Principles on appeal[11] An appeal against sentence may only be allowed by this Court if it is satisfiedthere has been an error in the imposition of the sentence and that a different sentenceshould be imposed.1 An appeal Court will not intervene where the sentence is withinthe range available to the sentencing Judge.2 It is only appropriate for this Court tointervene and substitute its own views if the sentence is "manifestly excessive" andcannot be justified upon application of the relevant sentencing principles.3The appeal[12] Mr Garrett, who appeared on behalf of Mr Jackson, acknowledged that,standing alone, the sentence was within the range available to the Judge. That is borne1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].out by a number of cases cited by the Crown in its written submissions.4 The startingpoint adopted by Judge Couch of two years' imprisonment for two commercialburglaries when the offender is acting with another, where there is a high degree ofpremeditation, and high value items are stolen, was unremarkable. Similarly, the upliftof six months for the other offences committed by Mr Jackson was entirely orthodox.A further uplift of four months in recognition of the appellant's personal aggravatingfeatures is also unimpeachable.[13] The sole ground put forward on behalf of Mr Jackson is the inconsistentapproach taken in respect of the appellant with the sentence imposed upon his co-offender, Mr Riley; the lack of parity.[14] In February 2018, Mr Riley was sentenced by Judge Adeane in the HastingsDistrict Court. The sentencing remarks are brief and can be set out in full:[1] Mr Riley appears for sentence on three charges of burglary,commercial burglaries involving him hanging around with the Old Firm, abunch of professional burglars, knocking off commercial properties forvarious items including discarded confectionery, bottled water, scrap metal, etcetera.[2] There is also a charge in a very different category, of breaching aprotection order by psychologically abusing his partner. Mr Riley has beendoing that for some time because she is trying to make good of therelationship, but Mr Riley keeps getting into bad habits.[3] Now, you and I have been doing business for 25 years Mr Riley, asyou will recall, and I think your wife is telling you exactly what my wife istelling me, time to chuck it in. You should think about it, because if you comeback for anymore burglaries I am afraid you are going to be in trouble.[4] On these matters you are sentenced to 12 months intensivesupervision. You are sentenced to three months of community detention. Thatapplies to all the charges. As far as the protection order matter is concerned,you should bear in mind that despite your fondness for your old burglingmates, your wife is probably the only true friend you have got. Thank you,that is all for today.[15] For no discernible reason, one burglar has received a sentence of some twoyears' imprisonment, the other a community-based sentence of 12 months' intensivesupervision and three months' community detention notwithstanding both having4 Gauge v R [2014] NZCA 140; Moses v Police HC Whangarei CRI-2011-488-6, 24 March 2011;Rapira v Police [2015] NZHC 699.significant criminal histories.5 Why has that occurred? The answer is not discerniblefrom Judge Adeane's sentencing remarks, and, unfortunately, a dearth of informationis available relating to the material provided to the Hastings Court notwithstanding theefforts by Mr Garrett and the Crown to locate further material.[16] Mr Jackson did face the additional charges of breaching his bail and releaseconditions and possessing methamphetamine. On the other hand, Mr Riley was forsentence for breaching a protection order as a result of psychologically abusing hispartner and appears to have also been for sentence on a further charge of burglaryinvolving the theft of scrap metal from another commercial property. Those additionalcharges do not provide a reason for the disparate sentences.The question of parity[17] Section 8(e) of the Sentencing Act 2002 requires a sentencing Court to takeinto account the general desirability of consistency when dealing with similaroffenders committing similar offences in similar circumstances. The need to recognisethis principle is particularly acute when dealing with co-offenders. The Court ofAppeal observed in R v K:6Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not beachieved by a simple measurement against a co-offender's culpability. Paritymeans treating like cases alike and others with due regard for relativedifferences. It is best achieved by sentencing each offender appropriately forhis role in the overall offending, in light of any relevant antecedents and takinginto account any aggravating or mitigating features personal to the offender.[18] It has been said that public confidence in the administration of justice is bestpreserved if justice appears to be administered even-handedly. For that reason,disparity in sentences imposed on co-offenders may justify a reduction in a sentenceimposed on one which would otherwise be appropriate.7 The test as to whether anappellate Court should interfere with a sentence which is otherwise appropriate on the5 Mr Riley has a long criminal history dating back to July 1994. Prior to his appearance beforeJudge Adeane, he had some 87 previous convictions, including for theft, burglary, drugs, breachesof bail and various sentences for robbery and other offending. Since being sentenced in February2018, he has been convicted for breaching a protection order and male assaults female.6 R v K (2003) 20 CRNZ 62 (CA) at [20].7 R v Lawson [1982] 2 NZLR 219 (CA) at 223.grounds of parity is well-established. It is whether a reasonably minded independentobserver aware of all the circumstances of the offence and of the offenders would thinkthat something has gone wrong with the administration of justice.8Decision[19] While it is difficult to glean much from the brief remarks of Judge Adeane, itis apparent that the sentencing Judge's approach to Mr Riley was extremely lenient,with the Court wishing to provide that offender with the opportunity of repairing hisrelationship with his wife.[20] A lenient or merciful sentence extended to one offender cannot create anexpectation that other offenders will receive the same indulgence.9 Nor does the factthat one co-offender received a prison sentence and another home detention or acommunity-based sentence by itself mean that the sentence should be considered sodisparate as to require intervention on appeal.10 The test for intervention by anappellate Court is not whether an offender feels a sense of grievance over the sentenceimposed on him compared with that imposed on his fellow offender but whether thedisparity is such as not to be consonant with the appearance of justice. Havingacknowledged those caveats, I consider that the approaches taken by the twosentencing Judges cannot, upon an objective analysis, be reconciled. The independentobserver would consider that something has gone wrong with the administration ofjustice in the absence of any appreciable justification for the disparity in the sentencesimposed.[21] It should be immediately acknowledged, as Mr Garrett did, that based upon theinformation available to Judge Couch, his approach to the sentencing of Mr Jacksoncannot be faulted and was entirely appropriate on the material available to him. Hewas not informed of the earlier sentence imposed in Hastings some 15 months earlier.I consider that had the Christchurch sentencing Court been made aware of the sentenceimposed on the co-offender, it would have considered itself obliged to calibrate theappellant's sentence to ensure adherence with the principle of consistency in8 At 223.9 Macfarlane v R [2012] NZCA 317 at [24].10 R v Autagavaia [1985] 1 NZLR 398 (CA) at 401.sentencing. The imposition of two such grossly disparate sentences in the absence ofany discernible differences in the offenders' personal circumstances or prospects ofrehabilitation cannot stand. It is therefore necessary to make an adjustment to thelength of Mr Jackson's sentence.[22] Judge Adeane provided no details in his sentencing remarks of how heapproached the sentencing exercise to arrive at Mr Riley's final sentence ofsupervision and community detention. While there is no guideline judgment forburglary, the starting points for burglary offending of the type for which the twooffenders were for sentence would likely attract a starting point in the region of twoyears and six months' imprisonment or thereabouts. The two year starting point takenby Judge Couch could, in that light, be viewed as lenient, and the full credit providedto Mr Jackson for his guilty pleas (approximately a 26.5 per cent discount) wasgenerous. Set against his wilful breaches over a lengthy period of time, a condignresponse to that aspect of Mr Jackson's offending was appropriate.[23] Taking all these matters into consideration, I consider the end sentenceimposed on Mr Jackson of 25 months' imprisonment is required to be reduced by fivemonths in order that the disparity is ameliorated. The sentence of 20 months is theproduct of reducing the starting point for the burglaries to one of 18 months'imprisonment and adopting the balance of Judge Couch's sentencing, namely theuplifts for the other offending and Mr Jackson's criminal history, and then applyingthe same credit for his guilty pleas.Result[24] The appeal is allowed. Mr Jackson's sentence of 25 months' imprisonment isquashed and substituted with a term of imprisonment of 20 months.Solicitors:Anthony Garrett Barrister, ChristchurchRaymond Donnelly & Co, Christchurch