MATHIAS v NEW ZEALAND POLICE [2018] NZHC 1910

MATHIAS v NEW ZEALAND POLICE [2018] NZHC 1910 [30 July 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000054[2018] NZHC 1910BETWEEN PAUL ALURED MATHIASAppellantAND NEW ZEALAND POLICERespondentHearing: 26 July 2018Appearances: S G Bailey for AppellantS Bicknell Young for RespondentJudgment: 30 July 2018JUDGMENT OF DUNNINGHAM JIntroduction[1] On 16 May 2018 Judge Ruth sentenced Paul Mathias to two years andthree months' imprisonment on charges of burglary, receiving, possession ofinstruments for burglary and failing to carry out obligations regarding the Search andSurveillance Act 2012.[2] Mr Mathias appeals that sentence on the basis that it is manifestly excessive.Background[3] On the afternoon of 13 April 2017, a townhouse in Staveley Street, Avonhead,was broken into by forcing a downstairs ensuite window open. The property stolenincluded electronics, jewellery, alcohol and foreign currency, and had a total value of$12,510. The currency included 6.8 million Indonesian rupiah and $AUD500.[4] The appellant's customer account at a money exchange at Riccarton Mall wasused at 5.25 pm the same day, to exchange 6.75 million Indonesian rupiah for $NZ650and $AUD225.[5] The appellant pleaded guilty to receiving based on these facts.[6] Overnight on 22-23 October 2017, a townhouse in Wharenui Road, Riccarton,was broken into by forcing a downstairs toilet window open. The tenants of the househad recently moved out, but furniture and household items belonging to the ownerwere left. Property taken included a toolbox, two blankets, towels, cleaning products,a washing basket and a basket from a shelving unit, to a total value of $481. Theproperty owner also believes that whoever broke into the property used a shower andslept in one of the beds. Police found fingerprints belonging to the appellant in theproperty.[7] The appellant pleaded guilty to burglary based on these facts.[8] On 15 January 2018, the appellant arranged for his mother to obtain and returnvarious items to the police that were stolen during this burglary. The tool box and themajority of the tools that were in it, along with the basket from the shelving unit, arestill missing, to a value of $190.[9] On 7 December 2017, police spoke to the appellant about the burglaries, withwhich he initially denied involvement. Under warrant, police searched the appellant'svehicle and found a balaclava, jemmy bar, screw drivers, a window breaker, a largenumber of keys, torches, gloves and other tools and items used to commit burglary.The appellant pleaded guilty to possession of instruments for burglary based on thesefacts. The appellant was also found to have $1091 cash on him, which was seized bypolice. He refused to supply the passcode to his cell phone to police, which led to hischarge of failing to carry out an obligation under the Search and Surveillance Act.District Court decision[10] The District Court Judge noted the appellant's extensive criminal history anddescribed him as a "recidivist burglar". However, he recognised that the appellant hadwritten letters of apology, had returned some of the stolen goods, and had alsoaddressed the Court saying that he wanted to turn his life around.[11] Having considered the police prosecutor's submissions and the authoritiesreferred to in them, the Judge set a starting point of 18 months for the burglary chargeas the lead offence. The Judge then uplifted that by 15 months to reflect both the otheroffending and "any aspect of recidivism". With a "roughly" 20 per cent discount forthe appellant's guilty plea, the end sentence was two years and three months'imprisonment. The Judge considered this appropriate as the appellant would go to theParole Board "so that arrangements and risk factors can be properly assessed".[12] The Judge granted the police's application for the forfeiture of the $1091 foundon the appellant when he was arrested. From the money forfeited, the Judge orderedthat $875 of it be paid as reparation for the foreign currency received and exchanged,and $190 be paid as reparation for the stolen goods not returned.[13] The Judge sentenced the appellant to four months' imprisonment on thereceiving charge, one month on the failing to carry out obligations charge, andnine months on the charge of having burglary instruments, all to be servedconcurrently.[14] The Judge also ordered the destruction of the burglary instruments, as soughtby the police.Principles on appeal[15] 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.1 As the Court of Appeal stated in Tutakangahau v R, "an appellate courtwill not intervene where the sentence is within the range that can be properly bejustified by accepted sentencing principles".2 It is only appropriate for this court to1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].intervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.3SubmissionsAppellant's submissions[16] Ms Bailey, who was not counsel in the District Court, submits that the startingpoint of 18 months' imprisonment was too high, the uplift of 15 months was excessive,and the appellant did not receive sufficient discount for his guilty pleas.[17] In terms of the starting point for the burglary charge, Ms Bailey submits that15 months would have been appropriate as this burglary was at the very low end ofthe scale. In support of this submission she noted that the rental property was notoccupied so the likelihood of confronting anyone was minimal, the appellant enteredto obtain shelter, the taking of items was opportunistic, most of the items werereturned, reparation is possible, and there was minimal damage.[18] Ms Bailey submits that an uplift of nine months would be appropriate to reflectthe other offending, plus a further uplift of three months for the appellant's previousconvictions. Ms Bailey stresses that the receiving charge should not be overstated ortainted by the additional information in the summary of facts relating to the burglaryitself, which the appellant was not charged with by the time of sentencing.[19] Ms Bailey submits that the appellant should have received a full 25 per centdiscount for his guilty pleas. His guilty plea to the burglary was entered at an earlystage. The plea for the receiving charge came after he pleaded not guilty to the secondburglary charge, and it was downgraded to receiving.[20] In addition, Ms Bailey submits that the appellant deserved a further 5-10 percent discount for remorse, considering his letters of apology, his voluntary return oftaken items and his willingness to attend Restorative Justice.3 Ripia v R [2011] NZCA 101 at [15].[21] Ms Bailey takes issue with the Judge's comment that the sentence imposed willmean the appellant would go to the Parole Board "so that arrangements and risk factorscan be properly assessed". She submits that sentences should not be tailored for certainoutcomes to occur.[22] Finally, Ms Bailey raises a concern that the terms of the order for destructionwere uncertain. The order sought in the summary of facts was expressed as follows:An order is also sought for the destruction of the items listed above namelythe balaclava, jemmy bar, screw drivers, window breaker, a large amount ofkeys, torches, gloves and other tools and items all instruments used to commitburglaries.[23] The Judge's decision simply made an order for the destruction of the "burglaryinstruments" without more, so it is assumed to be made on the terms set out in thesummary of facts. The appellant had other items in the vehicles including paintingand gardening gear. He appeals this order to the extent it gives the police a discretionto decide what is to be destroyed.Respondent's submissions[24] Counsel for the respondent, Ms Bicknell Young, submits that the end sentenceis within range and the appeal should be dismissed.[25] Regarding the starting point, she notes that burglary does not have a tariffjudgment but that a starting point of 18 months is line with the authorities for a low-level burglary of a dwelling house. The Court of Appeal rejected a submission thatburglaries of holiday homes involve a lower level of culpability than those ofresidential homes,4 and counsel submits this should also apply equally to a vacatedrental property. In fact, she submits that this burglary may be more serious than anaverage burglary, in that he stayed in the house, in a "Goldilocks" style of offending.[26] Ms Bicknell Young considers the uplift of 15 months was within range. Shenotes that the appellant was subject to release conditions at the time of each of thedates of offending, in April, October and December. He has a significant history of4 Penniket v R [2016] NZCA 154 at [43].dishonesty offending in the Youth and District Courts, including 16 previousconvictions for burglary, two for unlawfully being in an enclosed yard and two forreceiving. With reference to cases where similar uplifts were made,5 counsel submitsthat an uplift of at least 15 months was available to the Judge for the appellant'sthree additional charges, previous convictions and offending whilst subject to releaseconditions.[27] Ms Bicknell Young acknowledges that the Judge could have given more creditfor the appellant's guilty pleas and remorse, but that adjustment for that may amountto tinkering. She also notes that there was strong evidence for the burglary charge hepleaded guilty to, with the appellant's fingerprints being found at the scene, and thatthe other guilty pleas came later, at a case review hearing, which she submits was notthe first reasonable opportunity. These factors warranted the discount being less than25 per cent.AnalysisStarting point[28] There is no tariff judgment for burglary. However, the Court of Appeal hasgiven guidance in Arahanga v R:6[78] This Court has deliberately not set a tariff for burglary because therange of circumstances in which the offence can be committed is so varied.Burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months to two years and sixmonths imprisonment.[29] The Courts have often recognised the emotional impact and sense of violationthat occur when a private home is burgled.7 As discussed by counsel for therespondent, the Court of Appeal rejected a submission that burglaries of holiday homesare less serious than those of residential homes, saying:85 For example, French v Police [2015] NZHC 2635.6 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.7 See, for example, R v Lowe CA62/05, 4 July 2005 at [34].8 Penniket v R, above n 4, at [43].There is still the significant possibility of the victims being present, and thevictim impact reports show how the losses of valued personal items affectedthe residents and their ability to enjoy their dwellings. These factors can applyequally to residential or holiday homes.[30] I accept that these principles apply, in part, to a recently vacated rental property.The owner of the property was checking the property regularly and there was still achance of confrontation particularly given the evidence the appellant spent some timethere. Furthermore, the fact the property was used by the appellant is an aggravatingfactor because it adds to the sense of private space being violated. However, I acceptit must be considered less so here where it is a vacated rental property, where neithertenants or the owners are using it as a personal residence.[31] It is clear therefore that this offending is at the lower end of the scale. However,the Judge recognised this in setting the starting point at 18 months, being the low pointfor dwelling house burglaries in Arahanga. In my view, there is little basis for this tobe lowered further, and the Judge was not wrong to adopt the 18 month starting point.Uplift[32] The Judge uplifted the sentence by 15 months to reflect the other offending andthe appellant's previous convictions. In this regard I accept that the appellant's historyof this type of offending was significant. In addition, the Judge did not reference thefact that the appellant was subject to release conditions at the time of each offence.Taking that into account, the uplift given by the Judge is clearly reasonable, and ifanything, generous. Again it is not wrong.Discount[33] While the Judge awarded a "roughly" 20 per cent discount, the timing of theappellant's guilty pleas do appear to be at, or close to, the earliest opportunity.However, I also accept that that is not the only consideration. Here, the strength of theevidence was a factor which could have warranted the discount being slightly less than25 per cent. Similarly, the reduction of the burglary charge to receiving was of benefitto the defendant and can have a bearing on whether a defendant should also get a fulldiscount for a guilty plea. Thus, while another Judge may have given a full 25 per centdiscount I cannot conclude the Judge was wrong to give less.Totality[34] A modest discount could arguably have been given for remorse, but given thehistory of offending the Judge was entitled to put little or no weight on that factor.However, we do not know his views on that. In my view, a discount for remorse wouldnot have altered the overall sentence by more than a month or two. Looked at intotality I do not consider the overall sentence was excessive, nor do I think a differentsentence should be imposed.Order for destruction[35] I accept that the Judge's order for destruction must be assumed to be on theterms set out in the summary of facts and counsel were agreed that it cannot pertain tounspecified items.[36] I accept that an order for destruction should not be made in general terms whichgrants a discretion to police to decide what items are covered by it. Instead, it shouldclearly describe or itemise the items to be destroyed. In order to clarify matters Iaccept the order for destruction should exclude the words "and other tools and itemsall instruments used to commit burglaries" and the order is amended accordingly.Conclusion[37] The sentence imposed on the appellant is not manifestly excessive, and theappeal is dismissed, save for clarifying that the order for destruction is amended toread as follows:An order is also sought for the destruction of the items listed above namely thebalaclava, jemmy bar, screw drivers, window breaker, a large amount of keys,torches and gloves.Solicitors:Serina Bailey, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch