PELL v NEW ZEALAND POLICE [2019] NZHC 1513

PELL v NEW ZEALAND POLICE [2019] NZHC 1513 [1 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-128CRI-2019-404-129[2019] NZHC 1513BETWEEN PAUL PELLAppellantAND NEW ZEALAND POLICERespondentHearing: 1 July 2019Appearances: G P Timms for AppellantH E Macdonald and R N T Thompson for RespondentJudgment: 1 July 2019ORAL JUDGMENT OF PALMER JSolicitors:Public Defence Service, AucklandCrown Solicitor, AucklandWhat happened?[1] Mr Paul Pell, aged 42, had a troubled early life, infused with alcohol, abuse, ahead injury and offending. He has been addicted to methamphetamine for the lastthree years. He has an extensive criminal history. He wants to address his alcohol anddrug use. He has four children. In January and February 2018, he burgled three homesin Ponsonby, Snell's Beach and Grey Lynn, Auckland, entering through openwindows. He stole electronics, jewellery, keys, bank cards, cash, air pistols and otherpersonal items, worth $28,800, and a Volkswagen Amarok worth $40,000. There isCCTV footage of him, and an associate, using one of the bank cards from Ponsonby.He was disturbed by a victim at the Snell's Beach property, where he left a sock withhis DNA. There is no suggestion the other properties were occupied at the time of theburglaries. Some of the property from Grey Lynn was found in his car, as well asproperty stolen from another Grey Lynn residence. Mr Pell was charged with threecounts of burglary, using a bank card to pecuniary advantage and receiving stolenproperty worth less than $500. These offences carry maximum sentences of 10 years'imprisonment, seven years and three months' imprisonment respectively. He pleadedguilty to all charges.[2] On 19 July 2018, Mr Pell was given a sentence indication of two years andnine months' imprisonment, as part of a determination hearing in the Alcohol andOther Drug Treatment Court. I do not have a copy of that. I have seen the impressiveAlcohol and other Drug Treatment Court Report. I have also seen Corrections' pre-sentence advice which assessed Mr Pell as at high risk of re-offending. He pleadedguilty and was accepted into the Court's programme. He absconded from theprogramme after 154 days and has been exited from it. On 27 March 2019, Judge BA Gibson sentenced Mr Pell to three years and six months' imprisonment.1 He notedMr Pell's past criminal offending, including 17 convictions for burglary, which havebecome frequent in recent years, probably largely driven by his addiction tomethamphetamine.2 He accepted Mr Pell had developed insight into his offending andacknowledged a letter in which he expressed regret but noted Mr Pell finds prisoneasier than the outside world. Mr Pell did not want to seek home detention so as not1 Police v Pell [2019] NZDC 5651.2 At [2]–[3].to put his sister to trouble. Judge Gibson identified as aggravating factors: the fact theproperties were residential, raising the risk of confrontation; the amount of propertytaken; and Mr Pell's return to one of the addresses to take the car. Using Arahanga vR as guidance,3 he set a starting point of five years' imprisonment for all of the charges,uplifted that by six months for previous convictions, credited him with six months forhis previous attempts to give up methamphetamine and gave a further credit of sixmonths for personal factors identified in Corrections' pre-sentence report. From theresulting four and a half years' imprisonment, he gave a 20 per cent discount for theguilty pleas.Submissions[3] Mr Timms, for Mr Pell, submits the starting point and end sentence weremanifestly excessive. Compared with Arahanga, he submits a starting point of nomore than four years would have been appropriate. By comparison, he submits therewas only one night-time burglary, there was only one burglary with an associate andthere was no damage at two of the properties. He submits the Judge placed too muchemphasis on the houses not being baches, made assumptions about the risk ofconfrontation and placed too much weight on the starting point in Arahanga. He relieson Stepanicic v R, Harrison v R, Makene v R, Leach v Police, and Wilkinson v Police,where starting points of between two years' and four years' imprisonment wereadopted.4 He submits the starting point here was disproportionate to the gravity ofthe offending. He accepts the discounts applied by the Judge were appropriate.[4] Ms Macdonald, for the Police, submits the sentence was plainly available toJudge Gibson and the starting point was well within range. She submits Judge Gibsondistinguished rather than applied Arahanga and that the appellant simply disagreeswith the end point. She relies on French v Police, Proctor v Police, R v Aldridge andMarsh v R, where starting points of 20 months to five years were either adopted orapproved.5 Even if the starting point was too high, Ms Macdonald submits the end3 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.4 Stepanicic v R [2015] NZCA 211; Harrison v R [2011] NZCA 80; Makene v R [2013] NZCA 178;Leach v Police [2016] NZHC 1565; Wilkinson v Police [2016] NZHC 1845.5 French v Police [2015] NZHC 2635; Proctor v Police [2018] NZHC 763; R v Aldridge [2009]NZCA 550; Marsh v R [2010] NZCA 445.sentence was within the available range because there could have been higher upliftsfor the previous convictions.Decision[5] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied there is a material error in the sentence and a different sentence should beimposed. My focus is on whether the end sentence is within the available range. Ihave stated before, consistent with the Supreme Court's judgment in Sena v Police inrelation to conviction appeals, that I consider absence of reasoning in a sentencingdecision will require an appellate court to undertake the decision afresh and is highlylikely to be an error.6 It might be more precise to join the dots and say that, unders 250, an appellate court must consider a sentencing decision afresh in order todetermine whether there is a material error in the end sentence and an absence ofreasoning means error is highly likely. But strictly, and thankfully, those observationsare obiter here because reasoning is not absent.[6] In Arahanga v R, the Court of Appeal gave general guidance on sentencing forburglary. Burglary of a domestic residence is a significant aggravating factor, due tothe heightened risk of confrontation with occupants. I do not consider there is materialdifference between domestic residences and baches, in these days of Book-a-Bach.Both carry the risk of confrontation, which is an aggravating factor for both, asindicated in Arahanga. Relatively minor-scale burglary of domestic residences tendsto attract a starting point of one and a half to two and a half years' imprisonment.Aggravating factors include where more than one house is burgled, there is more thanone burglar or high value items are taken. In Gorgus v R, the Court of Appealconfirmed that, to the extent High Court decisions might differ from the approachapproved in Arahanga, they should not be followed.7[7] I have reviewed the cases referred to by both counsel. I consider two of theCourt of Appeal decisions relied upon by the Police, Aldridge and Marsh, are of littleassistance because they both took into account the offenders' previous criminal history6 Allport v Police [2019] NZHC 1306 at [15]; Papa v Police [2019] NZHC 1309 at [5]; citing Senav Police [2019] NZSC 55.7 Gorgus v R [2016] NZCA 508 at [11].in setting the starting points. Since the decision of R v Clifford in 2011, that factorgoes to uplift, not starting point.8 Aldridge also took into account the offender havingbeen on home detention and Marsh took into account the offender being on bail andon parole as well as parity with a co-offender in setting the starting point.[8] Using the Court's guidance in Arahanga, relatively minor-scale burglaries ofdomestic residences tend to attract a starting point of one and a half to two and a halfyears' imprisonment. The fact three residences were burgled here is an aggravatingfactor, as is the presence of another burglar on one occasion and high value items anda motor vehicle being taken. In Arahanga itself, the Court of Appeal adopted a startingpoint of four years for two charges of burglary and one charge of unlawfully taking amotor vehicle. I do not consider the differences between the facts here and there justifya year's higher starting point. In Arahanga there were two burglaries, by two burglars,at night, of one unoccupied bach and one bach where the occupants were asleep. Theoffenders then took a car and came back and confronted the occupants of one of thebaches, made threats, and assaulted the Police when they arrived.[9] I consider the additional burglary here is more than outweighed by theoffenders in Arahanga embracing the risk of confrontation. That is consistent withthe authorities relied upon by Mr Timms. Consistent with the guidance in Arahanga,I consider there was a material error in the sentence. I agree a four-year starting pointfor all charges would be appropriate.[10] I agree Judge Gibson's unchallenged discounts, of a net discount of six monthsand a discount for the guilty pleas of approximately 20 per cent (rounded up), wereappropriate. Applying them leads to an end sentence of two years and nine months. Itfollows I consider a different sentence should be imposed. I quash Mr Pell's sentenceof three years and six months' imprisonment and substitute it with a sentence of twoyears and nine months' imprisonment. I uphold the appeal.Palmer J8 R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23 at [60].