KELLY v NEW ZEALAND POLICE [2017] NZHC 2689

KELLY v NEW ZEALAND POLICE [2017] NZHC 2689 [2 November 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2017-443-29[2017] NZHC 2689BETWEEN RIKKI HOANI KELLYAppellantAND NEW ZEALAND POLICERespondentHearing: 31 October 2017Counsel: R T Wilson for AppellantJ E Bourke for CrownJudgment: 2 November 2017JUDGMENT OF WILLIAMS J[1] The appellant Rikki Hoani Kelly pleaded guilty to four burglary charges andone charge of theft from a car. The first occurred at 3.45am on 21 May this year.Mr Kelly entered the unlocked premises of a local high school dormitory. There wasno-one there at the time – the students were apparently elsewhere on the schoolgrounds. He then stole items from five "pods" including a laptop, earphones, clothing,toiletries, a wallet and some shoes valued together at $4,715. All but $1,420 in valuewas recovered with the co-operation of the appellant.[2] The next night Mr Kelly opened an unlocked roller door at commercialpremises and stole promotional confectionary.[3] The night after that at 10.45pm, Mr Kelly broke into other commercialpremises stealing a hard drive and a USB stick. And a month later, on 26 June at10.30am, he walked into a staff changing room at the Novotel Hotel in New Plymouthand took a sports bag containing clothes and car keys. He then used the car keys togain entry to a car in the car park stealing two lighters and a torch.[4] Mr Kelly is 27 years old, single and has no offending history. He is homelessand has suffered significant mental illness a matter to which I will return later.[5] Mr Kelly appeals against his sentence.District Court sentencing[6] In the District Court at New Plymouth, Judge Barkle took the lead offence ofthe five offences as the dormitory burglary. He applied the leading decision in thisarea of Arahanga v R1 which adopted a descriptive rather than tariff range of between18 and 30 months for residential burglaries. Aggravating features in the view ofJudge Barkle were:(a) The hostel was home to young people and Arahanga therefore appliedby close analogy.(b) There was an ever-present risk of confrontation.(c) The victim impact statements showed that the effects of the burglary onthe students were significant.(d) The value of the property was also relatively significant.(e) Mr Kelly remained in the dormitory for at least 50 minutes collectingitems for removal indicating a certain deliberateness and planning.[7] Judge Barkle adopted a starting point of two years; six months above the floorin the Arahanga range. He then uplifted that starting point to take account of the otherthree burglaries and the theft from the car. He took the view that each of the threeburglaries justified an 18 month starting point but on a totality basis he only upliftedthe starting point by another 12 months, leaving an overall starting point of three years.1 Arahanga v R (2012) 26 CRNZ 63; [2012] 1 NZLR 189.[8] The Judge then identified three personal mitigating factors:(a) Good character – Mr Kelly had no previous convictions of any kindbut this was to be balanced against the fact that there were five chargesto be considered in his first sentencing.(b) Mental health – the s 38 report provided by psychiatrist Dr Streetindicated that Mr Kelly had significant mental health issues at the timeof his offending: a major depressive disorder and generalised anxietydisorder leading to self-harm.(c) Remorse – Mr Kelly demonstrated genuine remorse for his actions.[9] Judge Barkle considered that an overall discount of 33 per cent or 12 monthswas appropriate for these matters reducing the sentence to two years prior to guiltyplea.[10] It was common ground that the full 25 per cent reduction for early guilty pleaapplied. This reduced the starting point by six months to an end sentence of18 months. The Judge then made a reparation order in relation to the value of thedormitory items that had not been recovered, together with a $20 order in relation tothe items taken from the car.[11] Finally, leave was given to apply for home detention.Sentencing appeals[12] The basic principles in relation to sentencing appeals formed common groundbetween counsel. Sentencing decisions are exercises of discretion. Manifestexcessiveness is required before a sentence may be overturned. It is not enough if Ijust have a different view of the final result. In plain terms this means sentence is notto be set aside unless an error of principle is identified such that the sentence imposedis outside the range of available sentences for the offending and the offender inaccordance with relevant sentencing principles.Appellant's submissions[13] Mr Wilson argued with considerable force that the effect of the shift from theSenior v Police2 approach to burglary sentences to the now orthodox R v Taueki3methodology had led routinely to a much longer sentences for first time offenders thanhad been the case. In Senior, a distinction was made in setting an appropriate startingpoint between first time burglars, recidivists and spree burglars. That Court acceptedthat it may well not be appropriate to imprison first time burglars.[14] To compensate for this perhaps unintentional effect on sentence length, it wassubmitted by Mr Wilson that the Court should contemplate significant discounts at theTaueki stage 2 point to rebalance the imbalance that had developed over time insentencing practice for burglary.[15] Mr Wilson then argued that the school was not a residence and therefore theArahanga range did not apply. He further argued that the victim impact statementgiven by the dormitory supervisor, Mr Cleaver, should not have been accepted by theCourt because he was not a person identified by the terms of s 17AB of the Victims'Rights Act 2002. It was argued he had not himself suffered injury or loss of propertyas required by the Act and in any event the statement had not been signed. Hisstatement should not have been taken without leave of the Judge. No leave wasgranted.[16] Mr Wilson argued that the source from which the Judge found as anaggravating factor that Mr Kelly had remained in the dormitory for 50 minutes, wasthe victim impact statement, and it was not open to the Judge to rely on that aspect ofMr Cleaver's statement to the detriment of Mr Kelly. The defence did not accept it.[17] Finally, Mr Wilson argued that significant property had been recovered fromthe burglary and this had not been recognised in the setting of the starting point.Mr Wilson submitted that the starting point should have been 12 to 18 months.2 Senior v Police (2000) 18 CRNZ 340.3 R v Taueki [2005] 3 NZLR 372.[18] In relation to the uplift for the remaining burglaries and the theft ex-car,Mr Wilson submitted the suggested starting points for each of them was far too high.Items taken were of limited value, there was no forced entry and none of the sameexpectations of security and privacy that applied to private dwellings. OverallMr Wilson submitted on a totality basis that the uplift for these charges should havebeen no more than five to seven months.[19] As to personal circumstances, Mr Wilson submitted that Judge Barkle shouldhave halved the starting point by reference to the fact that these were Mr Kelly's firstoffences and for police co-operation including the fact that Mr Kelly was only chargedwith the first commercial burglary because he voluntarily confessed to it; and hiswillingness to undergo restorative justice. In addition, the significant mental healthissues he faced over this period should have led to an overall reduction for all personalfactors of 70 per cent.[20] This, Mr Wilson submitted, would have produced an end sentence of five toseven and a half months from a starting point of 17 to 25 months,[21] On this basis, Mr Wilson submitted a community-based sentence involvingintensive supervision should have been imposed.Crown submissions[22] For the Crown Mr Bourke, submitted that Mr Cleaver was indeed a victim inaccordance with the Act as he was resident in his own right at the dormitory and soaffected by the unlawful entry.[23] Mr Bourke submitted the starting point of two years for the hostel burglary waswithin range. The dormitory was a residence in similar terms to the hotel referred toby Clifford J in Chard v Police.4 Further, although the burglary was unsophisticatedthere was a moderate degree of planning including a "systematic search" in accordancewith the summary of facts. In addition, the amount stolen was significant and the4 Chard v Police HC Palmerston North CRI 2007-454-44, 25 October 2007.effect on the dormitory residence was considerable. There was, as identified inArahanga a particular risk of confrontation in a boys' hostel with multiple residents.[24] As to the uplift, counsel accepted that the reference to starting points of18 months for the three additional burglaries was a little high. The exception was theNovotel which (based on the Chard case) could have attracted a starting point ofbetween 15 and 18 months. Overall, there were five offences committed over fiveweeks including, in counsel submissions, two residential-style burglaries. On thatbasis, a three years' starting point would be stern but in range.[25] As to discounts for personal circumstances, the 33 per cent discount was, incounsel's submission generous. It was true, Mr Bourke submitted, that the lack ofprevious offences, mental health issues and remorse were all very relevant but it wasto be remembered that this was something of a burglary spree, and in any event leavewas granted to apply for home detention if it was wanted.[26] Overall, Mr Bourke submitted the sentence was probably a little stern but wellwithin range.AnalysisStarting point[27] Although there is no tariff decision with respect to burglaries, Arahanga iswidely regarded as the leading authority in relation to the appropriate starting pointrange for residential burglaries. And while the decision casts the range as descriptiveof a sentencing trend rather than a prescription, the Court of Appeal suggested a rangefor residential burglaries of between 18 and 30 months. This range was described inthe following terms: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.[28] Meanwhile, the Court of Appeal in R v Nguyen identified six relevant factorsin assessing the seriousness of any burglary:5(a) the degree of planning and sophistication in the offending;(b) the nature of the premises entered;(c) the kind and value of the property stolen;(d) damage done;(e) the impact and potential impact upon occupants or owners of theproperty; and(f) the extent of the offending where multiple burglaries are involved.[29] Taueki6 methodology post-dates the Senior decision referred to by Mr Wilson.It excludes personal factors at the first stage inquiry including offending history.[30] Here, in my view, the aggravating factors are that, in relation to the leadoffence:(a) The dormitory is residential in nature. Arahanga applies. I see no meritin the argument that there is a distinction between ordinary residencesand the communal residence at a school. There is an argument to saythat in fact burglary at a school where there are multiple potentiallyvulnerable residents, is somewhat worse.(b) There was, as referred to in Arahanga, a real risk of confrontation withresidents in this situation early in the morning but that risk should notbe overstated. There was no-one in the dormitory at the time and thereis every reason in logic to infer that it was the absence of inhabitantsthat caused Mr Kelly to venture in.5 R v Nguyen CA110/01, 2 July 2001.6 Above n 3.(c) The impact on the boys whose property was taken was significant. Thisis referred to in the victim impact statement. Mr Wilson may betechnically correct that Mr Cleaver, the drafter of the victim impactstatement, did not himself suffer loss or injury, but the boys under hiscare did. He was in loco parentis. If leave had been sought inaccordance with the Victims' Rights Act to put the statement in onbehalf of the boys through Mr Cleaver, it would undoubtedly have beengranted.(d) The value of that which was lost was significant – over $4,000.[31] The Judge's finding, as an aggravating factor, that Mr Kelly had been in thedormitory for more than 50 minutes can only have been sourced to the victim impactstatement of Mr Cleaver. It was not permissible to take that into account. It had to beproved in the ordinary way or agreed between the parties in accordance with therequirements of s 24(1) and (2).[32] In any event, in my view, Judge Barkle somewhat overstated the degree ofaggravation in this particular case by reference to the level of planning and the risk ofconfrontation. This did not appear to be a planned burglary. It had the hallmarks(alongside all of the other charges) of an opportunistic intrusion. Some degree ofplanning was obviously required to be there in the quiet hours but this must not beoverstated. Similarly, with respect to the risk of confrontation, there is good reason tobelieve, on the summary of facts, that Mr Kelly entered the dormitory and began takingitems when he found there was no-one there. There is, as Glazebrook J said inArahanga, always some risk of confrontation, but again that must not be overstatedwhen the actual facts and circumstances of offending are being analysed. And finally,as I have said, there was no proper evidential basis for the aggravating finding that MrKelly remained in the dormitory for nearly an hour.[33] All of this means, in my view, the facts of the offending in this case belong atthe very bottom of the Arahanga range. I consider that correct starting point for thedormitory burglary was 18 months not two years.[34] As to the uplift, I consider that a 12 month uplift was too high for what wereessentially three very low level burglaries of commercial premises and a minor theftfrom a car. I do not agree with the Crown that the Novotel burglary was akin to aresidence as per the Chard decision. That case related to burglary from a private room.Mr Kelly's offending was different. It was taking akin to taking from a staff room ata commercial or industrial site. While invasive in its own right, it is not as invasive asa residential intrusion. The Crown generally accepted this.[35] In my view, an uplift of eight months was all that could be justified.[36] This meant that a starting point of 26 months was appropriate as opposed tothe 36 months adopted.[37] As to discounts for previous good character, mental health and remorse, thereis every reason to suggest the discount could have been more generous than the 33 percent actually given – 50 or even 60 per cent could well have been available. Theclinical evidence was Mr Kelly was unwell at the time and engaging in self harm.And, plainly, this offending was genuinely out of character. But the one-third discountgiven was in range even if at the bottom of the range. I am not prepared to say toadopt it amounted to an error of principle. I am not minded to disturb it. An overalldiscount of nine months is therefore applicable leaving a sentence prior to guilty pleaof 17 months.[38] It was common ground that the guilty plea came at an early stage and wasentitled to the full 25 per cent discount or five months.[39] That leaves an end sentence of 12 months' imprisonment.[40] The appeal is allowed. The District Court sentence is quashed and a sentenceof 12 months' imprisonment substituted.[41] I would have converted the sentence to one of home detention but Mr Kellyhas declined this opportunity. There are courses and opportunities for farm training inprison that he wants to participate in. That of course is his choice.Williams JSolicitors:Crown Solicitor, New PlymouthR T Wilson, Barrister, New Plymouth