BALLER v NEW ZEALAND POLICE [2018] NZHC 2709

BALLER v NEW ZEALAND POLICE [2018] NZHC 2709 [18 October 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-000043[2018] NZHC 2709BETWEEN ROGER KENNETH BALLERAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2018Appearances: R Quin for AppellantA R A Pell for RespondentJudgment: 18 October 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Baller pleaded guilty in the District Court to the following charges:(a) Burglary (x 3)(b) Theft (over $1000)(c) Theft (between $500 and $1000) (x 2)(d) Possession of three methamphetamine pipes(e) Possession of 0.1 of a gram of methamphetamine(f) Possession of 1 gram of cannabis(g) Breaching a sentence of supervision[2] On 3 August 2018, Judge Burnett sentenced Mr Baller to 24 monthsimprisonment.1 She declined to grant him leave to apply for home detention.Mr Baller appeals against sentence on the basis that the Judge adopted starting pointsthat were too high, and this resulted in an end sentence that was manifestly excessive.He also contends the Judge erred in declining to grant him leave to apply for homedetention.The charges[3] Mr Baller has an acknowledged drug addiction. His offending reflects thatfact. The theft and burglary charges all relate to incidents over a six week period inwhich Mr Baller stole CCTV cameras from premises. This offending was aggravatedby the fact that several of his victims were charities, or not for profit organisations,who rely on public donations for funding and will no doubt struggle to replace theproperty he stole from their premises.[4] The offending resulted in Mr Baller stealing property worth approximately$5000. It is highly likely in my view that the CCTV cameras that he stole found their1 New Zealand Police v Baller [2018] NZDC 15957.way into the hands of criminals. He no doubt committed the offences in order to feedhis drug addiction.[5] The police executed a search warrant at Mr Baller's address on 24 May 2018.There they discovered three methamphetamine pipes, 0.1 of a gram ofmethamphetamine and one gram of cannabis.The Judge's decision[6] In selecting a starting point for the burglary charges, the Judge referred to thewell-known Court of Appeal decision in Arahanga v R.2 In that case the Court ofAppeal declined to set a guideline or tariff starting point for burglaries, but said that aburglary of residential premises at the minor end of the scale is likely to result in astarting point of between 18 months and two years six months imprisonment.3 TheJudge then adopted an overall starting point of 15 months imprisonment on theburglary charges. She applied a six month uplift to reflect the three charges of theft, afour month uplift to reflect the drugs charges and a one month uplift on the charge ofbreaching the sentence of supervision. The Judge also applied an eight month upliftto reflect numerous previous convictions for burglary and other offending involvingdishonesty. This resulted in an end starting point of 33 months imprisonment.[7] The Judge applied a discount of 20 per cent to reflect guilty pleas because thesehad not been entered early. This resulted in the end sentence of two yearsimprisonment. The Judge also cancelled existing sentences of supervision andcommunity work.[8] Mr Quin had sought an adjournment of the sentencing to enable him toinvestigate whether Mr Baller could serve a sentence of home detention at OdysseyHouse. He submitted this was necessary because Mr Baller's addiction tomethamphetamine and other drugs is clearly driving his offending. The Judgedeclined the adjournment. She expressed the view that a residential programme atOdyssey House could not be undertaken by a person subject to electronic monitoring.2 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.3 At [78].She also said it would not be appropriate to grant leave to Mr Baller to apply for homedetention because of his lengthy history of both offending and non-compliance withCourt sentences and orders. In addition, she was satisfied that home detention atOdyssey House would not be the least restrictive outcome. She considered a sentenceterm of imprisonment would be the least restrictive outcome.DecisionThe burglary and theft charges[9] On Mr Baller's behalf, Mr Quin points out that the burglary charges relate tothe same type of offending as the theft charges. Furthermore, they do not relate totraditional burglary offending, in which the offender breaks into premises by forcingentry. Instead, the burglary charges relate to incidents in which Mr Baller climbedover fences and then stood on wheelie bins to enable him to gain access to the CCTVcameras that he stole. Mr Quin therefore submitted there was no real justification fortreating the burglary and theft charges separately. He submitted that a starting pointof around 12 months imprisonment was appropriate to reflect all charges.[10] I accept Mr Quin's submission that this is not a typical case of burglaryinvolving forced entry to premises to enable property to be stolen. Rather, it relates toMr Baller gaining entry to premises by means that do not involve damage to property.I therefore accept his submission that the burglary and theft charges should effectivelybe treated in the same way, and that Arahanga does not provide a great deal ofassistance.[11] I do not accept, however, that the totality of this offending can be met by astarting point of just 12 months imprisonment. If a typical residential burglary chargejustifies a starting point of between 18 months and two years six monthsimprisonment, it seems that the offending here justified a starting point of at least18 months imprisonment. I do not consider an overall starting point of 21 monthsimprisonment was justified, however, having regard to the means Mr Baller employedto gain entry to the premises and to the overall value of property stolen.[12] I also consider the Judge applied an uplift that was too great having regard tothe overall culpability of the drug charges. These related to very small quantities ofdrugs, and there is no suggestion of any commerciality. I consider an uplift of no morethan two months imprisonment would be justified in relation to those charges. Iaccept, however, that an uplift of one month was appropriate to reflect the charge ofbreach of supervision. This means I consider an overall starting point of 21 monthsimprisonment was appropriate before taking into account aggravating and mitigatingfactors.Uplift for previous convictions[13] Mr Baller now has numerous previous convictions for burglary and otheroffending involving dishonesty. These go back as far as 1994. It is clear he is arecidivist burglar who has used burglary as a means to support his livelihood, and nowhis drug addiction, for many years. I consider an uplift of around seven months wouldbe appropriate to reflect that factor. This results in a sentence of 28 monthsimprisonment before taking into account guilty pleas.Guilty pleas[14] There is no dispute that the Judge appropriately applied a discount of 20 percent to reflect guilty pleas. This produces a discount of six months, and thereby leadsto an end sentence of 22 months imprisonment.Conclusion[15] The ultimate question for the Court on appeal against sentence is not whetherthe correct sentence was imposed. There is no such thing, in the true sense, of a correctsentence because sentences generally comprise a range of starting points and a rangeof uplifts and discounts to reflect aggravating and mitigating factors. The ultimatequestion for an appellate Court is whether the end sentence is manifestly excessive.[16] By an independent assessment, I have reached an end sentence of 22 monthsimprisonment. This does not mean the Judge's end sentence of 24 months ismanifestly excessive. Indeed, I consider it demonstrates the end sentence is within theavailable range, particularly having regard to the fact that the Judge also cancelledexisting sentences of supervision and community work.[17] For that reason the appeal against the sentence of 24 months imprisonmentmust be dismissed.Leave to apply for home detention[18] I consider, however, the Judge erred in declining leave to apply for homedetention.4 I accept Mr Baller has a lengthy history of involvement with drugs and healso has a history of non-compliance with court orders and sentences. It appears,however, that his addiction to drugs continues to be the driving force behind continuedoffending. Unless and until this is addressed he will continue to appear before thecourts.[19] The Judge was obviously influenced, at least in part, by her perception thatOdyssey House would not permit an offender serving an electronically monitoredsentence to be a residential attendee. Mr Quin has provided me with material fromOdyssey House confirming this is not correct. Odyssey House is prepared to acceptoffenders who are serving electronically monitored sentences.[20] I also have some difficulty with the Judge's observation that a sentence of homedetention at Odyssey House is a more restrictive outcome than a sentence ofimprisonment. Given the hierarchy of sentences,5 I consider a sentence of homedetention is virtually always a less restrictive sentencing outcome than a sentence ofimprisonment.[21] Finally, I acknowledge that Mr Baller has a lengthy history of non-compliancewith Court orders. It seems to me, however, that the ability of Odyssey House to dealwith these issues should be addressed if and when Mr Baller applies under s 80K ofthe Sentencing Act 2002 for his sentence of imprisonment to be converted to asentence of home detention.4 A decision declining an offender leave to apply for home detention is treated as a sentence forappeal purposes: Sentencing Act 2002, s 80J.5 Sentencing Act 2002, s 10A.Result[22] It follows that the appeal against the sentence of 24 months imprisonment isdismissed, but Mr Baller is granted leave to apply for home detention under s 80I ofthe Sentencing Act 2002.Lang JSolicitors:Crown Solicitor, HamiltonR Quin, Barrister, Hamilton