SMITH v POLICE [2023] NZHC 3829

SMITH v POLICE [2023] NZHC 3829 [20 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-569[2023] NZHC 3829BETWEEN ROMEO SMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2023Appearances: M J Hamlin for appellantM V Kilkelly for respondentDate of judgment: 20 December 2023JUDGMENT OF JAGOSE JThis judgment was delivered by me on 20 December 2023 at 3.30pm.Registrar/Deputy RegistrarCounsel/Solicitors:Marek Hamlin, Barrister, AucklandMeredith Connell, Auckland[1] Romeo Smith appeals against Judge J Bergseng's 20 October 2023 sentencingof him in the District Court at Auckland to three years and two months' imprisonment.1Background[2] Mr Smith pleaded guilty to 12 charges of various offending, ranging fromintentional damage and domestic and commercial burglaries to unlawfully getting intoand using vehicles, breach of parole and then dangerous driving and failing to stop, onthe last occasion also being in possession of a firearm.2[3] All Mr Smith's present offending occurred while on bail (except for theintentional damage, which occurred while in custody on sentence and is the subject ofa 10-month indicated sentence starting point).3[4] Mr Smith also has an extensive criminal history, of nearly 60 convictions inthe preceding decade: six for robbery or aggravated robbery; six for burglary; and 17for similar vehicle offending. He has received relatively lengthy sentencesaccordingly: up to just short of three years' imprisonment on robbery charges; a fewmonths short of two years on burglaries; and one year on vehicle charges.Judgment under appeal[5] The Judge calculated discrete sentences of imprisonment on each charge, "allup to 70 months".4 He discounted that starting point by 25 per cent for contributingfactors of addiction, poverty and violence in Mr Smith's background, and a further 25per cent for Mr Smith's guilty pleas, to 35 months.5 He then applied a six-month uplift1 Police v Smith [2023] NZDC 24418.2 Unlawfully uses a vehicle (Crimes Act 1961, s 226(1): maximum penalty, seven years'imprisonment); unlawfully gets into a vehicle (x 4) (s 226(2): maximum penalty, two years'imprisonment); burglary (x 2) (s 231(1)(a): maximum penalty, ten years imprisonment);intentional damage (s 269(2)(a): maximum penalty, seven years' imprisonment); unlawfullypossessing a firearm (Arms Act 1983, s 45(1): maximum penalty, four years' imprisonment);breaching release conditions (Sentencing Act 2002, s 96(1): maximum penalty, one year'simprisonment); dangerous driving (Land Transport Act 1998, s 35(1)(b): maximum penalty, threemonths' imprisonment); failing to stop for red and blue flashing lights (ss 52A(1)(a)(ii), 52A(3),52A(6) and 114(2): maximum penalty, $10,000 fine)3 Police v Smith DC North Shore CRI-2021-044-3012, 6 April 2022 (Notes of Judge A M Fitzgibbonon Sentencing Indication).4 Police v Smith, above n 1, at [38]–[42]5 At [43]–[45].for Mr Smith's previous convictions, but misapplied it to a 32-month base for an endsentence of three years and two months' imprisonment.6[6] For Mr Smith, Marek Hamlin contends the Judge's 'misapplication' has thesame result as appropriately consecutive percentage uplifts and discounts,7 but arguesthe Judge's various starting points were excessive, and the Judge failed to have regardfor the totality of Mr Smith's cumulative sentence. Rather Mr Hamlin contends forstarting point of some 57 months, resulting in a discounted end sentence of two years,four months and two weeks' imprisonment.[7] For the prosecution, Michael Kilkelly argues, from a 26-month base forMr Smith's burglary convictions, to illustrate the Judge's approach met totalityconsiderations in establishing his starting point, appropriately uplifted for Mr Smith'sprior offending (and including a three-month arithmetical error in Mr Smith's favour).No contest is made of the Judge's 50 per cent total discount.Approach on appeal[8] I must allow the appeal only if I am satisfied both there is error in the sentence,and a different sentence should be imposed.8 In any other case, I must dismiss theappeal.9 The measure of error is the sentence be "manifestly excessive"; a principle"well-engrained" in this Court's approach to sentencing appeals.10 I will not intervenewhere the sentence is within a range properly justified by accepted sentencingprinciple. Whether 'manifestly excessive' is to be assessed in terms of the sentencegiven, rather than the process by which it is reached.11Discussion[9] I have some resistance to assessing 'manifest excess' on an appeal against aconcurrent sentence for multiple offending by slicing and dicing the Judge's6 At [47].7 Despite my discussion with counsel at the hearing, the Judge did not err. See Mo'unga v R [2023]NZHC 1967 at [27] and following.8 Criminal Procedure Act 2011, s 250(2).9 Section 250(3).10 McCaslin-Whitehead v R [2023] NZCA 259 at [27], affirming Tutakangahau v R [2014] NZCA279, [2014] 3 NZLR 482 at [32]–[35].11 At [28], citing Tutakangahau v R, above n 10, at [36].cumulative starting points. The better approach is to assess the Judge's sentence on thelead offending in its overall context of Mr Smith's offending.12[10] Burglary has a maximum penalty of ten years' imprisonment. It arises incircumstances too varied to enable any guideline judgment. But "[d]welling houseburglaries at the relatively minor end of the scale" offered a range from"approximately 18 months' to two years and six months' imprisonment".13[11] Here, the lead offending was Mr Smith's forced entry with another into adomestic garage in the late afternoon to steal a motorbike, using tools brought withhim and attracting a neighbour's attention. If it was not directly into a domesticresidence or at night, neither was it without other aggravating factors of associates,planning and intervention. That is enough to fall toward the upper part of the range,14at say two years and three months (or 27 months).[12] Further, the lead offending (including the other burglary of commercialpremises to steal spirits) is Mr Smith's return to relatively serious property offending,15the potential seriousness illustrated by the firearms charge, of a loaded sawn-offshotgun disposed of during a police chase of him and a co-defendant in a vehicle.16The vehicle charges have similarity to the burglary charges in Mr Smith's breakinginto cars, and in one instance to use it in other offending.17[13] To digress briefly, as 30-month starting points thus easily are available for eachthe two burglaries together, firearms, and vehicle offending — in total, 90 months —the Judge's 70-month accumulation is not objectionable in itself. If the accumulationis to suggest totality has not been given its due, as the Judge's unalloyed incorporationof the sentencing indication may indicate, there also are indications elsewhere heconstrained himself to "the minimum" he could for uplift on prior convictions.1812 Jane v R (1996) 14 CRNZ 101 (CA) at 106.13 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] (footnotes omitted).14 Stepanicic v R [2015] NZCA 211 at [9].15 R v Southon (2003) 20 CRNZ 104 (CA) at [12].16 Campbell v R [2022] NZCA 579 at [18].17 Singh v R [2011] NZCA 139 at [11].18 Police v Smith, above n 1, at [46].[14] Returning to the sentencing at hand, a 24-month uplift for the remainingoffending19 — comprising eight months for the additional burglary and intentionaldamage,20 10 months for firearms possession,21 and six months for the vehicleoffending,22 — would catch the totality of the present offending. And a furthersix-month uplift should apply in relation to Mr Smith's continued burglary and vehicleoffending and reoffending while on bail and parole, prior sentences plainly not havingtheir desired deterrent value (but consistently with the Judge's intention to keep thatuplift to a minimum).23[15] That brings the starting point up to 57 months (or four years and nine months).Application then of the Judge's discount would yield an end sentence of two years andfive months' imprisonment (rounded up). The Judge's three years and two months' endsentence — being a full third more — thus is manifestly excessive.Result[16] The appeal is allowed. Mr Smith's sentence of three years and two months'imprisonment is quashed, and replaced with a sentence of two years and five months'imprisonment.—Jagose J19 Kaihau v R [2015] NZCA 40 at [7], upholding uplift of 18 months to a 30-months' starting pointon burglary for eight remaining charges of theft and one each receiving property and interferingwith vehicle. Mr Smith's additional charges are more serious.20 Taylor v R [2021] NZCA 606 at [43], where a six-month uplift was imposed for an additionalburglary, and here accounting also for the intentional damage conviction, the subject of the10-month sentencing indication.21 Mills v R [2016] NZCA 245 at [18], noting "this Court has indicated that uplifts of 12 to 18 monthsare appropriate for firearms offending associated with drug dealing", citing R v Fonotia [2007]NZCA 188, [2007] 3 NZLR 338 at [41]; and Haggie v R [2011] NZCA 221 at [23]. Mr Smith'slesser uplift reflects the absence of drug dealing and totality, but nonetheless generic seriousnessof firearms offending: Devlyn v R [2013] NZCA 462 at [17].22 Waiwai v R [2012] NZCA 251 at [14], applying a four-month uplift for unlawfully gets into vehicleand dangerous driving. Mr Smith's additional vehicle offending warrants a higher uplift.23 R v Columbus [2008] NZCA 192 at [17]–[18]; Skipper v R [2011] NZCA 250 at [27]. Mr Smith'srecidivism is not quite yet at a level as may have justified more significant uplift.