BLACKBOURN v NEW ZEALAND POLICE [2023] NZHC 3271

BLACKBOURN v NEW ZEALAND POLICE [2023] NZHC 3271 [17 November 2023]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2023-416-014[2023] NZHC 3271BETWEEN ROWAN BLACKBOURNAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2023Appearances: D A Berry for AppellantM J M Mitchell for RespondentJudgment: 17 November 2023JUDGMENT OF LA HOOD J(appeal against sentence)An appeal against the length of a term of imprisonment for burglary[1] Rowan Blackbourn appeals against a sentence of two years' imprisonmentimposed by Judge K J Phillips at Gisborne District Court on 4 October 2023 on onecharge of burglary.1 He submits that the sentence was manifestly excessive due toerrors in the starting point adopted and the uplift and reductions for aggravating andmitigating factors.[2] The burglary involved Mr Blackbourn, on multiple occasions, watching thehouse where two young women lived, then entering the empty house early onemorning through a louvre window and searching through drawers containing thewomen's clothes (including underwear). He has a number of previous convictions for1 Police v Blackbourn [2023] NZDC 21867.similar sexually motivated offending, including burglaries and making intimate visualrecordings.[3] I conclude below that the end sentence was not manifestly excessive. I do notconsider the starting point was too high given the level of premeditation involved, thesexually motivated targeting of the victims and the impact the offending has had onthem. I consider the uplift for previous convictions was well within range and,although the credit for personal mitigating factors could have been greater, the endsentence was within the available range.The circumstances of the offending[4] I gratefully adopt the following summary of the offending from Judge Phillipssentencing notes:[2] I understand that, on the summary of facts in this matter, you wereaware of a property at [the victims' address] near Gisborne. The victims ofyour offending live together there in this house. The house which bounders adisused racecourse cannot be seen from the road. However, you, in the monthsof October and November 2022, on multiple occasions during that period oftime, went and parked opposite the property. You had the property and itsoccupants under close scrutiny during that period. You were watching theoccupants' movements over that period of time regularly and if you consideredthere was any question of you being seen yourself you tried to concealyourself.[3] On 10 April 2023 the occupant who was at the house on that day leftat 4.45am to go to the gym which she normally does to work out. The othertwo flatmates were not present at the house and had not been there overnight.You had parked down the road, and walked to the boundary fence, climbedover it and went to the laundry window at the rear of the house. You proceededto remove the five glass panes from the laundry window, and you climbed intothe building. You then closed the window. You went into the property, and youwere specific in what you did (according to the police investigation) whilstyou were there. You went through the clothing drawers of the occupants. You,as I understand it, entered the two female victims' rooms, searching throughtheir drawers containing their clothes, including undergarments, and sometimelater you left via the same window. You particularly replaced the glass louvrepanes and closed the window as you left.[4] ["Ms A"], the victim who had been to the gym arrived home. Shenoticed a washing trolley which was normally outside had been positionedunder the laundry window, moved two metres into the section. She noticedfootprints across the grass coming from the rear boundary fence towards thatlaundry window and noted amounts of sunflower seed freshly deposited onthe concrete nearby. She inspected the window closer, noticed dirty handmarks and fingerprints on the windowpane as well as blades of grass on theinside of the windowsill and she contacted police. The fingerprints wereidentified as all belonging to you.[5] The same afternoon at 2.30 pm you, for some reason only known toyourself, drove past that address and ["Ms A"] identified your vehicle as itdrove past. That shows quite clearly, in my view, the many times your vehiclehad been outside parked as you had the house under observation. You werearrested. You denied ever having been to the address of [the victims' address].You were entirely unable to explain the presence of your fingerprints on theinside of the louvres.[6] The matter is of concern in that you have seven previous burglaryconvictions and that in August 2021 you were sentenced to 10 months' homedetention on two burglaries. An end sentence of home detention equates to anend point of sentence of some 20 months' imprisonment. In May of 2018 forfive burglaries, eight months' home detention, end point of 16 months.[5] Mr Blackbourn is 26 years of age. As the Judge noted, he has a convictionhistory dating back to 2017, which includes seven burglary convictions and threeconvictions for making intimate visual recordings. He has not previously beenimprisoned and has a six-month-old child, who was born after Mr Blackbourn wasremanded in custody pending sentence on the current matter.The circumstances of the previous offending[6] The circumstances of Mr Blackbourn's previous convictions are relevant. Hewas sentenced by Judge Phillips in May 2018 to eight months' home detention and200 hours community work on five charges of burglary and three charges of makingintimate visual recordings.2 The offending involved using his phone to surreptitiouslyrecord videos of young women while showering in their homes and entering the homesof young women and stealing their underwear.[7] In 2021, Mr Blackbourn was sentenced to 10 months' home detention byJudge Bolstad on two charges of burglary. He entered the bedrooms of two youngwomen in the early hours of the morning and tried to photograph one of them while2 Police v Blackbourn [2018] NZDC 9925.she was sleeping and stole the other's underwear.3 The Judge warned him that "youwill not be afforded this type of leniency if there is another occurrence".4What the District Court decided[8] Judge Phillips was concerned that Mr Blackbourn's pattern of similar sexuallymotivated offending (targeting vulnerable young women) had not been broken by twoprevious sentences of home detention. The Judge adopted a starting point of two yearsand six months' imprisonment having regard to the level of premeditation, theresidential nature of the premises, the early time of the offending, and the seriousimpact on the victims. A four-month uplift was applied for the previous convictions.[9] The Judge allowed a 15 per cent credit for Mr Blackbourn's guilty plea, notingthat it was not entered until the case review stage hearing (which follows a not guiltyplea) after clear fingerprint evidence had been obtained. A further 15 per centreduction was made for Mr Blackbourn's personal mitigating factors, which includeda difficult childhood exacerbated by Mr Blackbourn's mother's death in 2017.However, the Judge expressed reservations about there being a nexus between thesechildhood factors and the offending.[10] This resulted in an end sentence of two years' imprisonment. The Judge didnot consider home detention was appropriate given it had failed to deterMr Blackbourn to date and the proposed address was unsuitable.The arguments on appealFor the appellant[11] Mr Berry, for the appellant, submits that the offending can be categorised as asingle burglary of a dwelling house targeting low value property,5 where no tangiblepreparatory steps had been taken in anticipation of the burglary,6 or where actualsexual contact had occurred.7 Even if the Judge was correct to reject the explanation3 Police v Blackbourn [2021] NZDC 15630.4 At [14].5 Brown v Police [2017] NZHC 632.6 Hayward v Police [2014] NZHC 2286.7 Penitani v Police [2014] NZHC 1622.that the offending was motivated to obtain money to pay a drug debt rather thansexually motivated, the starting point was too high having regard to other cases.Accordingly, Mr Blackbourn's offending should have attracted a starting point ofbetween 20 and 24 months' imprisonment.[12] A lower starting point would then result in a proportionately lower uplift forprevious offending. Mr Berry acknowledged that the uplift proportion of 13 per centadopted by the Judge was appropriate (4 months against a starting point of 30 months).[13] Mr Berry takes issue with the guilty plea credit of 15 per cent. He submits thatpolice did not particularise the imprisonable offence Mr Blackbourn was alleged tohave intended to commit inside the victims' house when he entered it. Only oncediscussions were held with police prior to case review could Mr Blackbourn be giveninformed advice, at which point he pleaded guilty promptly. Mr Berry says a credit of20 per cent should be allowed in the circumstances.[14] Finally, Mr Berry submits that Mr Blackbourn's personal mitigating factorswere dealt with in an unclear way and warranted greater credit than 15 per cent.Mr Blackbourn had expressed genuine remorse, which the Judge dismissed asself-serving, and had requested restorative justice to directly apologise to the victims.Mr Berry submits that the birth of Mr Blackbourn's new baby, Mr Blackbourn'swillingness to participate in restorative justice, and engagement with rehabilitativeprogrammes, along with background factors warrant a greater credit.[15] In particular, counsel submits that Mr Blackbourn's s 27 report should havebeen given greater weight by the Judge. While much of what appears in his s 27 reportmay be described as self-reported, it was cross-referenced with Mr Blackbourn'spartner's account, who has known him for some 14 years. Mr Blackbourn's mother isdead, and his father was not involved in his upbringing, leaving little scope for furthercorroboration. On the point of nexus, counsel submits that Mr Blackbourn'supbringing – involving poverty, serious abuse and neglect, an alcoholic single parent,and, importantly, exposure to burglaries as well as pornography at a young age underhis brother's influence – warrants an independent reduction of 20 per cent. This wouldlead to a total reduction of around 40 per cent.[16] Mr Berry does not challenge the appropriateness of imprisonment as thesentencing outcome.For the respondent[17] The respondent submits that, given the aggravating features ofMr Blackbourn's offending, the starting point was entirely appropriate. The15 per cent credit for guilty plea took into account all the circumstances of the plea,including its entry at Mr Blackbourn's sixth appearance and the strength of theevidence against him. The reduction for personal mitigating factors of 15 per centwas appropriate given the self-reported nature of the contents of the s 27 report, andno further reduction is required for the birth of Mr Blackbourn's baby given there isno existing bond that will be disrupted by imprisonment.The principles to be applied[18] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentencemust only be allowed if the Court is satisfied that, for any reason, there was an errorin the sentence and a different sentence should have been imposed.8 Generally, thefocus in a sentence appeal is on the final sentence rather than the process by which itwas reached.9 In Tutakangahau v R, the Court of Appeal accepted, however, that theremay be cases where "what has gone wrong as such as to require correction albeit thesentence imposed is within range".10[19] Although s 250 does not refer to "manifestly excessive", it is a principle that iswell-established in the Court's approach to determining the extent of any error insentence appeals.11 As the Court said in Tutakangahau v R:12The claim that a sentence is manifestly excessive (or inadequate) is inevitablypremised on the contention of a prior error which often will involve questionssuch as whether the starting point is too high given the facts, or of incorrectdiscounts or as to parity with co-offenders.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.9 Ripia v R [2011] NZCA 101, At [15].10 Tutakangahau v R, above n 8, at [36].11 At [35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].12 Tutakangahau v R, above n 8, at [32].[20] The Court also said if "there is an error of the requisite character, the Courtwill then form its own view of the appropriate sentence".13Assessment of the arguments[21] I do not accept the submission that the absence of the targeting of "high-value"property makes the offending less serious. The fact that Mr Blackbourn continues todeny the offending was sexually motivated is troubling. I consider the Judge correctlyrejected the assertion that the motivation was to pay a drug debt, given thecircumstances of the offending and Mr Blackbourn's history. The premeditationinvolved in watching the house over a considerable period, targeting the clothingdrawers of the two young women, and the inevitable impact on them of knowing theyhad been targeted in this way, makes this a serious example of a lower-level dwellinghouse burglary. I consider the starting point was within the available range albeit atthe higher end.14[22] As noted above, no issue is taken with the percentage adopted for the uplift forprevious convictions (13 per cent). In fact, I consider no issue could have been taken13 Tutakangahau v R, above n 8, at [30].14 I accept Mr Berry's submission that the High Court has said that the 18 to 30 month range referredto in Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78] should not be taken as settinga fixed starting point range for such burglaries: Borthwick v Police [2014] NZHC 2772. However,it remains a useful guide and when cross-checked against the other cases cited to me, I consider astarting point at the top of this range was available (albeit stern). For example, Hayward v Police,above n 6, involved the targeting of a woman in her home on three occasions by entering theproperty and moving security cameras so that they were pointing to the neighbour's property,including climbing a tree and attempting to peer through windows. A starting point of two years'imprisonment was upheld on appeal on one charge of burglary and two of being unlawfully in anenclosed yard. Unlike this case, the burglary did not involve entry to the dwelling-house. TheHigh Court noted: "While the most serious offence, the burglary, was not serious in itself, thetotality of the offending carries potentially sinister overtones as to what might have been intended.The appellant is to be sentenced only on the basis of offending which has occurred, not that whichmight have occurred (sic). However, that context is relevant in assessing the seriousness of theoffending which did occur."with a much greater uplift.15[23] Turning to consider credit given for personal mitigating factors. Guilty pleacredit is an inherently facts specific assessment. As I understand it, Mr Berry wantedto explore possible defences based on his instructions, but ultimately it wasMr Blackbourn's decision to initially plead not guilty. While another judge may havegiven credit of 20 per cent, I consider 15 per cent was within the available range.[24] I am not persuaded the Judge erred by not giving discrete credit for remorse.Mr Blackbourn had the onus of showing that his remorse is genuine and warrants adiscrete reduction.16 As Radich J recently noted in Pene v R, a mere willingness toengage in restorative justice does not by itself justify an independent reduction.17Moreover, expressions of remorse are tempered by Mr Blackbourn's denial that thecurrent offending is sexually motivated, which is likely to be an impediment to himreceiving the rehabilitative assistance he clearly needs.[25] Although Judge Phillips expressed reservations about the self-reported natureof the information in the s 27 report and doubts about a nexus betweenMr Blackbourn's background and the offending, 15 per cent credit was still given forpersonal mitigating factors. I do not share the Judge's level of concern about therequired nexus. I note the Supreme Court in Berkland held that an unduly rigorous15 In Hayward v Police, above n 6, at [11]–[14], a one year uplift (50 per cent) for a "very serious"criminal history was upheld even though the convictions for burglary were not recent. InR v Columbus [2008] NZCA 192 at [14]-[15], the Court of Appeal imposed an uplift of one yearagainst a starting point of one year, six months' imprisonment (66 per cent) for a significant historyof burglary and dishonesty offending. The rationale for such uplifts is explained in Adams onCriminal Law (looseleaf ed, Thomson Reuters) at [SA9.15(6)]: "Recidivist burglary is anexception; significantly higher uplifts for previous offending have frequently been upheld asappropriate: R v Columbus [2008] NZCA 192 at [14]–[15]. An 18-month uplift was upheld inJones v R [2012] NZCA 273. A 12-month uplift was upheld in King v Police [2014] NZHC 2946;Hayward v Police [2014] NZHC 2286; and Moeroa v Police [2015] NZHC 2226. Indeed, previousdishonesty convictions, although aggravating personal circumstances, have often been treated asa component of the burglary starting point, on the basis that it is directly relevant to assessing thedegree of the offender's culpability for the present offence: R v Lowe CA62/05, 4 July 2005;Senior v Police (2000) 18 CRNZ 340 (HC) at [27]–[30]; Hayward at [14]. However, in this eventit is important to avoid double-counting by taking into account previous convictions both in settinga high starting point and in applying a substantial uplift; this will amount to an error of law:Singh v R [2011] NZCA 139 at [15]; Putua v Police [2017] NZHC 103 at [21]."16 Moses v R [2020] NZCA 296 at [24].17 Pene v R [2023] NZHC 1234 at [27] and text accompanying footnote 26.standard should not be applied when determining whether deprivation provides acausative contribution to offending.18[26] I accept that it would have been preferable if the Judge had expressly noted theimpact imprisonment may have on Mr Blackbourn's young child.19 Although it isMr Blackbourn's criminal actions that mean he has been unable to form a connectionwith his baby, his child will also suffer if Mr Blackbourn remains unconnected to thebaby in his early formative months.20[27] However, as Mr Berry notes, the various mitigating features overlap and theJudge did not articulate the specific source of the 15 per cent credit for personalmitigating features. Mr Berry accepted the Judge's scepticism about the relevance ofthe s 27 report makes it likely that the 15 per cent included recognition ofMr Blackbourn's current family circumstances. In any event, the question on appealis whether an overall credit of 15 per cent for these factors was within the availablerange. While another Judge may have been more generous, I consider the credit waswithin range.Resolution of the arguments[28] Drawing these threads together, I consider that there was no error in the30 month starting point (albeit at the high end), or the four month uplift for previousconvictions (which could have been much greater). Even if I am wrong about thestarting point being within the upper end of the range, I consider the combination ofthe starting point and uplift for previous convictions (34 months) to be clearly within18 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].19 The importance of giving consideration to credit for the impact of imprisonment on children hasbeen recently emphasised by the Supreme Court in Philip v R [2022] NZSC 149 at [50]-[52] andsee [53]-[58].20 Although I also accept the submission for the respondent that the impact will not be at a similarlevel to R v Philip, above n 19, where a clinical psychologist provided a report about the impactof imprisonment on children who had a strong bond with the defendant.range.21 More credit might have been given by another Judge for guilty plea, familycircumstances and cultural factors, but 15 per cent was within range. I thereforeconsider the end sentence, although stern, was within the available range.[29] This case demonstrates the points made in Tutakangahau v R that sentencing"is not a science" and an "appellate court does not start afresh nor simply substituteits own opinion for that of the original sentencer."22[30] Mr Berry confirmed that Mr Blackbourn would be willing to undertakepsychological treatment to address the sexual motivation for his offending despitemaintaining there was no such motivation.23 I am grateful to both counsel for makingenquiries post-hearing about the availability of this through the current standardrelease condition that he "take part in a rehabilitative and reintegrative needsassessment if and when directed to do so by a probation officer".24 I have been toldthat a psychologist is not currently available in Gisborne but his CommunityCorrections case manager could assist him to obtain suitable counselling.[31] In the circumstances, I do not consider there is any utility in adding a specialrelease condition that would require him to attend psychological treatment.Mr Blackbourn's expressed desire to rehabilitate should mean he will complete anycounselling his case manager can assist him to obtain. I note that Mr Blackbourn isstill relatively young. At 26 years of age, it is well within his power to change.21 For example, it was two months lower than the 36 months adopted in Hayward v Police, aboven 6. I have not overlooked Mr Berry's submission that the starting points for Mr Blackbourn'sprevious home detention sentences were also 30 months' imprisonment, which was for fiveburglaries in 2018 and two in 2021 compared to one in this case. However, the correctness ofthose starting points is not before me and those offences did not share the same level ofpremeditation as this case. And, again, if I am wrong about the correctness of the starting point,the combined starting point and uplift for previous convictions was clearly within range.22 Tutakangahau v R, above n 8, at [30] and [35].23 The s 27 report, on page 3, noted that he accepted the sexual motivation for his previous offendingbut not for this offence. However, it was also noted he would undertake "sexual counselling ifrecommended".24 Section 93 of the Sentencing Act 2002 and s 14(1)(i) of the Parole Act 2002.Conclusion[32] Accordingly, I am not satisfied that the sentence imposed was in error and thata different sentence should have been imposed.___________________La Hood JSolicitors:Woodward Chrisp, GisborneElvidge & Partners, Napier