ANDERSON v POLICE [2021] NZHC 1994

ANDERSON v POLICE [2021] NZHC 1994 [4 August 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-246[2021] NZHC 1994BETWEEN SCOTT CLIFFORD ANDERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 2 August 2021Counsel: D M M Dickinson for AppellantE C Rutherford for RespondentJudgment: 4 August 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 4 August 2021 at 11.30 amRegistrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentIntroduction[1] Mr Anderson appeals the sentence of two years and five months' imprisonmentimposed on him by Judge EP Paul on 14 May 2021.1[2] Mr Dickinson, for Mr Anderson, told me that the aim of the appeal is to havethe sentence reduced to 24 months' imprisonment, a sentence which could then becommuted to home detention to be served at Odyssey House. Odyssey House hasagreed to admit Mr Anderson into its Te Wairua programme commencing on9 September 2021.[3] Mr Dickinson's submission is that the sentence imposed by the Judge ismanifestly excessive in that an additional 10 per cent discount from the starting pointshould have been awarded to better reflect Mr Anderson's personal situation.[4] The insuperable difficulty for Mr Anderson is that I can reduce his sentenceonly if I find an error by Judge Paul such that a different sentence should be imposed.But, in my view, Judge Paul's sentence was merciful and clearly aimed at assistingMr Anderson with his newfound desire to rehabilitate himself. There is no error.Accordingly, I will dismiss the appeal.Reasons[5] Mr Anderson was sentenced by Judge Paul on 28 charges2 to which he hadpleaded guilty. The lead charges were six charges of burglaries of both private homesand commercial premises.[6] I will not describe the offending in detail. There is no need. The burglariesoccurred over a three month period from August to October 2020. Mr Armstrong,during daylight, simply walked into commercial or residential premises and stolethings. On two occasions he was confronted by occupants, and immediately left.1 Police v Anderson [2021] NZDC 9365.2 This is the number given by Judge Paul. But, the Crown counted 29 charges and, looking at thesentences handed down, I identified 27 charges. The discrepancies are immaterial to my decision.[7] Following some of the burglaries, Mr Anderson used stolen credit cards tomake purchases. This resulted in 16 charges of dishonestly using a document.[8] The other charges identified by Judge Paul were two charges of receivingstolen wallets, one charge of being unlawfully in a yard, one charge of theft of a walletand one charge of unlawfully getting into a motor vehicle. This last charge resulted ina loss to the owner of the vehicle of $1,500.[9] Judge Paul adopted a starting point for the six burglaries of three years and sixmonths' imprisonment. This is not challenged on appeal.[10] I consider that the starting point of three years and six months for the sixburglaries was within the range available to the Judge, but was very much at the lowerend of the range.3[11] The Judge then added three months' imprisonment to the starting point for theother charges. The Judge said he did so to take account of totality. That brought thestarting point to three years and nine months' imprisonment. In my view, that upliftwas very generous to Mr Anderson. An overall starting point of four years'imprisonment would have been well within range.[12] Judge Paul then had regard to Mr Anderson's criminal history and imposedwhat he described as "a nominal uplift of three months only".4[13] Mr Anderson was 46 years old at the time of his offending. He has a verylengthy criminal record which includes 15 previous convictions for burglary, and asignificant number of convictions for other relevant dishonesty offending. I wouldhave adopted an uplift of around six months to reflect Mr Anderson's history ofoffending.3 See, for example, Brooking v Police [2020] NZHC 1035, where a four year starting point wasadopted on similar facts, and Woods v Police [2017] NZHC 3093 where two years and nine monthswas adopted for significantly less serious offending.4 Police v Anderson, above n 1, at [10].[14] It follows that I assess the overall starting point adopted by the Judge of fouryears' imprisonment as being very light.[15] Judge Paul discounted the starting point by the maximum 25 per cent to takeaccount of Mr Anderson's pleas of guilty. I note that Mr Anderson's first appearanceon these charges was 12 November 2020 and he entered pleas of guilty on 27 January2021. The Crown does not suggest that the discount of 25 per cent was unjustified. Iaccept it as being reasonable.[16] Judge Paul gave a further 5 per cent discount to recognise Mr Anderson'swillingness to attend restorative justice with his victims and for the fact that he didmeet with one of the victims in what was apparently a positive conference.[17] Mr Dickinson submits that although there is no requirement for a sentencingJudge to take into account remorse and the outcome of a restorative justice conference,nevertheless Judges frequently do grant discounts for these matters and in this case acredit of more than 5 per cent is warranted. He suggests a 10 per cent discount.[18] I disagree. Mr Anderson caused his victims financial loss and is not in anyposition to offer reparation. He has expressed his remorse and it is to his credit thathe attended the restorative justice conference. There was no error on the part of JudgePaul in assessing that a 5 per cent discount was appropriate.[19] Judge Paul had regard to a report which was provided to him pursuant to s 27of the Sentencing Act 2002 and awarded a further 10 per cent discount in response toits contents.[20] Mr Anderson is a New Zealander of European descent. He had an abusivechildhood (including physical and sexual abuse) and became addicted to drugs. At thetime of the offending he had been recently released from prison, had lost hisaccommodation and was living rough on the streets. He had returned to usingmethamphetamine. Judge Paul took these matters into account in adopting the10 per cent discount. In doing so, the Judge carefully weighed Mr Anderson'scommendable rehabilitative efforts while on remand against the fact that Mr Andersonis a mature man who has had opportunities in the past to address his offending. Icannot say that the discount adopted by the Judge was not in the range available tohim.[21] It is trite to say that when an appellate court considers whether a sentence ismanifestly excessive it is the sentence itself which must be evaluated rather than thesteps by which the Judge in the court below calculated it.[22] In this case, the Judge adopted a very low starting point and discounted it by40 per cent. There is no basis for increasing the discount to the 50 per cent leveladvocated for on behalf of Mr Anderson. The final sentence of two years and fivemonths' imprisonment is at the lower end of the range available to Judge Paul.[23] Finally, I note that Judge Paul was aware that Mr Anderson had a placement inOdyssey House. The Judge commented that the sentence he imposed should notdissuade Mr Anderson from pursuing rehabilitation through Odyssey House but saidthat would have to wait until Mr Anderson had served his sentence. In my view, thatwas inevitable given the level of offending for which Mr Anderson was sentenced andtaking into account his mature age and extensive criminal history.Outcome[24] The appeal is dismissed.________________________________Brewer J