PORTER v POLICE [2017] NZHC 384

PORTER v POLICE [2017] NZHC 384 [9 March 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000129[2017] NZHC 384BETWEEN SHAUN ROY PORTERAppellantAND NEW ZEALAND POLICERespondentHearing: 8 February 2017Appearances: L L Heah for the AppellantE J Henderson & S J Mallett for the RespondentJudgment: 9 March 2017JUDGMENT OF NATION J[1] On 18 February 2016, Mr Porter was found in possession of a pipe for smoking methamphetamine.1 He was charged under s 13 of the Misuse of Drugs Act 1975. He pleaded not guilty on 8 March 2016 and was granted bail.[2] On 25 March 2016, Mr Porter was found in possession of a pipe used to smoke methamphetamine and possession of a knife in a public place. The knife had a folding blade of approximately 10 centimetres in length. He was charged with possession of a utensil for smoking methamphetamine and being in possession of a knife in a public place without reasonable excuse.2 He appeared in Court on those charges on 31 March 2016 and was remanded on bail.[3] On 31 March 2016, Mr Porter went into the Warehouse at the Eastgate Mall in breach of a trespass notice prohibiting him from going to those premises. His first appearance in Court on a charge relating to that was on 16 May 2016.1 Maximum sentence of one year's imprisonment.2 Maximum sentence of three months' imprisonment or $2,000 fine.[4] On 19 April 2016, a burglary occurred at a home in Sockburn. A handbag and wallet were stolen in the burglary. The burglary occurred at around 10.00 pm.The residents at the address were a couple in their 80's. At the time it was taken, thewallet contained an EFTPOS card in the complainant's name. The next day, Mr Porter went to three different service stations where he used the stolen EFTPOS card on five occasions. On three occasions, he was able to purchase items worth $106.75. On two occasions, the transaction was declined. As a result of this offending, Mr Porter faced one charge of burglary3 and five charges of dishonestly using a document to obtain property4.[5] On 11 April 2016, a house in Hawarden was burgled; a wallet was taken. On 13 May 2016, a house was burgled in Rolleston; three firearms were taken. On 19 May 2016, Mr Porter was stopped in a car in Christchurch. In the car, the Police found the wallet from the Hawarden burglary and cash. He was found to be in possession of a starter pistol. Attempts had been made to modify it so it could be a functioning firearm capable of firing a 9 mm ammunition round. Mr Porter was also found to be in possession of a knuckle-duster. Under his seat was a pipe used for smoking methamphetamine along with snap lock bags and some cotton buds. In the backseat of the vehicle was a case containing an imitation Beretta pistol.[6] As a result of this, the Police executed a search warrant on Mr Porter's home.In his bedroom under a mattress, they found a 12-gauge pump-action shotgun, a 7 mm Remington Magnum with a silencer and scope and, on his bed, a 0.22 Ruger rifle with a scope. Inside his bedroom was a large bag full of ammunition for each weapon. On a bedside table was a set of scales, a methamphetamine pipe and more ammunition.[7] As a result of this offending in May 2016, Mr Porter faced one charge of receiving5, one charge of possession of an offensive weapon6, one charge of possession of utensils7, one charge of possession of methamphetamine8, three3 Maximum penalty of 10 years' imprisonment.4 Maximum penalty of seven years' imprisonment.5 Maximum penalty of seven years' imprisonment.6 Maximum penalty of three years' imprisonment.7 Maximum penalty of one year imprisonment.8 Maximum penalty of six months' imprisonment.charges of unlawful possession of a firearm9 and one charge of unlawful possession of ammunition10.[8] Mr Porter appeared in the District Court on most of these charges on 20 May 2016. He was declined bail. He eventually pleaded guilty on 26 September 2016.[9] For this offending, Mr Porter was sentenced on 3 November 2016 to 30months' imprisonment. This was imposed by way of a sentence of 30 months'imprisonment on the burglary charge, with shorter concurrent sentences on most of the other charges. On the charges of trespass and possession of the knife, he was convicted and discharged. He was ordered to pay reparation to three different victims of $556.75. He has appealed against that sentence.Principles on appeal[10] Mr Porter appeals as of right.11 In accordance with s 250 of the Criminal Procedure Act 2011, this Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed, and that an alternative sentence should be imposed. If either element is not satisfied, the appeal must be dismissed.[11] If the sentence under appeal can be properly justified having regard to the relevant sentencing principles, this Court may not merely substitute its own views for those of the sentencing Judge. The exercise of the sentencing Judge's discretioncan only be interfered with if the sentence imposed was manifestly excessive. CitingRipia v R,12 Toogood J in Larkin v Ministry of Development stated:13[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.[12] Similarly, in Tutakangahau v R, the Court of Appeal held that:149 Maximum penalty on each of four years' imprisonment.10 Maximum penalty of four years' imprisonment.11 Criminal Procedure Act 2011, s 244.12 Ripia v R [2011] NZCA 101 at [15].13 Larkin v Ministry of Development [2015] NZHC 680.14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.[13] For the appeal to be successful, then, it must be demonstrated not only that the judge erred in his process of reasoning, but that the end sentence is wrong and should be amended.The District Court Judge's decision[14] The Judge noted the offending, which began on 19-20 April 2016 with the burglary and five charges of document, as being the most serious offending.15 She regarded as particularly serious the offending which was identified on 19 May 2016when Mr Porter's vehicle was stopped, the finding of the knuckle-duster in thevehicle and then, "most seriously", the three firearms located at his home along withammunition. She referred to his previous convictions for 28 or so offences but noted they were largely for small scale thefts. She referred to the pre-sentence report,particularly the way it highlighted Mr Porter's use of methamphetamine as underlying his offending. She noted the way Mr Porter had explained his use ofmethamphetamine and described the "easy" life of drugs.[15] The Judge said the principles of sentencing which she had to take into account included making him accountable, deterring him personally, deterring others generally and protecting property.16 She also acknowledged the obligation to have regard to the totality principle to ensure that the prison sentence for all the offending was not too harsh.[16] The Judge treated the burglary charge as the lead offence but said she would be uplifting it to reflect the other offending which would be dealt with by way of concurrent sentences. She regarded the burglary as being a particularly serious one, involving as it did the burglary of a dwelling house and the potential for confrontation with the vulnerable and elderly residents. She adopted a starting pointof 24 months' imprisonment for that offending. She referred to the seven yearmaximum sentence for the use of document charges but allowed for an uplift of two15 Police v Porter [2016] NZDC 22128 at [3].16 Sentencing Act 2002, s 8.months for those offences. She said the possession of methamphetamine pipescharges were "not particularly serious" but allowed for an uplift of three months forthose offences. She allowed for an uplift of one month on the receiving charge. She regarded the possession of firearms and ammunition charges as being particularly serious and sinister offending, justifying an uplift of eight months. The Judge said that resulted in a total uplift of 14 months which, added to the burglary of 24 months, came to 36 months.17 The Judge then had regard to aggravating features relating to Mr Porter personally and his record of previous dishonesty offending which she again noted was for a number of offences that were "not particularly serious". Theuplift on this account was for a further four months, resulting in a starting point of 40 months. She did not consider him particularly remorseful. She referred to his offer of reparation but did not give him credit for that because he had outstanding fines and reparation of $3,000. The Judge gave him the full 25 per cent discount for earlyguilty pleas, resulting in the end sentence of 30 months' imprisonment.Submissions for appellant[17] For the appellant, Ms Heah submitted the starting point of 24 months for the burglary was too high for an opportunistic entry to the home, no damage to the property and the theft of a modest amount of property stolen. She referred to cases mentioned in a review of sentencing for burglaries in McFall v Police.18[18] Ms Heah suggested there should not have been a cumulative term of one month imprisonment for receiving a wallet, given this offence and the use of the EFTPOS card were both dishonesty offending and proximate in time. She suggested there should not have been any cumulative addition to the starting point for the two charges of possession of the methamphetamine pipe, given those offences invariably attracted non-custodial sentences and the appellant had no convictions for such offending.[19] Ms Heah submitted the addition to the starting point of eight months'imprisonment for the three possession of firearms charges and the charges for17 There was a mistake in the total the Judge arrived at. Instead of 36 months, it should have been 38 months.18 McFall v Police [2015] NZHC 2095.possession of ammunition and the knuckle-duster was excessive, given Mr Porter'slack of previous convictions for such offending, none of the three firearms were loaded at the time of discovery and one of the firearms had its bolt removed and was incapable of firing. She submitted there was no evidence to suggest that these firearms and the ammunition were intended for any criminal or sinister purpose. They were found in his home and were not carried on his person or in a public place.[20] Ms Heah submitted that the Judge had misdirected herself in applying thetotality principle when saying that the principle required her "to ensure that theprison sentence that I impose is not so tough and not so difficult". Section 85(2) Sentencing Act required her to consider, when cumulative terms of imprisonment were imposed, whether they were "wholly out of proportion to the gravity of the overall offending".[21] Ms Heah submitted the uplift for 21 previous dishonesty offences was excessive. She noted that 20 of these convictions were the subject of a single Court appearance on 29 July 2015 and the majority were for theft or shoplifting under $500. She argued that the uplift of four months was disproportionate when set against the total term of imprisonment of one year and three months for the 20 dishonesty convictions for which he was sentenced on 29 July 2015.[22] Ms Heah submitted the Judge had insufficient regard to a purpose of sentencing being to assist in the rehabilitation of the defendant.[23] For the Crown, Ms Henderson submitted the starting point of 24 months'imprisonment on the burglary charge was available and the uplifts imposed on other charges were appropriate and necessary to meet the purposes and principles of sentencing. Due to the miscalculation, a shorter sentence was imposed than would otherwise have been appropriate with the reasoning adopted by the sentencing Judge and therefore the end sentence of 30 months' imprisonment was within the rangeavailable.Discussion[24] This is a case where the admonition of the Court of Appeal, for an appellate Court to focus on the end sentence rather than the process by which it is reached, is particularly pertinent. That is also appropriate in this case when, because of an adding mistake, the end sentence imposed was some two months shorter than could have been arrived at following the process adopted by the Judge. It is also appropriate when the uplifts were for various offences were lower than they could have been because she recognised the need to have regard to the totality principle when determining the end sentence. I do not consider the way she paraphrased her consideration of the totality principle, probably so Mr Porter understood what she was saying, rather than using the words in s 85(2), was a material error.[25] Having said that, I do not consider a starting point of 24 months for the burglary charge was excessive. There is no tariff for burglary offending because of the significant variation in circumstances where the burglary takes place. InArahanga v R, the Court of Appeal has said that burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months.19 The Court of Appeal noted that the burglary of a domestic residence is a significant aggravating feature due to the heightened risk of confrontation with the occupants. The Court of Appeal also considered the fact that burglaries occurred at night was an aggravating feature of the offending.[26] An uplift of four months for aggravating features relating to Mr Porter personally was not excessive. It did equate to a significant proportion of the total sentence for 20 dishonesty offences imposed on 29 July 2015. Those charges were mostly for theft, shoplifting and dishonestly using a document but one of thesentences was for "theft ex-dwelling". The offending spanned a period from 31January 2015 to 6 May 2015. Although the District Court Judge did not mention it,Mr Porter's offending between 25 March 2016 and 20 April 2016 was committedwhen he was on bail for his offence of 18 February 2016. The later offending occurred when he was on bail for the offence of possession of a knife in a public place on 25 March 2015. A report to the Court of 20 May 2016 noted that Mr Porter19 Arahanga v R [2012] NZCA 480.had been sentenced to imprisonment with conditions on release on 1 December 2015 and the end date of that sentence was 6 February 2017, so that all this offending was committed when he was still subject to those conditions.[27] The Judge reasonably inferred that Mr Porter's possession of the firearms,ammunition and nunchuck were for some sinister purpose. Had these charges been considered on their own, they could well have justified a starting point in excess of eight months. Given his propensity for dishonesty and his methamphetamine use, as apparent from those offences, the need to deter him from further offending and to protect the public had to be given priority. In Martin v Police, Williams J upheld on appeal a starting point of 12 months for unlawful possession of a shotgun and ammunition.20 In Mills v R, where the lead offence was possession of methamphetamine intended for sale, the Court of Appeal agreed with an uplift of six months for a single charge of possession of a firearm.21[28] I do not consider that a lesser sentence should have been imposed to assist inMr Porter's rehabilitation. The report to the Court of 20 May 2016 referred to him showing poor compliance while subject to his earlier sentence and his being unwilling to change his offending-related factors and lifestyle. It said his attitude to begin a rehabilitative programme was poor. He was assessed at a high risk of reoffending.[29] The pre-sentence report of Mr Porter described the "easy life" of earningmoney via offending. The extent and nature of the offending for which he was being sentenced indicated that his methamphetamine addiction was putting the community at risk, not just through his dishonesty offending but through circumstances such as the burglary and the possession of firearms, ammunition and an offensive weapon, where there was an increased risk of serious harm to others. He should have the opportunity to address his drug addiction during his prison sentence.20 Martin v Police [2016] NZHC 886.21 Mills v R [2016] NZCA 245.[30] In all these circumstances, I do not consider that the effective sentence of 30months' imprisonment for all this offending was manifestly excessive or that adifferent sentence should have been imposed.[31] Accordingly, the appeal must be dismissed.Solicitors:L L Heah, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.