RHIND v POLICE [2019] NZHC 1065

RHIND v POLICE [2019] NZHC 1065 [15 May 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-26[2019] NZHC 1065BETWEEN SIJAYE EDWARD TE PUPUHI RHINDAppellantAND NEW ZEALAND POLICERespondentHearing: 30 April 2019Appearances: R B Quin for AppellantA R A Pell for RespondentJudgment: 15 May 2019JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 15 May 2019 at 11:00 amRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, HamiltonIntroduction[1] Mr Rhind (the appellant) appeals his sentence of 12 months' imprisonment onthe ground that it is manifestly excessive.[2] Having entered a plea of guilty to a charge of attempted theft of a flat screentelevision set, he was sentenced on 20 March 2019 in the District Court at Huntly byJudge Connell.1 He had initially been charged with an offence of burglary2 in relationto the same offending, however when that charge was amended to attempted theft, heentered a plea of guilty to the amended charge, and also to a charge of intentionaldamage of two windows and the wall at the premises where the flat screen televisionwas located.3[3] In addition, he entered pleas of guilty and was sentenced at the same time oncharges of:(a) Breaching post detention conditions by associating with his victimwithout the written consent of his Probation officer.4(b) Breaching post detention conditions by failing to report as directed byhis Probation officer.5(c) Failing to appear in court contrary to the terms of bail. 6[4] On the breach of sentence conditions charges, the Judge imposed a sentence ofthree months' imprisonment to be served concurrently with the sentence imposed onthe attempted theft and wilful damage charges.1 Crimes Act 1961, ss 219, 231(b) and 311.2 Crimes Act 1961, s 231.3 Crimes Act 1961, s 269(2)(a).4 Sentencing Act 2002, s 80U.5 Sentencing Act 2002, s 80U.6 Bail Act 2000, s 38(a).Background[5] Sometime between 28 October and 30 October 2018, the appellant went to thevictim's property. He broke two windows and gained entry. Once inside he attemptedto remove a flat-screen television from the wall, which was unsuccessful and causeda hole in the wall. Some of his blood was spilt during this attempt and was left on thewall. While inside the premises he urinated on the floor of the bathroom, and tookfood from the fridge. When interviewed by police, he said that the granddaughter ofthe occupant of the address had given him permission to enter the property and takethe television. The television was valued at $1450.[6] Although the appellant was initially charged by the police with burglary, theylater accepted that he had been given permission by a relative of the occupant, to stayat the property, and consequently the charge was amended to attempted theft.The Judge's sentencing decision[7] Judge Connell adopted a starting point of 10 months' imprisonment on thecharge of attempted theft.7 He said:[6] I agree with your counsel, a starting point on this, particularly theattempted theft, is a term of I say 10 months' imprisonment. It is not a fullblown burglary and that is why the sentence is reduced in line with thereduction of the charge itself so that is a 10 month starting point.[8] The Judge then added an uplift of three months' imprisonment to take accountof "these six convictions of getting into people's houses and dealing with theirproperty dishonestly ..."8, and a further three month uplift for the charges of breachingsentence conditions. The Judge referred to the breaches of sentence charges and said:[8] Warranted in this case is a three month uplift again so you willunderstand we have got to a point where there is a 16 month term ofimprisonment as a starting point. You are entitled to acknowledgment of yourguilty plea. You get a discount for that. That will be a generous allowance ofsome four months, taking you down to a 12 month term of imprisonment. AsI say no release conditions.7 Police v Rhind [2019] NZDC 6266.8 At [7]SubmissionsThe appellant's submissions[9] The appellant appeals solely as regards the charge of attempted theft. Hiscounsel Mr Quin, submits that the Judge erred by treating the sentencing as if it relatedto an offence of burglary, leading him to adopt a starting point that was too high andan end sentence that was manifestly excessive. The appellant says that although hewas not related to the victim, the Judge erroneously referred to him as having stolenfrom his family, and made other comments which indicated that he was treating theoffending as an attempted burglary.[10] Mr Quin says that if the charge was for an attempted burglary of a residentialdwelling, a starting point of 10 months would have been appropriate, in line with R vArahanga.9 However, for the charge of attempted theft, Mr Quin says a lower startingpoint of three to five months would have been appropriate.[11] Mr Quin accepts however that the appellant's previous convictions warrant anuplift of around three to four months from the starting point. He also notes that theJudge did not refer to the wilful damage charge, and he acknowledges that an uplift onaccount of that charge was warranted as the wilful damage contributed to the overallcriminality of the offending.The respondent's submissions[12] Mr Pell for the respondent submits that given the facts of the offending, thestarting point adopted by the Judge was at the lower end of the available range. Hesubmits that although the appellant was not sentenced for burglary, the aggravatingfactors of breaking and entering of the premises and the damage caused by theappellant to the house as well as leaving his blood and urine behind, are significant tothe assessment of a starting point for the overall criminality of the offending.[13] Mr Pell says that the offending can be contrasted to opportunistic offendingwhere there is an attempt to steal property. Here however, the appellant broke into a9 R v Arahanga [2012] NZCA 480.dwelling house, and once inside damaged a wall when attempting to remove thetelevision set from it, as well as urinating on the floor and leaving his blood on thewall. Mr Pell says that although the appellant was not charged with burglary, thoseaspects of his offending were properly treated by the sentencing Judge as beingaggravating factors of the appellant's offending, and consequently relevant to hisassessment of the appropriate starting point.[14] Mr Pell referred to Henriksen v Police which involved an unsuccessful appealagainst conviction and a sentence of 12 months' imprisonment imposed for the theftof two trailers valued at $1,600.10 Mr Henriksen had asked the complainant if he couldtake some scrap metal from her farm. She said that he could take a length of bailerchain from the rubbish heap. When the complainant later inspected where the chainhad been, she noticed that two trailers were also missing. On appeal, Lang J upheldthe sentence, observing:11Like the Judge, I consider that the offending was of moderate seriousnessgiven the value of the property stolen and the brazen way in which the theftwas committed. An end sentence of twelve months imprisonment was wellwithin the available range having regard to Mr Henriksen's previous history.[15] Mr Pell acknowledges that in Henriksen the theft was a completed offence, asopposed to merely being an attempt, but he submits that nevertheless the instant caseinvolved more serious offending than that in Henriksen because it involved thebreaking and entering of a dwelling and damage being caused to the house. He submitsthat those features of the offending support the adoption of a higher starting point thanHenriksen.[16] Finally, the respondent also acknowledges that Judge Connell erroneouslyreferred to the appellant as having six previous burglary "convictions", when in facthe has three previous burglary convictions, and three Youth Court notations. Asregards the appellant's convictions, which include two for aggravated robbery and onefor wilful damage, the respondent submits that the three-month uplift that the Judgeapplied for previous convictions should be considered lenient.10 Henriksen v Police [2015] NZHC 2572.11 Henriksen v Police at [22].Approach on Appeal[17] This Court will not lightly intervene in a sentence imposed by the DistrictCourt.12 But the Court must allow Mr Rhind's appeal if it is satisfied that, for anyreason, there is an error in the sentence imposed by the District Court and if it issatisfied a different sentence should be imposed.13 In any other case, the appeal mustbe dismissed.14[18] The approach to be taken to an appeal brought under s 250(2) of the CriminalProcedure Act 2011 was addressed by the Court of Appeal in Tutakangahau v R.15 TheCourt said:[30] The practical effect of preserving the approach applied to date is that theappellate court does not just start afresh nor simply substitute its own opinionfor that of the original sentencer. Rather, in the words of Shipton, it must beshown that there was an error "whether intrinsically, or as a result of additionalmaterial submitted" on appeal. If there is an error of the requisite character,the Court will then form its own view of the appropriate sentence.(footnotes omitted)[19] Where an error or errors are found to have occurred, the court's assessment oftheir significance will inform its decision as to whether a different sentence should beimposed. The Court of Appeal noted that although s 250(2) makes no expressreference to a "manifestly excessive" sentence, this concept remains engrained in thecourts' approach to sentence appeals.16Was the sentencing starting point too high?[20] There is no tariff decision for this type of offending. The offence of attemptedtheft carries a maximum penalty of three and a half years' imprisonment.17 Theoffence of intentional damage carries a maximum penalty of seven years'imprisonment.1812 Te Aho v R [2013] NZCA 47 at [30].13 Criminal Procedure Act 2011, s 250(2).14 Criminal Procedure Act 2011, s 250(3).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.16 At [33] and [35].17 Crimes Act 1961, ss 72, 219, 223 and 311.18 Crimes Act 1961, s 269(2)(a).[21] Although the appellant was sentenced for attempted theft and not for the crimeof burglary, the circumstances of the attempted theft, which included him breakingwindows to enter a private dwelling house and once inside causing damage, aredirectly relevant to an assessment of the gravity of the offending and are aggravatingfeatures of the offending.[22] And although the Judge erroneously referred to the offending as involving atheft from a family member, that feature does not appear to have directly influencedthe adoption of the starting point.[23] The Judge referred to the offending as being a burglary, stating:19with the way that I see things when I look at the nature of the burglary andI have already passed the comment around the fact that you are trying to stealfrom your own whānau. You have got into a house, maintaining you had somesort of authority to do so and you know you did not.[24] However, when addressing and setting the sentencing starting point, the Judgecorrected his earlier statement and, in my view, clarified his approach regarding theattempted theft when he said:[6] It is not a full blown burglary and that is why the sentence is reducedin line with the reduction of the charge itself so that is a 10 month startingpoint.[25] Accordingly, although the Judge had described the offending earlier in hissentencing decision as a "burglary", when moving to decide the appropriate startingpoint he was clear that the charge under consideration was attempted theft.[26] Because the nature of the criminality involved here is closely comparable toburglary offending, I consider that some assistance is also derived from comparing thepresent case to cases of burglary with similar features. The Court of Appeal inArahanga v R explained that it has deliberately not set a tariff for burglary becausethe range of circumstances in which the offence can be committed is so varied.Relevantly as regards the present case, the Court of Appeal observed that burglary of19 Police v Rhind [2019] NZHC 6266 at [4].a domestic residence is a significant aggravating feature at sentencing due to theheightened risk of confrontation with occupants. The Court of Appeal said:20Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months' to two years and sixmonths' imprisonment.[footnotes omitted][27] The decision in Henriksen in which a 12-month sentence was imposed afterthe defendant was found guilty at a defended hearing provides a comparison. Thepresent case involved an attempted theft and accordingly is not as serious as the theftof the trailers in Henriksen where the theft of the two trailers was completed.However, in the present case the fact that the attempted theft was carried out followingthe entry into a dwelling house that involved two windows being broken with furtherdamage also caused to the dwelling is a significantly aggravating factor for the samereasons as noted by the Court of Appeal in Arahanga.[28] In my view the circumstances of the appellant's offending, which involvedbreaking windows to enter a dwelling house and then also causing further damage tointerior wall of the house when attempting to remove the television set, place theappellant's offending on a more serious level than the offending in Henriksen. Thecommission of an offence within a dwelling house involves an invasion of theoccupants' privacy and security, which is a seriously aggravating feature of thisoffending.[29] Accordingly, I find that the Judge's adoption of a starting point of 10 months'imprisonment for the attempted theft offending was well within the available range,and certainly not manifestly excessive.[30] The Judge added uplifts on account of the appellant's previous burglaryoffending. While the Judge erroneously referred to the appellant having six rather thanthree convictions for burglary, I do not consider that that error was material in termsof the its effect on the uplift of three months' imprisonment adopted by the Judge.20 Arahanga v R [2012] NZCA 480 at [78].That was clearly appropriate in order to take account of the appellant's relevant andprevious burglary offending, and within range.[31] No issue is taken by the appellant with the Judge having applied an uplift ofthree month's imprisonment as regards the charges of breaching sentence conditions.[32] Finally, the Judge appears to have treated the damage caused to the victim'spremises as being aggravating features of the attempted theft offending andconsequently he did not add a separate uplift for the offending comprised in theintentional damage charge.Conclusion[33] An appellate court will not intervene where the sentence is within range andcan be properly justified by accepted sentencing principles.21[34] Although the appellant has shown that the Judge erred by referring to theoffending as if it was burglary offending, the offending was in substance closelysimilar, as it involved conduct by the appellant which are elements of the offence ofburglary. Moreover, I do not consider that the Judge's use of the term "burglary" whenreferring to the attempted theft offending indicates that he proceeded with thesentencing on the basis that the appellant was being sentenced for the offence ofburglary. The Judge was clear that he was imposing a sentence for the offence ofattempted theft.[35] The starting point adopted by the Judge for the attempted theft offence waswell within range, and the end sentence of 12 months' imprisonment was notmanifestly excessive.Result[36] The appeal is dismissed._____________Paul Davison J21 Tutakangahau v R [2014] NZCA 279 at [36].