BATES v R [2016] NZCA 456

BATES v R [2016] NZCA 456 [23 September 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA306/2016[2016] NZCA 456BETWEEN THOMAS WESLEY BATESAppellantAND THE QUEENRespondentHearing: 5 September 2016Court: Miller, Courtney and Woodhouse JJCounsel: A M Dooney for AppellantA J Ewing for RespondentJudgment: 23 September 2016 at 10.30 amJUDGMENT OF THE COURTSubject to provision of a suitable home detention residence report, the appeal against sentence will be allowed, the sentence of imprisonment quashed, and a sentence of home detention substituted.____________________________________________________________________REASONS OF THE COURT(Given by Woodhouse J)Introduction[1] Mr Bates appeals against a sentence of 18 months' imprisonment for aresidential burglary. The sentence was imposed by Judge Harvey in the Whangarei District Court on 21 June 2016.11 Police v Bates [2016] NZDC 11289.[2] Mr Bates was found guilty of the charge following a trial before Judge Harvey and a jury. The sole issue on appeal is whether the Judge was in error in imposing a sentence of imprisonment rather than a sentence of home detention.The burglary[3] On 19 May 2015 the victims, Mr and Mrs McGregor, encountered Mr Bates as they left their home. They engaged briefly in conversation with Mr Bates and his girlfriend who said they were looking for their dog. The McGregors then left. Shortly afterwards the alarm in their home went off, to which they were alerted by cellphone. On their return, the McGregors found that an iPhone and $15,000 worth of jewellery were missing. The jewellery has not been recovered.[4] Police were able to trace the phone electronically to a house in Whangarei. It was Mr Bates' home. He answered the door. Inside police found the stolen iPhone.They also found two cannabis bongs and six grams of cannabis. When shown a photo montage, Mrs McGregor immediately identified Mr Bates.[5] In addition to the charge of burglary, Mr Bates was charged with possession of the cannabis and possession of a cannabis bong. He pleaded guilty to the two cannabis charges and was sentenced on them when he was sentenced for the burglary. He had been remanded in custody on 7 August 2015 and admitted to electronically monitored bail (EM bail) on 9 September pending trial, which was held on 30 May 2016.Personal circumstances: criminal history and pre-sentence report[6] Mr Bates was aged 26 at the time of the offence. He has one previous conviction for burglary. This was a burglary "by day" in July 2007, when he was aged 18. He was sentenced to five months' home detention. He has seven furtherconvictions through to June 2010. All are for minor, or relatively minor, offences, and none is relevant.[7] In the pre-sentence report the probation officer recorded that although Mr Bates said he was sorry for the victims for having their home violated, he claimed to have no knowledge of the missing jewellery.[8] The probation officer assessed Mr Bates' risk of reoffending as low, based on his offending history in the preceding six years. She said:Mr Bates has not indicated any barriers to compliance with community work now that he is older and has a better attitude. Rehabilitative sentences of supervision and intensive supervision are considered to provide monitoring of risk and interventions to manage that risk.There was a recommendation of supervision and community work. The probation officer also noted in this context that Mr Bates had been subject to EM bail at his home address for approximately nine months without issue.The sentencing[9] The Judge fixed a starting point of 18 months' imprisonment for the burglary.Although there was no direct challenge by the appellant to the starting point, the factors taken into account by the Judge in fixing the starting point do have some bearing on the issue as to the appropriate form of sentence. The Judge rejected a submission for the Crown that the burglary was premeditated; he did not believe that Mr Bates was at the property intending to commit the burglary, finding that he took the opportunity when Mr and Mrs McGregor left. The aggravating featuresidentified by the Judge were targeting of a residential property, the taking of "very valuable" and sentimental property, the fact that the jewellery had not been recovered, and the effect on the victims. The Judge said that he was aware of the effect on the victims having presided over the trial, and that it was considerable.[10] The Judge said in relation to a submission for Mr Bates that an appropriatesentence would be one "short of a full-time custodial sentence":2[18] My concern, Mr Bates, is that you have a previous conviction for burglary and on that occasion you were sentenced to home detention. Here you are back again having committed another very serious residential burglary. The community has had enough of this type of offending. There2 Police v Bates, above n 1.is, at the moment, a major operation by the police to target people who are committing this sort of burglary because it causes so much misery in the community.[21] Giving this matter very careful consideration, Mr Bates, even had there been a home detention appendix done for this sentencing I would not have sentenced you to home detention. The time has come for this Court to send a very clear deterrent message. People who commit residential burglaries are going to go to prison.[11] The Judge made no adjustment to the starting point, notwithstanding the conviction for the two cannabis offences and prior offending. He said the primary reason for not increasing the starting point was to recognise that Mr Bates had spenta month in custody and had spent "a very long time on electronic bail".3Submissions[12] For the respondent, Ms Ewing submitted that the starting point was unimpeachable. There was no material challenge by Mr Dooney, for the appellant, to the starting point as such, and because we are satisfied that the starting point was within range, it is unnecessary to expand on the submissions on this point.[13] Mr Dooney's principal submission was that "the sentence is manifestly excessive in terms of sentence type". He submitted the Judge had not given properweight to the sentencing principle that the Court must impose the least restrictiveoutcome that is appropriate in the circumstances, in accordance with the hierarchy ofsentences set out in s 10A of the Sentencing Act 2002.4 He further submitted that theJudge had given undue emphasis to the burglary in 2007, particularly given its age,and in that regard referred to this Court's decision in R v Columbus.5 The Court inColumbus referred to the need for sentencing judges to guard against the risk ofundue emphasis on past dishonesty convictions.6 However, the Court was referringto undue emphasis on past convictions in fixing the starting point, rather than inassessing the appropriate type of sentence. Mr Dooney also referred to theprobation officer's recommendation of a sentence short of home detention, and3 Police v Bates, above n 1, at [19]–[20].4 Sentencing Act 2002, s 8(g).5 R v Columbus [2008] NZCA 192.6 At [15].Mr Bates' compliance with previous home detention sentences and while on EM bail on the current matter for nine months with a 24-hour curfew.[14] On the question of home detention, Ms Ewing submitted that, given thediscretionary nature of the Judge's selection of the appropriate type of sentence,there was no basis for interfering with the sentence unless there was an error ofprinciple, insufficient or excessive weight given to a particular factor or the Judgewas plainly wrong. Ms Ewing submitted there was no relevant error having regardto the matters referred to by the Judge.Evaluation[15] We are satisfied that the sentence was manifestly excessive for several reasons, taken in combination. First, home detention in this case will meet the relevant punitive aspects of sentencing whilst at the same time imposing the least restrictive outcome that is appropriate in the circumstances. It is not the case that residential burglary must invariably result in a prison sentence. If the appellant was a first offender, the gravity of this offence would not justify a sentence of imprisonment for him, and we are not persuaded that questions of general deterrence would require a different result. The previous conviction for burglary could not properly alter that conclusion because it occurred eight years before the present offence and when Mr Bates was 18 years old.[16] Second, the the previous offence and matters relating to the relative gravity of this offence, notably the non-recovery of the jewellery, can adequately be met by adjusting the length of the home detention sentence.[17] Third, a significant allowance had to be made for time spent on electronic bail. The Judge recognised this, but we think the allowance he made was inadequate. He offset it by not increasing the starting point for previous convictions, but any uplift would only have been a modest one of perhaps three months. Mr Bates had been on EM bail or a 24-hour curfew for eight months, and no credit would be given for that when calculating his release date.Conclusion[18] For these reasons we are satisfied that the sentence of 18 months'imprisonment should be quashed and a sentence of home detention substituted.[19] Assessed against an end sentence of imprisonment of around 15 months, a sentence of home detention of around half that length of time would generally be imposed; that is to say, around seven to eight months. In this case a longer period, of nine to ten months, would have been justified having regard to the matters that were given emphasis by the Judge. But the length of a sentence of home detention to be imposed now has to take account of the fact that Mr Bates has already served close to three months of his prison sentence and of the earlier period of one month in prison on remand. Taking these matters into account we consider the appropriate period of a sentence of home detention should be four months.[20] We are not able at this date formally to quash the existing sentence and substitute a sentence of home detention because there is no current report on a suitable home detention residence. We assume that the address to which Mr Bates was remanded on EM bail will be a suitable address and are advised that will be the proposed home detention residence. We direct that a home detention residence report be provided to this Court without delay. As soon as Mr Dooney has provided the Department of Corrections with the proposed address, the necessary enquiry should be made and the report completed, with the minimum of delay given the outcome of this appeal.[21] Formal orders will be made if a suitable home detention residence report is received. The sentence of home detention will be subject to the standard post- detention conditions specified in s 80O of the Sentencing Act and, to the extent not otherwise covered by the standard conditions, to the following further special post- detention conditions as recommended by the probation officer:(a) To undertake assessments for drug use as directed by a probation officer.(b) If found suitable, to undertake and complete counselling/programme or treatment for drug use as directed by a probation officer and to the satisfaction of the counsellor/programme/treatment provider.(c) To attend assessments for a departmental programme and, if found suitable, to complete a departmental programme and maintenance sessions to the satisfaction of the programme facilitators.(d) To undertake and complete any such counselling as directed by a probation officer.[22] The standard and special conditions will apply for a period of four months from the detention end date. If a suitable address is not nominated the sentence will stand.Solicitors:Crown Law Office, Wellington for Respondent