HINDMARSH v POLICE [2019] NZHC 160

HINDMARSH v POLICE [2019] NZHC 160 [15 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-338[2019] NZHC 160BETWEEN TROY WAAKA HINDMARSHAppellantAND NEW ZEALAND POLICERespondentHearing: 5 February 2019Counsel: N Bond for AppellantC D Piho for RespondentJudgment: 15 February 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 15 February 2019 at 12 noonpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Public Defence Service (Auckland) for AppellantKayes Fletcher Walker (Manukau) for RespondentIntroduction[1] Mr Hindmarsh appeals a sentence of three years and seven months'imprisonment imposed on him by Judge JC Moses on 19 September 2018.1Mr Hindmarsh bases his appeal on the ground the end sentence is manifestlyexcessive.[2] The appeal is brought under Part 6 of the Criminal Procedure Act 2011 as afirst appeal against sentence. In order to succeed, Mr Hindmarsh must satisfy me thereis an error in the sentence such that a different sentence should be imposed. This testwill be satisfied if the sentence of three years and seven months' imprisonment ismanifestly excessive.Background[3] Mr Hindmarsh was for sentence on 23 charges relating to a number of differentincidents. Crown counsel provided me with a succinct summary of the offendingwhich I adopt and reproduce:Charge Offending summaryUnlawfully takes motorvehicle (ULTMV),reckless driving, failingto stop, failing to stop(aggravated), drivingunder the influence of adrug, possession ofcannabisOn 17 May 2017, the appellant offered to help a stranger parktheir vehicle. Once in control of the vehicle, he drove away.When pursued by police, he refused to stop, crossed the centreline onto oncoming traffic, and exceeded the speed limit(reaching speeds up to 150km). He was arrested after collidinginto an unoccupied stationary police vehicle and power pole(causing over $20,000 in damage), and found to be inpossession of cannabis. He was later found to be under theinfluence of drugs. The victim's $18,000 car was uninsured.Theft (x2) andpossession ofmethamphetamine pipeOn 12 September 2017, the appellant stole property worth$19.34 from Pak n Save Sylvia Park and as a result wastrespassed from Sylvia Park Mall. Around 30 minutes later hereturned to Smart Sushi Sylvia Park and stole further propertyworth $9.50. The appellant was arrested by Police and foundwith a glass pipe on him.Theft On 27 September 2017, the appellant stole a Narva light worth$153 from Repco.Burglary x3 and theft On 3 November 2017m at around 5.45 pm, the appellantentered Farmers New Lynn and took property worth $789.93.He was stopped outside by security staff.On 2 December 2017, at around 5.00 pm, the appellant entereda residential house and broke into two locked rooms inside,taking numerous items. On 4 December 2017, he returned to1 Police v Hindmarsh [2018] NZDC 19952.the same house and entered it through the rear door where hetook further items.On 5 December 2017, at around 2.00 pm, the appellant enteredthe same residential house for a third time, and searched thesame two rooms he had previously broken into. He wasconfronted by a trade's person, who was working within thehouse, and left the address following a verbal altercation.The estimated value of stolen items from the burglaries was$2,000, and included property described by the victim asirreplaceable (including family heirlooms).Burglary x2, ULTMV,failing to stop anddangerous drivingOn 31 March 2018, at around 6.35 am, the appellant entered aresidential home through an open window. The victim wasinside. The appellant took property worth $1,500. The victimwoke to see the appellant leaving.Between 6 am and 7 am on 31 March 2018, while the twovictims were asleep inside their home, the appellant enteredanother address and took property worth around $1,000(including a laptop, cigarettes, and a purse containing bankcards, a driver's licence and car keys). With the stolen car keys,he took a Ford car parked outside.Shortly afterwards, Police located the appellant in the stolenFord car, and signalled for him to stop. He refused to do so. Hesped excessively, resulting in the pursuit being abandoned. ThePolice Air Support Unit, however, later directed staff on theground to apprehend the appellant. The stolen items wererecovered, except for the laptop and a packet of cigarettes fromthe second burglary.Failure to answer DCbail x4On 10 August 2017, 28 September 2017, 31 October 2017and 29 March 2018 the appellant failed to appear in Court.[4] I note at this point Mr Hindmarsh, a mature man aged 32 and 33 years whenthe offending took place, has a considerable list of relevant previous convictions.Again, Crown counsel provided a convenient summary which I now set out:(a) Shoplifting (February 2017);(b) Aggravated robbery (October 2011);(c) Aggravated robbery x2 (September 2011);(d) Burglary (September 2011);(e) Aggravated robbery x2 (September 2011);(f) Possession of instruments for burglary (July 2011);(g) Burglary (May 2011);(h) Robbery – armed with offensive weapon x3 (June 2009 – Australia);(i) Robbery – in company (June 2009 – Australia);(j) Robbery – armed with offensive weapon (October 2004 – Australia);(k) Shoplifting (September 2003 – Australia);(l) Receiving x2 (May 2003 – Australia);(m) Shoplifting (March 2003 – Australia);(n) Larceny x6 (December 2002 – Australia);(o) Shoplifting x3 (December 2002 – Australia);(p) Takes and drives conveyance (May 2002 – Australia);(q) Steal motor vehicle (May 2002 – Australia);(r) Shoplifting (May 2002 – Australia); and(s) Larceny (May 2002 – Australia).[5] Mr Hindmarsh was sentenced to four years and six months' imprisonment on18 May 2012 on five charges of aggravated robbery and one charge of burglary.The District Court sentence[6] Judge Moses structured his sentence in the following way:(a) The lead charges were identified as the offending which took place on31 March 2018, particularly the burglaries. A global starting point oftwo-and-a-half years' imprisonment was calculated.(b) For all the other offending, an uplift of two-and-a-half years wascalculated.(c) An uplift of 10 percent (six months) was imposed to take account ofMr Hindmarsh's relevant record of previous criminal offending.(d) The Judge recognised that much of Mr Hindmarsh's criminal offendingwas rooted in his drug and alcohol consumption, compounded by hisdifficult personal history. Mr Hindmarsh had taken steps to address hisalcohol and drugs problem while in prison. The Judge allowed a15 percent reduction for this.(e) The Judge commented that pleas of guilty to the offending had beenentered at different times for the various charges, but overall allowed a20 percent discount.(f) Finally, the Judge, who had received a letter from Mr Hindmarshreferring to remorse and to his progress in prison in becoming literate,allowed a further two months' reduction for remorse.The appeal[7] The gravamen of the appeal is that Judge Moses adopted an excessive startingpoint in respect of the lead burglary offending and this resulted in the sentence imposedbeing manifestly excessive. Mr Bond, in his written submissions, stated:No issue is taken with the uplift for Mr Hindmarsh's criminal history, or withany of the discounts applied.[8] In Mr Bond's submission, Judge Moses should have taken all five burglariesas the lead offences and adopted a starting point of approximately three years'imprisonment. All the other charges would warrant an uplift of 12 months' to18 months' imprisonment, reducing the overall starting point to between four years'and four years six months' imprisonment. Applying the other uplifts and discountsadopted by Judge Moses, the end sentence should have been between two years10 months' and three years two months' imprisonment.Analysis[9] The difficulty for Mr Hindmarsh, as I pointed out to Mr Bond, is that he cannotjust "bank" the favourable parts of the Judge's decision and attack only theunfavourable part of the decision. It is the end result of three years seven months'imprisonment which must be shown to be manifestly excessive for the Judge to havebeen in error.[10] Putting aside the way in which the Judge structured the sentencing, the overallstarting point for all the offending was five years' imprisonment. In my view, evenproperly taking into account totality, that was a light starting point:(a) The most serious charges can be grouped in three parts. Within eachpart there is multiple offending;(b) The criminality in respect of each part must be assessed taking intoaccount all the linked offending in each part. It is not a matter ofpicking a lead charge and then considering it in isolation from thelinked offending.(c) Although totality is the final analysis, the three parts were separate andcould be dealt with cumulatively.[11] The first part is the offending which occurred on 17 May 2017. On thatoccasion, Mr Hindmarsh unlawfully took a vehicle and then, while under the influenceof drugs, drove in a way which was manifestly dangerous to the public and to thePolice. He was arrested after he crashed the car causing over $20,000 in damage. Hisvictim's car was uninsured. A starting point of at least 18 months' imprisonment couldhave been assessed.[12] The second part is the burglaries of the residential house which was beingrenovated at the time. Mr Hindmarsh burgled that property on 2, 4 and 5 December2017, stealing property valued at $2,000 including – much to the distress of the victim– irreplaceable family heirlooms. During the last burglary, there was a confrontationwith a person working within the house. For these determined and repeated burglariesof a residential dwelling, a standalone starting point of two years' to three years'imprisonment would be available.[13] The third part of the serious offending is that which occurred on 31 March2018. There were two burglaries of residential homes which were occupied at thetime. The victims were asleep in their homes. $1,500 worth of property was takenfrom the first house and around $1,000 from the second house. But, the property takenfrom the second house included car keys which Mr Hindmarsh used to take thevictim's car. There was then another Police pursuit. Mr Hindmarsh again drovedangerously at high speed, causing the Police to abandon the pursuit. I consider astarting point of around three years' imprisonment was available for this offending.[14] The remainder of the offending was small-scale theft and would have to begiven weight when totality was considered but, in the scheme of things, would notresult in a distinct uplift. However, it is relevant because Mr Hindmarsh committedall the offences after 17 May 2017 while he was on bail. In addition to that, on fouroccasions Mr Hindmarsh failed to answer his bail.[15] I will not attempt to calculate the range available to Judge Moses in setting thestarting point. I am satisfied that by any calculation the Judge's starting point of fiveyears' imprisonment was at the lowest end of the range.[16] I consider also that the uplift of 10 percent (six months) to take account ofMr Hindmarsh's criminal record was light. I accept Mr Bond's submission that thepurpose of an uplift to take account of previous criminal offending is not to re-penalisethe offender. Its purpose is to recognise that despite receiving repeated sentences forrelevant offending the offender has not been deterred in his offending. The uplift is toincrease the deterrence.[17] As Mr Piho for the Crown submits, with the sort of criminal historyMr Hindmarsh possesses, an uplift far greater than 10 percent might be expected.Even taking into account totality, an uplift in the range of 20 percent to 25 percentwould be unexceptional.[18] Further, most of the offending occurred while Mr Hindmarsh was on bail. Infact, over the 10 months or so period of offending, Mr Hindmarsh was repeatedlygranted bail and repeatedly went on to commit further offences. This factor justifieda discrete uplift but was not mentioned by the Judge.[19] I accept Mr Bond's submission that in relation to the reductions for personalcircumstances and for the entry of pleas of guilty, Judge Moses was best placed toassess the reductions to be given and I will not comment on them other than to observethey appear generous.Decision[20] It follows that the appeal against sentence must fail. The end sentence was notmanifestly excessive; it was lenient.[21] The appeal is dismissed.________________________________Brewer J