SECKER-ALISON v POLICE [2018] NZHC 3277

SECKER-ALISON v POLICE [2018] NZHC 3277 [12 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000364[2018] NZHC 3277BETWEEN VINCENT WAYNE SECKER-ALISONAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2018Counsel: D Becker and CG Wright for AppellantDG Johnstone for RespondentJudgment: 12 December 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 12 December 2018 at 3 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, Auckland.Crown Solicitor, Auckland.The appeal[1] Mr Vincent Secker-Alison punched his mother in the face, bruising her left eye.He and another burgled an Auckland restaurant, albeit the stolen property wasrecovered. Both offences were committed while Mr Secker-Alison was on bail forcharges of assault and unlawfully being in a building. Judge P J Sinclair sentencedMr Secker-Alison to a term of seven months and two weeks' imprisonment.1Mr Secker-Alison appeals. He contends the sentence is manifestly excessive.Mr Secker-Alison invites attention to an uplift of two months' imprisonment for hiscriminal record; and parity. The co-defendant received a sentence of 100 hours'community work in relation to the charge of burglary.Background[2] Little additional background is required. The burglary involved the removalof soft-drinks and alcohol from the Soul Bar & Bistro in the early hours of16 February 2018. The assault came later: 22 March 2018. As observed,Mr Secker-Alison was on bail on charges of assault and unlawfully entering a building.That offending occurred on 22 May 2017 when Mr Secker-Alison and another enteredthe home of the victim, punched him and stomped on his head. That attack wasretaliatory: the victim had been seeing Mr Secker-Alison's former partner.[3] Judge Sinclair adopted a starting point of three months' imprisonment for themale assaults female charge; a five-month starting point for the burglary charge; madethese cumulative; and then uplifted the starting point by two months. The Judgemitigated the overall starting point by 25 percent; Mr Secker-Alison pleaded guilty "atan early opportunity".2 The Judge made the seven and a half-month term cumulativeon the one-year prison sentence for the May 2017 offending, which had been dealtwith by the time Mr Secker-Alison appeared for sentence before Judge Sinclair.1 Police v Secker-Alison [2018] NZDC 22071.2 At [10].Uplift[4] Mr Becker contends the Judge was wrong to uplift the sentence for previousconvictions because the sentence was made cumulative on the May offending, andMr Secker-Alison's record did not warrant an uplift.[5] I disagree. Mr Secker-Alison had 33 earlier convictions irrespective of the2017 offending, including for common assault (2012), two for fighting in a publicplace (2009 and 2010), assaulting Police (2012), and threatening behaviour (2009).This unaddressed propensity for violence warranted an uplift. That uplift constituted25 percent of the starting point, an unremarkable level, particularly as the offendingwas committed on bail for (similar) 2017 offending. No double-punishment occurredbecause the 2018 offending was discrete from that in 2017, and Mr Secker-Alison'shistory disclosed recent violence apart from that in 2017.Disparity? A manifestly excessive sentence?[6] Mr James Bennett was the co-offender in relation to the burglary.Judge R J Collins sentenced Mr Bennett to 100 hours' community work.3Mr Secker-Alison contends he should not have received an additional penalty, simplybecause imprisonment was required for the assault on his mother.[7] Judge Collins' remarks are brief, presumably because sentencing occurred in abusy list. The Judge did not identify a starting point. The Judge appears to have beenimpressed by the prospect of reform notwithstanding Mr Bennett's "unfortunatehistory".4 Mr Bennett had a job.[8] I accept the two sentences are disparate; indeed, difficult to reconcile. Thereis nothing to suggest one defendant played a significantly lesser role; both defendantswere the same age (then 26 or 27); and both have significant criminal histories.Indeed, Mr Bennett's is worse vis-à-vis dishonesty. However, the Court of Appeal"has said on many occasions that a disparity argument cannot be built on an3 R v Bennet [2018] NZDC 24584.4 At [2].unjustifiable sentence" if the sentence under review is otherwise unimpeachable.5Mr Bennett's sentence was particularly lenient—the Judge's remarks suggest he wason parole for fraud when he committed the offence. Nor should it be overlooked.Mr Secker-Alison was already in prison when sentenced by Judge Sinclair.[9] For these reasons, I do not consider Mr Bennett's sentence controlling. Rather,the decisive question is whether Mr Secker-Alison's sentence is manifestly excessive.[10] Burglary of commercial premises does not always result in imprisonment.6But, it often does. For example, in Wratt v Police the defendant cut through the wirefence of a hardware store and attempted to steal timber.7 He was caught, red-handed,by a Police officer. Mr Wratt's sentence of 15 months' imprisonment was quashed,but Ronald Young J held a starting point of seven months' imprisonment was available.In Craigie v R the defendant and another burgled commercial premises overnight andstole property worth $600.8 The offending was premeditated. The Court of Appealquashed Mr Craigie's sentence of 16 months' imprisonment and substituted a sentenceof 14 and a half months' imprisonment. That reflected a starting point of 12 months'imprisonment, which was "well within range".9[11] Mr Secker-Alison's offending was not premeditated. But, he and Mr Bennettmade several trips into the restaurant's storeroom to steal property over a 15-minuteperiod. The cases above reveal a five-month starting point was readily available. Sotoo the overall starting point (and sentence).Result[12] The appeal is dismissed...Downs J5 R v Feterika [2008] NZCA 127 at [47].6 Marra v Police HC Hamilton CRI-2008-419-5, 26 February 2008; Blance v Police [2015] NZHC2566; and Department of Corrections v Waymouth HC Auckland CRI-2007-404-299, 5 August2011.7 Wratt v Police [2012] NZHC 3137.8 Craigie v R [2012] NZCA 67.9 At [30].