HORNE v NEW ZEALAND POLICE [2021] NZHC 2623

HORNE v NEW ZEALAND POLICE [2021] NZHC 2623 [4 October 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000114[2021] NZHC 2623BETWEEN ZANE BRYSON PETER HORNEAppellantAND NEW ZEALAND POLICERespondentHearing: 30 September 2021Appearances: P M Faletanoai-Evalu and J M Grainger for AppellantS J Mallett for RespondentJudgment: 4 October 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 4 October 2021 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Zane Horne, was sentenced by Judge Couch to 25 months'imprisonment in relation to one charge of burglary.1 He appeals that sentence on theground it was manifestly excessive.Background[2] On 4 January 2020, Mr Horne went to an address in Addington. The victimwas not at home at the time. Mr Horne smashed a bedroom window and gained entryto the house. He took a number of items including a laptop and a hard drive, the totalvalue being more than $1,000. Before leaving the property, Mr Horne cut the CCTVcords at the front door.District Court decision[3] Judge Couch was both the trial Judge and the sentencing Judge. Based on hisfindings at trial he identified a number of aggravating factors including: the burglarywas of the victim's home and involved the unlawful presence in a dwelling house; thepremises were secured and Mr Horne gained entry by breaking into a window; and theburglary occurred in the early evening when there was a significant risk ofencountering the occupant.[4] The Judge also found there was an "irresistible inference" that Mr Horne chosethe victim's home to burgle as he had previously been a guest there, some 10 daysearlier over the Christmas period. It follows, the burglary was premeditated and, to adegree, involved a breach of the victim's trust. A number of items were taken duringthe burglary and have not been recovered. Further, the effect on the victim has beenserious and the burglary has continued to affect her for a long time.[5] The Judge adopted a starting point of two years' imprisonment. A five per centuplift was applied to reflect Mr Horne's significant criminal history, includingeight convictions for dishonesty offending. The Judge found there were no mitigating1 Police v Horne [2021] NZDC 14222.factors that justified a reduction in sentence. This resulted in an end sentence of25 months' imprisonment.Principles on appeal[6] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower Court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4SubmissionsAppellant's submissions[7] Mr Faletanoai-Evalu, for Mr Horne, submits the starting point adopted by theDistrict Court Judge was too high. No issue is taken with the uplift of one month forprevious offending. In Mr Faletanoai-Evalu's submission, the excessive starting pointmeant that an electronically monitored sentence could not be considered, which wouldhave been the least restrictive outcome.[8] It is submitted low level complexity burglaries involving a breach of trustattract a starting point of approximately 18 months' imprisonment.Mr Faletanoai-Evalu refers to Paul v Police,5 Gibb v R,6 Zimmerman v Police,7Mackie v Police8 and French v Police.92 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Paul v Police [2015] NZHC 2583 at [28].6 Gibb v R [2017] NZCA 532.7 Zimmerman v Police [2014] NZHC 3233.8 Mackie v Police [2012] NZHC 1654.9 French v Police [2015] NZHC 2635.[9] Mr Faletanoai-Evalu submits a starting point of 18 months would allow analternative to a sentence to be imposed. This approach would be consistent with s 16Sentencing Act 2002 which provides that the Court must have regard to the desirabilityof keeping offenders in the community as long as it is aligned with the safety of thecommunity.[10] Mr Faletanoai-Evalu submits a sentence of home detention is a real alternativeto imprisonment, carrying in considerable measure the principles of deterrence anddenunciation. Mr Horne has never been sentenced to an electronically monitoredsentence and therefore his ability to comply has never been tested.[11] In the alternative, Mr Faletanoai-Evalu submits a combination of intensivesupervision and community detention is open to the Court. The pre-sentence reportrefers to Mr Horne as having a lack of insight into his offending and no motivation toaddress his drug use. However, in Mr Faletanoai-Evalu's submission, the absence ofsuch factors should not serve as a barrier to a supervisory sentence.10Respondent's submissions[12] Mr Mallett, for the respondent, submits the starting point adopted by theDistrict Court was within range. In support of this he refers to Ivar v Police,11 Nelsonv Police,12 Johnstone v Police13 and Harraway v Police.14 Even if this Court considersthe starting point was too high, it is submitted the lenient uplift for previousconvictions means the end sentence was not manifestly excessive.[13] In the event this Court finds the end sentence was manifestly excessive and asentence of less than two years' imprisonment ought to be imposed, Mr Mallettsubmits home detention is not appropriate in this case.[14] Mr Mallett refers to the pre-sentence report which states Mr Horne denies hisoffending and, therefore, demonstrates no remorse or insight into his offending-related10 Referring to Ranford v Police [2021] NZHC 132 at [24].11 Ivar v Police [2021] NZHC 493.12 Nelson v Police [2012] NZHC 2266.13 Johnstone v Police [2012] NZHC 551.14 Harraway v Police [2018] NZHC 761.behaviours. It is noted the pre-sentence report assessed the likelihood ofnon-compliance as high.[15] The respondent's position is the purposes and principles of sentencing wouldnot be met by a sentence less than imprisonment. Further, it is noted Mr Horne doesnot appear to have a home detention address.Analysis[16] There is no tariff or guideline judgment for burglary because of the variety ofcircumstances in which the offence may be committed.15 A burglary of a dwellinghouse is a significant aggravating factor,16 as this gives rise to a heightened risk ofconfrontation with the occupants.17 In Arahanga v R the Court of Appeal suggestedthat "[d]welling house burglaries at the relatively minor end of the scale tend to attracta starting point of approximately 18 months to two years and six months'imprisonment."18[17] While that statement alone suggests the starting point was clearly within range,the following cases offer some guidance on sentencing for burglaries of this nature:(a) In Gibb v R the Court of Appeal upheld a starting point of 18 months'imprisonment for a burglary charge that involved the defendantentering his former partner's address and stealing valuable items.19However, the Court noted a starting point of "at least 18 months" waswarranted on that charge.(b) In Mackie v Police a starting point of 18 months' imprisonment wasimposed on appeal in place of a sentence of 24 months.20 There, thedefendant smashed a glass panel at the rear entrance to a dwelling houseand took items valued at $1,500 including personal documents relating15 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].16 Sentencing Act 20002, s 9(1)(b).17 Arahanga v R, above n 15, at [78].18 At [78] (footnotes omitted).19 Gibb v R, above n 6.20 Mackie v Police, above n 8.to the victim. While Mr Horne places particular reliance on this case,Woolford J accepted that there were no aggravating features of theoffending. Furthermore, the items were subsequently returned to thevictim with the defendant's assistance.(c) In French v Police a starting point of 20 months' imprisonment wasapplied on appeal for a charge of burglary.21 The defendant had entereda residential dwelling and stolen $1,340 worth of jewellery that hadsentimental value to the owner.(d) In Ivar v Police, a starting point of 20 months' imprisonment was notdisturbed on appeal for offending that involved entry into a residentialaddress and stealing a PlayStation, games and a security camera.22(e) In Nelson v Police the defendant entered a residential dwelling, tookelectronics and jewellery valued at $800, when the occupiers of thehouse were not home.23 On appeal, a starting point of 21 months'imprisonment was adopted.(f) In Johnstone v Police the defendant entered into a dwelling house andtook property that was of significant financial and sentimental value.24There was limited damage to the house or premeditation. The startingpoint of 24 months' imprisonment was upheld on appeal.(g) In Kopara v Police, Mander J on appeal adopted a starting point "in themid-range of the scale" identified in Arahanga (two years and threemonths' imprisonment) for a burglary of a dwelling place when thedefendant knew there would be no risk of confrontation with theoccupants, but (as in this case), he had been a guest in the house a short21 French v Police, above n 9.22 Ivar v Police, above n 11.23 Nelson v Police, above n 12.24 Johnstone v Police, above n 13.time before and where the items taken were valued at more than$6,000.25[18] The aggravating factors of Mr Horne's offending are that it involved entry intoa dwelling house in the early evening when there was an increased risk of encounteringthe occupant; the offending was premeditated and it involved a breach of trust asMr Horne had been invited to the home as a guest on a previous occasion. The laptopwhich was taken contained photos and videos of the victim's daughter when she wasyounger which are of significant sentimental value. When items of sentimental valueare taken and lost, that is an aggravating feature, just as is the loss of items ofsignificant financial value. Furthermore, the impact on the victim is an aggravatingfactor. Since the burglary she has been seeing a counsellor, requires medication toassist with sleep, and has a fear of leaving the house.[19] Having considered the cases referred to above, and, more importantly, therange given in Arahanga, along with the aggravating factors of Mr Horne's offending,I consider the starting point was within the available range.[20] Appropriately, Mr Horne does not challenge the uplift of one months'imprisonment to reflect his significant criminal history which involves 38 convictionsincluding eight convictions for dishonesty related offending, albeit most of thoseconvictions are of some vintage. The lenient uplift confirms my view the end sentenceis within range, and I do not need to consider the issue of whether there should be asentence of home detention.Conclusion[21] The appeal is dismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch25 Kopara v Police [2014] NZHC 2222.