Trainor v Police [2020] NZHC 322 (28 February 2020)

Last Updated: 11 March 2020

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000192 CRI-2019-409-000193 [2020] NZHC 322

BETWEEN	ANDREW STEVEN TRAINOR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 February 2020
Appearances:	A J Trainor (Appellant) in person – by AVL A Harvey for Respondent
Judgment:	28 February 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 28 February 2020 at 11.30 am

Registrar/Deputy Registrar

Date:

TRAINOR v NEW ZEALAND POLICE [2020] NZHC 322 [28 February 2020]

Introduction

[1] Andrew Trainor, the appellant, pleaded guilty to breaching a home detention sentence which was imposed on 26 August 2019.¹ The sentence of home detention was imposed for offending in March 2018 (burglary) and February 2019 (petrol drive offs, failing to stop, driving whilst disqualified, reckless driving, and possession of a methamphetamine pipe). On 10 December 2019 Judge Kellar cancelled the appellant’s sentence of home detention and re-sentenced him to two years and one month’s imprisonment.² The appellant appeals this sentence.

Facts

[2] On 29 March 2018 the appellant broke into a shed in Waikuku and stole a red 1989 Holden Berlina station wagon valued at $6,000. He sold the car to a third party who later realised the car was stolen and contacted the police.

[3] While on bail for the burglary charge, and during a period of disqualification from driving:

(a) On 3 January 2019 the appellant was observed driving a car using a cell phone and not wearing a seat belt. He failed to stop when signalled to by the police.

(b) On 1 February at 11.37 am the appellant drove to a petrol station in Darfield. He filled his vehicle with $50 worth of petrol and drove out of the forecourt without paying.

(c) At 12.08 pm the appellant drove to a petrol station in Oxford. He filled the same vehicle with $73 worth of petrol and drove away without paying.

¹ Police v Trainor [2019] NZDC 17026.

² Police v Trainor [2019] NZDC 24939.

(d) At 12.36 pm police signalled the appellant to stop as his vehicle was sought in relation to the two petrol thefts. The appellant did not stop, and the police pursued him.

(e) During this pursuit the appellant drove at speed, drove on the wrong side of a raised centre island, through a stop sign and swerved towards oncoming vehicles. The police abandoned the pursuit.

(f) Shortly after this chase the appellant was located walking along Tram Road, Swannanoa. The vehicle was found in a private driveway. Two glass pipes used for methamphetamine were found inside the vehicle.

[4] On 26 August 2019 Judge Kellar sentenced the appellant to nine months’ home detention at Odyssey House on the above charges.

[5] Four days later, on 31 August, the appellant removed his electronic monitoring bracelet and absconded from Odyssey House. On 3 September Odyssey House discharged him from the programme.

District Court decisions

Sentencing decision – 26 August 2019

[6] Judge Kellar considered the appellant had a high risk of re-offending due to his drug use, and noted his extensive history in the Youth Court from 2005, for offences including driving, dishonesty, violence and non-compliance.

[7] The Judge considered burglary to be the lead charge and set a starting point of one year and six months. To that the Judge added:

(a) six months for the driving whilst disqualified charge;

(b) six months for all other offending;

(c) three months because some of the offending occurred whilst the appellant was on bail and serving other sentences; and
(d) three months for previous dishonesty convictions.

[8] This amounted to a three-year term of imprisonment. Judge Kellar then gave a nine-month discount to reflect the guilty plea, reducing the sentence to two years and three months. He then gave a further discount “looking at the offending as a whole” and came to a sentence of “just under two years”.

[9] In light of the appellant’s need for intensive rehabilitative treatment, the Judge commuted that sentence to one of nine months’ home detention at Odyssey House. He also cancelled the appellant’s sentences of community work, made orders for reparation, imposed post-detention conditions, confiscated the appellant’s motor vehicle and disqualified the appellant from obtaining a driver license for three years.

Resentencing decision – 10 December 2019

[10] In the resentencing decision, Judge Kellar cancelled the sentence of home detention and resentenced the appellant to a term of imprisonment of one year and 10 months on those charges.

[11] The Judge imposed a cumulative three months’ imprisonment for the breach of home detention, taking into account both the appellant’s prompt guilty plea and the seriousness of his breach. This amounted to a total sentence of two years and one month’s imprisonment.

Principles on appeal

[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.³ As the Court of Appeal stated in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.⁴ It is only

³ Criminal Procedure Act 2011, ss 250(2) and 250(3).

⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁵

Submissions

Appellant’s submissions

[13] Mr Trainor appeared in person by AVL.

[14] I explained to him that in the absence of any written submissions received from him, the Court would be most assisted by his identifying at the start the specific reasons why he considers the sentencing went wrong.

[15] Mr Trainor responded that it was because there had been no restorative justice, despite the Judge ordering it, and that although he had asked for a cultural report, none had been provided. In relation to restorative justice, he acknowledged that he had burgled the victim’s house but he explained that he had wanted to say sorry. In relation to his cultural situation, he indicated that he had had a very difficult upbringing and that he had entered the youth justice system at 11 years of age. Although he is partly of Māori ancestry, he has no real association with those roots.

[16] Given that the later breach of home detention was the subject of an uplift in sentence, I asked Mr Trainor whether he wanted to say anything about the breach of periodic detention. He stated that it had been stupid of him. At a time when his children were in the charge of his partner, he had seen stuff on her phone which indicated that she was involved again with drugs. He described himself as “blacking out” (an expression which he is also recorded as having used to the Probation Officer who prepared the pre-sentence report before his last sentencing).

⁵ Ripia v R [2011] NZCA 101 at [15].

Respondent’s submissions

[17] For the Crown, Mr Harvey submitted that Mr Trainor had (by his conduct) left the Court with no alternative to imprisonment. He identified the Judge’s starting point, uplifts, and discount and submitted that each was appropriate.

[18] Mr Harvey submitted that the end-sentence (after the breach of home detention had been taken into account) could appropriately be viewed as a lenient sentence, as could the period of imprisonment which the Judge had arrived at on the initial sentencing (before imposing the sentence of home detention).

[19] Mr Harvey further submitted that, while the end-sentence could not be regarded as excessive when approached on normal principles, it also when imposed had the potential to enable Mr Trainor to be released earlier than if he had been sentenced to a term of imprisonment of between 20 months and 24 months. By then position of a sentence slightly over two years, Mr Trainor became eligible for release at the point he was one-third through the term of imprisonment.

Discussion

[20] The Judge correctly took the burglary as the lead offence. There is no guideline decision for burglary offending. In Arahanga v R, the Court of Appeal indicated that a starting point between 18 and 30 months is appropriate for relatively unsophisticated burglaries of residential properties.⁶ There are a number of comparable cases. Eighteen months was an appropriate starting point in the circumstances of this case.⁷ While the address was not a residential property, the burglary involved a forced entry and the theft of a $6000 vehicle which was then modified and sold.

[21] The uplifts applied by the Judge were similarly appropriate. The uplift of six months’ imprisonment for two charges of driving while disqualified on a third or subsequent occasion, being Mr Trainor’s fourth such offence as an adult, is in accordance with past approaches.⁸ The other uplift appropriately reflected the extent

⁶ Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

7. Toala v Police [2013] NZHC 3270; Tawhara v Police [2015] NZHC 2246; Cook v Police [2019] NZHC 2327; Bates v R [2016] NZCA 456.

⁸ Wiki v Police [2018] NZHC 885; Russell v Police [2018] NZHC 858.

of other offending, the fact that the same occurred while Mr Trainor was already serving other sentences, and the nature of Mr Trainor’s past history of dishonesty and offending.

[22] The full 25 per cent discount for his guilty plea brought Mr Trainor’s potential sentence down to two years and three months. The Judge then stood back and, having regard to totality, came to a sentence of “just under two years”, not specifying an exact period in the sentencing judgment as he commuted the sentence to nine months’ home detention.

[23] On re-sentencing, the Judge recorded that Mr Trainor was effectively been resentenced “to one year and 10 months’ imprisonment” (that is, to a sentence “just under two years”).⁹

[24] Through that that length of sentence, Mr Trainor received a significant discount. The fact that it was then commuted to nine months’ home detention does not alter the fact that one year and 10 months’ imprisonment was well within range, arguably at its lowest end.

[25] The two matters which Mr Trainor particularly wished to refer to are best viewed as matters argued by way of mitigation.

[26] First was his understanding that the Judge had ordered a restorative justice conference. As Mr Trainor indicated to me, he wished to pursue that course for the purposes of apologising to the victim. The victim impact statement reveals that the 85 year old victim decided not to engage in the restorative justice process. The victim recorded in his statement that every time he thought about his (stolen) vehicle, he could feel the stress build up. It was the victim’s entitlement not to engage. I am in any event satisfied that, had there been a restorative justice conference, an apology by Mr Trainor could have counted for little, if anything, in the sentencing process. Mr Trainor’s history of adult offending involves offences of dishonesty dating from 2006, with repeated offending while not in custody. An apology to this particular burglary

⁹ Police v Trainor [2019] NZDC 24939 at [10]; Police v Trainor [2019] NZDC 17026 at [11].

victim could not have warranted any discount (over and above the 25 per cent discount for early plea).

[27] Secondly, Mr Trainor considers that a cultural report may have led to a different outcome. I am not satisfied that that is so. In any event, Mr Trainor was represented by counsel and it was open to Mr Trainor to obtain a cultural report if he wished to do so. The sentence was always going to be one of imprisonment of some length because of the breach of home detention and Mr Trainor’s ineligibility to return to Odyssey House. On the information provided in this appeal, there is no basis for the Court to conclude that a cultural report might reasonably have led the Court to impose a lesser period of imprisonment.

[28] The Judge, on resentencing, added a cumulative three months’ imprisonment for the breach of home detention. In Hunter v Police¸ the High Court upheld a cumulative sentence of six months for a breach of home detention where the breach was “brazen and blatant”.¹⁰ In that case the appellant, rather than obeying his condition to go directly to his home detention address, went from the Court to a retail store, where he stole two pairs of underpants. The breach in the present case was not so brazen, but it is significant that it occurred only four days after the appellant was sentenced to home detention. In the circumstances, a period of three years’ imprisonment (before discount for guilty plea) was available to the Judge.

[29] It follows that the end sentence of two years and one month’s imprisonment was not manifestly excessive. Standing back and having regard to totality, I am satisfied that sentence is appropriate.

[30] For completeness I record that the Judge did not need to take into account the time spent in custody between the breach of home detention and the imposition of the substituted sentence of imprisonment. That period is properly taken into account by Corrections, not by the resentencing judge.¹¹

¹⁰ Hunter v Police [2012] NZHC 3196 at [29].

¹¹ Chief Executive of the Department of Corrections v Sutherland [2018] NZCA 623 at [62].

Order

[31] I dismiss the appeal.

Osborne J

Solicitors:

Crown Solicitor, Christchurch Copy to: A S Trainor