Vale v Police [2020] NZHC 3520 (22 December 2020)

Last Updated: 10 February 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-000434 [2020] NZHC 3520

BETWEEN	DANIEL VALE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 December 2020
Appearances:	J Grainger and R Malolo for Appellant S Teppett for Respondent
Judgment:	22 December 2020

JUDGMENT OF DUFFY J

This judgment was delivered by me on 22 December 2020 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Public Defence Service, Auckland Crown Solicitor, Auckland

VALE v NEW ZEALAND POLICE [2020] NZHC 3520 [22 December 2020]

• [1] Daniel Vale pleaded guilty to one charge of burglary.¹ On 9 October 2020, Judge D J Sharp sentenced him to 18 months’ imprisonment. Mr Vale now appeals against this sentence on the basis the sentencing Judge erred in imposing the sentence and a different sentence should be imposed. ²

The offending

• [2] On 10 August 2020, at about 1.00 am, Mr Vale threw a rock through the window of the New Zealand Coffee Company café in Grafton. He went inside and took some electronics, cups, and coins. Mr Vale was arrested soon thereafter, and the stolen property was recovered.³

Personal circumstances

• [3] Mr Vale is a 42 year old male of European descent. The provision of advice to courts report (PAC report) records that the sentencing for the present offence was the 51^st time that Mr Vale was before the Court for sentencing. He has 42 convictions for burglary, 40 convictions for other dishonesty offences, 57 convictions for wilful damage and graffiti, two arson convictions, seven convictions for assault or breaching community-based sentences and orders, nine drug possession convictions and 15 other convictions for minor offences. Underlying Mr Vale’s offending are mental health issues which he refuses to recognise. The PAC report records a diagnosis of Asperger Syndrome and paranoid schizophrenia. Asperger Syndrome is said to cause Mr Vale to have significant difficulties in social interaction and nonverbal communication as well as to have restricted and repetitive patterns of behaviour and interests. The report writer describes him discussing Scientology throughout the interview and being unable to sit down for the duration of the interview. The writer found it difficult to focus Mr Vale on the purpose of the PAC report.

• [4] Before his imprisonment Mr Vale was essentially homeless and unemployed. My understanding is that he receives an invalid’s benefit. Although he denied the reality of his circumstances, he was sleeping in a derelict building beside St Benedict’s

¹ Crimes Act 1961, s 231(10(a), carrying a maximum penalty of 10 years imprisonment.

² Criminal Procedure Act 2011 s 250(2).

³ It is unclear what the value of the stolen goods was.

Catholic Church, Eden Terrace. The persons at St Benedict’s helped him from time to time and he provided work for them by helping maintain the church grounds. He did the same for the City Side Baptist Church and Lifewise Merge Café, which is connected with the Methodist Church.

• [5] The PAC report writer observes that community based rehabilitative sentences have not significantly impacted on Mr Vale’s offending.

The District Court decision

• [6] Judge Sharp noted that this was a burglary of a commercial property and that Mr Vale had caused damage to the property which resulted in a significant financial burden for the victims whose small business was suffering.⁴ In setting the starting point the Judge noted there is no tariff case for burglary and that an assessment of the circumstances must be undertaken.⁵ Turning to those circumstances, the Judge did not accept Mr Vale’s explanation that the burglary was an impulsive act motivated by hunger.⁶ Rather, based on Mr Vale’s “vast number of previous convictions ... for burglary offending” the Judge considered that Mr Vale must have been aware that breaking into the café would provide an opportunity to steal valuable items.⁷ Nevertheless, the Judge took the view that because there had been a reduction in seriousness and frequency of Mr Vale’s offending, it was not appropriate to treat him as “a consistent and persistent offender in respect of burglaries”.⁸

• [7] With those comments in mind the Judge adopted a starting point of 20 months’ imprisonment.⁹ Although he thought that Mr Vale’s prior convictions warranted an uplift of 10 months, the Judge limited the uplift to one of six months on the basis this factor had also been considered in setting the starting point.¹⁰ The Judge then granted a two month discount for remorse and efforts at restorative justice, bringing the

⁴ At [8].

⁵ Police v Vale [2020] NZDC 21677 at [6].

⁶ Mr Vale also suggested that he was motivated by a desire to “go to jail for a while”.

⁷ At [9].

⁸ At [10].

⁹ At [10].

¹⁰ At [11].

sentence down to 24 months. He then applied a discount of 25 per cent for Mr Vale’s early guilty plea, which resulted in an end sentence of 18 months’ imprisonment.¹¹

• [8] Although this brought the sentence within the available range for a sentence of home detention, given Mr Vale’s history of non-compliance with non-custodial sentences in the past, the Judge was clear that this was a case “in which deterrence and denunciation could not be met in any way other than by a custodial sentence”.¹²

The appeal

• [9] Mr Vale contends that the 20 month starting point was excessive, as it was set primarily by reference to his previous burglary convictions, and that the six month uplift was excessive and risked double counting those same previous convictions.

The respondent’s position

• [10] The respondent contends that given the aggravating factors of the offending and comparator cases; the starting point adopted by the Judge was within the available range.

• [11] The respondent also contends that the uplift provided by the Judge was appropriate given Mr Vale has 42 convictions for burglary, the most recent of those being in 2017. The respondent argues that there was no double counting of Mr Vale’s previous convictions because the Judge only considered Mr Vale’s previous convictions when determining whether the offending was spontaneous or premediated, not in arriving at the starting point. Thus an uplift was still required and here the six month uplift was entirely within the available range.

• [12] In any case, the respondent argues, the end sentence is not manifestly excessive, and so the appeal must fail.

¹¹ At [13].

¹² At [17].

Approach on appeal

• [13] An error warranting interference by this Court on appeal will arise either because the sentence was manifestly excessive or wrong in principle.¹³ In Tutakangahau v Police the Court of Appeal stated that the concept of “manifestly excessive” is a means of examining the significance of the error in a sentence, to decide whether a different sentence should be imposed.¹⁴ The court’s focus should be on the final sentence imposed rather than its component parts or how the sentence was eventually reached.¹⁵

Discussion

• [14] Sentencing for burglary offending can follow two approaches. The first follows the approach set out by the Full Court in Senior v Police, which identifies three categories of burglar: first time; recidivist and spree.¹⁶ The chosen starting point takes account of the type of burglar, which means that in the case of recidivist and spree burglars their criminal history for this offending will be reflected in the starting point.

• [15] Senior pre-dated R v Taueki, which introduced a specific sentencing approach that is now generally applied to all types of offending.¹⁷ The Taueki approach requires the adoption of a starting point that reflects the gravity of the index offending and aggravating circumstances relevant to the offender, such as criminal history, are provided for in the sentence by way of a separate uplift.¹⁸ A Taueki approach was applied to burglary sentencing by the Court of Appeal in R v Columbus.¹⁹ To date the two approaches are still followed by sentencing Judges.

• [16] What is important is that a sentencing Judge who follows a Senior approach does not fall into the trap of double counting an offender’s criminal history by taking

¹³ R v Brooks [1950] NZLR 659 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.

¹⁴ Tutakangahau v R [2014] NZCA 279 3 NZLR 482.

¹⁵ Ripia v R [2011] NZCA 101 at [15].

¹⁶ Senior v Police (2000) 18 CRNZ 340 (HC).

¹⁷ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

¹⁸ The recent decision of Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 as explained in Gray v R [2020] NZCA 548 has further altered the structure of the Taueki approach as will be explained later herein.

¹⁹ R v Columbus [2008] NZCA 192; See also Blisset v Police [2013] NZHC 156.

account of the criminal history in the choice of starting point and then subsequently adding an uplift for that same factor.

• [17] Here the Judge has seemingly applied a mix of the Senior and the Columbus approaches. At [9] the Judge records that he considers offending that appeared to be impulsive and driven by hunger was more pernicious given the previous convictions for burglary. This suggests to me the Judge was not considering the index offending in isolation when he chose a starting point.

• [18] Then at [10] the Judge records that given there has been a reduction in offending he was not going to treat Mr Vale as a “consistent and persistent offender in respect of burglaries”. This led the Judge to adopt a starting point of 20 months’ imprisonment.

• [19] The effect of [9] and [10] of the sentencing notes suggests to me that the structure of the sentence is neither a true reflection of the index offending simpliciter (a Columbus approach) or one that has factored in the previous offending (a Senior approach). Instead it seems to be a mix of the two approaches. The Judge acknowledges this in [11] because he then says the uplift for criminal history will be less than what he would have done had he not taken Mr Vale’s criminal history into account in the choice of starting point. For this reason, the Judge uplifted by six months rather than 10 months.

• [20] The mixed approach the Judge adopted increases the risk of double counting, and because the criminal history is taken into account more than once it makes it more difficult to analyse the sentence when it comes to ascertaining whether it is within the range of appropriate sentences for an offender like Mr Vale. Here there is a real risk there was double counting of Mr Vale’s criminal history. Particularly given the character of Mr Vale’s offending.

• [21] A Senior approach will work for burglars that fall within one of the three categories identified in Senior. In my view Mr Vale falls outside those categories. He was described by the Judge as a persistent burglar, which would place him in the category of Senior recidivist burglars. However, there are different types of recidivist

burglars as was recognised in Columbus. Typically, there are those who burgle for commercial gain; they can expect sentences weighted in favour of deterrence and denunciation. But Mr Vale is not in this category. He is someone whose poverty and mental health problems (which he refuses to acknowledge) have left him vulnerable to the vagaries of those conditions. As was recognised in Columbus “the principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself”.²⁰ Because the type of offending displayed by Mr Vale falls outside the three categories identified in Senior it is best dealt with by a Columbus approach, which allows the sentencing Judge to focus on the index offending for the starting point and then to consider an appropriate uplift for the criminal history.

• [22] Here the index offending is low level burglary. First, it was burglary of commercial premises at an early hour of the morning when no occupant was likely to be on the premises. This is to be contrasted with burglary of a domestic residence, which is a significant aggravating factor.²¹ Whilst it did involve a breaking and entry the items taken were an iPhone, iPad, Lenovo Tablet, Kepa cups and coins. When located by the police Mr Vale was found to be in possession of $55.00 of coins and the other items, which had been dumped, were recovered. Thus, the main injury to the victim was the cost of the breaking into the premises. Secondly, Mr Vale said he had stolen the items to get food for himself. Given his personal circumstances this explanation is likely to be truthful. The offending was opportunistic and spontaneous rather than calculated offending carried out for commercial gain. In Columbus such offending was said to warrant a starting point of 12 months’ imprisonment.

• [23] Accordingly, I accept Mr Vale’s argument that when the offending is viewed in isolation the starting point of 20 months’ imprisonment is excessive.²² The respondent has sought to distinguish Mr Vale’s circumstances from the cases he relies upon on the grounds those cases did not involve “breaking and entering”. The respondent refers by comparison to Wharerau v R where a starting point of 24 months’ imprisonment was adopted for offending on two occasions where a rock was used to

²⁰ Columbus at [15].

²¹ See Arohanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

²² See Gardiner v Police [2015] NZHC 1241; Charlett v Police [2014] NZHC 3002; R v Columbus

[2008] NZCA 192.

break a window at a supermarket and alcohol was stolen.²³ The respondent also points out that the impact on the victims in this case is more significant than in Wharerau given that here they are small business owners. I reject those submissions.

• [24] Mr Vale’s offending is less serious than that in Wharerau, which involved two incidents, whereas here there is only one. The offending is also less serious than in Columbus. In that case Mr Columbus forced open the vehicle access door of a garage at a residential property causing damage, which cost $672 to repair. He also stole a lawn mower, a mountain bike, gardening tools and a toolbox. Also, while on bail, Mr Columbus drove to a service station and pumped $68 worth of petrol into his vehicle but departed without paying. Mr Columbus had 89 previous convictions, of which 13 were for burglary and 34 were for property related offences. On appeal, the Court of Appeal considered that the burglary was at the lower end of the scale, and a one-year starting point was appropriate. This was adjusted up by six months to account for the other offending, and then by another year to account for the previous convictions.

• [25] On the other hand, Mr Vale’s offending is somewhat more serious than that in Gardiner and Charlett where starting points of eight months and six months were adopted respectively. Mr Gardiner entered a takeaway shop through a closed gate and twice, took some food items from a chiller, motivated by his hunger to do so. Mr Charlett stole a number of low value grocery items from a dairy and a PAK’nSAVE supermarket. Although the offending is similar in nature, I agree with the respondent that Mr Vale’s offending is more serious than in those cases as here it involved breaking into the victim’s premises, which necessarily had a greater impact on the victims.

• [26] Accordingly, I consider that a starting point of nine months’ imprisonment is appropriate. This assessment is made without consideration of Mr Vale’s history of other burglary offending.

• [27] I consider there needs to be some uplift to recognise Mr Vale’s previous history, which includes 42 burglaries. Uplifts for previous convictions are made for three reasons: (a) as an indicator of character and culpability; (b) need for deterrence; and

²³ Wharerau v Police [2017] NZHC 72.

(c) as an indicator of risk of reoffending.²⁴ However, it is important when dealing with offenders like Mr Vale to recognise that their offending is essentially driven by their impoverished personal circumstances and mental health problems. Their offending does not necessarily indicate a general disrespect for the law or authority. Deterrence will have little effect. I have the clear impression that Mr Vale’s mental health disabilities leave him with little insight or ability to control his impulses, particularly when they are triggered by strong drivers such as hunger. I doubt that deterrence and denunciation are factors that will weigh on Mr Vale and influence his conduct in the future.

• [28] Also, it is important that Mr Vale not be penalised more than once for his offending.²⁵ If he were to receive stern uplifts for his previous history each time he re-offended he would be penalised multiple times for the earlier offending.

• [29] Finally, as regards Mr Vale’s previous convictions being an indicator of his risk of reoffending, there is no doubt, while his circumstances remain the same, there is a strong likelihood of re-offending. However, there has been no escalation in the seriousness of the offending.

• [30] Further, I note that the last previous offending occurred in October 2018, which suggests that despite the difficulties of his circumstances the re-offending is diminishing. This is to his credit. Accordingly, I consider that an uplift of no more than three months is appropriate.

• [31] I next turn to mitigating factors. The Judge gave Mr Vale a two-month credit for remorse and attendance at a restorative justice meeting. The Judge said he would have given a greater discount but for Mr Vale’s criminal history. By adopting a diminished discount to reflect Mr Vale’s criminal history the Judge has for the third time taken note of Mr Vale’s criminal history.²⁶ This was another error. The criminal history should have been taken into consideration once only.

²⁴ Reedy v Police [2015] NZHC 1069 at [19].

²⁵ See R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 (CA) at [9].

26. See [17] and [19] herein where the earlier occasions in which the criminal history was taken into account are explained.

• [32] Mitigating factors are usually quantified by percentages. Mr Vale’s mental health problems and his impoverished circumstances are mitigating factors which require recognition. In Zhang v R²⁷ the Court of Appeal, albeit dealing with methamphetamine sentencing, recognised that mental health issues were mitigating factors that could attract an appropriate discount.²⁸ Also in Zhang v R the Court of Appeal recognised that poverty and deprivation were vulnerabilities that required consideration in sentencing by way of mitigating discounts.²⁹ Whilst the Court of Appeal referred to the poverty and deprivation resulting from loss of land, language, culture, rangatiratanga, mana and dignity, all of which are most relevant to Māori, the considerations of poverty and deprivation were not necessarily limited to those factors. I consider someone with mental health problems who is also homeless and unable to work to support himself is necessarily within the concept of poverty and deprivation envisaged in Zhang v R.

• [33] Further, I see no basis why the reasoning relevant to mitigating factors for offenders applied in Zhang to drug offending should not be applied when considering mitigating factors relevant to other types of offenders, especially when they suffer from the same conditions.

• [34] There are also the mitigating factors of remorse and attendance at a restorative justice meeting which the Judge correctly recognised. I consider that here an appropriate discount for the personal mitigating factors would have been 15 per cent.

• [35] The Judge gave Mr Vale a full 25% discount for his guilty plea, which I consider was appropriate.

• [36] The result is a total discount for mitigating factors of 40 per cent.³⁰

• [37] Moses v R has introduced a new approach to the structure of sentencing when it comes to applying discounts and uplifts for factors personal to the offender. As

²⁷ Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

²⁸ See above at [10] (k).

²⁹ See above at [10] (l).

³⁰ The calculation of the discounts for mitigating factors in this way is consistent with Moses v R

[2020] NZCA 296, (2020) 29 CRNZ 381 at [46] and [71].

explained in Gray v R the personal mitigating discounts are calculated from the starting point without taking account of any uplifts for personal aggravating factors.³¹ The mitigation discount reduces the adjusted starting point to a sentence of five months’ imprisonment.³² There remains the uplift of three months’ imprisonment. The result is an end sentence of eight months’ imprisonment. This is significantly lower than the sentence reached by the Judge, which means the errors he made have resulted in a manifestly excessive sentence. Accordingly, the appeal should be allowed, and a new sentence imposed on Mr Vale.

• [38] The sentence I have arrived at is one of nine months’ imprisonment. This is a short sentence that would allow Mr Vale to qualify for a community-based sentence.³³ The Judge considered a sentence of imprisonment should be imposed to take account of deterrence and denunciation.

• [39] The PAC report writer was not optimistic about Mr Vale’s response to community based rehabilitative sentences. I have already expressed my doubts as to how deterrence and denunciation might influence Mr Vale’s conduct in the future. However, a prison sentence will have a general impact on deterrence and denunciation in respect of other persons, so to that extent it serves a purpose. Also Mr Vale has nowhere to live so could not perform a community based sentence. The PAC report records that he wants “to go to jail for a while”. This will at least solve his food and accommodation problems. A Court should impose the least restrictive sentence possible.³⁴ Here, the circumstances of Mr Vale leave me with no alternative but to impose a term of imprisonment.

Result

• [40] The appeal against sentence is allowed.

³¹ Gray v R [2020] NZCA 548 at [31]. Gray refers to an adjusted starting point because in that case the starting point was adjusted to take account of other offending which was relevant to the lead offending and for which concurrent sentences were imposed. Here there is only the one offence for which a starting point is required so there is nothing to adjust.

³² The arithmetical result is 5.5 months, which I have rounded down to five months.

³³ See s 4 of the Sentencing Act 2002 for the definition of “short-term sentence”; see also Parole Act 2002, s 4 definition of “short-term sentence”, both of which identify a short-term sentence as a sentence of less than 24 months’ imprisonment.

³⁴ see s 8(g) of the Sentencing Act 2002.

• [41] The sentence of 18 months’ imprisonment is set aside. In substitution Mr Vale is sentenced to eight months’ imprisonment.

• [42] The special release conditions imposed by the Judge in the District Court remain in effect.

Duffy J