The appeal against sentence is allowed.
The sentence of three years imprisonment imposed on the burglary count is quashed and a sentence of two years six months imprisonment is substituted. The other concurrent sentences imposed by the District Court remain.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] The appellant was sentenced on 2 December 2008 by Judge Spear to three years imprisonment after pleading guilty to one count of burglary and to summary charges of possession of methamphetamine, BZP, pipes (for drug use), and of a taser stun gun.
[2] The appellant appeals against sentence on the basis it is manifestly excessive. The primary submission is that the starting point adopted was too high given the nature of the offending.

Factual background

[3] The burglary took place on 23 February 2008. The appellant went to commercial premises near which he had previously lived and which he used to clean. As a result, he had keys to gain access to the building. It appears also that the appellant was aware of the security system and so deactivated it. Once inside the building, the appellant took several metres of copper piping from the walls. The piping was loaded into the appellant’s van and he drove off. He was stopped by the police in a routine traffic stop a short distance away and the copper was located. It was valued at about $350. This matter was proceeding to trial with a reserve date of 3 December 2008. However, when the appellant was arraigned on 27 November 2008, he pleaded guilty.
[4] The other charges arose out of a search of the appellant’s home on 28 August 2008. The police found what appeared to be about .25 of a gram of methamphetamine. They also found a handheld stun gun, pipes for smoking cannabis and methamphetamine, four points of the cutting agent MSM and two and a half grams of BZP. It appears that the stun gun was in pieces and would have had to be put together in order to be used.
[5] It was accepted at sentencing that the appellant was a drug addict.

Sentencing remarks

[6] The Judge identified the following aggravating features:

(a) The burglary was premeditated and involved a breach of trust because of the misuse of the keys and the knowledge of the alarm code;

(b) At the time of the burglary, the appellant was under a sentence of community detention and intensive supervision; and

(c) The appellant’s history of offending included 60 previous convictions for dishonesty dating back to 1992 as well as convictions for drug-related offending.

[7] Against this background, Judge Spear emphasised the need to send a “very strong” message of denunciation and personal deterrence.
[8] The Judge said that on the burglary charge on its own, a starting point of two years imprisonment would be appropriate. To that, the Judge would have added an uplift of 12 months for the previous convictions and then allowed a discount of about 20 per cent for the late guilty plea.
[9] When the drug offending was added into the mix, Judge Spear considered a starting point of three years nine months imprisonment was appropriate. (This included the 12-month uplift for the previous convictions.) From that point, the Judge gave a discount of nine months for the guilty pleas making an effective sentence of three years imprisonment.

The appeal

[10] The issue on appeal is a narrow one, namely, whether the sentence when considered overall is manifestly excessive.

Submissions

[11] The appellant accepts the aggravating features identified by the Judge are present and takes no issue with the discount for the guilty plea. However, by reference to authorities such as R v Columbus [2008] NZCA 192, the appellant argues the offending is not so serious as to warrant the starting point adopted. Mr Walsh points out that the amount involved in the burglary is modest and the other offending minor. The submission is that a sentence of around two years imprisonment should be substituted. It is not suggested home detention is appropriate.
[12] Ms Bicknell for the Crown submits that the sentence, while fairly stern, was within the available range having regard to the circumstances of the offending, the appellant’s criminal history and on a totality basis. Ms Bicknell emphasises the breach of trust and the planning involved in the burglary as well as the obvious failure of earlier prison sentences to deter the appellant.

Discussion

[13] No criticism can be levelled against the methodology adopted by the Judge in this case. We accept also that there was a need for strong deterrence. That said, as we explain below, we have concluded that the sentence imposed was manifestly excessive. Essentially, we consider the appellant’s culpability did not warrant the term imposed.
[14] We accept that the burglary had the aggravating features the Judge identified. Theft of copper piping from the interior and exterior of buildings imposes considerable inconvenience on property owners. That said, the stolen metal here was of low value. Overall, we consider that an appropriate starting point would have been no higher than 18 months imprisonment.
[15] Some uplift is appropriate to recognise the appellant’s previous dishonesty offending. He was 34 years of age when he committed these offences and, as the Judge noted, had some 60 previous dishonesty offences. The appellant was subject to a sentence of intensive supervision at the time of the burglary offending. The appellant, however, was not in the recidivist burglar category. He has three previous convictions for burglary and the last of these was in 1997. These components make the addition by the Judge of 12 months imprisonment to the starting point within range.
[16] Finally, the Judge was entitled to adjust the starting point upwards by applying the totality principle. The appellant committed the drug-related offences whilst on bail for the burglary charge. The addition by the Judge of nine months imprisonment for this component was also within the available range.
[17] Taking all of these factors into account and applying a discount for the guilty plea of a little over 20 per cent leads to an appropriate end sentence of two years and six months imprisonment.

Disposition

[18] For these reasons, the appeal against sentence is allowed. The sentence of three years imprisonment imposed on the burglary count is quashed and a sentence of two years six months imprisonment is substituted. The other concurrent sentences imposed by the District Court remain.

Solicitors:
Crown Law Office, Wellington

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