Heald v R [2014] NZCA 143 (16 April 2014)

Last Updated: 17 April 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA603/2013 [2014] NZCA 143
BETWEEN	JAMES ERIC HEALD Appellant
AND	THE QUEEN Respondent

Hearing:	26 March 2014
Court:	Stevens, Andrews and Keane JJ
Counsel:	D G A Reece for Appellant J M Jelas for Respondent
Judgment:	16 April 2014 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

[1] On 14 August 2013 James Heald, following his guilty plea on arraignment the previous day, was sentenced to imprisonment for two years, five months for the burglary of a home in Orewa on 8 January 2013. He was sentenced concurrently to terms lying between one year and two months for 15 offences in the preceding 18 months. He was ordered to pay reparation of $1,708.50.^[1]
[2] Mr Heald appeals, as manifestly excessive, his sentence for his lead offence, the burglary. His appeal gives rise to three issues:

• (a) Whether the sentencing Judge, Judge Rea, took an excessive starting point (two years, three months).
• (b) Whether the Judge allowed Mr Heald insufficient credit for his age, his remorse and his lack of previous offending.
• (c) Whether Mr Heald’s resulting sentence was manifestly excessive as a matter of totality.

[3] The last of these issues has also to be set against those aspects of Mr Heald’s sentence that he does not contest: the nine month uplift the Judge imposed for the concurrent summary matters and the 25 per cent credit he allowed Mr Heald for his guilty plea.

Sentencing materials

[4] According to the undisputed summary of fact on which Mr Heald was sentenced, he and three others travelled from Auckland to Orewa during the morning of 8 January 2013. He was one of the three passengers.
[5] At Orewa he and one other passenger entered through an open door the home of the complainant, a 26 year old woman, and confronted her in her bedroom where she and her son had been sleeping or watching television. They demanded property. When she refused one of the two slid a weapon out of his sleeve, frightening her. One of the two then picked up a small safe and both ran from the house, chased by a flatmate. All four were apprehended shortly after. No one in the house was injured.
[6] Mr Heald’s pre-sentence report stated that his six prior convictions for minor violence, disorderly behaviour, and driving offences extending back to 2007, when combined with his most recent offending over 18 months, culminating in the burglary, exhibited a concerning escalating pattern. His offending had become more frequent and more serious. His risk of reoffending was medium as was the risk he presented to others. The report recommended home detention.
[7] A report three months earlier, relating to Mr Heald’s summary offences, said that he attributed his offending to the ending of a two year relationship, to his then daily use of methamphetamine, to depression and negative associates. He then said that he wanted to give up drugs and get his life back on track. He expressed remorse.

Sentence under appeal

[8] On sentence Judge Rea took as his focus Mr Heald’s lead offence, the burglary, and accepted the Crown’s submission that it was essentially a home invasion, during the morning, when it was highly likely that there would be someone in the home. He rated it a “serious burglary”.^[2]
[9] The Crown, the Judge said, contended for a starting point for sentence of between two years, three months and two years, six months imprisonment. Counsel for Mr Heald contended for a lesser starting point. But, the Judge said, two years, three months, was “the very minimum starting point for this type of home invasion/burglary”.^[3]
[10] The Judge imposed no uplift for Mr Heald’s previous convictions. He imposed one for Mr Heald’s concurrent summary offences:^[4]

intentional damage, escaping from custody, no less than seven breaches of Court bail, receiving a valuable computer, obtaining by deception, and there are four separate charges of that, a theft of petrol, and unlawful taking.

Mr Heald, the Judge said, had committed a number while on the run or on bail.

[11] The Judge did not accept that this uplift ought to be reduced, as Mr Heald’s counsel then contended, to take into account that Mr Heald was still relatively young, that he had offended because he had a drug problem, and had been involved with “the wrong crowd”.^[5] The Judge did reduce the 15 month uplift he first had in mind to one of nine months.^[6]
[12] Mr Heald’s resulting sentence, as the Judge said, would then have stood at three years but for his plea. The Judge allowed him a seven month deduction on that account and imposed the sentence under appeal, with the lesser concurrent sentences not in issue, and reparation.^[7]

Starting point

[13] Mr Heald does not dispute that, as the Judge held, this was a serious burglary that caused the complainant considerable fear. But, he contends, the Judge failed to take into account that he was a first time burglar. Relying on sentences imposed in the High Court, beginning with Senior v Police,^[8] he contends for a starting point in the range of 12–18 months.
[14] In response the Crown points out that in Arahanga v R this Court, although it declined to set any tariff, endorsed a higher range, saying this:^[9]

Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling-house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

(Footnotes omitted.)

[15] There have since been decisions in this Court in which that range has proved influential;^[10] and, as those decisions demonstrate, the starting point taken by the Judge was clearly within range.

Mitigating features

[16] As to Mr Heald’s personal circumstance, his age, his lack of previous serious offending and his expressed remorse, here too the Judge made no error.
[17] At age 25 Mr Heald is hardly a young offender. His six previous convictions might not, as the Judge recognised, be of the most serious order. That is why they did not attract any uplift. But he had continued to offend with increasing persistence and seriousness. Equally, he might have served a community based sentence, but his recent offending had escalated, and he had committed some offences while on bail or on the run. The burglary, by itself, called for a deterrent sentence.
[18] On sentence the Judge had a letter from Mr Heald in which he expressed remorse and said that his time in custody had been constructive. The Judge said that this letter was encouraging. He did not allow Mr Heald any discount on that account for remorse. In that, we consider, he was right. The letter was encouraging at most.

Conclusion

[19] The Judge made no error in the starting point he adopted or in any other aspect of the sentence he imposed. That sentence is not manifestly excessive as a matter of totality. Mr Heald’s appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Heald DC Auckland CRI-2013-044-81, 14 August 2013.

^[2] At [10].

^[3] At [11].

^[4] At [16].

^[5] At [18].

^[6] At [19].

^[7] At [20].

^[8] Senior v Police (2000) 18 CRNZ 340 (HC).

^[9] Arahanga v R [2012] NZCA 480 at [78].

^[10] Peters v R [2011] NZCA 334, [2013] 1 NZLR 189; Andrews v R [2012] NZCA 61.