Police v Smith [2017] NZDC 27210 (23 November 2017)

Last Updated: 1 August 2018

IN THE DISTRICT COURT AT GISBORNE

CRI-2017-016-001612 CRI-2017-016-001210

[2017] NZDC 27210

NEW ZEALAND POLICE

Prosecutor v

JEROME IAN SMITH Defendant

Hearing:	23 November 2017
Appearances:	Sergeant A Ormond for the Prosecutor S Taylor for the Defendant
Judgment:	23 November 2017

NOTES OF JUDGE A-M J BOUCHIER ON SENTENCING

[1] The defendant faces a number of charges. There are six burglary charges, one charge of excess breath alcohol (third or subsequent) with a high level of 961, one disqualified driving (third or subsequent), one failing to stop for red and blue flashing lights and one breach of release conditions.

[2] I have the pre-sentence report and counsel’s written submissions which are before the Court. The pre-sentence indicates he is aged 27. His significant criminal history is referred to. By my count, there are 11 varied dishonesty convictions, six driving whilst disqualified, six excess breath/blood alcohol and 15 breaches of sentences or orders.

NEW ZEALAND POLICE v JEROME IAN SMITH [2017] NZDC 27210 [23 November 2017]

[3] The offending took place whilst on release conditions. His static risk level is said to be prohibitively high to allow him to undertake a departmental programme and he will therefore need to be referred to a departmental psychologist to address offending-related factors. Both treatment options would be available within the custodial setting, the report states. Of course, the probation officer recommends a period of imprisonment and release on conditions.

[4] As far as his domestic and cultural circumstances are concerned, it is said his parents are supportive of him but they have also been involved with drugs. He has the support of his ex-partner’s mother. Further, as to work, education and income, his employment background has mainly been for seasonal work and park maintenance.

[5] As to offending-related factors, he has disclosed significant substance abuse issues and explained the offending in the context of seeking means to fund the substance abuse. He said, which counsel has highlighted, that he wanted to be involved with restorative justice but the report I have received says at least one of the victims was not wanting to be involved. He said to the probation officer he was involved with gang members in relation to his drug use – doing stuff for the gang, doing it for the next hit. He said to the probation officer, which again has been highlighted by defence counsel, that he was self-medicating with methamphetamine because it blocked everything else. His self-reported substance abuse puts him in moderate risk for harm for alcohol and drug use, and in the high bracket for harmful methamphetamine use. He is also on medication for ADHD and psychosis. He had previously been prescribed Quetiapine for post-traumatic stress disorder.

[6] In terms of the victim impact statements that I have received. There is the usual and unfortunate concern and upset expressed by the victims of the offending that total strangers could go into their property. One of them was at home sleeping at the time and was concerned that the address had been entered. The invasion of privacy is referred to also by other persons. Another victim stated they were “freaked out” and scared.

[7] The defence submissions, as far as sentence is concerned, note the six burglaries are effectively the lead matters, and the driving offences and failing to

remain stopped all related to the same incident. The earliest-opportunity entry of guilty pleas is highlighted and the fact that the summaries of fact are accepted for the purpose of the sentence.

[8] Looking at the aggravating features of the offending and the well-known Court of Appeal of R v Arahanga,1 the start-point for the lead charges in the defence submission is two years nine months’ imprisonment. Counsel accepts an uplift would be appropriate having regard to the additional offending, however, that all charges should be concurrent with each other. He then submits there should be further separate discrete discounts.

[9] Looking then at factors as far as the assessment of gravity of the offending, being the burglary offending, the Court is referred to again the well-known case of R v Nguyen,2 as to aggravating and mitigating factors regarding the burglary. The degree of planning and sophistication. In general terms, burglary is pretty much a “smash and grab” in my view. The nature of the premises entered – here of course it was private properties. The kind and value of the property stolen – that is not of the most significant but of course it is always significant to the people who own it. And the damage done. Again, not serious here but always serious to the people concerned. The impact on the owners I have referred to. Here, of course, there are multiple burglaries, six in all.

[10] In terms of the driving offences. Again, defence counsel highlight those should be concurrent. I do not have any quarrel with that. The Court is referred to the case of Clotworthy v Police,3 which is still, although aged, a relevant Court decision. Here, of course, is the seriously high level placing it in the top 15 percent, in my view, and his previous convictions. Further, there is the breach of release conditions which counsel comments on and I have noted the previous number of breaches of sentences or orders.

1 R v Arahanga [2012] NZCA 480.

2 R v Nguyen CA 110/01, 2 July 2001.

3 Clotworthy v Police (2003) 20 CRNZ 439 (HC).

[11] Looking at the aggravating features personal to yourself, counsel acknowledges your previous record but submits that in relation to the burglary, you have only two convictions in 2009 and 2012, which could be thought of as being historic. He accepts that the Court would probably wish to apply for an uplift due to the previous history, but submits it should be small.

[12] Then there are mitigating features regarding yourself. It is said in the submissions that you are still reasonably youthful. That rehabilitation should be a focus. I have said to counsel that it is a matter that the Court needs to take into account but it most certainly not going to be the sole focus. Your letters of apology which are annexed to his submissions which I have received and read. Also, it is said you have understood, due to matters that have happened to you in prison, what it feels like to have items stolen.

[13] In terms of the personal mitigating circumstances, again counsel for the defence reiterates the need for assistance. As I have said, that will be dealt with by the Parole Board. In addition to the 25 percent discount, it is submitted that the Court should give a further five percent for personal circumstances also.

[14] In terms of the aggravating features, as far as the burglaries are concerned, there are multiple offences (effectively a spree of burglaries); they occurred while you were on release conditions; the loss to those burgled; the effect on the victims; the fact that they were all private dwelling houses; and in one case in particular, where the victim was sleeping at the time; and they occurred at night. I have acknowledged the losses involved were not so significant, and defence counsel has submitted that you would be willing to pay reparation in respect of the loss of the bicycle, $950 worth.

[15] Obviously, in my view there are no mitigating features of the offending.

[16] As far as the aggravating features of yourself, my view is that your previous convictions, which I have already enumerated, are aggravating features.

[17] As far as mitigating features, whilst I accept there are expressions of remorse, they are not in my view sufficient to qualify for the need to be extraordinary remorse which is expressed in terms of Hessell v R.4

[18] Looking at a start-point, I note what counsel has said about the start-point. But looking at the aggravating features of the offending, my view of the start-point on the burglary charges is a period of three years and nine months. With an uplift of three months for your previous offending and an uplift of two months for the traffic offences, less then a discount of 25 percent. That then comes to a sentence, effectively, of three years’ imprisonment which is imposed on you in respect of the burglary matters.

[19] In respect of the driving matters, you will be sentenced to one year’s imprisonment, concurrent.

[20] In respect of the failure to remain stopped you will be convicted and discharged.

[21] In respect of the charge of release conditions, you will be sentenced to three months’ imprisonment, concurrent.

[22] The effective total is three years’ imprisonment.

[23] There is also the consequent disqualification which is necessary on the charge of driving with excess breath alcohol and driving whilst disqualified. You will be disqualified from holding or obtaining a driver’s licence for one year and one day.

[24] Also, you are indefinitely disqualified pursuant to s 65 Land Transport Act 1998 which means you are unable to get your licence back until you go through the full procedures with Land Transport Safety to do so. That is the overriding disqualification. You will have to do that upon release.

4 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

A-M J Bouchier District Court Judge