HOWE V NEW ZEALAND POLICE HC ROT CRI 2007-463-8 [2007] NZHC 65 (19 February 2007)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                                   CRI 2007-463-8



              BETWEEN                     TIPU SHANNON DAMION HOWE
                                          Appellant

     
        AND                         NEW ZEALAND POLICE
                                          Respondent


Hearing:       19 February
2007

Counsel:      P T Birks for Appellant
              J D Munro for Respondent

Judgment:     19 February 2007


           
           (ORAL) JUDGMENT OF HEATH J




Solicitors:
Crown Solicitor, Rotorua
P T Birks, Rotorua


HOWE V NEW ZEALAND POLICE HC
ROT CRI 2007-463-8 19 February 2007

Introduction


[1]    Mr Howe appeals against a sentence of 4 years imprisonment imposed in
the
District Court at Rotorua on 18 January 2007. On that occasion he was sentenced on
two charges of burglary, two charges of breach
of bail, one charge of breach of
release conditions and one charge of breach of community work.


[2]    Judge McGuire took the view
that the burglary charges should be regarded as
lead charges for the purpose of sentence. Those charges carry a maximum penalty of
10 years imprisonment.


[3]    Mr Howe is now aged 29 years. He has an appalling criminal history of
offences of dishonesty going
back, in the adult Courts, to 1995. Before then he had
appeared, on a number of occasions, since 1993 in the Youth Court. While it
is
inappropriate to take account of the admonitions received in the Youth Court as if
they were convictions, the occasions on which
he appeared in the Youth Court
plainly demonstrate a continued propensity.


[4]    On the occasions since Mr Howe has come before
the adult Courts for
sentence, there have been more than 30 occasions on which he has been sentenced
for burglary and related crimes.
On other occasions he has been sentenced for
crimes such as assault and drug offences, as well as administration of justice
offences
including escaping from custody, failing to answer bail and driving while
disqualified.


[5]    Judge McGuire's sentencing notes
reveal a sense of frustration about
Mr Howe's inability to correct his behaviour and his continual offending, despite a
good upbringing
and a caring family. He had also been given many opportunities to
revise his behaviour in the past. Indeed, the Judge was moved to
say:

       [9] So it is day of reckoning once again, Mr Howe. In this case, quite
       honestly, I think that your extended whanau
is going to be better off with
       you in jail because, quite frankly, I think you are just a menace to yourself
       and to
them when you are out in the community. And if you do not get it at
       the age of 29, I doubt whether you will ever get it.


[6]    The Judge then referred to Senior v Police  (2000) 18 CRNZ 340, a decision
of the Full Court of this Court which provides guidance on burglary sentencing.
Having referred to that decision, Judge
McGuire said:

       [10] Referring to Senior's case, which is the case that gives guidance from
       the Court of Appeal, you
are in the category of a recidivist burglar. I take
       Judge Weir's lead in this regard. He was going to sentence you to three
       years imprisonment last time. He reduced that to two so you could get home
       detention. It seems that his faith in you
following through with the
       counselling and courses has been misplaced. Today, I am going to assume
       that Judge Weir
would have sentenced you to three years last time. So this
       time, since you are back with more offending, it has to be more.

       [11] The sentence of the Court today for the two burglaries is one of four (4)
       years imprisonment. I have no power
to direct that you undertake courses or
       counselling in terms of parole conditions but quite plainly, drugs and alcohol
  
    are still a big deal in your life. I have also read that you can add gambling to
       that now. Well, you are going to have
time to think about all this when you
       are in jail, Mr Howe. If the authorities are able to make available courses,
      
counselling for drugs, alcohol, gambling and life skills then it would be a
       good thing because some day you are going to have
to come out.

       [12] In respect of all the remaining matters, you will be sentenced to one (1)
       month's imprisonment.
The terms of imprisonment are concurrent. In
       addition, you will be ordered to pay reparation in the sums of $1,400.00 and
       $900.00 in respect of the two burglaries.


Competing submissions


[7]    Mr Birks promotes the appeal against sentence on
two broad grounds. First,
that there was an error in principle.         Second, that the sentence is manifestly
excessive.


[8]
   Mr Birks also submits the reparation order made in the District Court was not
viable, despite the fact that Mr Howe conveyed to
the probation officer the fact that
he could make reparation when the pre-sentence report interview was undertaken.


[9]    It is
clear that Mr Howe has no means to pay further any reparation order.
Such an order is likely, only to create an incentive to re-offend
on release from
prison to pay the reparation ordered.

[10]    Mr Birks submitted that the sentence of 4 years imprisonment was
out of
kilter with the category of recidivist offenders to which Senior referred, particularly
having regard to the low level nature
of the offending.


[11]    Mr Birks submitted that the Judge failed to take account of early guilty pleas.


[12]    The Crown submitted
that the sentence was stern but not manifestly
excessive. Mr Munro accepted that an order for reparation was not viable.


Facts


[13]    The two burglary offences arose out of incidents that occurred at Taradale,
near Napier, on 15 and 16 February 2006.


[14]    Between 9 and 10am on 15 February 2006, Mr Howe went to a house at 11D
Hinton Road and parked a car in the carport. With
an associate, Mr Howe went to
the back of the house and removed glass from the rear ranch slider, entering a
window. He then took
a mini-stereo and remote together with a hand-set, a DVD, a
televisio n remote and CDs. Those items were valued at $2800.


[15]
   The following day, between 9am and 1.15pm, Mr Howe was determining
what other houses in the district were fit to burgle. He went
to an address at 7
Havelo ck Terrace, an address which is at the end of a cul de sac and surrounded by
trees and vegetation. Mr Howe
climbed up a drainpipe, forcing open the upstairs
bathroom window. He climbed in and broke the sink in the process. A Playstation
2
game, a 14 inch Panasonic television, a Panasonic stereo, an MP3 player and five
pairs of jeans were taken from that address. Those
items were valued at $750.


Analysis


[16]    The first point to note, as a matter of principle, is that Senior is not and was
not intended to set out a prescriptive approach to burglary sentencing.
John Hansen
and William Young JJ said:

       [36] We note, as well, that the police say that around 50 percent of burglaries

      are committed by recidivist burglars. The reality must be that the offences
       for which these offenders are prosecuted
are likely to be only a small
       proportion of the offences which they actually commit. A recidivist burglar
       who pleads
guilty to say a single offence or even two or three offences is
       unlikely to receive a sentence which exceeds 3 years. Allowing
for early
       release, such a sentence will involve a compulsory cessation of that
       offender's criminal activities of no
more than a year or so. Some would say
       that this is not long enough given the prevention principle referred to in
       Ward
[[1976] 1 NZLR 588 (CA)]

       [37] We do not consider it is our role in this case to set out to change, in any
       prescriptive
way, the current tariff sentencing levels for this type of offence.
       We say this for two reasons. First, the sentencing pattern
to which we have
       referred is made up of decisions of the Court of Appeal as well as of this
       Court. We are hesitant,
therefore, as to whether it is appropriate for Judges
       of this Court to set out to revise tariff levels. Secondly, and in any
event, the
       statistics which we were offered were limited, particularly in relation to the
       material placed before the
Court in Brewster [[1998]  1 Cr App R 220 (CA)].
       If the Courts were to move towards placing greater emphasis on the
       prevention principle referred to in Ward,
we think that this should only be
       after a full analysis of all available statistical material. While we know from
       personal
experience that many burglars are recidivists we have no
       infor mation as to how many recidivist burglars cease offending.
Without
       such material it would hardly be right to move to a pattern of sentencing
       based on the bleak assessment that
all or most recidivist burglars will
       reoffend in the future.

[17]   An approach falling short of a tariff was endorsed in
R v Southon  (2003) 20
CRNZ 104 (CA). Delivering the judgment of the Court of Appeal, Anderson J said
at paras:

       [12] The seriousness of burglary is not to
be underrated. Although the nature
       and risks of intrusion into private dwellings are obvious, with their sinister
       implications
for privacy and their potential for grave offences against the
       person, such risks are not entirely absent in the case of the
burglary of
       commercial premises. There is always the possibility of an encounter with
       someone lawfully on commercial
premises. The potential for property loss
       goes without saying.

       [13] Nor should Senior be regarded as more than a very
helpful analysis of
       historic sentencing patterns in this area, being thereby conducive to
       consistency in respect of
similar offenders committing similar offences in
       similar circumstances, as mandated by s 8(e) of the Sentencing Act 2002.
As
       recent decisions of this Court demonstrate, recidivist burglars cannot
       assume that Senior may be relied upon to
limit their sentences to 3 years'
       imprisonment.

       [14] In our view, the most significant sentencing purposes in relation
to this
       habitual burglar are deterrence and community protection. We need not
       repeat his regrettable record, but we
place particular emphasis on the
       inadequate deterrence of previous terms of imprisonment and the severely
       aggravating
feature of offending whilst on bail for a like crime. The

       circumstances called for a firm sentence and that is what the
appellant
       received. We do not find it manifestly excessive. (my emphasis)

[18]   As the Court of Appeal made clear, the primary
sentencing goals are those of
deterrence and community protection.           In Southon a sentence of 4½ years
imprisonment for a
recidivist burglar was upheld.


[19]   There are striking similarities between the position of Mr Southon and Mr
Howe. Mr Southon
was also a 29 year old male with a similar criminal history.
However, he is recorded as having had 15 previous occasions before the
Court on
burglary related offences, while Mr Howe has some 30 odd.


[20]   The offending in Southon was related to commercial premises
as opposed to
domestic premises, where issues of personal privacy become more important. As a
finit e sentence, having regard to
Southon, the sentence imposed in this case was well
within the range open to the Judge. It is a case in which deterrence and the
need for
communit y protection appeared paramount importance. It appears that nothing done
to date has deterred Mr Howe from offending
of this type.


[21]   Where there is merit in Mr Birks' criticisms is in the failure of the Judge to
articulate the approach to
sentence.


[22]   Again, applying the Southon analogy, having regard to aggravating features
relat ing to the offence particularly
offending while on bail and his recidivist nature, a
starting point of some 5 years imprisonment would not have been out of the way,
allowing 20% for a guilty plea would result in a final sentence of 4 years
imprisonment.


[23]   The appropriateness of such sentence
is reinforced when one considers that
the reparation order must be set aside. The reason that must be set aside is through
no fault
of the District Court Judge who relied (wrongly as it turned out) on an
assurance from Mr Howe to a probation officer that the reparation
could be paid.
Given the need to remove the reparation order, the sentence of 4 years imprisonment
is plainly within the range available.

Result


[24]     For the reasons I have given, the appeal against the imprisonment order in the
District Court fails but the appeal
against imposition of the reparation order is
allowed. The reparation order is set aside. All other aspects of the sentence imposed
in the District Court shall stand.


Addendum


[25]     I add that a letter was received this morning in the Rotorua Registry which
apparent ly comes from Mr Howe. I have read that letter but nothing set out in it
affects the conclusion to which I have come.




                  
                                       _______________________
                                                                 
     P R Heath J