TAYLOR V POLICE HC AK CRI 2009-416-22 [2009] NZHC 1251 (14 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                          CRI 2009-416-22




                            SANDY ROBERT TAYLOR
                                    Appellant



                               
            v



                              NEW ZEALAND POLICE
                                   Respondent



Hearing:     
 14 September 2009

Appearances: L H L Hemi for Appellant
             S B Manning for Respondent

Judgment:      14 September 2009


                             JUDGMENT OF KEANE J




Solicitors:

Rishworth Wall & Mathieson, Gisborne
Crown Solicitor, Napier


TAYLOR V POLICE HC AK CRI 2009-416-22 14 September 2009

[1]      On 17 July 2009 Sandy Taylor was sentenced in the District Court
to two
years imprisonment for a burglary of commercial premises on 8 December 2008 and
concurrently to six months imprisonment for
an aggravated assault committed during
that burglary; an assault with intent to avoid apprehension if not detection.


[2]      Mr
Taylor contends that the sentence imposed was manifestly excessive
because the Judge gave undue emphasis, in fixing his starting
point, to his previous
convictions for burglary. The Judge did not, he contends, have sufficient regard to
the nature and gravity
of the offence. The Judge also double counted. He took into
account the previous convictions first to fix his starting point and
then to negate
mitigating factors.


[3]      It is contended for the respondent that the sentence the Judge imposed was
orthodox
in principle and in result.


Context


[4]      On the undisputed statement of facts Mr Taylor, at 9.20 pm on 8 December
2008, broke
into a commercial property, Renwick Joinery, Palmerston North. He
smashed a small side window and climbed inside.


[5]      The
police appear to have been called almost immediately. They surrounded
the building and called on Mr Taylor to come out. He did not
do so and after about
five minutes an officer saw him inside the office area. Mr Taylor resisted any notion
of leaving. He moved
further back into the workshop area.


[6]      When the first officer entered, Mr Taylor could not be seen. As a second
officer
entered Mr Taylor was seen on a small mezzanine floor above the point of
entry. He threw large building materials at the second officer,
who had to jump to
avoid being hit. Mr Taylor remained on the mezzanine floor. The officers had to
apprehend him there. He continued
throwing items until he was overcome by pepper
spray.

[7]    The following day, when interviewed, Mr Taylor said that at the time
of the
offending he was `plastered'. The most that he could remember was entering the
building and hiding from the police.


Pre-sentence
report


[8]    The recommendation on sentence was that Mr Taylor be imprisoned. He was
described as having an extensive offending
history. He had 21 previous convictions
for burglary in 1996 - 1999 and 2001. Fifteen had resulted in imprisonment. He had
also,
as I see, three more in 2004 for which he was sentenced to two years, three
months imprisonment.


[9]    The report concluded that,
while there were a number of reasons why
Mr Taylor might well need a rehabilitative sentence, there was no reason to be
confident
he would respond. The only alternative to imprisonment was community
work. The recidivist nature of his offending called rather for
a custodial sentence.


District Court hearing


[10]   On sentence the Judge took as his point of reference the Court of Appeal's
recent decision in R v Columbus  [2008] NZCA 192. He took a starting point fixed
primarily having regard to the inherent gravity of the offence, but reflecting also Mr
Taylor's previous
convictions.


[11]   The Judge accepted that breaking into commercial premises is generally
regarded as less significant than breaking
into residential property because there is
less risk of violence. But, as he said, burglaries of commercial premises have their
own,
perhaps different, but often no less serious consequences.


[12]   In fixing his starting point the Judge took into account, finally,
the aggravated
assault. He was clear this his starting point, three years imprisonment, was for the
two offences combined.

[13]
  What the Judge did not do, and this may well be the genesis of the present
appeal, is he did not say what starting point he would
otherwise have taken for the
burglary or, conversely, what starting point he would have adopted for the
aggravated assault.


[14]
  The result on this appeal is that Mr Taylor contends that the Judge, in
adopting a three year starting point, must have given disproportionate
weight to the
previous convictions.


[15]   Having taken that starting point, the Judge did give Mr Taylor the fullest
credit for
plea, a one-third credit. He took into account also that Mr Taylor had been
out of trouble for five years, at least in the sense
that he had not offended as seriously
during those years.


[16]   The Judge concluded with the remark that has led to the challenge
founded
on double counting. Though he could not double count, he said, he needed to impose
a sentence that was deterrent and consistent
with those in like cases. The previous
convictions, he said, might warrant an uplift of six to nine months imprisonment. He
desisted
from imposing it.


[17]   In sentencing Mr Taylor, the Judge gave him a full one-third credit for his
plea, reducing the sentence
for burglary from the three year starting point to a
sentence of two years. He imposed six months imprisonment concurrently for the
aggravated assault.


Conclusions


[18]   As will be apparent from this review of the Judge's decision, he made no
error of principle.
The decision, faithfully reflecting the Columbus decision, gave no
disproportionate emphasis to previous convictions in the starting
point. The
aggravated assault, serious in itself, justified the starting point the Judge adopted.


[19]   The Judge did not double
count. He identified the uplift the previous
convictions would have warranted only to desist imposing it. He did not negate any


mitigating factor deserving of credit. The one factor that counted, the plea made at
the earliest opportunity, was reflected in
the fullest possible credit. As a matter of
totality, for the two offences combined, a sentence of two years imprisonment was
within
the permissible range. The appeal will be dismissed.



                                                              _____________
                                                              P.J. Keane J