AUGUST V NEW ZEALAND POLICE HC NAP CRI 2009-441-30 [2009] NZHC 1293 (21 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
                                                                       CRI 2009-441-30



              BETWEEN                       KEVIN JONATHAN AUGUST
                                            Appellant

    
         AND                           NEW ZEALAND POLICE
                                            Respondent


Hearing:     
21 September 2009

Counsel:      A Willis for the appellant
              D Kerr for the respondent

Judgment:     21 September 2009


                       (ORAL) JUDGMENT OF POTTER J
                           on appeal against sentence




Solicitors:    Elvidge
& Partners, P O Box 609, Napier 4140

Copy to:       E Forster, P O Box 838, Hastings 4156




AUGUST V NEW ZEALAND POLICE HC NAP
CRI 2009-441-30 21 September 2009

Introduction


[1]     Kevin August appeals against a sentence of two years and seven months
imprisonment imposed by Judge Rea in the District Court at Hastings on 21 July
2009.


[2]     Mr August entered early guilty pleas
to a charge of burglary for which he was
sentenced to two years three months imprisonment and also to a charge of breaching
prison
release conditions, for which the sentence was four months imprisonment,
ordered to be served cumulatively.


[3]     The grounds
of appeal are:


        a)     The sentence of twenty seven months imprisonment on the burglary
               charge was manifestly
excessive; and


        b)     The sentencing Judge made an error of principle by not considering
               overall totality
of the sentence.


Background facts


[4]     The relevant facts relating to the burglary charge are as follows. At 8 o'clock
on
Monday 13 July 2009 the appellant and the nineteen year old co-offender rode
their bicycles up the driveway of business premises
in Omahu Road, Hastings. They
hid the bicycles with a tarpaulin and climbed an adjoining boundary fence into the
yard of Concorde
Fibreglass Limited. There they entered an unlocked caravan and
removed several items of car audio equipment.


[5]     A Police dog
handler arrived at the scene and located the offenders with the
stolen property. They admitted they had scoped out the property earlier
and went
there for the purpose of stealing the car audio equipment.

[6]    The co-offender was aged nineteen years at the time.
The appellant was aged
forty years.


District Court Judge decision


[7]    The Judge in his sentencing decision first considered
the burglary charge,
noting that it was deliberately planned and was an attack upon commercial premises
with a view to getting readily
resaleable audio equipment and that it was carried out
at night. The Judge adopted a starting point of eighteen months' imprisonment.


[8]    To take account of the appellant's past history, he applied an uplift of
eighteen months imprisonment to produce an overall
starting point for sentence of
three years imprisonment.      He allowed a credit for the appellant's guilty plea,
reaching an end
sentence for the burglary charge of two years three months'
imprisonment.


[9]    In relation to the breach of prison release conditions,
he noted that this was an
entirely different matter. He further noted that the appellant has multiple recent
convictions for similar
offending.        He took a starting point of six months
imprisonment, allowed a discount of two months for the appellant's guilty
plea and
reached an end sentence of four months imprisonment. He ordered that sentence to
be cumulative with the sentence for burglary,
making a total sentence of two years
seven months' imprisonment.


[10]   In sentencing the appellant the Judge said:

       [4]
     There is no doubt Mr August that you are a career criminal. You are
                a recidivist offender. You have 41 previous
burglary convictions
                and pages and pages and pages of other dishonesty convictions. You
                take every
opportunity you possibly can to rip off your fellow-
                citizens and this is simply another example of it. On this occasion
                you allied yourself
with somebody only half your age.

       [5]      The time has come really Mr August where you need to understand
             
  that when you become involved in burglaries or serious dishonesty
                offences then the Courts are going to impose
condign sentences on
                you to reflect the fact that you are a danger to the community, you
                show no
signs of changing, and any time you are out and about you
                seem to be a danger to everybody's property.

Submissions
for the appellant


[11]   Mr Willis for the appellant in comprehensive and careful submissions
submits first that the starting point
of eighteen months' imprisonment for the
burglary offence was too high and that it should have been assessed at one year,
being the
starting point taken on appeal in the case of R v Columbus  [2008]
NZCA 192.


[12]   Mr Columbus was aged thirty six. He forced open the vehicle access door of
a garage at a residential property causing damage
of $672. He stole a mountain bike,
gardening tools and a tool box. He pawned the bike later that day but it was
recovered by the
Police.


[13]   Comparing this offending with the offending in Columbus counsel noted the
following factors: this offending related
to commercial premises; the caravan was
unlocked; the property removed was of limited value; it was recovered immediately
and there
was an immediate admission to the Police. Mr Willis acknowledged in
oral submissions that the offenders were caught red-handed and
really had little
alternative but to admit their involvement in the burglary. He also appropriately
noted that there was premeditation
involved in the appellant's offending which was
absent in the case of Mr Columbus where the Court described the offending as
"opportunistic",
and that the appellant conducted the burglary with a co-offender.


[14]   In the case of Columbus the starting point of twelve months
for the burglary
offence was uplifted by six months to take account of other offending. The revised
starting point of eighteen months
was then uplifted a further twelve months to reflect
the history of offending of Mr Columbus.


[15]   A table prepared by counsel
for the appellant shows that Mr Columbus was
aged thirty six with eighty nine previous convictions of which thirteen were for
burglary
and thirty four were property related offences. He had been sentenced to
imprisonment on fifteen occasions, the most recent in 2003.
By way of comparison
Mr August is aged forty, has 199 previous convictions of which forty one are for
burglary (as the Judge noted),
and over sixty are property related. He has been

sentenced to imprisonment on twenty two occasions and his most recent conviction
was in March 2009, just four months before this offending, for breach of release
conditions in January 2009.


[16]   In relation
to the sentence for breach of release conditions, counsel noted that
the appellant pleaded guilty at an early stage, displayed remorse
and some insight
into his offending and was willing to take part in a restorative justice process as
recorded in the pre-sentence
report.


[17]   In summary, it is submitted that the combined cumulative sentence of two
years seven months is wholly out of proportion
to the gravity of the overall
offending. Counsel noted that the Judge did not reflect in his sentencing notes that
he had given appropriate
consideration to the totality principle.


Crown's submissions


[18]   The Crown noted that in Columbus a divisional court of the
Court of Appeal
advocated the application of the sentencing methodology in R v Taueki  [2005] 3
NZLR 372 to cases of sentencing for burglary. This was the approach taken by the
sentencing Judge in this case.


[19]   The Crown referred
to the sentencing decisions in Columbus where the Court
of Appeal said the circumstances of the lead offence of burglary would not
justify a
starting point of more than one year' imprisonment. The Court commented that
while previous sentences of imprisonment had
not served to deter Mr Columbus his
offending was of:

       ... a spontaneous nature and his habitual or recidivist tendencies
do not
       suggest a professional disposition to burglary, although they still reflect a
       significant degree of culpability:
at [19]

[20]   The Court of Appeal held that an overall starting point of two and a half
years' imprisonment before mitigating factors
were taken into account was
appropriate.

[21]   Mr Kerr also referred to two other authorities: Bowring v Police HC GIS CRI
2009-416-12
312 July 2009, Lang J. The appellant and two associates entered a
wreckers yard in the afternoon, they took a large quantity of scrap
metal, cutting a
hole in the fence to convey it to their vehicle. They then sold the scrap metal valued
at $1800 to a dealer for
$900. On appeal against sentence, Lang J considered the
circumstances of the offending were more serious than those in Columbus and
that
an appropriate starting point for the burglary charge would be not less than fifteen to
eighteen months' imprisonment. An uplift
of six to nine months was required to
reflect the appellant's previous burglary convictions in the Youth Court. The Judge
arrived
at the same end starting point as that reached by the sentencing Judge, of two
years' imprisonment. The appeal was dismissed.


[22]
  Mr Willis in oral submissions noted that the planning in the case of Bowring
was more sophisticated than in this case and that
the property involved was of
greater value.


[23]   R v Stevens  [2009] NZCA 190 is a Court of Appeal judgment delivered two
months before the judgment in Bowring, Stevens had gone to commercial premises
where
he had previously worked and for which he had a key and the code for the
security system. He took several metres of copper piping
from the walls inside the
building but was subsequently stopped in a routine traffic stop a short distance away,
and the copper,
valued at $350, was located.


[24]   The Court of Appeal accepted the need for strong deterrence, noting the
aggravating features
of the offending but that the stolen metal was of low value. The
Court considered that an appropriate starting point would have been
no higher than
eighteen months imprisonment: at [14]. An uplift of twelve months' imprisonment
to reflect the appellant's previous
dishonesty offending, although he was not placed
in the recidivist burglar category, was considered to be within range. Mr Willis
again noted that there was distinct planning involved in this offending and also, what
might be described as a "breach of trust",
given that Mr Stevens had previously
worked at the premises he burgled.

[25]    The Crown submits that on the basis of these three
authorities, the starting
point of eighteen months' imprisonment taken in this case, while stern, was available
to the sentencing
Judge. The Crown noted the aggravating factors: the appellant
committed the burglary together with a young co-offender, at night,
the offending
was premeditated and that Mr August offended in breach of release conditions.


[26]    The Crown submits it was necessary
for the sentencing Judge to make a
significant upwards adjustment from the initial starting point to reflect the
"appalling" record
of the appellant including forty one previous burglary convictions
as well as numerous other dishonesty convictions. The Crown noted
by way of
comparison, that in Stevens the appellant had sixty previous convictions including
three for burglary and the uplift from
an initial starting point of twelve months'
imprisonment was held to be within range. Mr August's history of offending, the
Crown
observed was significantly more serious than in cases such as Stevens and
Bowring. It is submitted than an uplift of eighteen months'
imprisonment was well
within the available range. Mr Willis did not contest that aspect of the sentencing.


[27]    The Crown further
submits that the discount of nine months, or 25%, given
that the appellant was caught "red handed" and made admissions, cannot be
criticised.


[28]    Further, that the imposition of a cumulative sentence of four months
imprisonment in respect of the charge
of breaching prison release conditions was
appropriate pursuant to s 84 of the Sentencing Act 2002, and that the overall
sentence
of two years and seven months' imprisonment does not offend against the
totality principle.


Discussion and conclusion


[29]  
 As I have noted, the manner in which the Judge approached sentencing was
in accordance with the methodology approved by the Court
of Appeal in Columbus,
adopting the approach in Taueki.

[30]   The aspect of the sentencing which was the main focus of the appellant's
submissions is the starting point of eighteen months' imprisonment taken by the
Judge for the burglary offending which, on the basis
of comparison with the
offending in Columbus counsel submits is too high by about six months.


[31]   It is correct, I consider,
that the offending in this case was less serious than
that in Columbus in that it attacked commercial rather than residential premises,
the
caravan from which the audio equipment was stolen was unlocked and no forceable
entry was involved, and the stolen property was
immediately recovered when the
Police intervened. However, I note that in Columbus the mountain bike stolen and
pawned, was subsequently
recovered by the Police.


[32]   Absent from the circumstances of the offending in Columbus, are the
aggravating factors that the
appellant was obviously prepared, and did involve a
much younger person in his criminal offending, that it was clearly premeditated and
planned (though not sophisticated),
and that it took place at night. Further, the
offending was in breach of release conditions. Those aggravating factors justify a
higher starting point than was considered appropriate by the Court of Appeal in
Columbus .    The eighteen months starting point
taken by the sentencing Judge,
though at the top of the range, was not out of line or excessive when compared with
the cases of Stevens
and Bowring.


[33]   An uplift of eighteen months to take account of the appellant's criminal
history cannot be criticised. Indeed,
I accept the Crown's submission that it could
have been higher. The appellant is, as the Judge described, a career criminal and a
recidivist offender and, as the Judge said at [5]:

       ... a danger to the community ... and a danger to everybody's property.

[34]   The Judge cannot be criticised for imposing a cumulative sentence of four
months for the entirely separate offending of breaching
prison release conditions,
particularly as the appellant's history reveals multiple convictions for recent similar
offending. His
expressions of remorse and professed insight into his offending
recorded in the probation report have to be viewed with caution,
given his offending
history.

[35]     Nor do I consider the final sentence of two years seven months'
imprisonment to be manifestly
excessive when viewed in its totality. It is a stern
sentence, but in my view Mr August is entitled to expect nothing else. As the
Judge
made clear, he must understand that the Courts will impose condign sentences that
reflect his history of recidivist offending
if he becomes involved in the future in
burglaries or serious dishonesty offences.


Result


[36]     The appeal is dismissed.