BAIN V POLICE HC TIM CRI-2009-476-000007 [2009] NZHC 895 (28 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
TIMARU REGISTRY
                                                               CRI-2009-476-000007



                                RICHARD PAUL BAIN
                                     Appellant



                         
                    v



                                         POLICE
                                        Respondent



Hearing:
       28 July 2009

Appearances: C A O'Driscoll for Appellant
             C A O'Connor for Respondent

Judgment:       28 July
2009


                ORAL JUDGMENT OF HON. JUSTICE FRENCH



[1]     This is an appeal against sentence.


[2]     Following pleas
of guilty, the appellant was convicted in the District Court on
two charges of burglary. He was sentenced to a term of imprisonment
of 18 months
concurrent on each charge, with special release conditions.


[3]     The facts of the offending are as follows.


[4]
    On 18 January 2009 the appellant, who was under the influence of drugs,
climbed into his neighbour's property, obtained a steel
bar from a bench, and



BAIN V POLICE HC TIM CRI-2009-476-000007 28 July 2009

smashed the garage door lock until it broke off.
Nothing was taken however,
presumably because the neighbour heard the noise and came to investigate.


[5]    Then, six days later
while on bail, the appellant was in a Night'n Day
convenience store. He left the public part of the shop and went into a staff-room.
There he opened two staff lockers, removing a wallet from each, and then left the
store. When interviewed by the police, he initially
denied the facts, claiming he had
found the victims' credit cards on the ground inside the shop.


[6]    The appellant has a significant
criminal history, with a total of 66
convictions, 29 of which are for dishonesty-related convictions, including six for
burglary
or theft from a dwelling.        He has received 17 separate sentences of
imprisonment. Some of the dishonesty offending occurred
in 2008 although, as the
sentencing Judge noted, there had been a considerable gap since the last burglary.


[7]    The pre-sentence
report told the Judge that the appellant is 39 years of age
and in the previous year he had lost his girlfriend in an accident, as
well as his father,
while his mother had been diagnosed with cancer. The appellant's drug and alcohol
use was assessed as a factor
that contributed to his offending, although the report
also noted that he has accumulated numerous dishonesty convictions in the
last five
years during a period when by all accounts he was stable on methadone and not
using illicit drugs. The report assessed
the appellant at medium risk of re-offending.


[8]    No proposal for home detention could be made because of the appellant's
untreated
drug dependency and the fact there was no immediate accommodation
available for him. The report recommended imprisonment.


[9] 
  The information before the Judge included a letter from a polytechnic tutor in
charge of an art programme.         The letter states
that the appellant has almost
completed a diploma in Fine Arts level 6. The letter speaks highly of the appellant's
artistic talents
and, perhaps even more importantly, refers to his positive influence on
other students.

[10]   The Judge was also told that since
the appellant has been in custody, he has
been counted down off medication and was feeling better.


[11]   In sentencing the appellant
to 18 months' imprisonment, the Judge said the
starting point before personal mitigating factors was "about two years". He gave the
appellant a credit (amounting it would seem to six months) for his "guilty plea and
the other things that I have mentioned". The
reference to "the other things" was
presumably the appellant's achievements at polytechnic and the sad events of the
previous year.


[12]   On appeal, counsel submits that a sentence of 18 months' imprisonment was
manifestly excessive in that:


             
   i)     the starting point of two years was too high given the Judge
                        had accepted the offending was neither recidivist nor serious
          
             offending;


                 ii)    the Judge gave insufficient credit for the guilty pleas, which
               
        had been made at the earliest possible opportunity.


[13]   As regards the first ground, namely that the starting point
was too high, Ms
O'Driscoll points out that the Judge himself accepted both burglaries were at the
lower end of the scale. Being
in an enclosed yard outside a garage with a steel bar
was viewed as in the nature of an attempt, while taking wallets from a staff-room
was viewed as akin to theft.         Ms O'Driscoll also relies on the fact the Judge
expressly stated the appellant could not be
considered a recidivist burglar. She
referred me to the decision of Colombus v Queen  [2008] NZCA 192 as authority for
the proposition that, given those circumstances, a starting point of two years was
manifestly excessive.


[14]
  I agree with that submission.


[15]   I also accept that the Judge appears to have given insufficient credit for the
guilty plea.
I say "appears" because, as Mr O'Connor points out, it is not entirely

clear from the sentencing notes exactly what the starting
point was. Recent Court of
Appeal decisions such as R v Patrick  [2008] NZCA 115 and R v Walker  [2009]
NZCA 56 make it clear that a guilty plea made at the earliest possible opportunity
should attract a discount of one-third. That does not
appear to have happened in this
case.


[16]    In my view, a more appropriate starting point was in the vicinity of 18
months which,
allowing the appropriate discount as dictated by the Court of Appeal
decisions, would result in an end sentence of 12 months' imprisonment.


[17]    The outcome of this hearing is therefore that the appeal is allowed. The
District Court sentence is quashed and replaced
with a sentence of a term of 12
months' imprisonment.




Solicitors:
Petrie Mayman Clark, Timaru
Crown Solicitor, Timaru