HEYWOOD V POLICE HC NAP CRI 2008-441-000035 [2009] NZHC 92 (11 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
                                                               CRI 2008-441-000035



                          JERIMIE CHARLES HEYWOOD
                                   Appellant



                           
               v



              NZ POLICE AND DEPARTMENT OF CORRECTIONS
                               Respondent



Hearing: 
      11 February 2009

Appearances: N C H Hewat for Appellant
             D J O'Connor for Respondent

Judgment:       11 February
2009


                            JUDGMENT OF KEANE J




Solicitors:

Crown Solicitor, Napier



HEYWOOD V POLICE HC NAP CRI 2008-441-000035
11 February 2009

[1]    On 21 October 2008, Jerimie Heywood, aged 21, was sentenced to 18 months
imprisonment, effectively, for
five offences in June - September 2008:           two
burglaries, breach of a condition on release, breach of community work, theft,
and
possession of cannabis. He appeals the sentences imposed for burglary, but not those
imposed concurrently for the lesser offences.


[2]    On 14 January 2008 Mr Heywood was released from the Hawkes Bay
Regional Prison, having partly completed a one year term
for assault with intent to
injure. On 18 June 2008 he failed to report to his supervising officer. On 1 May 2008
he was sentenced
to 120 hours community work for three offences, all on 4 April:
driving dangerously, causing a sustained loss of traction, and theft.
On 18 July he
failed to report. On 15 August 2008 he stole meat packs from Countdown valued at
$163.89. On 3 September 2008 he and
another, aged 17, entered an insecure shed on
a residential property at 12:30 am. They stole items worth $2230. All but a bicycle,
worth $200, were recovered. On 9 September 2008 he possessed a small quantity of
cannabis, enough for four cigarettes.


[3]    Since
early July 2004, Mr Heywood has amassed significant convictions.
Violence has figured four times. He has carried a weapon once. The
more serious of
those offences resulted in imprisonment. Shoplifting has figured monotonously. He
has seven such convictions and
one for theft. Driving convictions have figured, the
last resulting in the sentence of community work breached. Since 2004, he has
breached a sentence of community work three times.


[4]    Unsurprisingly, Mr Heywood's pre-sentence recommended imprisonment,
the
sentence imposed, as well as reparation. It included a comment from his mother
that seems to me to capture him. She said, and one
does not envy her having to say
it, that he is very mixed up, has no purpose, and gets mixed up with the wrong
people. Drug use and
depression also figure. She also said that he is very docile and
very good with computers. He still has, one would hope, some level
of promise. At
the time he offended, he himself said, he was mixed up with a local gang from which
he has since distanced himself.

[5]    The sentence recommended reflected the predicament that always arises
where there has been a failure to comply with community
based sentences. It
reflected as well the serious character of Mr Heywood's principal offence.


[6]    In the sentence he imposed,
the Judge, having narrated the purposes and
principles of sentence, treated the two burglaries, understandably, as the lead
offences.
He imposed for those offences 18 months imprisonment. Concurrently he
imposed a three month term for breach of the conditions on
release. He imposed
concurrently two month terms for each of the other offences. He remitted any fines
outstanding and cancelled
the sentence of community work.


[7]    On this appeal, Mr Heywood's counsel invites me to treat him as a first-time
burglar in
the least of the Senior v Police  (2000) 18 CRNZ 340 categories. Mr
Heywood's offending, he submits warranted a sentence of community work. Why
that was not imposed, he observes, is
not apparent from the remarks on sentence. But
Mr Heywood has served four months imprisonment, an effective sentence of eight
months.
He shows some remorse. His guilty plea was made early. There are none of
the aggravating features set out in Senior. I am invited
to impose an eight month
term, bringing the sentence to an end.


[8]    Counsel for the Crown points out that Senior is not a tariff
case. There is no
tariff for burglary: R v Southon  (2003) 20 CRNZ 104 (CA). But even first time
burglars, as Tipping J said in Tawa v Police (DUN AP 20/95, 17 March 1995), can
be deserving of a sentence
of imprisonment. Everything depends on the offence.

[9]    In Nguyen v R (CA 111/01, 2 July 2001), a case not unlike Southon, the
Court
of Appeal identified the factors that aid in assessing the criminality of a burglary.
These include the degree of planning
and sophistication, the nature of the premises
entered, the kind and value of property stolen, the damage done, the impact on
occupants
or owners, and the extent of the offending where multiple burglaries are
involved. As in Southon, the Court confirmed that there
is no tariff.

[10]   More pertinent still is the more recent decision, R v Columbus  [2008] NZCA
192, where the offence was a burglary of a garage on a residential property and the
theft of items was remarkably similar to those taken
here. The Court of Appeal

distinguished between the offence and the offender, a distinction not made in Senior,
and said that the
offence warranted a starting point no greater than one years
imprisonment; a starting point that might well apply here, given that
the offence was
committed not as in that case in the afternoon, but in the early hours of the morning.

[11]    The apparent complication
that there were two offences here results, as
Crown counsel has confirmed, from a mistake. The first information laid ought to
have
been withdrawn when the second was substituted to include the co-offender.
The Judge sentenced on a misapprehension. That did not
lead him to identify two
separate instances of offending, one aggravating the other. It does mean that he could
not have taken a
greater starting point than one year.

[12]    To that the Judge could, as Columbus held, have added an uplift of say six
months
to account for the totality of the offending sentenced concurrently. Recidivist
offenders, as the Court said in Columbus, can anticipate
a further uplift for
aggravating previous related offending. In that case the appellant was a serial
offender. Mr Heywood has no
previous aggravating conviction. That uplift was not
open.

[13]    There can be no question then that, set again Columbus, a decision
to which
the Judge was not referred, he did impose a sentence that reflected accurately Mr
Heywood's offending. It did not reflect,
unfortunately, Mr Heywood's plea, which
came early, and for which he could have anticipated a credit of six months. For that
reason
the sentence cannot stand. It will be set aside and in its place there will be a
sentence of 12 months imprisonment. In all other
respects the sentence is
unchallenged.

[14]    I should add, before signing these notes, that the conviction entered for
burglary
on the information that should have been withdrawn, CRN 08041003080,
must be quashed. The sentence now substituted for burglary is
to be imposed only on
the information laid in its place, CRN 08041003120.



                                                   
         _____________
                                                             P J Keane J