Sinclair v Police HC Palmerston North CRI-2011-454-12 [2011] NZHC 1886 (26 October 2011)

Last Updated: 30 January 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

_{CRI-2011-454-12}

JOHN SINCLAIR

v

NEW ZEALAND POLICE

Hearing: 25 October 2011

Counsel: J Younger for Appellant

D Davies for Crown

Judgment: 26 October 2011

_{JUDGMENT OF WILLIAMS J}

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on the 26th October 2011.

JOHN SINCLAIR V NEW ZEALAND POLICE HC PMN CRI-2011-454-12 26 October 2011

[1] Mr Sinclair pleaded guilty in the District Court to 17 charges. He was not legally represented. He was sentenced to four years’ imprisonment (concurrent) on each of the two lead burglary offences. All other offending was sentenced concurrently leaving a final sentence of four years.

[2] Mr Sinclair is now legally represented and argues that four years is manifestly excessive on the burglary counts but does not challenge the remaining sentences.

[3] It is necessary to briefly describe the lesser offending before turning to the burglaries.

(a) Dishonestly accessing a computer system: Mr Sinclair took a cellphone from a friend’s address, located credit card details on it, and tried to purchase a mobile phone on Trade Me with those details;

(b) Conversion of a vehicle and receiving: Mr Sinclair was found driving a Toyota Rav 4 and when police subsequently searched his home other stolen property was recovered;

(c) Theft, fraud: Mr Sinclair used an associate’s Eftpos card, without

consent, to withdraw $120 in two transactions; (d) Breach of release conditions by failing to report;

(e) Unlawfully in a building: Mr Sinclair had verbally abused a female victim the day before; had returned to her home and refused to leave;

(f) Failed to answer police bail; (g) Failed to answer court bail; (h) Driving while disqualified;

(i) Resisting police and arrest: when arrested for breaching court bail conditions;

(j) Wilful damage (x2): following a domestic dispute Mr Sinclair damaged the roof of a garden shed and abused the police and members of the public;

(k) Unlawfully on a building. i.e. the garden shed. [4] The burglary counts require slightly more explanation:

(a) on 26 August 2009, Mr Sinclair broke into and entered an unoccupied residential address in Palmerston North by kicking the locked and bolted door in. He took various items including a digital camera, cordless phone with charger, television, stereo and a laptop computer. Mr Sinclair made several trips in and out of the house to remove these items;

(b) on 15 July 2010, Mr Sinclair ascertained that a residence in Lower Hutt was unoccupied by knocking on a door and then breaking the door without alerting anyone. Mr Sinclair then entered the house through the broken door, took a television set, laptop computer, pearl necklace and a suitcase containing items of clothing and a book, together valued at $2,400.

[5] In sentencing His Honour Judge Dawson noted that Mr Sinclair:

(a) had 56 previous convictions including 13 for burglary, seven involving violence, and 10 involving breaches or escaping;

(b) was assessed in the Pre-sentence Report as having low motivation to change and a high risk of reoffending, together with a harmful pattern of alcohol;

(c) has over $11,000 in outstanding fines and reparation; and

(d) in the learned Judge’s view had a strong tendency to blame others for his anti-social behaviour and failing to take responsibility for his own actions.

[6] The appeal is out of time but leave to file out of time is appropriate in this case. With the changes in legal aid, Mr Sinclair had difficulty finding a lawyer prepared to lodge an appeal on his behalf because he is in prison and did not have a lawyer at the time of sentencing. Leave was granted accordingly.

[7] I note by way of aside that the appeal was filed against both conviction and sentence, but this was clearly a stop-gap measure until a legal aid lawyer could be assigned, and the appeal against conviction is now abandoned with leave.

[8] The issue on appeal is relatively narrow. His Honour Judge Dawson adopted a starting point of four years’ imprisonment before uplifting by two years to take account of “other offending and aggravating factors”. He then discounted by two years to reflect early guilty pleas and remorse (albeit tempered by tendency to blame others).

[9] Standard release conditions were imposed for 12 months with special release conditions requiring Mr Sinclair to attend an alcohol and drug assessment and to attend and complete any treatment counselling required by probation. The police accept that release conditions were without jurisdiction and should be quashed.

[10] The starting point of four years’ imprisonment for burglaries is stiff to say the least. The leading decision on burglary sentencing in Senior v Police[1] would treat this offending as Category 2 recidivist burglar. This category relates to an offender with multiple previous burglary convictions (perhaps 20 or 30) while appearing for sentence on one or a few charges.

[11] In most cases according to Senior the starting point is not more than four years. This is at the more serious end of the scale. Aggravating features that might

_{contribute to a four year starting point include danger to or confrontation with}

occupiers, or the risk of such; targeting through repetitive burglaries or theft of personal items; wanton destruction and vandalism; theft of items of high monetary or sentimental value; sophisticated planning; and offending while on bail or in close proximity to other charges. The more serious of these aggravating features are just not present in this case. On the contrary, without more to go on, the authorities tend to suggest a starting point in a case of this kind of the order of two and a half years’

imprisonment at the outside.[2]

[12] The learned Judge identified the following aggravating features in this offending:

1 Many of your offences took place in the dwelling places of people.

2 The extent of the loss caused by your offending which totals

$12,326.40.

3. The final aggravating feature is the number and the relevance with your previous and present convictions.
   

[13] Thus, the learned Judge adopted a starting point that took account of previous offending. The stern starting point is perhaps explicable in those terms.

[14] However, at paragraph [38] His Honour said:

For the burglary charges it is appropriate to adopt the starting point of a term of imprisonment of four years. After taking into account the other offending [I assume the 15 other charges upon which he was sentenced] and the aggravating factors I have mentioned, it would be appropriate to increase your sentence of a term of imprisonment to six years.

[15] It appears that Mr Sinclair’s history of offending was double-counted – first in the four year starting point, and second in the two year uplift.

[16] If it is accepted that a starting point of four years is appropriate taking into account prior offending, then the Judge’s reduction of one-third should be from that figure. I note from his letter to the sentencing Judge that Mr Sinclair has married his

_{partner and is studying the Bible. These factors provide at least some basis for belief}

that Mr Sinclair may yet choose a new path. I consider therefore that a one-third discount is justified.

[17] The sentences on the two burglary counts are set aside and replaced with

concurrent sentences of two years eight months’ imprisonment.

_{[18] Release conditions are quashed.}

Williams J

---

[1] (2000) 18 CRNZ 340 (Full Court, High Court).

[2] Examples may be found in Blisset v Police HC Auckland CRI 2010-404-64, 21 April 2010 and

Thompson v Police HC Hamilton CRI-2010-419-56, 17 November 2010.