Curtis v Police HC Rotorua CRI-2011-463-000068 [2011] NZHC 1926 (30 November 2011)

Last Updated: 2 February 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2011-463-000068}

JAMES CURTIS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 30 November 2011

Counsel: SR Franklin for Appellant

N Belton for Respondent

Judgment: 30 November 2011

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

Hamertons, DX JA31519, Whakatane. Email: [e-mail]

Crown Solicitor, DX HP40041, Tauranga 3141. Email: [e-mail]

CURTIS V NZ POLICE HC ROT CRI-2011-463-000068 30 November 2011

[1] James Curtis appeals against a sentence of two years and three months’

imprisonment imposed on him by Judge Rollo in the District Court at Whakatane on

_{17 August 2011. He had pleaded guilty to the following eight charges:}

Burglary (s 231(1)(a) of the Crimes Act 1961) – maximum penalty

_{10 years’ imprisonment;}

Unlawfully getting into a vehicle (s 226(2) of the Crimes Act) –

_{maximum penalty two years’ imprisonment;}

Wilful damage (s 11(1)(a) of the Summary Offences Act 1981) –

_{maximum penalty three months’ imprisonment or a fine of $2,000;}

Giving false details (s 44 of the Land Transport Act 1998) – maximum

_{penalty a fine of $10,000;}

Behaving threateningly (s 21(1)(a) of the Summary Offences Act) –

_{maximum penalty three months’ imprisonment or a fine of $2,000;}

Breaching release conditions (s 96(1) of the Sentencing Act 2002) –

_{maximum penalty one year’s imprisonment or a fine of $2,000;}

Disqualified driving (third or subsequent) (s 32(1)(a) and (4) of the

Land Transport Act) – maximum penalty two years’ imprisonment or

_{a fine of $6,000; and}

Dishonestly using a document (s 228(b) of the Crimes Act) –

_{maximum penalty seven years’ imprisonment.}

[2] Mr Franklin has argued vigorously on behalf of Mr Curtis that the end sentence was manifestly excessive.

[3] It is necessary to set out the facts of the burglary in a little detail as the primary focus of Mr Franklin’s submission has been to challenge the Judge’s assessment of the culpability involved in this offending.

[4] The lead charge was the burglary charge. The appellant had entered a private residence at around 4am on Sunday, 7 August 2011. It seems that he had previously been to the residence and the occupants had some acquaintance with him, although the connection was a distant one. However, his knowledge of the residence was such that he was able to get in without forcing entry.

[5] Mr Curtis entered the room where the occupants were sleeping and took a cellphone valued at $200. He entered the lounge area and stole a PlayStation 3 gaming console and related wire controllers which were located in a television cabinet. He also then took a 50 inch plasma television that was in the lounge area.

[6] As he was exiting the house he kicked a set of French doors to facilitate his exit. This awoke the residents who got up and challenged him as he was attempting to load the television into the car. He swung a closed fist at one of the victims twice forcing that person to jump backwards to avoid being struck. The victim grabbed the television to try and stop him taking it and there was something of a struggle. He took another swing with a closed fist at another victim, who again avoided the blow by leaning his head backwards.

[7] Another victim reversed out of the driveway seeking help. When she stopped at the footpath she observed Mr Curtis running towards her puffing his chest out. He was holding a shiny metallic object. I accept Mr Franklin’s submission that this was a television or gaming console remote and not a weapon. However, the victim feared for her safety and drove away.

[8] The facts of the other offending can be dealt with more briefly as there is no challenge to the starting points reached.

[9] The two other serious charges are first the charge of dishonestly using a document. Mr Curtis had been working at a privately owned business. In the course of that work he had access to the business chequebooks. He stole a chequebook and went to a service station where he was known and believed to be of good character. He presented his employer’s cheque for $664.30 and obtained cash for that amount.

[10] The other serious charge is driving while disqualified on a third or subsequent occasion. He had been caught driving after a Police chase. He had been disqualified on eight previous occasions.

[11] The minor charges involve unlawfully getting into a motor vehicle, wilful damage, giving false details, behaving threateningly and breaching release conditions. These do not warrant a recital of the facts. Individually the offending was very minor in terms of culpability. Collectively it has some impact on the sentencing process, to which I will refer shortly.

[12] Mr Curtis appears to have been a methamphetamine addict. He admitted all his wrongdoing and pleaded guilty at the first possible opportunity. He co-operated fully with the Police and indeed may have given them some material assistance. He declined the option of having a pre-sentence report completed at sentencing. He has a shocking set of prior convictions for burglary and offending connected with cars. He has 10 prior convictions for burglary.

The sentencing decision

[13] The Judge considered the burglary count to be the primary charge and reached a starting point of two years’ imprisonment on that charge with a one year uplift for the prior convictions, the ultimate starting point on the burglary count being three years. He added then six months for the use of a document and six months for the driving while disqualified charges. The end starting point was four years’ imprisonment. He proceeded to allow significant discounts for the guilty plea and the remorse and other factors to reach the end sentence of two years and three

months’ imprisonment. There were associated concurrent sentences in respect of the other counts, and reparation orders.

The starting points

[14] Mr Franklin focused on two particular starting points reached by the Judge. [15] He submitted that the starting point reached for the burglary of two years was

too high and that the right starting point was in the order of 15-18 months. He submitted that the Judge had misstated the facts of R v Columbus,[1] on which he relied in fixing the starting point. He had focused on the theft of a lawnmower in Columbus whereas in fact the theft of a lawnmower was related to a separate charge and had nothing to do with the burglary sentence for which Columbus was a precedent.

[16] Mr Franklin submitted that the culpability associated with the burglary, while more serious than in Columbus, did not warrant a starting point twice as high as the one year imposed in that case.

[17] Putting to one side issues of recidivism, to which I will refer shortly, it is necessary to make some assessment of the culpability involved in this offending. The Judge adopted the right methodology in assessing culpability, first to reach a starting point and then to decide on the appropriate uplift for the recidivism.

[18] Here there are a number of aggravating factors that can be identified. They are as follows:

(a) There was a degree of planning and the burglary could not be regarded as spontaneous. Mr Curtis had chosen to come late at night,

4am in the morning, and had parked his car outside.

(b) The burglary involved the entry into a residential home rather than a commercial premises.

(c) There were people inside the house and this was known to Mr Curtis.

(d) Mr Curtis entered a room where the occupants were sleeping. This is an aggravating factor deserving particular weight as it increases the chances of some sort of confrontation or altercation, and attendant harm to victims.

(e) There was some damage to the doors that he forced open on his exit.

(f) He refused to stop when confronted by the occupants and threatened them with punches and aggressive movement. There was a risk of injury.

[19] Also in assessing culpability it is relevant to note that the goods stolen were valued at $3,300.

[20] I have been referred to a number of comparable cases by counsel. I have already referred to Columbus where for significantly less serious offending a starting point of one year was fixed. The premises were commercial and there was no confrontation or threatening action. The Judge’s summary of the facts was wrong, but this does not appear to have caused any error.

[21] I have found the decision of R v Povey[2] referred to by Mr Belton for the Crown of some assistance. In that case there was a burglary by two men who entered a woman’s apartment at night. There was an element of premeditation. The important aggravating factor was that a spear gun was carried by the burglars and this injected a very real risk of injury to the occupant. It seems that the only item stolen was a CD player. The Court of Appeal considered that those factors fully justified a starting point of two years.

[22] The combined aggravating factors that I have referred to show this to be a burglary involving quite serious culpability. While the circumstances of entry and the value of the goods taken may not be remarkable, the effrontery involved in going

into a room where persons are sleeping and the danger of a confrontation that entailed, coupled with the resistance to being stopped and the threatening behaviour, greatly added to culpability. Combined these factors fully justified a starting point of two years.

[23] The other focus of Mr Franklin’s submission was the starting point for the dishonestly using a document count. It was submitted that that starting point should have been three to four months rather than six months.

[24] I do not accept that submission. The use of the cheque involved a serious breach of trust. This was not just a chequebook picked up or stolen by chance. It was taken from an employer who trusted Mr Curtis, which was then used to obtain money from another person who trusted Mr Curtis. There were thus two breaches of trust, and the amount involved was significant. I consider the starting point of six months fully justified.

[25] The addition of six months for the driving while disqualified count, his ninth, was rightly not challenged and seems to be fully within the range.

[26] Thus, before turning to matters personal to the offender, the combined starting point of four years reached by the Judge was entirely appropriate. This was two years with a one year uplift for prior convictions, six months for the use of a document count and six months for the driving while disqualified count. The Judge could well further uplifted the sentence by a small amount to account for the other minor offending, which although individually insignificant added to the overall seriousness of Mr Curtis’ actions.

[27] In terms of the deductions it is necessary to recast these slightly in this appeal as the sentencing process was interrupted before the Judge and in the end the methodology for deductions made was not entirely clear.

[28] I am satisfied that the deductions that the Judge made were entirely appropriate and I rationalise them in this way. Four years as I have said was the appropriate starting point, but there had to be some consideration of the totality of

the offending. Even though no specific consideration had been given to the minor offending in the Judge’s reasons, that needed to be taken into account. But in the end a deduction to take into account the totality of the offending meant that a six month deduction from the four years was appropriate, therefore reducing the starting point to three and a half years.

[29] There had been significant remorse displayed by Mr Curtis and he had also been co-operative with the Police and given them some assistance. A six month deduction was entirely appropriate for this, reducing the sentence at that point to three years’ imprisonment. If a 25 per cent deduction was then made in accordance

with Hessell v R3 for the guilty plea, the end sentence is two years and three months’

imprisonment. This was the sentence imposed by the Judge.

[30] I note that the Judge had reached the end sentence by a somewhat different route and allowed three months in particular for the co-operation with the Police. I have in my sentence combined that with a discount for the remorse that he appears to be genuinely showing in his efforts to turn his life around.

Result

[31] In conclusion, the sentence was therefore entirely within the range and, if anything, was generous to Mr Curtis.

[32] The appeal is therefore dismissed.

...................................

_{Asher J}

3 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

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[1] R v Columbus [2008] NZCA 192

[2] R v Povey [2009] NZCA 362.