Craigie v Police HC Dunedin CRI-2011-412-000014 [2011] NZHC 867 (6 July 2011)

Last Updated: 16 August 2011

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CRI-2011-412-000014}

TODD CRAIGIE

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 6 July 2011

Appearances: J B Lovely for Appellant

L C Denton for Respondent

Judgment: 6 July 2011

_{ORAL JUDGMENT OF CHISHOLM J}

[1] Having pleaded guilty to 10 charges the appellant was sentenced to imprisonment for two years and two months. The charges were: possession of utensils, breach of community work, escaping from custody, forgery, receiving, driving while forbidden, unlawfully taking a motor vehicle, breach of bail and burglary. This is an appeal against sentence on the grounds that the sentence is manifestly excessive.

The offending

[2] The charges on which the appellant was sentenced span a period of around eight months from May 2010 to January 2011. The offending includes: forgery of a

_{medical practitioner’s letter in an attempt to obtain drugs; receipt of articles stolen}

CRAIGIE V NEW ZEALAND POLICE HC DUN CRI-2011-412-000014 6 July 2011

from shops; the unlawful taking of a flatmate’s motor vehicle; and the burglary of a hotel. In the case of the burglary $1000 was taken from the till and several cases of liquor were stolen. They have not been recovered. The till worth approximately

$1200 was damaged beyond repair.

The offender

[3] The appellant is aged 28 years. His previous convictions include using a document (which dates back to 2001 and is relatively historical), shoplifting, cultivating cannabis, and many breaches of court orders.

[4] It was reported by the probation officer that community work sentences imposed in 2002, 2003, 2005, 2006 and 2010 had been breached or cancelled and that the appellant:

... expressed pre-sentence motivation in respect of a number of breaches and reviews, but this was never actualised. Mr Craigie continually cited relationship, depression or health problems as barriers to his compliance....

As Mr Lovely pointed out, at one point the report refers to a medium risk of re- offending and then later to a high risk of further offending.

Sentencing in the District Court

[5] When imposing sentence the Judge identified three primary aggravating features: the offending was committed “over a significant period of time”; some of the offending occurred while the appellant was on bail; and he had relevant previous convictions.

[6] On the mitigating side, the Judge noted that there had been guilty pleas. However, he also noted that whereas some pleas had been entered at the earliest opportunity, two of the charges had been set down for defended hearings before guilty pleas were entered. The Judge also noted that substance abuse was an underlying problem.

[7] A starting point of three years imprisonment based on the total offending was adopted by the Judge. It seems that this starting point also took into account personal aggravating features. The starting point was reduced by 10 months, which is slightly over 25%, to take into account the guilty pleas and also the appellant’s “attempts, albeit unsuccessful, address the causes of [his] offending”. As already mentioned, this resulted in an end sentence of two years and two months imprisonment.

This appeal

[8] For the appellant Mr Lovely submitted that the sentence was manifestly excessive for a number of reasons. First, the starting point was too high. In this regard Mr Lovely submitted that the Judge had failed to give proper weight to the fact that the appellant was a first time burglar, the other charges were “low level, drug related crime or breach of community based orders”, some aggravating factors had been overstated, and the Judge had given undue weight to the appellant’s criminal history. It was submitted that the starting point should have been in the region of two years imprisonment, at the highest.

[9] Secondly, counsel for the appellant argued that the Judge failed to give proper weight to the appellant’s underlying drug dependency. He submitted that the Judge should have put in place a sentence that would have allowed the appellant “to have community based or treatment based” sentences.

[10] Finally, Mr Lovely argued that the judge failed to take into account as a mitigating factor the injuries that the appellant had suffered and that his drug dependency, at least in part, was in the form of self prescribed pain relief.

[11] The thrust of the submission for the appellant is that the sentence should have been below two years in which case the door to a community based sentence would have been opened.

[12] For the respondent, Ms Denton, submitted that the starting point and end sentence were within range, the Judge had taken into account all relevant considerations, and there had been an appropriate discount for mitigating factors.

Discussion

[13] Although there was nothing wrong with arriving at a starting point by reference to the offending as a whole, I prefer to test the appropriateness of the Judge’s starting point by reference to the approach in R v Taueki.[1] In other words, I will adopt the burglary as the lead charge and then consider the uplifts that should be applied before taking into account mitigating factors.

[14] In relation to the burglary I note that in R v Southon,[2] the Court of Appeal commented:

[12] The seriousness of burglary is not to be underrated. Although the nature and risks of intrusion into private dwellings are obvious with their sinister implications for privacy and potential for grave offences against the person, such risks are not entirely absent in the case of burglary of commercial premises. There is always the possibility of an encounter with someone lawfully on commercial premises. The potential for property loss goes without saying.

Later the Court of Appeal observed in R v Columbus[3] that it is the circumstances of the offending that will predominate when fixing the starting point for burglary.

[15] It can be inferred that in this case the burglary of the hotel was premeditated. It involved the loss of both cash and liquor, plus the the damage to the till. The victim impact statement indicates that this had particularly serious repercussions for the victim. Although Mr Lovely was critical of the Judge for taking into account the use of a taxi to convey the stolen property after the burglary, I do not accept that the Judge erred by taking that factor into account when assessing the appellant’s culpability. To me the use of the taxi indicates a high degree of arrogance. On the

_{other hand, I accept that this was a burglary of commercial premises, not a dwelling.}

[16] R v Columbus provides a useful yardstick for determining the starting point for a single burglary. In that case there was an opportunistic burglary of a dwelling which was described as being at the minor end of the spectrum. The stolen item was recovered. However, the Court of Appeal considered that the circumstances of that burglary would justify a starting point of not more than one years imprisonment.

[17] In my view, the burglary in this case was much more serious. Apart from anything else, it involved premeditation and significant loss and damage. There was no recovery. A starting point of two years would not be out of the way. I agree with Ms Denton that such a starting point would also be consistent with R v Te Huna,[4] which involved a more serious burglary. In that case a starting point of three years was endorsed by this Court.

[18] Having arrived at the starting point of two years it is then necessary to factor in the other offending. Notwithstanding Mr Lovely’s attempts to persuade me to the contrary, I do not see any problem with the Judge’s observation that the offending had extended over a “significant” period of time. It did. Moreover, the other offending cannot be dismissed as inconsequential. It encompassed a variety of offending involving dishonesty, drugs and breaches of court orders, not to mention an escape from custody.

[19] Added to that, much of the offending, including the burglary, was committed while the appellant was on bail. Moreover, the appellant had relevant previous convictions. Once the other offending, the offending on bail, and the previous convictions are taken into account I do not think there is the slightest difficulty in justifying an uplift of one year. This brings us to the Judge’s starting point of three years.

[20] The next issue is whether the 10 month (slightly more than 25%) discount was appropriate. Mr Lovely argued that the sentence should have been within the range of two years or less. But this is putting the cart before the horse. It could only be within that range if there are sufficient discounts to achieve that outcome. Given

_{that there were some late pleas the discount must have included some allowance for}

the appellant’s drug problem. I have not been persuaded that the discounts were

inappropriate or inadequate.

[21] No error in the sentence imposed by the Judge has been demonstrated. The appeal is dismissed.

Solicitors:

Downie Stewart, P O Box 1345, Dunedin

R P Bates, P O Box 803, Dunedin

---

[1] _{R v Taueki [2005] 3 NZLR 372(CA)}
[2] _{R vSouthon [2003] NZCA 9; (2003) 20 CRNZ 104}
[3] R v Columbus [2008] NZCA 192

[4] R v Te Huna CRI-2006-483-1, 21 February 2006, Miller J