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Barakat v Police [2012] NZHC 1671 (13 July 2012)

Last Updated: 24 July 2012


IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-000006 [2012] NZHC 1671

BETWEEN RICKY JOHN BARAKAT Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 13 July 2012

Counsel: T C Thackery for Appellant

E C Killeen for Respondent

Judgment: 13 July 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] On 8 June 2011 Mr Barakat pleaded guilty in the Levin District Court to nine charges. Six of the charges were for theft. He also pleaded guilty to one charge of burglary, one charge of threatening to injure and one charge of breaching the conditions of his release from prison.

[2] On 24 August 2011 Judge Behrens QC sentenced Mr Barakat to an end sentence of two years and five months’ imprisonment. The end sentence imposed in relation to each charge was:

(1) Theft on 17 February 2011 – three months; (2) Theft on 17/18 February 2011 – one year;

(3) Theft on 17/18 February 2011 – three months;

BARAKAT V NEW ZEALAND POLICE HC PMN CRI-2012-454-000006 [13 July 2012]

(4) Theft on 22 February 2011 – six months; (5) Theft on 3 March 2011 – one year;

(6) Theft on 3 March 2011 – three months;

(7) Breach of release conditions – two months;

(8) Threatening to injure on 17 February 2011 – convicted and discharged; and

(9) Burglary on 18 February 2011 – two years and five months’


imprisonment.

The offending

[3] Mr Barakat’s first offending occurred on 17 February 2011. He visited The Warehouse in Levin. Mr Barakat entered that shop with his partner and two children. He handed his children a small trolley and they walked to the front door and pushed it through the sensors which were not activated. They returned. Mr Barakat then placed a DVD player (valued at $99.99) and a CD player (valued at

$69.99) in the trolley and they left the store.

[4] When leaving the store, a store assistant approached him and asked to see his receipts. Mr Barakat became extremely aggressive and threatened the store assistant. The store assistant backed off. Mr Barakat drove away.

[5] At some point between 8.30pm on 17 February 2011 and 3.30pm on 18

February 2011 Mr Barakat entered a private property in Otaki. Mr Barakat went to the back of the property and found two unlocked cars. From one he took a Panasonic car stereo, two CD wallets containing 60 CDs and an owner’s manual (valued at $1,826.35). From the other vehicle he took a GPS unit, two CDs, a sales compendium containing business documents, an ASB MasterCard, three Westpac credit cards and a Loyalty Card (valued at $702.60).

[6] On 18 February 2011 at about 12.30pm Mr Barakat entered the Paper Plus stationery store on Oxford Street, Levin. Mr Barakat entered the front door and went straight to the back of the store. He approached a door marked “Staff Only” through which was a storage area, kitchen, bathroom and the owner’s office. He looked around to make sure no one was watching. He then crouched down to conceal himself from view, opened the door and went into the owner’s office. He opened some drawers and took an electronic bank authorisation device, along with a cheque book and deposit book. He hid the items under his clothing before leaving the shop. He was observed behaving in this way on a closed-circuit TV.

[7] On 22 February 2011 at about 5.10pm Mr Barakat returned to The Warehouse. He placed a number of items into his trolley, including a 47 inch television, a radio controlled truck, clothing and footwear (all valued at $1,104.21). He pushed the trolley out through the front door of the store without making any attempt to pay for the items. A shop assistant pursued him. Mr Barakat claimed he had received a quote for the items and continued loading them into his car. The shop assistant forcibly took the items back.

[8] On 3 March 2011 at about 11.30am Mr Barakat entered a diving equipment store in Paraparaumu. He inquired about some expensive equipment. He asked several questions of the shop assistant, examined the items and left. At 2.40pm he returned with two associates. He removed the same equipment from the stand and decamped the store, making no attempt to pay for the items. When arrested on

20 March 2011 Mr Barakat refused to explain where the stolen gear was, or offer any explanation for his actions.

[9] At about 11.45am on 3 March 2011 (after he had left the dive shop on the first occasion) Mr Barakat entered a shop in Otaki. He asked a shop assistant for a WINZ quote and gave false details about his identity. While no one was looking, he stuffed a pair of Adidas trainers down his jacket and left the store. His car was parked in a side alley and he drove off at speed. A member of the public videotaped him as he left.

[10] Mr Barakat has a very extensive record of criminal offending. By my calculations he has 79 convictions for criminal offences that include convictions for burglary, theft, shoplifting, escaping from custody, assaults and drug offending.

[11] Mr Barakat also has eight traffic convictions.

[12] Mr Barakat has been sentenced on multiple occasions to periods of imprisonment.

Pre-sentence reports

[13] Two pre-sentence reports were prepared.

Dr Bird’s report

[14] Dr Bird, a consultant psychiatrist, explained Mr Barakat was placed in Social Welfare custoday from aged 11. He left school when he was 15 and from that point he has been in custody on a number of occasions.

[15] Dr Bird records in his report that Mr Barakat has suffered two head injuries, in 1997 and 2009. As a consequence, Mr Barakat experiences epilepsy and impairment of his higher brain functions. He has spent considerable periods in rehabilitation units and is receiving medication (antiepileptic, antidepressant and tranquilisers).

[16] Dr Bird concludes in his report that Mr Barakat has an anti-social personality disorder and suffers from a recurrent brain injury.

[17] The pre-sentence report explains that Mr Barakat is 35 years old. Prior to the current offending he was living with his ex-partner and their three children in Levin. He has another three children.

[18] The author of the pre-sentence report noted that Mr Barakat’s offending was caused by a propensity for violence, offending-supportive attitudes and environments which are contributed to by unhelpful lifestyle and a poor choice of associates. Mr Barakat’s explanation is that he suffers from kleptomania and that stealing is his response to the manic episodes he suffers. Mr Barakat also claims he has not received appropriate rehabilitative treatment while in prison or in the community.

Decision of Judge Behrens QC

[19] Judge Behrens QC accepted that the offending all took place over a “fairly short period of time”. His Honour took the burglary as being the lead offence, and considered a starting point of three years’ imprisonment was appropriate. He then uplifted that period of imprisonment by six months to take account of Mr Barakat’s past convictions. The District Court Judge then discounted that sentence by 25 per cent on account of Mr Barakat’s guilty plea arriving at a final sentence of two years five months’ imprisonment. Judge Behrens QC remitted all fines and refused to impose reparation. He then imposed the individual sentences set out above.

[20] The Court notes in passing that in fact the end sentence imposed did not reflect a 25 per cent discount but a discount of close to 30 per cent for the guilty plea that was entered.

Submissions for Mr Barakat

[21] Mr Thackery submits that the sentence imposed was manifestly excessive because:

(1) The three year starting point for burglary was too high. He submits that the offending was low in seriousness and that a starting point of no more than one year should have been imposed.

(2) That the six month uplift for previous convictions was too high on top of the three year starting point.

(3) No credit was given for remorse expressed in a letter that was made available to the District Court Judge.

(4) Home detention was not considered when it should have been.

Principles applicable to an appeal

[22] This Court’s jurisdiction to hear and determine the appeal is derived from s 121 of the Summary Proceedings Act 1957. In the circumstances of this appeal, the Court may allow the appeal if it considers that the sentence imposed by the District Cort was “clearly excessive or inadequate or inappropriate” (“manifestly excessive”).

[23] In R v Monkman, the Court of Appeal explained the term “manifestly excessive” in the following terms:[1]

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[24] When considering if the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal recently observed in

Ripia v R:[2]

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

Sentence structure

[25] In the Court’s view, Mr Barakat’s offences should result in concurrent

sentences. The offences are similar in kind and are a connected series of offences.[3]

Accordingly, I agree with the District Court Judge that it is appropriate to adopt the burglary conviction as the lead offence, consider the starting point for that offence, consider any uplifts to the starting point for totality and then consider adjustment for personal factors.

Analysis

[26] In Nguyen v R[4] the Court of Appeal held a burglar’s culpability should be

assessed by reference to:

... the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.

[27] In R v Southon the Court of Appeal said:[5]

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 their potential for grave offences against the person, such risks are not entirely absent in the case of the 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.

Starting point

[28] After much reflection I have reached the conclusion that the starting point adopted by Judge Behrens QC was inappropriately high. This was a case in which

the burglary was rudimentary. The degree of premeditation was relatively low. The nature of the premises were commercial as opposed to residential. The kind and value of the property stolen was low. The damage done was also minimal. Overall the burglary offence was at the low end of the spectrum for offences of this kind. Accordingly, I would adopt a starting point of 18 months’ imprisonment.

[29] However, I believe that a starting point of 18 months would not be sufficient for the purposes of determining the totality that should be applied in this case. Section 85 of the Sentencing Act 2002 applies. It provides:

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

...

(4) If only concurrent sentences are to be imposed,—

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b) each of the lesser offences must receive the penalty appropriate to that offence.

[30] When comparing the uplifts for totality applied in cases such as Craigie v Police, Rota v R, R v Stevens and R v Columbus[6] I am driven to the conclusion that an uplift of nine months is appropriate. A schedule analysing those decisions is annexed to my judgment. While the offending on this occasion was relatively closely connected in time and place there were several other offences and some of the thefts, particularly those from the cars, were quite serious.

[31] This brings me to a total starting point of two years three months’

imprisonment.

Adjustment for personal factors

[32] When calculating the appropriate uplift for previous convictions the Court of

Appeal noted in R v Piper:[7]

... a balance must always be struck. An increase to the penalty otherwise appropriate [on account of past offending] is permissible, but not to the point where the end sentence is out of balance with the gravity of the offending.

[33] In Columbus the Court of Appeal dealt with the uplift issue in this way:[8]

A further increase is appropriate to recognise Mr Columbus’ previous dishonesty offences. He was 35 years of age when he committed these offences. Ms Edwards for the Crown advises that he had 89 previous convictions, of which 13 were for burglary and another 34 for property related offences. He has been sentenced to imprisonment on 15 occasions since 1989, most recently for two years for burglary and related offences in January 2003.

The nature and extent of Mr Columbus’ dishonesty history relates directly to his burglary. Previous sentences of imprisonment have not served to deter Mr Columbus. The community requires continued protection from him. However, it is relevant that Mr Columbus’ offending was of a spontaneous nature and his habitual or recidivist tendencies do not suggest a professional disposition to burglary, although they still reflect a significant degree of culpability. His history shows a risk of re-offending at the same reasonably minor end of the scale that characterised this crime. That is the risk of prevention to which past offending is relevant.

In our judgment Mr Columbus’ previous history justified a further increase of one year against the adjusted starting point of one-and-a-half years imprisonment. ...

[34] In Stevens, a case that is even closer to the present facts, the Court of Appeal said:[9]

Some uplift is appropriate to recognise the appellant’s previous dishonesty offending. He was 34 years of age when he committed these offences and, as the Judge noted, had some 60 previous dishonesty offences. The appellant was subject to a sentence of intensive supervision at the time of the burglary offending. The appellant, however, was not in the recidivist burglar category. He has three previous convictions for burglary and the last of these was in 1997. These components make the addition by the Judge of 12 months imprisonment to the starting point within range.

[35] In my assessment, the uplift of six months in this case was very generous. In light of Columbus and Stevens an uplift of between nine to twelve months would not have been unreasonable.

Guilty plea and remorse

[36] The District Court Judge was, in my respectful view, entirely correct when he said he would apply a 25 per cent discount for Mr Barakat’s guilty plea. I would also deduct another two months’ for Mr Barakat’s apparent remorse.

Conclusion

[37] As a result of my analysis, I have reached the following conclusions:

(1) The appropriate starting point for the burglary in this case was

18 months’ imprisonment.

(2) To this should have been added an uplift to reflect the totality of

Mr Barakat’s offending. This uplift should have been nine months.

(3) To this I would have added a further nine months’ uplift to reflect

Mr Barakat’s previous convictions.

(4) From this figure I would have deducted two months for remorse and then,

(5) A further 25 per cent to reflect the guilty pleas.

(6) The overall result is that I would have imposed a final sentence of two years and one and a half months’ imprisonment.

[38] Bearing in mind that the sentence imposed by the District Court was two years five months, I reach the conclusion that the sentence imposed was well within the range of sentence that could be imposed. Accordingly, I do not conclude that the

sentence imposed by the learned District Court Judge was clearly excessive or inadequate or inappropriate, or was otherwise manifestly excessive.

[39] Accordingly, the appeal against sentence is dismissed.

[40] In dismissing the appeal, however, I record my concern that Mr Barakat is a person who requires careful medical and psychological assistance if he is ever to properly re-integrate into society. He is a person whose offending bears all the hallmarks of a person who has not benefited from appropriate counselling and treatment regimes. This Court urges the authorities to do what they can to assist

Mr Barakat. If he is not assisted he will inevitably reoffend upon return to society.


D B Collins J

Solicitors:

Opie & Dron, Palmerston North for Appellant

Crown Solicitor, Palmerston North for Respondent

SCHEDULE OF DECISIONS

Details Starting Point Adjustment / Final

Craigie v Police HC Dunedin

CRI-2011-412-14, 6

July 2011.

The charges on which C was sentenced spanned a period of around eight months from May
2010 to January 2011. The offending included: forgery of a medical practitioner's letter in an attempt to obtain drugs; receipt of articles stolen from shops; the unlawful taking of a flatmate's motor vehicle e; 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 were not recovered. The till worth approximately $1200 was damaged beyond repair.

2 years. Chisholm J said:

[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 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, which involved a more serious burglary. In that case a starting point of three years was endorsed by this Court.

Uplift 1 year (for totality, plus offending while on bail, some relevant previous)

Downgrade 25% (guilty pleas, attempts to address causes of offending)

2 years 2 months

Rota v R [2012] NZCA 49

R’s associates stole a car. The next day, R and the associates went to a property in Napier during the day, drove the car round the back (causing $300 damage), entered and took items (valued at $4000, including a TV, jewellery, speakers, etc).

A neighbour alerted the police. The men were stopped. All stolen property (including the car) was recovered.

R also breached release conditions (released with conditions for 16 months on 28
April 10, failed to report to probation officer on 3 occasions in Mar/April/May 11).

20 months imprisonment (for burglary)

4 months (for totality – unlawfully getting into motor vehicle, breach of release conditions)

Potter J for the Court said:

[37] This was a burglary of a residential dwelling in which items to the value of $4,000 were taken. Those items were all recovered because of the timely intervention of an alert neighbour. The only loss was the $300 damage to the door.

[38] There was undoubtedly some planning involved, but that is the case with most burglaries. This could hardly be described as a sophisticated undertaking. “Brash” and “unsophisticated” would be more apt descriptors.

...

[41] The starting point of 18 months imprisonment taken by Woodhouse J for Mr Stephens' part in the burglary offending reflected that he was slightly less culpable than his co- offenders. Mr Rota was fully involved. We consider an appropriate starting point for his part in the burglary offending to be 20

months imprisonment.

Downgrade 20% (guilty plea)

19 months

R v Stevens [2009] NZCA 190

S went to commercial premises where he had previously worked; used keys to access building and deactivated security system; stole copper piping worth $350 from walls.

(Also convicted of several more minor drug possession charges)

18 months imprisonment

9 months (for totality – drug offending) Ellen France J for the Court said:

[13] ... we have concluded that the sentence imposed was manifestly excessive. Essentially, we consider the appellant's culpability did not warrant the term imposed.

[14] We accept that the burglary had the aggravating features the Judge identified. Theft of copper piping from the interior and exterior of buildings imposes considerable inconvenience on property owners. That said, the stolen metal here was

Uplift 1 year (60 previous for dishonesty, including 3 for burglary; and burglary committed while on intensive supervision) Downgrade ~20% (guilty plea)

2 years 2 months.

of low value. Overall, we consider that an appropriate starting point would have been no higher than 18

months imprisonment.

R v Columbus

[2008] NZCA 192

C had forced open a garage door causing $672 of damage, and stole a mountain bike, gardening tools and a tool box. C also stole from another residential property a lawn mower worth $479.

While on bail, C pumped $68 of petrol into his vehicle and departing without paying.

When his property was searched, a cannabis pipe and some loose cannabis leaf were found. He was charged with being in possession of both.

12 months (for burglary)

6 months (other offending) Harrison J for the Court said:

[16] Applying those principles here, the burglary committed by Mr Columbus was as the Judge noted “at the minor end of the scale”. It was apparently opportunistic or spontaneous because Mr Columbus wanted quick money. The mountain bike was later recovered. The owner suffered a natural sense of emotional violation and distress and limited financial loss. While we do not in any way diminish the effect on the victim, the circumstances of the burglary would not themselves justify a starting point of more than one years imprisonment.

[17] The Judge was entitled to adjust the starting point upwards by applying the totality principle. Mr Columbus committed multiple offences shortly after the burglary. His theft of petrol and a lawnmower, and possession of a cannabis pipe and leaf, though minor in themselves, were committed while on bail. That component would justify adding another six months imprisonment to the starting point.

Uplift 1 year (for 89 previous, including 13 for burglary and 34 for property offences)
- (guilty plea)


[1] R v Monkman CA445/02, 3 March 2003 at [6].
[2] Ripia v R [2011] NZCA 101 at [15].
[3] Sentencing Act 2002, s 84(2).

[4] R v Nguyen CA110/21, 2 July 2001 at [17].

[5] R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104 at [12].

[6] Craigie v Police HC Dunedin CRI-2011-412-14, 6 July 2011, Rota v R [2012] NZCA 49, R v

Stevens [2009] NZCA 190 and R v Columbus [2008] NZCA 192.

[7] R v Piper CA345/05, 12 September 2006 at [9].
[8] R v Columbus [2008] NZCA 192 at [18] – [20].

[9] R v Stevens [2009] NZCA 190 at [15].


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