Nelson v Police [2012] NZHC 2266 (4 September 2012)

Last Updated: 2 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-211 [2012] NZHC 2266

NATHAN SONNY NELSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 28 August 2012

Counsel: D George for Appellant

S McMullan for Respondent

Judgment: 4 September 2012

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 4 September 2012 at 11:30 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

D George, Public Defence Service, Auckland: [e-mail]

S McMullan, Meredith Connell, Auckland: [e-mail]

NELSON V NEW ZEALAND POLICE HC AK CRI-2012-404-211 [4 September 2012]

Introduction

[1] Nathan Sonny Nelson pleaded guilty to one charge of burglary, two charges of receiving stolen property, two charges of driving while disqualified, one charge of receiving stolen property, two charges of resisting a Police officer, one charge of escaping from lawful custody, and one charge of breaching a sentence of intensive supervision. The burglary was committed while the appellant was on bail on the driving and receiving charges.

[2] When the appellant appeared for sentence in the District Court at Auckland, Judge Everitt described him, having regard to his offending and his record (at the age of 45) of 84 previous convictions, as “a professional criminal, a dealer in stolen property, a thief and a burglar.”1

[3] The Judge considered a starting point of three years and six months' imprisonment to be appropriate on the burglary charge, bearing in mind the appellant's 19 previous burglary convictions. He uplifted the sentence by another 8 months to take account of the totality of the offending. Making due allowance for his pleas of guilty at a relatively early stage but taking into account the need for deterrence and the protection of the community, the Judge sentenced the appellant to an effective total sentence of three years and two months’ imprisonment. He declined to impose a minimum period of imprisonment.

[4] The appellant now appeals against the sentences imposed on two broad grounds argued by Ms George:

(a) that the Judge adopted a starting point on the lead offence of burglary, before taking personal factors into account, which was too high; and

(b) that the Judge failed to pay due regard to the appellant’s remorse and

his genuine attempts at rehabilitation from methamphetamine addiction which, it is said, was the root cause of his offending.

1 Police v Nelson DC Auckland CRI-2011-404-16542, 8 June 2012 at [19].

[5] For the respondent, Mr McMullan noted that, although this Court on appeal might adopt a different methodology to the determination of the appropriate sentence for the appellant’s offending overall, the ultimate issue for the Court is whether the sentence imposed was manifestly excessive. He argued that, while the end sentence of three years and two months’ imprisonment was towards the top of the range properly available to the Judge, it could not be regarded as clearly excessive.

[6] The questions arising on the appeal are:

(a) Did the Judge adopt an incorrect approach to determining the starting point?

(b) Did the Judge uplift the sentence appropriately to reflect the totality of the offending -

(i) by reference to the other offences for which the appellant was being sentenced; and

(ii) on the ground that the burglary had been committed while the appellant was on bail and that he was in breach of an intensive supervision order?

(c) Did the Judge uplift the sentence appropriately by reason of the

appellant’s previous conviction history?

(d) Did the Judge discount the sentence appropriately having regard to the

appellant’s guilty pleas and expressions of remorse?

Did the Judge adopt an incorrect approach to determining the starting point?

[7] Judge Everitt correctly identified the burglary charge as the lead offence and focused his attention, in determining an appropriate starting point for his sentence considerations, on the circumstances of that offending and the degree of culpability involved.

[8] He recorded that the burglary was of a residential dwelling in suburban Auckland at 9:00 pm one March evening where the appellant went to the address “prepared to burgle ... carrying with him a backpack type device containing implements for burglary.” He was seen inside the house by a neighbour after having jemmied open the bedroom window. Inside the house he stole two laptop computers, watches, phone and other electronic equipment and personal jewellery valued at around $800. The appellant was still inside the house when the Police arrived and although he managed to escape he was soon located with the assistance of a Police helicopter. The Judge said that it was only a matter of good fortune that the property owners did not return to be confronted by the appellant and that the effect on the victims was as expected.

[9] The Judge noted the appellant’s previous convictions, in the following terms:

[5] Mr Nelson started offending in 1985 and he has been offending on a regular basis ever since, whether assaults, resisting police, driving matters, excess alcohol, assaulting females, possession of burglary implements, burglaries, breaching protection orders, breaching Court orders, trespassing, receiving property, threatening language, numerous burglaries in 2002, possession of implements again for burglary, threatening behaviour, possession of meth utensils, graduating up the scale to firearms, and now this latest spree of offending in the latter part of last year and the earlier part of this year.

[10] Taking into account the 19 previous convictions for burglary, the Judge fixed the starting point for determining the appropriate sentence by placing the appellant in category 2 in the Full Court judgment of the High Court in Police v Senior,2 that of a recidivist burglar. In Senior, the Court described that category as typically involving a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions for burglary) and who is appearing for sentence on only one or a limited

number of offences. The High Court suggested that this burglar would probably be a person who burgles and steals for a living and often enough to sustain a drug habit but at what might be regarded as a subsistence level.

[11] The Court then referred to ten High Court judgments on appeal from sentences imposed in the District Court, referring to its consideration as “a

_{necessarily selective review of a limited number of sentencing outcomes”, which}

2 Police v Senior (2000) 18 CRNZ 340.

provided, it said, a reasonable indication of general sentencing levels but without being confident that the cases were necessarily truly representative. The Court observed that, apart from one of the cases in which there were five burglaries and the starting point sentence was five years’ imprisonment, the starting point in none of the cases exceeded four years and the highest sentence finally imposed in those cases was three years.

[12] In his decision, Judge Everitt recorded the High Court in Senior as saying that the starting point for a category 2 burglar was usually around four years. This misstated the High Court’s propositions in a way which may indicate a misunderstanding of what the Court said in that case; in fact the High Court had noted that four years’ imprisonment was the highest starting point applied in any of the cases.

[13] The Judge acknowledged that the Senior approach was not universally followed but said, in response to submissions to that effect on behalf of the appellant, that it was an approach which he preferred. Purporting to adopt Senior, the Judge picked a starting point of three-and-a-half years’ imprisonment.

The contemporary approach to sentencing

[14] There is no reason why, in burglary cases, the now-conventional approach to sentencing, summarised by the Court of Appeal in R v Clifford,3 should not be followed. There the Court adapted the process outlined in R v Taueki4 in light of the Supreme Court’s judgment in Hessell v R.5 The first step is to set a starting point, which should reflect the gravity of the offending having regard to the aggravating

and mitigating features of the offending. This will include considering the purposes of deterrence and community protection6 and, relevantly to this case, may involve an uplift to mark other offending for which the offender is to be sentenced, and

_{aggravating features such as offending while on bail.}

3 _{R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.}

4 _{R v Taueki [2005] 3 NZLR 372 at [42]-[44].}

5 _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.}

6 R v Columbus [2008] NZCA 192 at [14].

[15] Step 2 takes into account aggravating and mitigating factors of the offender. A potential aggravating factor is a history of previous offending justifying an additional element of deterrence and community protection, while mitigating factors such as special remorse and youth may justify a discount. The third step is to reduce the sentence, by an appropriate percentage, to reflect any guilty plea or pleas.7

[16] Although I accept Judge Everitt did not double-count the appellant's prior convictions, I consider his approach failed to give appropriate prominence to the actual offending in setting the starting point before any uplifts. Mr McMullan referred me to the recent judgment of Dobson J in Wirepa v NZ Police,8 where the Judge referred to cases indicating that the approach to sentencing for burglary had been modified, since Senior, to align burglary sentencing with the more recent approach enunciated in Taueki. He observed that starting points have reduced because previous convictions are no longer factored into that assessment, although that did not necessarily result in or justify a reduction to overall end sentences.

Being more transparent, the three-step approach enables the offender, and a court on appeal, to identify what factors have been taken into account and to what extent.

[17] The salient features of the burglary committed by the appellant were the forced entry into a dwelling house at night; the element of premeditation evidenced by the possession of burglary tools; and the removal of portable and readily saleable personal items such as jewellery, cell phones and personal electronic equipment. Almost all of the property was recovered. A consideration of cases referred to me by

counsel9 indicates that the appropriate starting point for this offending was within a

range of 18 months to two years imprisonment.

[18] In Johnstone v Police,10 Woolford J viewed a sentence imposed on an offender who had committed two burglaries but who had a lengthy record of

_{previous convictions including 26 previous convictions for burglary, one of which}

7 _{Hessell v R}

8 _{Wirepa v NZ Police [2012] NZHC 512.}

9. Walters v Police HC Auckland CRI-2008-404-106, 16 June 2008; Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009; R v Povey [2009] NZCA 362; Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010; Guest v Police HC Gisborne CRI-2010-

_{488-63, 24 March 2011; Rota v R [2012] NZCA 49.}

10 Johnstone v Police [2012] NZHC 551.

had attracted a sentence of four years’ imprisonment. In that case, the Judge agreed with counsel that the appropriate starting point, applying Clifford, was two years’ imprisonment, basing his view on a number of other High Court judgments given in

2010.11 The particular circumstances of the lead burglary charge in that case show

some similarities with the present. The property taken was more valuable than in this case but the Judge held there was little indication of premeditation. Bearing in mind there was only one burglary in this case, I consider a starting point of

21 months' imprisonment would have been appropriate if the burglary charge in this case was considered in isolation.

[19] Because of the approach taken by Judge Everitt, it is not possible to say what view he came to on this point.

Did the Judge uplift the sentence appropriately to reflect the totality of the offending?

The other offences for which the appellant was being sentenced

[20] An uplift to the starting point on the burglary charge was necessary to ensure the starting point reflected the totality of the offences for which sentences were to be imposed, including two charges of driving while disqualified, two charges of resisting Police, one charge of escaping from custody and two charges of receiving. By directing that the term of eight months' imprisonment imposed on the receiving charges be served cumulatively on the burglary sentence, Judge Everitt effectively added eleven to twelve months imprisonment to what he described as the starting

point to account for the other offending.12

[21] The charge of possessing instruments for burglary reflected the premeditation which I have already factored into the starting point when looking at the burglary charge alone. Bearing in mind the maximum penalties available for these offences,

_{including the two years’ imprisonment for a third or subsequent offence of driving}

11 _{At [17].}

12. Police v Nelson DC Auckland CRI-2011-404-16542, 8 June 2012, at [19]. The Judge is recorded as saying that he added eight months' imprisonment cumulative on the sentence for the burglary, but that was in addition to the net period of two years six months reached after the Judge allowed a discount for the appellant's guilty pleas so it is to be assumed he was referring to a net figure.

while disqualified and seven years’ imprisonment for receiving, but taking account of the offending period between late August 2011 and late January 2012, I consider an uplift of nine months’ imprisonment to be appropriate. This produces a starting point of two years six months’ imprisonment to reflect the totality of the offending.

Offending while on bail and breaching an order for intensive supervision

[22] Aggravating elements of the offending were that the appellant was on bail for the receiving charges and was undergoing a sentence of intensive supervision for an earlier receiving conviction. Judge Everitt noted these features but did not account for them separately in his calculations. I consider they merited a further uplift of three months imprisonment to act as a deterrent for any subsequent inclination to breach orders of the court.

[23] The result is that the offending overall merited a global starting point of two years nine months' imprisonment before personal factors were taken into account.

Did the Judge uplift the sentence appropriately to reflect the added need for deterrence and community protection in light of the appellant's previous history of offending?

[24] The second step of the process summarised in Clifford requires the Court to consider aggravating and mitigating personal circumstances. It is here that the previous convictions of the appellant fall to be considered as an aggravating factor which indicates that the sentence should be uplifted because of the greater need for deterrence and the protection of the community.

[25] Judge Everitt’s approach combined the initial starting point based on the level of culpability for the burglary with the uplift for previous burglary convictions. In taking a starting point of three-and-a-half years’ imprisonment on this basis, Judge Everitt effectively applied an uplift, on account of the prior offending, of 21 months above what I consider should have been the initial starting point of 21 months.

[26] While an uplift for prior offending was inevitable, I consider the Judge erred in that respect. The last of the appellant’s prior convictions for burglary was in 2006

and, prior to that, in 2002 when there appears to have been a spate of offending dealt with contemporaneously. In my view, an uplift of no more than 12 months was appropriate to avoid the risk of imposing an additional period of imprisonment which effectively resentenced the prisoner for his earlier offending.

[27] This means that I have reached a total sentence of three years nine months imprisonment on account of factors related to the offending, and the personal factor of prior convictions, before taking mitigating personal considerations into account.

Did the Judge discount the sentence appropriately having regard to the

appellant’s guilty pleas and expressions of remorse?

[28] Ms George submitted that the deduction of 25 percent allowed by Judge Everitt for early guilty pleas was appropriate, but that the Judge erred by not adding a further discount on account of the appellant’s expressions of remorse and efforts at rehabilitation. In the present case, the appellant wrote a lengthy letter of apology to the Court and his victims explaining his remorse, taking responsibility for his actions, and describing the efforts he had made to rehabilitate himself. The principal underlying cause of the offending, in the appellant’s view, was his addiction to methamphetamine, and he had completed a community alcohol and drug service programme while awaiting sentencing and had arranged an assessment with Odyssey House for further treatment.

[29] Judge Everitt did not accept the claim that the appellant was remorseful, referring to a denial of that element in the probation report. Ms George pointed out, however, that the tangible expressions of remorse had been made prior to the appellant’s interview for the pre-sentence report and suggested that he did not particularly make a point of referring to remorse when interviewed by the probation officer because he had already given tangible expression to those feelings. I have no reason to doubt that explanation, given that Mr Nelson’s letter to the Court was dated some two months before the pre-sentence report.

[30] I accept also, as Judge Everitt did,13 that the appellant should be given credit for his efforts at rehabilitation which include attendance at a Living Skills programme; completion of a Community Alcohol and Drugs Services rehabilitation programme; participation in a Maori Therapeutic programme; and an expressed wish to attend a residential rehabilitative programme at Odyssey House.

[31] I would allow a discount of six months on account of remorse and rehabilitation, meaning that the sentence before taking the appellant's guilty pleas into account would be three years three months' imprisonment.

Discount for guilty pleas

[32] The District Court Judge said he would allow a discount of 25% for the appellant's guilty pleas; that may have been a little generous given the strength of the prosecution cases but it was not seriously challenged by the respondent and I propose to adopt it.14 Applying that discount, the total effective end sentence, in my view, should have been one of approximately two and a half years imprisonment compared to the sentence of three years two months imposed in the District Court. It follows that I consider the sentenced imposed to have been clearly excessive, largely for the reason that the Judge included an excessive uplift for previous convictions.

That error can be remedied by directing that all sentences be served concurrently.

Outcome of the appeal

[33] Therefore, I allow the appeal in part. I confirm the terms imposed by the District Court in respect of each of the charges but direct that all sentences are to be served concurrently. The total effective sentence is one of two years six months'

_{imprisonment.}

_{Toogood J}

13 _{At [ 20].}

14 In fact, at [18] and [19] the Judge discounted the sentences on the burglary charge by over 28%

and on the receiving charges by 33%.