Hewitt v Police [2012] NZHC 3332 (11 December 2012)

Last Updated: 9 January 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000297 [2012] NZHC 3332

BRONSON HEWITT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2012

Appearances: G Newell for Appellant

K Wendt for Respondent

Judgment: 11 December 2012

_{(ORAL) JUDGMENT OF WOOLFORD J}

Solicitors/Counsel:

Mr G Newell, Auckland.

Crown Solicitor (K Wendt) Auckland

HEWITT V NZ POLICE HC AK CRI-2012-404-000297 [11 December 2012]

Introduction

[1] On 7 August 2012 in the Manukau District Court, Judge Gibson sentenced the appellant, Mr Bronson Hewitt, to a total term of two years seven months imprisonment in respect of a range of offences to which he had pleaded guilty. The most serious charge was one of burglary almost two years earlier. There were in addition three charges relating to breach of Court orders and six charges relating to various offences committed in April and May 2012.

[2] The various charges and sentences imposed were:

_{Charge Date Sentence of imprisonment}

_{Burglary 3/12/2010 2 years 3 months}

_{Breach of intensive supervision 7/3/2012 2 months (concurrent)}

_{Failure to answer DC bail 20/3/2012 2 months (concurrent)}

_{Breach of community work 13/4/2012 2 months (concurrent)}

Theft (under $500) 16/4/2012 2 months (concurrent)

_{Unlawfully getting into motor}

_vehicle 26/4/2012 2 months (concurrent)

_{Driving with excess breath alcohol 19/5/2012 2 months (concurrent)}

_{Dangerous driving 19/5/2012 2 months (concurrent)}

_{Driving while disqualified 19/5/2012 2 months (concurrent)}

Giving false details 19/5/2012 Convicted and discharged

[3] In addition, Mr Hewitt was sentenced to four months imprisonment cumulative on the term of two years three months imprisonment imposed on the burglary charge in respect of the following charges:

_{Charge Date}

_{Driving while disqualified 15/11/2010}

_{Receiving stolen property 15/11/2010}

_{Failure to answer District Court bail 30/11/2010}

_{Unlawfully getting into motor vehicle 21/12/2010}

[4] Mr Hewitt had originally received two years intensive supervision on these four charges but the Department of Corrections had applied for his re-sentencing because of his failure to comply with the conditions of intensive supervision.

[5] Mr Hewitt now appeals against the total sentence of two years seven months imprisonment on the basis that it is manifestly excessive.

District Court decision

[6] Judge Gibson took the burglary as being the lead offence for sentencing purposes. He then determined that there should be an uplift in the lead sentence for the other offending committed between March and May 2012. However, he determined that the offences which occurred in November and December 2010 in respect of which Mr Hewitt had originally been sentenced to intensive supervision should be treated differently and a cumulative sentence imposed on the appellant’s re-sentencing.

[7] Judge Gibson referred to the appellant’s extensive list of previous convictions. He noted the wide range of offences and remarked that Mr Hewitt had not been particularly responsive to community-based sentences as the present application for re-sentencing on the intensive supervision sentence demonstrated.

[8] Judge Gibson then noted that the pre-sentence report recommended a sentence of imprisonment. The report writer, however, accepted that the appellant did have some insight into his offending and how he has been led into that offending by drug and alcohol abuse. Judge Gibson noted the appellant’s wish to attend a residential drug and alcohol programme. The appellant’s mother, who is in Court today, had also written a letter to the Court indicating that she had noticed a change in the appellant’s attitude and was supportive of the alternative advanced by counsel that a sentence of home detention be imposed.

[9] Judge Gibson took a starting point for the burglary of 18 months imprisonment. He uplifted that starting point by a further six months imprisonment to reflect the totality of the appellant’s offending between March and May 2012. He then added another nine months imprisonment because of the appellant’s extensive criminal history and offending on bail and while subject to a sentence. This brought the sentence of imprisonment, before any discount, up to two years nine months imprisonment.

[10] Judge Gibson noted that Mr Hewitt had entered a plea of guilty to the charge of burglary some two months after he first appeared. Accordingly, he was of the view that this entitled Mr Hewitt to a discount of 20 per cent. That meant that the sentence imposed by Judge Gibson on the lead offence of burglary was a term of two years three months imprisonment. Judge Gibson then referred to the offences for which Mr Hewitt was to be resentenced. Judge Gibson started with a further additional sentence of nine months imprisonment, which he reduced to six months to take into account that Mr Hewitt had completed some part of the intensive supervision sentence before taking a further two months from the additional sentence to take into account the fact that Mr Hewitt consented to the resentencing application effectively pleading guilty. This led Judge Gibson to impose a further additional sentence of four months imprisonment, which was cumulative on the sentence of two years three months imprisonment imposed on the charge of burglary.

Submissions

[11] Mr Newell, on behalf of Mr Hewitt, submitted that the starting point adopted for the charge of burglary was too high. He noted that the appellant has only one previous conviction for burglary, in 2003, for which he was sentenced to six months supervision. Mr Newell referred me to the decision of Senior v Police[1] and submitted that the appellant could not be characterised as a recidivist burglar but could be considered a category one burglar, in respect of which the Court in Senior

held that “a prison sentence may be imposed although frequently this is not the case”.

[12] Mr Newell also referred me to the decision of Pluim v Police[2] where Clifford J adopted a starting point of 18 months imprisonment on appeal against a sentence for two burglaries. Mr Newell submitted that the offending in Pluim was more serious than the current offending. The first burglary was of a pharmacy. A safe containing ephedrine and morphine sulphate tablets was taken. Clifford J noted that the burglary of a pharmacy required particular deterrence and denunciation. There was also a second burglary committed while the appellant was on bail for the burglary of the pharmacy. Mr Newell therefore submitted that, given the decision in Pluim, the appropriate starting point for a burglary of this nature is one of 12 months imprisonment.

[13] Mr Newell did not appear to challenge the uplift of six months imprisonment to reflect the totality of the appellant’s offending in his written submissions. However, in his oral submissions, Mr Newell questioned whether any of the other offences would have warranted a sentence of imprisonment if the appellant was being sentenced on them alone. Mr Newell also submitted that a further uplift of nine months imprisonment for the appellant’s previous convictions and offending on bail and while subject to a sentence was excessive in that there was a risk that the appellant was subject to double counting when Judge Gibson fixed a starting point of

18 months with reference to the categories in Senior, and then imposed an uplift of 9

_{months for the appellant’s previous convictions and offending whilst on bail.}

Mr Newell suggested that an uplift of between four and six months imprisonment was appropriate to reflect the previous offending and offending whilst on bail.

[14] Finally, in his written submissions, Mr Newell submitted that the final sentence imposed should be one of home detention because the otherwise appropriate sentence was within the range where home detention must be considered. Mr Newell did acknowledge that the appellant had a poor record of abiding by non-custodial sentences, such as community work and home detention but noted that a major factor behind the appellant’s offending was his alcohol and drug abuse. He referred to the comments in the pre-sentence report which suggested that the appellant was motivated to help himself by wanting to attend the Te Ara Hou drug and alcohol residential programme. The programme had received a referral for the appellant but no beds were available until January 2013. Additionally, Mr Newell submits that the appellant has insight into the negative impact his offending has had on his family. He has the support of family members and a home detention address where he could reside with his mother.

[15] In his oral submissions today, Mr Newell submitted that, if I was minded not to impose a sentence of home detention but was instead considering a sentence of between 12 and 24 months imprisonment, then I should make orders in terms of s 93(2) of the Sentencing Act 2002 directing that the appellant undertake such alcohol and drug assessment counselling or treatment as directed by a Probation Officer and also to live and where directed by a Probation Officer.

[16] Ms Wendt, for the Police, submits that the approach adopted by the Court in Senior v Police is now of limited relevance in relation to burglary sentencing because the Court of Appeal has indicated that burglaries should be sentenced in the same manner as other offending, that is, arrive at a starting point based on the seriousness of the offending and then, if necessary, impose an uplift in relation to previous convictions. Ms Wendt submits this appears to be what the District Court has done in this case. She referred me to a number of cases in which starting points of between 12 months and two and a half years imprisonment were adopted in respect of single burglaries. Ms Wendt submits that a starting point, therefore, of 18

months imprisonment was open to Judge Gibson on the facts and, in light of the authorities cited, could not be seen as excessive.

[17] As far as the uplift for previous convictions and offending on bail, Ms Wendt submits that there is nothing to suggest that any element of double counting occurred in the District Court’s sentencing. Again, she referred me to two cases where uplifts of one years imprisonment were imposed. Ms Wendt submits that although the appellant has only one previous burglary conviction, he has a further three for shoplifting, six for unlawfully taking motor vehicles, and two for receiving stolen property. Again, Ms Wendt submits that the uplift of 9 months imprisonment was within the range available to Judge Gibson.

[18] Finally, Ms Wendt submits that if this Court takes the view that the sentence imposed was manifestly excessive and that an appropriate sentence would be less than two years, a sentence of home detention would not be appropriate. The appellant has repeatedly failed to comply with Court orders. The burglary occurred two months after the conclusion of the last sentence of home detention and the appellant has previously received short sentences of imprisonment without leave to apply for home detention, including sentences of one year’s imprisonment in 2005 and 9 months imprisonment in 2007. In addition, the Probation Service considered that the suggested address to be inappropriate for home detention because of overcrowding issues and the history of relevant similar offending by the appellant’s partner.

Analysis

[19] The burglary charge was serious. Mr Hewitt had gone to commercial premises occupied by the Good Guys Limited. He had gained access to the premises by smashing an office window at the front of the address. He then took an HP laptop and several other computer items to the value of $3,570. He was not located at the time but a forensic analysis of blood found at the scene identified him as the burglar. When spoken to six months later, the appellant said “I was up to a lot of stuff with drugs and then back then, I don’t remember doing a burglary”. The appellant cannot,

however, be described as a recidivist burglar, with only one previous conviction 7 years earlier.

[20] Looking at the authorities cited by the respondent, in R v Stevens[3] the Court of Appeal was of the view that the appropriate starting point in that case for a single burglary would have been no higher than 18 months imprisonment. That starting point did, however, take into account the fact that the burglary was premeditated and involved a breach of trust because of the misuse of keys to premises and the knowledge of the alarm code. The appellant also had three previous convictions for burglary and some 60 previous dishonesty offences for which a 12 month uplift was thought appropriate.

[21] In R v Brown,[4] the Court of Appeal reduced the starting point for a single burglary from three years imprisonment to 18 months imprisonment after taking into account a receiving charge as an aggravating factor. The burglary was of a school and therefore considered less serious than a burglary of residential premises. The appellant also had five convictions for burglary in the Youth Court and four convictions for burglary in the District Court. He was, therefore, seen as towards the lower end of the recidivist burglar category but he did not receive an uplift for his previous record.

[22] The other two cases cited by the Crown are High Court decisions. In R v Moses[5] the High Court reduced a starting point for a single burglary from five years imprisonment to two and a half years imprisonment. The appellant was described by the sentencing judge as a professional burglar with 26 previous convictions for burglary. He had been sentenced to imprisonment on five previous occasions. An uplift of 18 months was thought appropriate for the appellant’s previous record.

[23] In Craigie v Police[6] the High Court considered that a starting point of two years imprisonment was appropriate for a single burglary of commercial premises

_{which involved premeditation and significant loss and damage. Although there is}

some reference to the appellant’s previous record, it is unclear exactly how extensive

his record was.

[24] In the present case, I take the view that the starting point by the District Court Judge for the single charge of burglary was too high. There was no breach of trust involved as there was in R v Stevens. In R v Brown a receiving charge which did involve property taken from a home was taken as an aggravating factor in setting a starting point of 18 months for a separate burglary. In the present case, the Judge gave an uplift for the totality of the offending for which the appellant was being sentenced. These included one charge of theft of a t-shirt. These offences should therefore not be regarded an aggravating feature. I am therefore of the view that the appropriate starting point on the one charge of burglary was a term of 15 months imprisonment.

[25] I consider next the uplift of six months imprisonment to reflect the totality of the offending for which the appellant was being sentenced. I note that the appellant has previously been sentenced to a number of terms of imprisonment for similar offending. In 2005, the appellant was sentenced to one years imprisonment for unlawfully taking a motor vehicle. He was also sentenced on the same occasion to concurrent terms of six months imprisonment for driving while disqualified and three months imprisonment for recklessly causing death or injury. Then, in 2007 he received a sentence of 9 months imprisonment, again for driving while disqualified.

[26] In those circumstances, I am of the view that a sentence of imprisonment would have been imposed if the appellant was facing the other charges alone and, accordingly, an uplift of six months imprisonment to reflect the totality of the offending was appropriate.

[27] However, a further 9 months imprisonment was added for the appellant’s previous record, offending while on bail and while subject to a sentence. Here I bear in mind the Court of Appeal’s comments in R v Columbus[7] that care should be taken to avoid punishing the appellant again for offences for which he has already been

_{sentenced. The appellant has one previous conviction for burglary, just after he left}

the Youth Court jurisdiction for which he was sentenced to supervision. As to taking into account the fact that this offending occurred while the appellant was subject to a sentence of intensive supervision, I note that he was resentenced and directed to serve a cumulative four months imprisonment in respect of the offences for which he was originally sentenced to intensive supervision. Again, a sentencing court should be wary of any form of double counting.

[28] In those circumstances and given the fact that most of the appellant’s previous convictions relate to driving offences or breaches of Court orders, I am of the view that there should be an uplift of no more than six months imprisonment for the appellant’s previous record, offending while on bail and subject to a sentence.

[29] With the above additions, the starting point for the burglary is raised from 15 months imprisonment to 27 months imprisonment from which a discount of just over

20 per cent is applied for the plea of guilty. That gives an end sentence on the charge of burglary of one year nine months imprisonment.

[30] A cumulative sentence of four months imprisonment on the earlier charges for which the appellant was being resentenced brings the final sentence to one of two years one months imprisonment.

[31] That sentence is outside the range for which home detention can be considered. However, even if the sentence was within that range, I am of the view that home detention would be inappropriate. The appellant has indeed repeatedly failed to comply with Court orders. These include bail breaches, breaches of community work, breaches of intensive supervision and breaches of home detention. Furthermore, the burglary occurred two months after the conclusion of the last sentence of home detention. Home detention clearly does not have a deterrent effect.

[32] In addition, the suggested address is inappropriate in my view for home detention.

[33] In those circumstances, the appeal is allowed. The sentence of two years three months imprisonment on the charge of burglary is quashed and replaced with a

sentence of one year nine months imprisonment. All other sentences remain the same. The total term of imprisonment is, therefore, two years and one months imprisonment.

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

Woolford J

---

[1] _{Senior v Police (2000) 18 CRNZ 340.}

[2] Pluim v Police [2012] NZHC 1592
[3] _{R v Stevens [2009] NZCA 190.}
[4] _{R v Brown [2009] NZCA 288.}
[5] _{R v Moses HC Whangarei CRI 2011-488-000006, 24 March 2011.}
[6] Craigie v New Zealand Police HC Dunedin CRI-2011-412-000014, 6 July 2011.

[7] R v Columbus [2008] NZCA 192.