Lampp v Police [2013] NZHC 1351 (10 June 2013)

Last Updated: 24 June 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-131 [2013] NZHC 1351

BETWEEN NATHAN LAMPP Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 10 June 2013

Counsel: J W Griffiths for the Appellant

L M Mills for the Respondent

Judgment: 10 June 2013

_{(ORAL) JUDGMENT OF WOODHOUSE J}

Solicitors:

Mr J W Griffiths, Public Defence Service, Manukau

Mr L M Mills, Meredith Connell, Office of the Crown Solicitor, Auckland

LAMPP v POLICE [2013] NZHC 1351 [10 June 2013]

[1] This is an appeal against a sentence of 2 years imprisonment for attempted burglary.1 Concurrent sentences were imposed for some other offences.

[2] The offences may conveniently be summarised in three groups. The first group mainly involves property offences. There was a theft committed in August

2012. Items were stolen from a service station. There is no information as to the value of the items stolen except that the charge was theft to a value under $500. The maximum penalty is 3 months imprisonment. There were further offences on 10

December 2012, including the attempted burglary. The appellant acted as a lookout in a car when an associate tried to force a window in a house. The associate was disturbed by a neighbour, left and was driven away by the appellant. The maximum penalty for attempted burglary is 5 years imprisonment. There were two receiving charges committed on the same date. Police found an empty wallet and an empty purse in the car when it was stopped following the attempted burglary. The maximum penalty is 3 months imprisonment. The wallet and the purse had been stolen earlier that night but the appellant was not charged with theft or burglary in that regard. There were also offences of driving while suspended that night and possession of a methamphetamine pipe.

[3] The second group contains one offence of assault. This occurred on 24

January 2013 when the appellant was on 24 hour curfew at his home having been bailed for the other offences. It was an assault on his partner. He pushed her head into the floor for a few seconds then pushed her onto a bed. When she ran outside he dragged her back into the house. There was no injury. The maximum penalty is imprisonment for 1 year.

[4] The third category involved a sentence review and re-sentencing for an offence of threatening behaviour. The appellant had served only 2 hours of 160 hours of a community work sentence.

[5] The appellant has a reasonably substantial list of previous convictions. There are by my count seven property offences. This includes one burglary by day in 2007

_{and two burglaries by night a few days apart in 2008. The appellant was sentenced}

1 Police v Lampp DC Pukekohe CRI-2013-057-000126, 27 March 2013.

to 2 years imprisonment for the 2008 burglaries and what appears to have been a concurrent sentence of 1 year for the 2007 burglary. There was one receiving offence in 2008, two shoplifting offences in 2006 and 2008 and theft from a car in

2012.

[6] There have been 16 previous convictions for offences against the person. The most serious appears to have been an assault using a cutting instrument resulting in a sentence of 2 years imprisonment. The offence was in August 2010. There is one previous conviction for male assaults female and five convictions for contravention of a protection order. There are a number of other convictions for other types of offending but less relevant to the matters now at issue.

[7] Particulars relating to the appellant’s personal circumstances are conveniently

taken from the District Court judgment. The Judge summarised matters as follows:

[7] A pre-sentence report was prepared about you only in respect of the assault matter, because I assume you had not pleaded guilty to the other matters at that stage. Those guilty pleas came at a fairly late stage. The report says you are 28. You have been offending for the last 10 years without a break except when you were in custody, according to the probation officer, and the range of offences is wide. There are other assaults, there are drug matters, there are driving offences and others for violence. You are considered to be at medium to high risk of re-offending and a risk of harm to others. You have been unemployed for the last nine years. Drug abuse, violence and gambling are considered to be problems for you. Attempts have been made to assist you in the past. However, you did not complete programmes designed to assist. You now claim, however, to be prepared to do so and to be remorseful for what you did to your partner. You told probation, and that was confirmed by the victim, that that relationship in fact is still continuing. The recommendation of the report was imprisonment with release conditions. You have support in the community. Your mother remains supportive of you despite your offending history and you have the support of your partner, so in that you are fortunate.

[8] The Judge took the attempted burglary as the lead offence. In this regard, and in respect of the other offending and previous convictions, she said:

[9] On the purposes and principles of sentencing that apply for the attempted burglary and the wallet matters, deterrence and denunciation must be the most significant purposes. That also applies to the domestic assault. On the principles that apply I note I must impose the least restrictive outcome appropriate in your circumstances. Mr Griffiths submits that the attempted burglary is the lead offence and I accept that submission. He submits the starting point of six months would be appropriate on that matter. I do not agree. You have been imprisoned on burglaries before so accepting

that this is an attempt, although you were disturbed, the starting point on that burglary has to be one of 12 months’ imprisonment. There then has to be a significant uplift to reflect the totality of this offending and also to take into account the review of sentence, which would bring you to a sentence of two years’ imprisonment. There is then an uplift for your previous convictions so that will be a further two months. That is an end sentence of two years six months. You are then entitled to credit for the guilty pleas, albeit some at a rather late stage.

[9] The Judge referred to an uplift for previous convictions of 2 months, but this does appear to be a typographical error because the Judge then immediately recorded the total, before a reduction for the guilty pleas, of 2 years 6 months. The reduction for the guilty pleas, on the basis of the previous calculation of 2 years 6 months, is

20%, resulting in the end sentence of 2 years imprisonment. A concurrent sentence of 6 months imprisonment was imposed for the assault and 2 months imprisonment for the other offences.

Submissions

[10] For the appellant Mr Griffiths made three principal submissions. He submitted, firstly, that previous convictions had been double counted, firstly in the assessment of a starting point for the attempted burglary and then in the 6 months added for previous convictions. He submitted, secondly, that a starting point of 12 months for the attempted burglary was too high. In this context both Mr Griffiths and Mr Mills noted the different approaches to assessment of a starting point for

burglary discussed by the Court of Appeal in R v Columbus.2 Mr Griffiths submitted

in this context that if a starting point is to be fixed by having regard to this appellant’s previous burglary offences then the maximum uplift from an appropriate starting point would be 3 months. He submitted that the starting point excluding the previous convictions, for reasons I will come to, should be between 6 months to 7 ½ months. His third principal submission was that there should have been a reduction of 25% for the guilty pleas.

[11] For the respondent, Mr Mills submitted that there was no double counting. Given the fact that the Judge did include the previous burglary convictions in the

_{assessment of a starting point for attempted burglary Mr Mills submitted that 6}

2 R v Columbus [2008] NZCA 192.

months for previous convictions for other offences was not excessive. He referred principally to the previous convictions for offences against the person. Mr Mills’ second principal submission was that the starting point of 12 months for the attempted burglary is within range having regard in particular to decisions of this Court in Robinson v Police3 and Te Amo v Police.4 In respect of the guilty pleas Mr Mills submitted that the Judge was well justified in the assessment of 20% on the basis that some of the pleas were not entered at the earliest possible opportunity and in any event a difference of 5% is not relevant on an appeal. Mr Mills submitted,

overall, that whether or not it could be said that some elements of the sentence were out of range, the end sentence cannot be said to be manifestly excessive having regard to the offences involved, the maximum penalties, the list of previous convictions, and the fact that the appellant was being re-sentenced for the threatening offence.

Discussion

[12] With due respect to the Judge’s assessment I am satisfied that the sentence is

manifestly excessive.

[13] There does appear to be an element of double counting although if this was the only consideration it might not justify allowing the appeal. There is nothing in the Judge’s comments to indicate that she was approaching the final uplift of 6 months on the basis that that related solely to offences other than property offences and, in particular, that the previous burglaries were excluded. If the previous property offences are excluded then 6 months would certainly be a reasonably stern uplift.

[14] More significantly I am satisfied that the starting point for the attempted burglary was too high. There are a number of considerations. The first is that the maximum penalty is 5 years imprisonment. The second is that the appellant was a party to attempted burglary. He was the lookout in the car. Importantly in that

_{regard, because of the nature of the offence, he did not go onto the property.}

3 _{Robinson v Police [2012] NZHC 2967.}

4 Te Amo v Police HC Rotorua CRI-2009-463-000104, 14 December 2009.

[15] The third point concerns fixing a starting point by having regard to previous burglary convictions. I refer to the discussion in R v Columbus.5 It is unnecessary in this judgment to consider the wider question as to whether there may be some cases where it is appropriate to fix a starting point for burglary (or attempted burglary) by having regard to previous convictions for burglary. I am satisfied that in this case it was not appropriate. There were only three prior convictions and the most recent

was 5 years before the current attempted burglary. In addition, in this case, the appellant was a party to the burglary, not the principal offender. The third reason for excluding the previous burglary offences is that in my judgment it unduly complicates the sentencing process where the Court is sentencing someone for a number of different types of offence. The complication is illustrated here by the submissions for the appellant and the respondent as to whether previous convictions have been taken into account more than once.

[16] I consider the judgment on appeal of this Court in Te Amo6 is more comparable, and probably substantially more comparable, than the decision in Robinson.7 This is because Robinson was a principal offender. The starting point in Te Amo was 9 months imprisonment. That was for the principal offender not, as on this appeal, a party. It is to be noted also that the uplift in Te Amo, which was applied as a separate item, was 3 months for 10 previous convictions for theft and burglary. Mr Griffiths also referred to the decision of Curry v R.8 The facts of that case are very comparable except that there was a completed burglary. In that case the appellant was a party and a starting point of 15 months was upheld. By reference to that starting point, and the fact that the maximum sentence for attempted burglary is half that for a completed burglary, Mr Griffiths submitted that the starting point in this case might be around 7 months imprisonment. That would also appear to be broadly consistent with Te Amo bearing in mind that the starting point in Te Amo of 9

months was for the principal offender.

[17] I am satisfied that the starting point for the attempted burglary, excluding any previous offences, should be 7 months.

5 _{R v Columbus, above n 2, at [12]-[15], and in particular at [15].}

6 _{Te Amo v Police, above n 4.}

7 _{Robinson v Police, above n 3.}

8 Curry v R [2010] NZCA 491.

[18] There must be an uplift for the other offending. The most serious of the other offences is the assault. As discussed with counsel, if this offence was dealt with in isolation, or if a cumulative sentence had been assessed, the starting point in my judgment would not be more than around 3 to 4 months imprisonment before a reduction for the guilty plea (which in this case appears to have been entered at an early date). The uplift for the other offences in my judgment must be assessed, at least in part, having regard to the starting point for the lead offence. This certainly is not determinative but there needs to be some proportionality. Based on a starting point for the lead offence of 7 months I do consider that an uplift of 12 months for the other offences, including the re-sentencing, would be excessive. Giving due weight to the Judge’s assessment I consider that the maximum uplift for the other offences should be 9 months, taking the sentence at that point to 16 months. When related to the uplift in the Te Amo case, and adding in the fact that an uplift has to be imposed for additional types of offending in this case, 9 months is probably the outer limit.

[19] There needs to be a further increase for the previous convictions. There is no challenge on appeal to the increase of 6 months and I certainly consider that that is well within range. That produces a total of 22 months.

[20] There are two matters to consider in relation to the reductions. The first is the fact the appellant was on 24 hour curfew for 2 months. The Judge noted that some allowance was justified for that although a specific allowance is not noted in the sentencing remarks. I do not consider that a reduction in excess of 1 month would be justified and possibly it should be less. In relation to the discount of 20% for the guilty pleas I am not persuaded that there is any material error. Based on the total of

22 months a 20% reduction is 4 ½ months. That should be rounded up to 5 months to take account of the restrictive bail conditions. A reduction of 5 months results in an end sentence for the lead offence of 17 months imprisonment.

[21] Considering that end sentence arrived at in the way I have discussed indicates by this process that a sentence of 24 months imprisonment is manifestly excessive.

[22] Consequently, the appeal is allowed. The sentence for the attempted burglary is quashed and a sentence of 17 months imprisonment substituted. The sentences for the other offences are affirmed and the release conditions imposed by the Judge are

_{also affirmed.}

Woodhouse J