Peters v R [2014] NZHC 1158 (28 May 2014)

Last Updated: 13 June 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-393 [2014] NZHC 1158

BETWEEN	RICHARD PETERS Appellant
AND	THE QUEEN Respondent

Hearing:	19 May 2014
Appearances:	I M Stewart and S S Pohiva for Appellant B Thompson for Respondent
Judgment:	28 May 2014

_{JUDGMENT OF COOPER J}

This judgment was delivered by Justice Cooper on

28 May 2014 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Public Defence Service, Manukau City

Meredith Connell, Crown Solicitors, Auckland

PETERS v R [2014] NZHC 1158 [28 May 2014]

[1] On 22 November 2013 the appellant, Mr Peters, was sentenced by Judge Moses in the District Court at Papakura to an effective term of four years six months’ imprisonment on 19 counts of burglary of residential premises, and one of attempted burglary. Under s 231(1)(a) of the Crimes Act 1961 each offence carried a maximum penalty of ten years’ imprisonment. He now appeals against his sentence claiming that it was manifestly excessive.

[2] In addition, a minimum period of imprisonment was imposed of three years. The appellant contends that a minimum term of that length, which was the maximum able to be imposed under s 86(4) of the Sentencing Act 2002, was not necessary.

The offending

[3] The offending occurred between 12 March and 17 April 2013. On at least 19 occasions, the appellant gained entry to residential dwellings, predominantly in Papakura. The first charge related to a burglary of a residential house on

6 November 2012. The appellant’s fingerprints were left on a ranch slider at the house, leading to his arrest. He was charged on 21 February 2012 and released on bail.

[4] On 18 April the police were alerted to Mr Peter’s presence at an address in Papakura. They found him hiding in the roof of the house. He then agreed to give assistance to the police, accompanying them to point out a number of addresses where he had committed burglaries. The Judge recorded that he gave a detailed description of how he had broken in and of the items taken. It transpired that the appellant had committed 17 further burglaries of residential homes, and one attempted burglary, in the period of approximately two months between 18 February and 17 April 2013. Of those, 16 were committed while the appellant was on bail for the burglary that he committed in November 2012. The attempted burglary was in the same category.

[5] He was initially remanded in custody before being granted electronically monitored bail on 19 July 2013. On 27 July 2013, his conditions of bail were relaxed on compassionate grounds to enable him to visit a sick child in hospital. On

2 August 2013 the appellant committed a further burglary.

[6] He entered guilty pleas to all the charges on 26 September 2013.

The sentence imposed in the District Court

[7] The Judge noted that Mr Peters had stolen approximately $200,000 worth of property. He considered that the relevant aggravating factors included:

unlawful entry into dwelling houses;

the extent of the monetary as well as emotional loss and damage caused;

the fact that many of the burglaries occurred while Mr Peters was on bail for other property offending; and

the final attempt took place after Mr Peters’ bail conditions had been relaxed

_{on compassionate grounds.}

[8] The Judge referred to the appellant’s 22 previous convictions for burglary and

13 convictions for other dishonesty offending. He noted that Mr Peters explained his offending as motivated by his drug and gambling addictions and that he had expressed the desire to attend Odyssey House to address those addictions.

[9] The Judge categorised Mr Peters, in accordance with the approach taken in Senior v Police¹ as “a recidivist burglar”. He adopted a four year starting point for the totality of the offending, and then increased that by 18 months to reflect Mr Peters’ previous convictions. Next he added a further six months for the re- offending whilst Mr Peters was on relaxed bail conditions for compassionate reasons. The guilty pleas were acknowledged by a 25 percent reduction which also

served to acknowledge assistance provided to the police.

[10] The end result was a final sentence of four years six months’ imprisonment in respect of all the burglary charges. A concurrent sentence of three years’ imprisonment was imposed on the attempted burglary charge. The Judge imposed a

_{minimum period of imprisonment of three years, holding that was necessary in order}

¹ Senior v Police (2000) 18 CRNZ 340 (HC).

to hold the appellant accountable, denounce his conduct, deter others and protect the community.

The appeal

[11] The appellant contends that the final sentence was manifestly excessive, submitting that the Judge had double-counted his previous convictions first by calculating a starting point which took them into account and then uplifting them from that point. In addition, the appellant submits that the 18 month uplift for the previous convictions was in itself too great, and refers to other cases where smaller uplifts have been made in respect of fewer previous burglary convictions.

[12] He also contends that insufficient credit was given for his guilty plea, remorse and assistance to police.

[13] The appellant submits that the minimum period of three months’ imprisonment was out of line with similar cases and manifestly excessive. Mr Pohiva accepted that the Judge correctly took into account the large number of burglary charges, previous sentences of imprisonment and “drug and other issues” personal to the appellant. However, he submitted a minimum period of two-thirds of the end sentence had been imposed as a result of the Judge failing to balance the aggravating features of the offending against the relevant mitigating factors.

[14] For the respondent, Mr Thompson submitted that the sentence imposed by the Judge was within range and not manifestly excessive. Further, a minimum period of imprisonment of two-thirds of the sentence was justified in the circumstances of this case.

Discussion

[15] As has been said on numerous occasions, what matters is not how a sentence is constructed, but whether the final result is appropriate having regard to the circumstances relevant to the offence and the offender.

[16] The four year starting point that the Judge adopted for the totality of the offending was clearly within the available range. There were 17 burglaries and one attempted burglary before the Court. Property worth $200,000 was stolen and the aspects of the offending that the Judge identified as aggravating were clearly present. In the circumstances there could be no suggestion that a starting point of four years was inappropriate: it sits comfortably alongside the starting point of five years held

to be appropriate by the Court of Appeal in R v Rohloff,² a case involving nine counts

of burglary for a recidivist offender with 30 previous burglary convictions. It is also sits comfortably alongside the starting point of three years six months held to be acceptable by the Court of Appeal in Marsh v R³ and Makene v R,⁴ cases that involved fewer charges than were before the Court in this case. Indeed, I consider a higher starting point could have been taken.

[17] The appellant contends that the uplift of two years’ imprisonment to mark the appellant’s previous convictions and the fact that the offending occurred on bail was too high and that this, in combination with the four year starting point that had been adopted led to an end sentence being imposed that is manifestly excessive.

[18] The appellant’s submission on this point was in part based on words used by the Judge at sentencing. As I understood it, the point made was that the Judge referred both to the fact that the offending had occurred while the appellant was on bail, and to the appellant’s previous convictions before he addressed the starting point. However, I am satisfied that there is nothing in this point. It is clear that when he came to fix the starting point for the offending he focused on the “aggravating features relating to the offending”. The uplifts for previous offending and for the fact that the appellant had offended when the bail conditions had been relaxed on compassionate grounds were then treated separately.

[19] In any event, the issue on appeal is not how the Judge expressed himself and composed the sentence, but whether the end result is manifestly excessive. I do not consider that a sentence of six years’ imprisonment, before allowance was made for

_{mitigating factors can be characterised as excessive having regard to the number of}

² _{R v Rohloff CA193/03, 22 September 2003.}

³ _{Marsh v R [2010] NZCA 445.}

⁴ Makene v R [2013] NZCA 178.

charges, the aggravating features of the offending, and the appellant’s previous convictions. There were 22 previous convictions for burglary and another 13 for the dishonesty offences.

[20] Nor do I consider that the allowance given for mitigating factors can properly be criticised. Since the decision of the Supreme Court in Hessell v R a guilty plea can attract a maximum allowance of 25 percent on the sentence that would otherwise have been applied.⁵ Other mitigating factors such as remorse and, in this case, assistance to the police, are to be separately allowed for.

[21] In this case, the Judge did not specify the allowances made in respect of each mitigating factor. He simply provided for a 25 percent allowance for all of the mitigating factors. It is important, however, to note what he said:⁶

I do take into account the fact that you have pleaded guilty to these charges. The amount of discount that I would have awarded you, Mr Peters, would have been greater had you pleaded guilty at the first opportunity. It was several months before you entered guilty pleas after a large number of appearances. Whilst I accept that for a large number of these matters they were brought to the Court’s attention because of you showing the police where you had broken into, in my view the total discount that I am prepared to give you because of your guilty pleas and assistance is that of 25 percent. That reduces the sentence down from six years to four and a half years.

[22] Clearly, the Judge was entitled to reduce the discount that might otherwise have been available for the guilty pleas because they were not entered at the first available opportunity. Mr Pohiva submitted that the delay in entering guilty pleas could be explained on the basis that counsel had been waiting for disclosure, and submitted that given the large number of offences “there was a significant amount of material to be received and reviewed”. There is, however, a tension between this submission and the suggestion that the Judge erred by not properly recognising the assistance that the appellant had provided the police and by not allowing a further reduction for remorse.

[23] As the Judge’s sentencing remarks show, he was well aware of the assistance

provided to the police and took this into account. This is not a case like R v

Wickliffe,⁷ on which Mr Pohiva relied, where the Court of Appeal concluded that the sentencing Judge had been unaware of the assistance provided to the police.⁸ As far as remorse was concerned, the Judge did not mention that factor specifically, but I am satisfied that must have been because he was not convinced it was genuine. The

pre-sentence report made no mention of remorse other than to record briefly that he “felt sorry for the victims”. The Judge would have been entitled to be sceptical about that given the number of victims and the remarkable fact that having been released on bail he committed a further burglary once the conditions were relaxed for compassionate grounds.

[24] In all the circumstances, I do not consider that the allowance made for mitigating factors was too little.

[25] As to the minimum term of imprisonment, there is no doubt that imposition of the maximum allowable under s 86(4) of the Sentencing Act was stern. It is apparent in the sentencing notes that the Judge was influenced by the appellant’s previous history of burglary offending and the fact that he had previously been sentenced to terms of imprisonment for burglary on a number of different occasions. Sentences imposed included terms of two years three months in 2004, three years in

2007, and two years two months in 2010.

[26] Given that history, and the present offending, the Judge took the view that imposition of a minimum period of three years was necessary to hold the appellant to account, denounce his conduct and deter others and to protect the community. It is plain from the way he expressed himself that he directly turned his mind to the issues relevant under s 86(2) of the Act.

[27] I am not persuaded that his decision as to the minimum term was wrong.

Result

[28] For the reasons I have given the appeal is dismissed.