Charlett v Police [2014] NZHC 3002 (28 November 2014)

Last Updated: 2 December 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-34 [2014] NZHC 3002

BETWEEN	SIMON SYDNEY CHARLETT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 November 2014
Appearances:	J Turner for the Appellant R D Smith for the Respondent
Judgment:	28 November 2014

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Charlett pleaded guilty to and was convicted on one count of burglary,¹ two counts of shoplifting,² and one count of failing to answer police bail.³ He was sentenced in the District Court at Dunedin to one year imprisonment.⁴ He appeals against that sentence on the ground that it is manifestly excessive because the starting point adopted in respect of the burglary offence was too high.

The offending

Shoplifting

[2] On 30 April 2014 Mr Charlett stole grocery items, valued at $13.80, from a dairy. On 11 June 2014 Mr Charlett stole two bottles of wine from a Pak’nSave

¹ _{Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years imprisonment).}

² _{Sections 219 and 223 (maximum penalty of three months imprisonment).}

³ Bail Act 2000, s 24 (maximum penalty of three months imprisonment or a fine not exceeding

_$1,000).

⁴ _{Police v Charlett DC Dunedin CRI-2014-012-1815, 3 September 2014.}

CHARLETT v NEW ZEALAND POLICE [2014] NZHC 3002 [28 November 2014]

store. A trespass order for a period of two years in respect of that store was served on him that day.

Burglary

[3] On 19 June 2014 Mr Charlett returned to the Pak’nSave store from which he had been trespassed. He picked up a bottle of wine and three chocolate bars, together valued at $21.52, and put them in his pocket. He walked past the checkout without paying for the items and was apprehended by security personnel. He was initially charged with trespass and theft in relation to this offending. He instructed counsel to enter guilty pleas to both charges on 11 July 2014. However the prosecution advised that those two charges were withdrawn and a charge of burglary had been laid. Mr Charlett subsequently entered a guilty plea to that charge.

Breach of bail

[4] Mr Charlett was on bail in relation to these matters. On 26 June 2014 he breached bail by failing to attend court.

The offender

[5] Mr Charlett is 57 years old. Prior to being sentenced to imprisonment he was unemployed. He has significant alcohol issues.

[6] Mr Charlett has over 120 convictions entered between 1973 to 2010 (including some entries in the Youth Court). His most recent offence, prior to the present offending, was a burglary conviction (for stealing items under $500 by day) committed in 2010. There have been two major gaps in his offending, the most recent being between 2010 and his present offending, and the other being between

1996 and 2004. The bulk of his offending consists of dishonesty offences (burglary, shoplifting, theft and receiving property, all typically below $500), unlawful presence offences (wilful trespass and unlawfully being in a building), and breach of orders (failure to answer District Court bail and breach of release conditions).

District Court decision

[7] The Judge adopted a starting point of nine months. He did so noting that Senior v Police does not specifically deal with burglaries of this kind.⁵ He considered that it was a burglary at the lower end of the scale because the relevant premises were commercial, and there was no violence nor forced entry. He commented that the offending was more serious than shoplifting because Mr Charlett had been prohibited from entering the premises. He noted that the offending was

committed when Mr Charlett was on bail on the other charges.

[8] The Judge then applied an uplift of one month for each of the three remaining offences, a further uplift of one month for offending while on bail, and a further uplift of three months for Mr Charlett’s previous convictions. The Judge considered the resulting starting point of 16 months was consistent with a totality approach. A

25 per cent discount (or four months) was given for the guilty pleas. The final sentence of one year imprisonment was imposed on the burglary as a lead offence, and concurrent sentences of one month were imposed on the remaining offences. Conditions were attached and reparations were ordered.

The starting point for the burglary

[9] Counsel for Mr Charlett submits that the starting point for the burglary charge was too high. Although a charge of burglary was brought and a guilty plea entered on that charge, the offending was comprised of a trespass and shoplifting. Counsel submits that the appropriate approach is to set a starting point on the basis of shoplifting and to uplift that starting point for the trespass. She submits that, given the value of the goods taken, the starting point should have been in the range of six to eight months. With the other uplifts and discounts applied by the Judge that would mean an end sentence of seven to eight and a half months imprisonment, rather than the 12 months imposed by the Judge.

[10] Counsel for the respondent submits that it would be wrong for the Court to treat the burglary offending as anything other than a burglary. He submits that where

_{offending is comprised of other offences it is not appropriate to dissect the offending}

⁵ Senior v Police (2000) 18 CRNZ 340 (HC)

back to its constituent parts. For example, a robbery is not to be sentenced as theft accompanied by a threat, but by reference to the guideline judgment in R v Mako.⁶

He further submits that the Judge’s starting point of nine months is appropriate given that a burglary of a dwelling house at the relatively minor end of the scale attracts a starting point in the range of 18 months to two years and six months imprisonment.⁷

[11] I consider that the starting point was too high. In the absence of a guideline judgment, the starting point is to be assessed with reference to its aggravating features as against other offending of its kind. A burglary that takes the form of shoplifting small value items from a supermarket from which a person has been trespassed is at the very lowest end of burglary offending. It could have been charged as theft and a trespass (and was initially) and, had it been, it is clear that nine months imprisonment would be far too high a starting point. In my view a starting point of no more than six months imprisonment was appropriate. Potentially a lower

starting point could have been taken for what was nuisance offending.⁸

[12] Although the other uplifts were not challenged,⁹ I consider that they were too great having regard to totality and that a sentence of six months imprisonment is at the higher end of what might have been imposed on the burglary offending. In my view a total uplift of no more than between two and three months imprisonment should have been imposed for the other offending, that it occurred while Mr Charlett was on bail, and that Mr Charlett is a repeat offender. All of it was nuisance offending, comprising shoplifting of small value goods in a relatively short time frame, as well as failing to turn up to court on one occasion. It also seems that Mr Charlett is not a perpetual offender in that he at least managed the two breaks in his

offending referred to above.¹⁰ Mr Charlett’s history, and potential problems of

_{compliance with court orders which is likely to be because of alcohol issues, may}

⁶ _{R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).}

⁷ _{Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.}

8. Compare with, for example, Wratt v Police [2012] NZHC 3137 (a sentence of no more than six to nine months, or a community sentence, was appropriate) and Taremoerea v Police HC

Rotorua CRI-2010-463-053, 17 August 2010 (a sentence of nine months was not manifestly

excessive) in matters involving what is more naturally classed as burglary offending involving forced entry where items worth several hundreds of dollars were taken.

9. In the District Court counsel submitted that an end sentence of three to six months imprisonment was appropriate, which is more in line with the end sentence that I consider to be appropriate.

¹⁰ At [6].

have precluded a sentence less than imprisonment¹¹ but the overall sentence imposed was a manifestly excessive one.

[13] Taking a starting point of six months, an uplift of three months for the other matters, and a discount of 25 per cent for the guilty pleas, an end sentence of just under seven months imprisonment is reached. Taking an uplift of two months rather than three, the end sentence would be six months. In all the circumstances a sentence of six months imprisonment is the overall sentence I consider to be appropriate for this offending by this offender.

Result

[14] The appeal is allowed. The sentence of twelve months on the burglary charge is quashed. A sentence of six months is substituted. The concurrent sentence of one month on the breach of bail charge is quashed. On that charge Mr Charlett is convicted and discharged. The concurrent sentences imposed on the two shoplifting offences, the reparations ordered, and the conditions attaching to the sentence remain in place.

_{Mallon J}

¹¹ A community-based sentence was not sought.