Dibben v Police [2015] NZHC 1171 (28 May 2015)

High Court of New Zealand

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Dibben v Police [2015] NZHC 1171 (28 May 2015)

Last Updated: 26 June 2015

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-010 [2015] NZHC 1171

BETWEEN	MICHAEL JOHN DIBBEN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 May 2015
Appearances:	N Wright for Appellant C R Walker for Respondent
Judgment:	28 May 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

DIBBEN v NEW ZEALAND POLICE [2015] NZHC 1171 [28 May 2015]

[1] Mr Dibben pleaded guilty in the District Court to two charges of burglary. On 16 January 2015, Judge Adeane sentenced him to concurrent sentences of 18 months imprisonment on each charge.¹ He also imposed six months release conditions following that sentence. In addition, the Judge cancelled approximately

$10,000 worth of outstanding fines.

[2] Mr Dibben appeals against sentence on the basis that the Judge erred in principle when imposing a sentence of imprisonment, and that he ought to have imposed a sentence of home detention instead.

The facts

[3] The offending occurred as a result of two incidents that occurred on

2 September 2014. On that day Mr Dibben was driving around the streets of Gisborne in his motor vehicle. He went to an address at Whitaker Street and parked in the driveway. He then knocked on the front door to see if anyone was at home. When he discovered that no one was home, he drove his vehicle out of the driveway of the property and parked it on the side of the road a short distance from the house.

[4] He then returned to the property, and went to a garage at the rear of the address. He pried open a large sliding door, and removed numerous items of property. These included a number of wetsuits, beach wear, bags and electrical tools. Mr Dibben put these items in bags he found in the shed, and then took the bags of stolen goods to his vehicle. He also took with him two dozen eggs that had just been delivered to the back porch of the address, together with some sports gear. The total value of the property stolen in this burglary was approximately $3,300.

[5] A few hours later, Mr Dibben went to another address in the same street. He walked up the driveway and again ascertained that nobody was home at the address. He then entered a garden shed at the rear of the address and began to remove a

_{lawnmower and can of fuel from the shed. The owner of the property arrived home}

¹ New Zealand Police v Dibben [2015] NZDC 392.

at this point, and found Mr Dibben hiding at the rear of her property with the items he had removed from the shed. When she confronted him, he ran away.

[6] The owner of the property was able to obtain details of the registration number of Mr Dibben’s vehicle and the police located him a short time later. Mr Dibben told the police that he had stored the stolen property with an associate. The police were therefore able to recover all of the stolen property. By way of explanation, Mr Dibben told the police that he had committed the burglary because he owed money for drugs. He needed to steal property in order to pay this debt.

The Judge’s decision

[7] The Judge’s sentencing remarks are brief. The salient parts of it are as

follows:

[1] Mr Dibben, persuasive as they are, I cannot accept the submissions made on your behalf today. Burglary is a serious offence. The burglary of other people’s dwelling houses is unacceptable conduct. The Sentencing Act

2002 leaves me only very limited room to take account of the fact that you are burgling to feed a methamphetamine habit.

[2] On one occasion you went to a private suburban home, very deliberately made your way inside, and removed $3300 worth of property. But you then went to another suburban home in the same street, where, in the course of committing a burglary when you were interrupted by the owner of the property, fortunately you had the good sense to flee rather than to remain.

[3] The incidence of burglary in the Eastern Policing Region is amongst the highest in New Zealand per 1000 head of population. The need to deter this kind of offending is ongoing. Little sign of abatement in the rate of burglary is evident from the latest police statistics.

[4] You have three previous convictions for burglary occurring in 2009 and also one for its close cousin, receiving.

[5] As I say, your explanation is that this is to pay a drug debt. Obviously your liquid funds are limited, presumably by that habit, because you are also substantially in arrears with fines.

[6] I make as much allowance as I can for your personal circumstances but that is necessarily limited. You have family responsibilities and another child on the way. Presumably those responsibilities will now be assumed by the community as the Court makes orders which are intended to protect the community.

[8] These factors led the Judge to impose concurrent sentences of 18 months imprisonment. He did not identify a starting point. Nor did he indicate the extent to which he had provided Mr Dibben with credit in respect of his guilty pleas.

[9] Although the opening sentences of the Judge’s remarks suggest that he based his decision on the seriousness of the offending, he did not articulate why he considered home detention was not an available option given the end sentence he had reached.

The arguments

[10] On appeal, Mrs Wright has provided me with a significant amount of further information that was not before the Judge. She does so for two reasons. First, to challenge the end sentence that the Judge reached and, secondly, to emphasise her overall submission that a sentence of home detention was appropriate in this case.

[11] In order to ascertain whether the end sentence that the Judge reached was manifestly excessive, it is necessary to recast the way in which the Judge must have reached that sentence. In my view it is likely that the Judge considered that the first burglary was of moderate seriousness. As counsel for the Crown points out, in burglary cases of even moderate seriousness a starting point of between 18 months and two years six months is usually appropriate.²

[12] The second burglary was clearly less serious, because it involved a lesser amount of property and was not ultimately accomplished. I do not see how that particular burglary could have justified an uplift of more than six to nine months imprisonment. An end starting point on both charges of around 24 to 27 months imprisonment was appropriate.

[13] On the face of it, a modest uplift would be justified to reflect the fact that Mr Dibben has one previous conviction for receiving and three previous convictions for burglary. If an uplift of around ten per cent was applied, this would produce an end

_{sentence of around 27 to 30 months before taking into account the guilty pleas. If a}

² Arahanga v R [2012] NZCA 305 at [33].

full 25 per cent discount was applied to reflect Mr Dibben’s guilty pleas, it would produce a sentence of around 20 to 24 months imprisonment. This exercise demonstrates that, on the basis of the information available to the Judge, the sentencing exercise produces an end sentence that was within the available range.

Decision

[14] The real issue in the present case is whether a sentence of home detention should have been imposed. Given the fact that the Judge did not articulate his reasons for declining home detention, it is necessary for me to review that issue afresh.

[15] The seriousness of the present offending is obviously a significant factor. The first burglary was obviously of moderate seriousness given the value of the property stolen. The Judge appears to have been under the impression, however, that it involved the burglary of a home. I draw this inference from the Judge’s observation that Mr Dibben had gone to a private suburban home and then very deliberately made his way inside. Mr Dibben did not make his way inside the home. Rather, he entered a garage at the rear of the property.

[16] The most telling factor against a sentence of home detention is the fact that

Mr Dibben has three previous convictions for burglary. These were entered on

25 November 2009. He also has a conviction for receiving stolen property. This was entered on 18 October 2011, and related to an incident that occurred on 13 June

2011.

[17] Unlike the Judge, I have now had access to the summaries of fact relating to Mr Dibben’s previous convictions. These reveal that none of the burglary charges involved Mr Dibben entering a dwelling house or building. Each related to incidents during September 2009 when Mr Dibben went into properties and took poppy plants, or poppy leaves, from plants growing in the garden. The burglary charges appear to have been laid as a result of the fact that Mr Dibben must have opened a gate or some other or some other form of barrier to enter an enclosed yard. The receiving charge was laid after Mr Dibben received some packs of stolen meat from an associate.

[18] When the facts of Mr Dibben’s previous offending are taken into account, it can be seen that the offending was at a very low level. For that reason Mr Dibben’s prior convictions do not carry the weight that would otherwise be the case.

[19] Three other factors are relevant in the context of deciding whether or not a sentence of home detention would be appropriate. The first is that Mr Dibben cooperated with the police and directed them to the address where they were able to recover all of the stolen property. As a result, although the victims of the burglary were understandably shaken by it, at least they received their property back.

[20] Secondly, Mr Dibben committed the burglary for the purpose of paying a debt that he had incurred in relation to the purchase of drugs in the past. It did not relate to the purchase of drugs at the time of the burglary.

[21] Thirdly, Mr Dibben has not had any convictions for offending involving dishonesty during the period from 2011 until 2015. During that period, he was subject to intensive supervision for a 12 month period from 5 October 2011. In addition, Mr Dibben was involved in a methadone programme at the date of his conviction. This was designed to wean him from his drug habit.

[22] All of these factors persuade me that, notwithstanding the moderate seriousness of the present offending, a sentence of home detention was a viable option. The balance is also tipped, in my view, by the fact that Mr Dibben has very difficult domestic circumstances. His partner suffers from serious health issues, and the couple have young children to care for. I have therefore reached the view that the sentence of imprisonment should be quashed and replaced with a sentence of home detention.

Result

[23] The appeal is accordingly allowed. The sentence of imprisonment is quashed. In its place, Mr Dibben is sentenced to six months home detention subject to the following conditions:

1) Mr Dibben is to be released from prison at a time convenient to the prison authorities on Friday 29 May 2015.

2) Mr Dibben is be released from prison into the custody of his mother.

They are then to travel directly to Gisborne by the most practicable route.

3) Mr Dibben is to remain at the nominated address where he is to serve his sentence of home detention. He is to await the arrival of the monitoring representative at that address, and is to maintain a 24-hour curfew there until the monitoring equipment has been installed.

4) He is not to leave that address unless his absence from the address has been the subject of prior authorisation by his probation officer.

5) Mr Dibben is not to be in possession of, or to consume, alcohol or illegal drugs whilst serving this sentence.

6) He is to attend and complete alcohol and drug treatment programmes as may be directed by his probation officer.

7) He is to complete any other counselling or programmes as may be directed by the probation officer.

Lang J

Solicitors:

Crown Solicitor, Gisborne

Counsel:

N Wright, Gisborne