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High Court of New Zealand Decisions |
Last Updated: 26 December 2018
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IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
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CRI-2016-404-045
[2016] NZHC 1158 |
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BETWEEN
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MANA LAWSON
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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11 April 2016
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Appearances:
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R L Brown for Appellant
H D Benson-Pope for Respondent
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Judgment:
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31 May 2016
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JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 31 May 2016 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Auckland Kayes Fletcher Walker, Auckland
LAWSON v POLICE [2016] NZHC 1158 [31 May 2016]
Summary
[1] The appellant, Mr Mana Lawson, appeals the sentence of 24 months’ imprisonment imposed upon him as being manifestly excessive, on the grounds that the starting point adopted by the sentencing Judge was too high, and that the mitigating factors of his youth, remorse and willingness to participate in restorative justice and rehabilitative programmes, were not adequately considered and reflected in the sentence imposed.
Factual background
[2] The appellant entered pleas of guilty to 23 charges of burglary, unlawfully taking a motor vehicle, driving while disqualified, driving in a dangerous manner, and failing to stop. These charges arose from a series of events that took place on 7 June 2015 which are described in the Police summary of facts in respect of which the appellant’s pleas of guilty were entered.
[3] At about 9 pm on Sunday 7 June 2015, the owner of a Toyota Camry vehicle left it parked and locked on the roadside near his residence in Clendon, from where it was subsequently stolen.
[4] Later that same night at about 10:45 pm, the appellant and an associate drove the stolen Toyota to a Z service station located in Wiri Station Road. The service station was closed, having been secured for the night at about 10 pm.
[5] Both the appellant and his associate had disguised themselves with bandanas covering their faces and gloves on their hands. One of them carried a set of bolt cutters. They smashed the automatic door at the front of the service station and entered. One immediately went to the cigarette display while the other followed carrying a black rubbish sack.
[6] The security system was activated by their entry, resulting in a loud alarm being sounded and the room filling with smoke. Both offenders then bolted without managing to take anything, and departed in the stolen vehicle with the appellant driving.
[7] Police officers in a passing patrol vehicle heard the alarm going off at the service station, and saw the smoke and the departing vehicle. Suspecting the occupants to have been involved in the break in, the Police officers decided to stop the vehicle and turned on the patrol car’s flashing lights. The appellant failed to stop and accelerated away, driving at a speed of up to 90 km/h in the 60 km/h speed limit area, on the wrong side of the road, and finally stopping on the wrong side of the road, where both he and his associate got out of the vehicle and ran off before being apprehended a short distance away.
[8] The appellant is aged 23,1 and has 34 previous convictions, including nine for unlawfully taking a motor vehicle, and six for burglary. He has two convictions for breaching home detention and community work.
District Court decision
[9] Having earlier entered pleas of guilty to the charges, on 22 January 2016, the appellant appeared in the Manukau District Court before Judge Winter and was sentenced to 24 months’ imprisonment on the charges of burglary; unlawfully taking a motor vehicle; dangerous driving; driving while disqualified; and failing to stop.
[10] The Judge considered the aggravating factors of the burglary to demonstrate a high degree of planning and premeditation as shown by the taking of the motor vehicle; the wearing of a disguise to conceal his face; the use of gloves to cover his hands in order to avoid detection; and the use of bolt cutters and a black sack. The Judge noted that the appellant had a history of substance abuse with an addictive personality, and that the offending was likely motivated to get money from the sale of cigarettes to satisfy his drug habit.
[11] In deciding on the appropriate starting point, the Judge found Senior v Police to be particularly helpful.2 He considered that there was a need for him to choose a starting point that reflected the particular aggravating features of an individual commercial burglary. He said that while he appreciated that a starting point for
1 The appellant’s date of birth is 28 July 1992.
2 Senior v Police (2000) 18 CRNZ 340 (HC).
commercial burglaries could be lower than for residential burglaries, he considered that he was required to focus on the aggravating features of the offending which were very serious indeed.
[12] The Judge selected a starting point of 24 months’ imprisonment. He then added an uplift of two months for the dangerous driving and driving whilst disqualified offences, and a further uplift of four months to reflect the appellant’s previous history of offending and the fact that the offending had occurred very shortly after the appellant’s release from imprisonment on another burglary charge. The Judge allowed a 20 per cent discount for the guilty pleas, resulting in a final sentence of 24 months’ imprisonment. Home detention was not available. Six months’ disqualification was also imposed for the driving offending.3
Appellant’s submissions
[13] Counsel for the appellant, Ms Brown, submits that the starting point adopted of 24 months’ imprisonment was too high, and that a starting point of 12 to 18 months would have been appropriate. She says that the aggravating features of the offending were that it occurred at night; there was some degree of planning and premeditation; and some damage was done. However, she submits that there was no risk of confrontation with the occupants of the service station as the offending occurred outside of business hours, and she describes the offending as not being sophisticated in the nature of “smash and grab” offending. Though some damage was caused, no property was in fact taken.
[14] Ms Brown submits that the appellant’s youth should have been considered as a mitigating factor. She says that the offending in this case is consistent with the impulsive behaviour typically associated with youth, and because the appellant has substance abuse issues and an addictive personality, he is more vulnerable to this type of offending as a means of feeding his drug habit. A discount for youth can be justified and based purely on the neurological differences between young people and adults,
and can be appropriately applied even where there is no prospect of rehabilitation and where there are many previous convictions. She submits that a discount of around 10 per cent may be available.4
[15] Additionally she refers to the appellant being willing to attend a restorative justice conference (which did not go ahead due to factors outside his control) and that he wrote a letter to the Court expressing his remorse to the victims of his offending. Counsel notes that the appellant had also completed a number of courses while in custody and expressed his willingness to attend a drug and alcohol rehabilitation programme. In the circumstances, she submits, some discount for remorse and rehabilitation should have been allowed by the Judge.
[16] Accordingly, counsel submits that a starting point in the region of 12 to 18 months’ imprisonment is appropriate, with an uplift of a total of nine months’ imprisonment to reflect the totality of the offending and the appellant’s previous convictions, resulting in an adjusted starting point of 19 to 25 months’ imprisonment. From that starting point, in addition to a 20 per cent discount for the guilty pleas, a further discount of 15 to 20 per cent should be available. This would result in a final sentence of 11.5 to 16.5 months’ imprisonment.
Respondent’s submissions
[17] For the Crown, Mr Benson-Pope submits that the sentence imposed was within the range and should be upheld. Though the Judge referred to Senior, he did not take the approach used there of considering previous convictions when setting the start point. He submits that the appellant’s offending was characterised by sophisticated planning, multiple offenders, and at least some risk of confrontation with service station or security staff, because the station could well have been attended at the time of the burglary. The current offending should be seen as sitting between the offending in the cases of Moses v Police and Rangi v Police, such that a starting point between 18 and 30 months is appropriate.5 Even if the starting point chosen was excessive, the
4 Rule-Winiata v Police [2014] NZHC 894.
uplifts applied by the Judge were conservative, and consequently, the end sentence was appropriate in comparison with other authorities.
[18] As regards the mitigating factors identified and relied upon by the appellant, the Crown submits that there is no presumption in favour of a discount for youth;6 and that the appellant’s extensive and relevant criminal history, the gravity and premeditated nature of the offending, and the appellant’s risk of reoffending, offset any potential discount for youth. The Judge was entitled to be sceptical of the appellant’s expression of remorse given the lack of any concrete measures such as voluntary reparation payments and having regard to his criminal history, and for that reason, he was not entitled to a discount for remorse.
Approach to appeal
[19] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[20] In any other case, the Court must dismiss the appeal.7
[21] The Court of Appeal in Tutakangahau v R has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.8 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.9
6 Citing Huata v R [2013] NZCA 470 at [32].
7 Criminal Procedure Act 2011, s 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].
9 At [33], [35].
[22] The approach to be taken under the former Summary Proceedings Act was set out in R v Shipton:10
(a) there must be an error vitiating the lower court’s original sentencing discretion. The appeal must proceed on an error principle;
(b) to establish an error in sentencing, it must be shown that the Judge in the lower court made an error, whether intrinsically or as a result of additional material submitted to the appeal court; and
(c) it is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.
[23] The High Court will not intervene where the sentence is within the range that can properly be justified by reference to accepted sentencing principles. Whether or not a sentence is manifestly excessive is to be determined having regard to the sentence actually imposed, rather than the process by which the sentence is reached.11
[24] In order to determine the appropriateness of the sentence, I must undertake the sentencing exercise afresh.
The starting point of 24 months
[25] There is no tariff case for burglary offending. The Court of Appeal in
Arahanga v R observed:12
[78] This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.
10 R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 (CA) at [138]- [140].
11 Ripia v R [2011] NZCA 101 at [15].
12 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 (footnotes omitted).
[26] Having considered the authorities referred to by both the appellant13 and the Crown in their submissions, and such other authorities as I found of assistance,14 I find that there is a fairly broad sentencing range for this type of burglary. The range extends between 18 months at the low end and two years, six months at the high end, with many of the starting points at the lower end of that range. Ikahihifo is the most similar
13 As counsel points out, residential burglaries are inherently considered to be more serious than burglaries of non-residential premises due to the increased degree of intrusion and likelihood of confrontation with occupants.
14 Moses v Police, above n 5: the offender went to a commercial food premises in the early hours o the morning. Using his hands and feet he smashed a window to gain entry, before taking $2,600 worth of cigarettes and tobacco, none of which was recovered. On appeal to the High Court, White J adopted a starting point of two years, six months’ imprisonment, taking into account the nature of the entry to the premises, the value of the unrecovered goods, and the absence of any violence.
Tuffey v Police [2014] NZHC 591: the appellant and an associate went to the associate’s father’s house knowing he was away overseas. They used bold cutters to break into the garage and took two motorbikes, a large number of tools and a large quantity of diesel. The total value of the property stolen was about $40,000. There was no risk of confrontation with the occupiers. Venning J considered that having regard to the circumstances of the offending and value of the property taken, without taking account of Mr Tuffey’s personal circumstances which included an extensive history of prior offending, the case would not have warranted a starting point of more than two years, six months’ imprisonment.
Ikahihifo v Police [2012] NZHC 3553: the appellant and an associate used a jemmy to force open the front door of a supermarket at 4am, breaking the door in the process. They then filled a wool sack with $20,000 worth of cigarettes and tobacco and drove away. They were apprehended by the Police soon afterwards and all the stolen property was recovered. Wylie J described the circumstances of the burglary as involving some planning and premeditation, but said it was not sophisticated. There was little or no risk of confrontation with occupiers; and although property of significant value was taken it had all been recovered. On appeal, the High Court substituted and adopted a starting point of 20 months’ imprisonment;
Rangi v Police, above n 5: the appellant entered commercial premises by climbing through a hole in a padlocked wire mesh gate at night. He then smashed an office window to gain entry. He then searched the premises for cash before being discovered by a security guard. There was a confrontation but no violence. Following the decisions in R v Stevens and R v Brown, Fogarty J adopted a starting point of 18 months imprisonment, but proceeded to apply a greater uplift than that used by the sentencing Judge to reflect Mr Rangi’s extensive list of previous convictions for burglary. Fogarty J noted that Mr Rangi, aged 32 years, had 27 previous convictions for burglary, as well as having other convictions. He applied an uplift of 12 months to reflect that history.
R v Stevens [2009] NZCA 190: premeditated burglary of a commercial premises using keys and an alarm code which had been misappropriated. The Court of Appeal imposed a start point of 18 months’ imprisonment.
Rapira v Police [2015] NZHC 699: offender smashed a bar window, broke in and took some alcohol which he then shared with a 15 year old. When in Court, being remanded in custody, the appellant ran from the dock and left court. He was apprehended in an alley next to the Courthouse. He faced two charges of burglary as well as escaping from custody (sentenced cumulatively); disorderly behaviour; and supplying alcohol to a minor. The starting point for the burglaries was two years six months, held on appeal to be within range but “stern”.
Ware v Crown Law Office [2015] NZHC 704: broadly the offending related to the theft in November 2013 of plants, materials and appliances from properties under construction. At least one burglary was committed with a co-offender. The offender attempted to sell the stolen property to associates. Losses were valued at $33,000 but the offender disputed this saying it was worth about $4,000. The Court on appeal agreed and called the value “low”. A starting point between one year and one year, six months would have been appropriate.
case in terms of the actual burglary offending, in that there were two offenders involved, a very minor risk of confrontation, some planning, and damage to property but all items taken were recovered. Here, the offending occurred at night when the service station was closed, and consequently, I disagree with the Crown’s submission that there was a risk of confrontation. At 20 months’ imprisonment, the starting point adopted in Ikahihifo was slightly lower than in the present case.
[27] However, in contrast to the offending in Ikahihifo, in this case, the planning was much more deliberate. Here, Mr Lawson and his associate equipped themselves with a stolen vehicle, and presumably did so in order to arrive at and depart from the scene of their offending quickly so as to avoid apprehension. By using, and no doubt abandoning, the stolen vehicle as soon as they had made their getaway, they were going to enhance their prospects of avoiding apprehension.
[28] They wore bandanas over their heads and faces, and gloves on their hands, to conceal their identities from CCTV and security cameras, and took with them the bolt cutters and the plastic bag to cut through any lock and carry away any stolen items.
[29] Taken together, those measures relating both to planning and execution of the offending and thereafter to avoid apprehension and identification, place this offending on a more serious level than those cases where an 18 months or even 20 months starting point was applied, notwithstanding that in this case, Mr Lawson and his associate failed to take any property away with them when they fled the scene.
[30] I am satisfied that the 24 month starting point selected by the Judge, whilst perhaps on the high side, was nevertheless within the available range. The Judge’s assessment as to the gravity of the offending was a matter for his determination and he clearly saw it as being of a serious nature warranting the selection of a starting point towards the upper level of the range. In doing so he made no error that would warrant this Court interfering.
Totality and previous convictions
[31] Having regard to the appellant’s prior offending, the totality uplift seems
entirely justifiable, indeed conservative. The Judge applied an uplift of four months to reflect the appellant’s prior offending. As noted, the appellant at 23 years old has an extensive history: six burglary convictions; eleven convictions for unlawfully taking motor vehicles; a conviction for unlawfully getting into a motor vehicle; a conviction for unlawfully interfering with a motor vehicle; as well as a conviction for theft from a vehicle. Other convictions are for driving dangerously, failing to stop, and failing to stop to ascertain injury following an accident. Although there are still more convictions, those mentioned are all relevant to the Court’s assessment of the appropriate uplift to reflect his prior offending. In particular, I note that the appellant obtained a conviction for burglary in relation to offending that occurred in 2013, and was sentenced to imprisonment for 12 months in August 2014, so he was not long out of prison at the time of this offending in June 2015.
Should the Judge have allowed a discount to recognise the appellant’s youth?
[32] Discounts for youth are available where appropriate, to recognise the neurological differences which give young people, until their mid-twenties, reduced impulse control and decision making capacity as compared to more mature adults; and to recognise the greater potential for rehabilitation of young offenders in some cases.15 Those factors are to be balanced against the seriousness of offending and prospects of rehabilitation. There is no fixed discount.16
[33] In the present case, the offending was planned and serious, and there is an extensive offending history. However, discounts have been given in other cases on reasonably serious charges even where there is a substantial history of offending.17
[34] In Pouwhare v R, the Court of Appeal commented on the issue of youth as a sentencing factor:
[83] In the end, a judge sentencing a young person under the Sentencing Act must always weigh the young person’s age and the reasons why he or she offended, against the seriousness of his or her offending, and prospects of rehabilitation. Sometimes a young person’s age will be a mitigating factor of high perhaps decisive, significance not to be circumscribed by any fixed outer
15 See Churchward v R [2011] NZCA 531 at [76] -[92].
16 Pouwhare v R [2010] NZCA 268 at [83]; Churchward, above n 15, at [84].
17 See Rarere v Police HC Napier CRI-2012-441-8, 26 April 2012; R v Alletson [2009] NZCA 205.
percentage. Equally, there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.
[35] Although in the present case, the appellant was 22 years old at the time of the offending and 23 years old when sentenced, and thereby still of an age that can be described as young, I do not consider that in the circumstances of this offending, his youth is a factor that warrants or calls for the allowance of a sentencing discount. The reality is that the appellant has been a frequent offender since he was 17. From his first conviction in October 2009, he has been convicted on 34 occasions. He has thereby demonstrated that, despite numerous prior opportunities for rehabilitation, he has chosen to reoffend. His offending on this occasion was not spontaneous, nor was it undertaken in circumstances where lack of impulse control was a factor. Here, he went about breaking into and stealing a motor car, preparing himself for the burglary by means of employing the use of a bandana to mask his face and had obtained the pair of bolt cutters and bag to carry out the burglary and removal of valuable property, before making a planned getaway. Having regard to that conduct, I see no basis upon which the Judge could have concluded that a discount to recognise the appellant’s age was required, and by not making such an allowance the Judge made no error.
Remorse and rehabilitation
[36] Discounts for remorse and rehabilitation are discretionary and those for remorse, in particular, depend on the Judge’s assessment of genuineness.18 As such, the Judge was quite entitled not to give any credit or discount for remorse. While perhaps it would have been preferable for the Judge to have noted in his sentencing remarks the appellant’s efforts at expressing his remorse, his failure to do so does not amount to an error that requires this Court’s intervention. The appellant wrote a “remorse letter to the victims” and a letter to the sentencing Judge, both of which were considered by the Judge. Despite the appellant’s expressions of remorse, and wish to break his “cycle of crime”, those letters and their contents must be viewed in the context of his history of repeated offending, and there was nothing about the contents of the letters that would have provided any basis for the Judge to view those
18 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]- [64].
expressions as warranting a discount to recognise the appellant’s remorse.
[37] As to rehabilitation, while the appellant does appear to be making some efforts, once again, his criminal history would inevitably have led the sentencing Judge to question how genuine or real those efforts really were. There is no indication that the Judge failed to have regard to the issue of the appellant’s rehabilitation and I find no error by the Judge in failing to specifically mention it. In the circumstances, even if the Judge had decided to give a discount to the appellant to recognise his rehabilitative efforts and to encourage him, it could only have been a very modest one and would not have resulted in a significantly lesser sentence. In such circumstances I consider it would inappropriate for me to “tinker” with the sentence.
Result
[38] For the reasons given, this appeal is dismissed.
Paul Davison J
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