Martin v Police [2016] NZHC 2094 (5 September 2016)

Last Updated: 26 September 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-216 [2016] NZHC 2094

BETWEEN	JOHN MARTIN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 September 2016
Appearances:	A Ives for Appellant A Park for Respondent
Judgment:	5 September 2016

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

MARTIN v NEW ZEALAND POLICE [2016] NZHC 2094 [5 September 2016]

[1] Mr Martin pleaded guilty in the District Court to two charges of burglary, one charge of being in possession of a pipe and a charge of being in possession of methamphetamine. On 24 May 2016, Judge P J Sinclair sentenced Mr Martin to concurrent terms of imprisonment of 28 months on the two burglary charges. On the other two charges she imposed concurrent sentences of one month each.¹

[2] Mr Martin appeals to this Court against sentence. He contends the sentence was manifestly excessive because the Judge adopted a starting point that was too high, and then failed to apply discounts in respect of relevant mitigating factors.

The facts

[3] The facts underpinning the charges were contained in two summaries of fact with which Mr Martin took no exception. The first of these reveals that at about

8.25 pm on 12 July 2015, Mr Martin and two associates went to Kohimaramara. They jumped over a locked electronic gate and gained entry to a residential address by breaking a bedroom window. They then conducted an extensive search of both levels of the address. In doing so, they smashed a number of wall cavities, no doubt seeking to find items of value to steal.

[4] Eventually they smashed open a wall cavity in which they found a safe. They then used tools from the garage of the address to pry the safe from the bolts that were holding it to the ground. They took the safe outside the house and placed it in a recycling bin. They then dragged the bin up the driveway of the address, and tipped it out next to a parked motor vehicle belonging to a neighbour.

[5] A neighbour had heard noises coming from the address and alerted the police. When the police arrived, Mr Martin and his associates were sitting inside the neighbour’s vehicle. The safe was sitting on the ground beside the vehicle.

[6] The second set of charges arises out of an incident that occurred on the afternoon of 4 April 2016. At about 3.15 pm on that date, Mr Martin travelled in a motor vehicle with an associate to a residential area. He left the vehicle and climbed

up a drainpipe, thereby gaining entry to a house through an open window. He then ransacked the master bedroom of the address looking for items to steal. He eventually left the address carrying jewellery having a value of approximately

$100,000 and cash in various currencies totalling approximately $40,000.

[7] The police were alerted and the police helicopter began pursuing Mr Martin and his associate. They eventually apprehended the two men a short distance away. The items stolen in the burglary were recovered as a result. When the police searched Mr Martin’s vehicle, they found a methamphetamine pipe and a small plastic bag containing crystals of methamphetamine.

The hearing in the District Court

[8] The circumstances in which the Judge eventually came to sentence Mr Martin were somewhat unusual. Mr Martin was arrested on 12 July 2015 after being found with the stolen safe. He then appeared for the first time in the District Court the next day, when he pleaded not guilty and elected trial by jury. He failed to appear on

3 February 2016, and a warrant for his arrest was issued. He then appeared later the same day and was remanded to 1 March 2016. On that date he sought a sentence indication.

[9] The sentence indication was given on 7 April 2016.² This was three days after the events giving rise to the second set of charges. Judge Sinclair gave Mr Martin a sentence indication on the first burglary charge of 16 months imprisonment. In doing so she adopted a starting point of 20 months imprisonment and applied a discount of four months, or 20 per cent, to reflect a guilty plea. Mr Martin accepted the sentence indication the same day.

[10] By the time the Judge came to sentence Mr Martin on the original burglary charge, he had also pleaded guilty to the second set of charges. He had entered guilty pleas to those charges on 9 May 2016 following an earlier appearance on

5 April 2016. It was therefore necessary for the Judge to fix a sentence in respect of both the original burglary charge and the second set of charges.

[11] The Judge took a global starting point of three years imprisonment on both burglary charges. She then added an uplift of one month to reflect the remaining charges.

[12] The Judge applied a discount of two months to reflect the fact that Mr Martin has had a difficult time in the last few years. He arrived in New Zealand as the son of refugees. His mother returned to Syria after his father formed another relationship. He has had no recent involvement with his father and has also been without identity documents for the last few years. This has caused him significant issues in attempting to find employment.

[13] From the resulting sentence of two years 11 months imprisonment, the Judge applied a discount of seven months, or 20 per cent, to reflect guilty pleas. This produced the end sentence of two years four months imprisonment.

The argument on appeal

[14] Ms Ives submits that the starting point of three years imprisonment was too high having regard to several factors. The first of these was that in fixing the starting point on the first burglary charge the Judge referred to the starting point applied by the Judge who had sentenced Mr Martin’s co-offender. That Judge had applied a starting point of 25 months imprisonment, but in circumstances where the offender had pleaded guilty to two charges of burglary rather than one.

[15] In addition, Ms Ives has referred me to a large number of decisions of both the Court of Appeal and the High Court in which starting points of around two years imprisonment have been applied in cases involving offenders charged with multiple burglaries, some of which have resulted in the loss of items of considerable value.³

She relies in particular on the decision of the Court of Appeal in Stepanicic v R.⁴ In

that case the appellant had committed two burglaries of residential addresses in which items of property had been stolen. The Court of Appeal considered that an

³ Kohunui v New Zealand Police HC Tauranga CRI-2010-463-18, 4 October 2010; Sheddon v New Zealand Police HC Auckland CRI-2010-404-34, 22 June 2010; Tioke v New Zealand Police HC Rotorua CRI-2009-463-100, 9 December 2009; Hauraki v Police HC Whangarei CRI-2007-

_{488-00049, 6 September 2007.}

⁴ Stepanicic v R [2015] NZCA 211.

appropriate starting point in respect of both burglaries was a sentence of two years imprisonment.

[16] I acknowledge that there are cases in which starting points of around two years imprisonment have been selected in respect of offending involving two or more individual instances of burglary. I find those cases to be of relatively limited assistance, however, because each turns on its own facts. By way of example, in Payne v Police Simon France J reduced a starting point of three years imprisonment

imposed in respect of five separate burglaries to one of 18 months imprisonment.⁵

He did so, however, on the basis that the Judge who sentenced the appellant’s co- offender had selected a starting point of 18 months imprisonment. Simon France J considered there was no basis on which the culpability of the two offenders could be distinguished. For that reason he felt obliged to reduce the starting point from three years to 18 months.

[17] I consider the issue needs to be determined on the basis of appellate principle. In Arahanga v R the Court of Appeal made it clear that burglaries of residential addresses are to be regarded seriously.⁶ It said that a starting point of around

18 months to two years imprisonment could be expected in such cases.⁷

[18] Both of the burglaries in the present case had aggravating factors. The first burglary was committed in circumstances suggesting it was premeditated. The fact that Mr Martin and his co-offender smashed several walls in the address indicates they knew there was a safe in the address and they were determined to find it. They eventually found it in a lounge at the rear of the house. In doing so, they caused considerable damage to the property. Standing on its own, I consider this burglary would easily fall within the mid to upper end of the range identified in Arahanga.

[19] Similarly, the second burglary involved the theft of a considerable amount of property. It also involved damage to the master bedroom. Again, the value of the stolen property alone would be sufficient to raise this burglary into the mid to upper

_{end of the range identified in Arahanga.}

⁵ _{Payne v Police HC Palmerston North CRI-2011-454-42, 12 December 2011.}

⁶ _{Arahanga v R [2012] NZCA 480.}

⁷ At [78].

[20] Given those factors, I do not consider that an overall starting point of three years imprisonment can be considered as being outside the available range. It may have been at the upper end of the range, but was not outside it.

Discount for mitigating factors

[21] Ms Ives submits that the Judge ought to have provided Mr Martin with a greater discount to reflect the difficulties he has had in recent years. She submits he should also have received a discount for remorse expressed in a letter he had written to the Court. Furthermore, she submits it was open to Judge Sinclair to allow a greater credit for guilty pleas. She argues that a credit of closer to 25 per cent ought to have been applied.

[22] All of these issues relate to the exercise of the Judge’s discretion and are not readily amenable to review on appeal. It may have been open to the Judge to allow a discount for remorse but she elected not to. She could have applied a discount of 25 per cent to reflect guilty pleas but she did not do so. In my view that is entirely understandable given the fact that Mr Martin and his associates were caught red- handed on both occasions and could never have defended the charges. The fact that property was recovered also reflects the circumstances in which Mr Martin was apprehended rather than any steps that he took to return the property he had stolen. Furthermore, I consider that the credit the Judge gave in respect of Mr Martin’s difficult personal circumstances prior to the offending was already generous.

[23] Furthermore, Mr Martin committed the second burglary when he was on bail in respect of the burglary committed on 12 July 2015. That aggravating factor would have justified the Judge applying an uplift of around three months. Any decision by the Judge not to grant additional credit for mitigating factors was therefore balanced by the fact that she did not apply an uplift to reflect the fact that Mr Martin had offended on the second occasion whilst on bail.

Result

_{[24] The appeal against sentence is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland