Bulmer v Police [2016] NZHC 2973 (9 December 2016)

Last Updated: 20 December 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-90 [2016] NZHC 2973

BETWEEN	JADE BULMER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 December 2016
Counsel:	K Preston and L Caris for Appellant R H De Silva for Respondent
Judgment:	9 December 2016

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] Jade Bulmer appeals a sentence of 10 months’ imprisonment imposed on him in the District Court in respect of seven charges of shoplifting and one charge each of receiving, wilful trespass, unlawfully getting into a motor vehicle, failing to answer District Court bail and breach of conditions of supervision.

[2] Mr Bulmer says that sentence was manifestly excessive and, moreover, that the Judge was wrong not to commute it to home detention.

Factual background

[3] Mr Bulmer’s dishonesty-related offending occurred on various dates between

15 April 2016 and 11 August 2016. On four occasions Mr Bulmer stole (shoplifted) meat valued less than $500, and on one occasion stole meat worth $511, from various supermarkets in the Hutt area. He stole a laptop worth $1200, and perfume

_{worth $700, on separate dates from local retail outlets. On another day he was found}

BULMER v NEW ZEALAND POLICE [2016] NZHC 2973 [9 December 2016]

in possession of a hair straightener an associate had shoplifted. He was trespassed from the mall where that shoplifting had occurred. He returned some three weeks later and was charged with trespass. Finally, on one occasion he was found driving a car which had been stolen earlier that day.

[4] Mr Bulmer failed to answer District Court bail on 25 August, a date that had been set for a case review hearing.

[5] Mr Bulmer also failed to report to his probation officer as required by a sentence of supervision he was serving during this period for a previous offence.

[6] The first charge Mr Bulmer faced was laid on 21 May 2016, for shoplifting that had occurred the day before. On that occasion, Mr Bulmer had been seen by the supermarket security staff driving away. The staff pointed the vehicle out to the police. The police stopped the vehicle and arrested Mr Bulmer. Mr Bulmer was charged subsequently on various dates for offending that pre-dated 20 May and for further shoplifting offending that occurred after that day.

[7] Mr Bulmer was remanded in custody on 1 September 2016, when he appeared on the charge of unlawfully getting into a motor vehicle.

Sentence

[8] In sentencing Mr Bulmer, Judge Butler fixed a starting point, on the lead charge of stealing the laptop, of 12 months’ imprisonment for all Mr Bulmer’s offending. He reduced that by two months on account of Mr Bulmer’s guilty pleas. The Judge imposed lesser, concurrent, sentences for the other offences. The Judge declined to impose a sentence of home detention. He recorded his reasons for that decision as follows:

[14] I have to consider the issue of whether I would commute that sentence to one of home detention. I decline to do so.

[15] Your offending is explained by a drug addiction and the offending was motivated by the need you had to pay a drug debt. Those sort of temptations are closer to home, too close to home, in my view, for a home detention sentence. More appropriately dealt with in prison.

Appeal

Mr Bulmer

[9] On appeal Mr Bulmer says the Judge’s starting point was too high. A more appropriate starting point sentence would have been six months imprisonment on the lead charge, with a two month uplift to take account of the remaining charges. The Judge was also wrong when declining home detention. This was the first occasion on which Mr Bulmer had faced charges of theft. A suitable home detention address was available: that of his parents. They were committed to assisting Mr Bulmer leave his drug addiction and associated offending behind. Mr Bulmer had, however, now been remanded in custody for some nine weeks. In those circumstances, an immediate release from prison without any further sentence might well be the appropriate outcome.

The respondent

[10] The police submissions were that the sentence was within range. Moreover, even if the Judge had not articulated persuasive reasons for declining home detention, Mr Bulmer’s history of failure to comply made that decision the appropriate one.

Analysis

[11] When first charged on 21 May for shoplifting the previous day, Mr Bulmer had by then committed four related offences, three of shoplifting (meat: $180; the laptop: $1,200; and the perfume: $723) and received the hair straightener. In June and July Mr Bulmer trespassed, shoplifted meat on three further occasions and committed his motor vehicle offence. So, in all, eight theft or receiving offences, involving unrecovered amounts totalling approximately $2,200. [NB other goods recovered eg car and some meat]

[12] Burglary and theft offending can be difficult to sentence. There is no tariff decision, the factual circumstances vary greatly and the way in which previous offending (often a feature in these types of sentencings) has been dealt with is problematic.

[13] For Mr Bulmer, Ms Caris referred to some seven High Court sentencing decisions in support of her submission that a starting point of six months’ imprisonment for the lead charge, and an uplift of two months to reflect the totality of offending, would have been appropriate. In those cases, which involve between four and 13 charges of shoplifting, with all offenders having numbers of previous like convictions, end sentences of between two and nine months were either upheld or substituted. On a number of occasions, appellants were also successful in arguing that those periods of imprisonment should have been commuted to ones of home detention.

[14] The respondent relied on one High Court decision, Pitihera v Police, in arguing that the 12 month starting point for all the offending was within range.¹ In Pitihera, an 18 month starting point for one charge of unlawfully taking a motor vehicle and five other charges (theft (shoplifting) x3, trespass and failure to report) which the High Court Judge described as minor, was substituted with a starting point on a global basis of 12 months. It was, the High Court Judge said, the maximum starting point that could have been adopted. In upholding that maximum starting point, the Judge determined that no uplift would be required to reflect “a substantial

number of previous convictions, mostly for shoplifting or driving”. As I read the decision, the Judge was in effect acknowledging that the 12 month starting point included an uplift for like previous offending.

[15] Mr Bulmer was, unlike all the offenders in the cases referred to me, a first time thief. He had no previous dishonesty convictions at all. In my view, a starting point for the dishonesty offending of six months’ imprisonment would have been appropriate. There then would have been a modest uplift for the charges of failing to answer District Court bail and breach of conditions of supervision. The breach of conditions of supervision charge adds little to the criminality reflected in the pattern of shoplifting. The failing to answer charge has to be placed in the context of the numerous occasions on which, based on the District Court records, Mr Bulmer appeared once he was charged on 21 May. Taking account also of the previous breach of bail and breach of conditions offending, and of the offending on bail, no

_{more than two months uplift would have been called for.}

¹ Pitihira v Police [2012] NZHC 1690.

[16] There would then have been the question of credit for Mr Bulmer’s guilty pleas. Given the way in which it would appear Mr Bulmer’s offending came to light and was charged, and the very many times he appeared in Court, it is a little difficult to accurately assess at what point in that process those guilty pleas were, in a substantive sense, entered. Ms Caris submitted that, in reality and although Mr Bulmer did not appear that day, the guilty pleas were confirmed on 25 August, at least as regards the laptop offence.

[17] The Judge noted he was allowing a discount of 10 per cent. He in fact allowed a discount of 16.66 per cent. My assessment is that a discount, in all the circumstances, of 15 per cent could not have been challenged.

[18] On that basis, in my view the appropriate end sentence for Mr Bulmer was seven months.

[19] I am also satisfied that the Judge was wrong not to commute any sentence of imprisonment that might initially be imposed on Mr Bulmer to one of home detention. The Court of Appeal has emphasised that the introduction of the sentence of home detention reflects Parliament’s determination of the benefits that are associated with such a sentence, compared to one of imprisonment, for both the defendant and the community. Mr Bulmer had a particularly suitable home detention address: that of his parental home. His parents were committed to supporting their son. Mr Bulmer had never previously received a sentence of home detention. That was the appropriate outcome.

[20] On that basis, I consider that the seven month sentence of imprisonment should have been commuted to a three month and two week sentence of home detention.

[21] Whilst I acknowledge Mr Bulmer has an unsatisfactory record as regards complying with the conditions of supervision, a sentence of home detention is itself a restrictive sentence.

[22] Mr Bulmer has been on remand, as noted, since 1 September. He has, therefore, served more than three months of the three and a half months that would have elapsed before automatic release, and nearly the entire sentence of home detention I consider appropriate.

[23] In those circumstances, I am of the view that it will be of greater benefit to Mr Bulmer and the community to adjust the period of imprisonment to six months (which equates to time that has already been served) and impose release conditions.

[24] I therefore allow Mr Bulmer’s appeal, quash the sentence of imprisonment imposed upon him and substitute it for a sentence of six months’ imprisonment. I impose the standard release conditions and the following special conditions under s

93(1) of the Sentencing Act for a period of three months from the sentence expiry date:

(a) Mr Bulmer is to attend and complete an appropriate alcohol and drug counselling programme to the satisfaction of a probation officer. The specific details of the programme are to be determined by the probation officer.

_{(b) Mr Bulmer is to reside his parents’ address [address redacted].}

_{Clifford J}

Solicitors:

Crown Solicitor’s Office, Wellington