Turnbull v Police [2018] NZHC 671 (13 April 2018)

Last Updated: 5 July 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000041 [2018] NZHC 671

BETWEEN	LEVI TURNBULL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 April 2018
Appearances:	Scott Brickell for the Appellant Sam Teppett for the Respondent
Judgment:	13 April 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 13 April 2018 at 10:30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

TURNBULL v NEW ZEALAND POLICE [2018] NZHC 671 [13 April 2018]

Introduction

[1] The appellant, Levi Turnbull, pleaded guilty to charges of burglary¹ and unlawfully opening a postal article.² At the District Court at Auckland, Judge D J Sharp sentenced Mr Turnbull to 23 months’ imprisonment.³ He now appeals that sentence on the basis that the starting point was excessive and the Judge erred in not commuting the sentence to one of home detention.

Background

[2] The factual background set out below is drawn from the summaries of fact for each of the charges.

Burglary

[3] At about 10:25 pm on 18 July 2017 Mr Turnbull jemmied open the front door of a residential address in Panmure, Auckland. Once inside he rummaged through drawers and removed various electronic items which he placed in a backpack.

[4] After he had been in the house for about five minutes the complainant arrived home. To her surprise she saw that the front door was wide open and the lights on. She went inside and found Mr Turnbull in the kitchen. She immediately contacted the Police who arrived shortly afterwards. Mr Turnbull was found in the front yard of the house. By way of explanation Mr Turnbull said, “I am sorry. I didn’t mean to do it.”

[5] At the time of the burglary Mr Turnbull was subject to standard release conditions relating to a sentence imposed in April 2017 for a previous burglary and other dishonesty offending.

Unlawfully opening a postal article

[6] About two months later, on 2 September 2017, Mr Turnbull was walking along Swanson Road, Ranui, when he was seen looking into letterboxes. The Police were

¹ Crimes Act 1961, s 231(1)(a). The maximum penalty is 10 years’ imprisonment.

2. Postal Services Act 1998, s 23. The maximum penalty is six months’ imprisonment, or a fine not exceeding $5,000.

³ Police v Turnbull [2018] NZDC 3056.

called and found Mr Turnbull in a nearby reserve. He admitted his actions and handed over a driver’s licence and an AA card which he admitted had been taken from the mail.

[7] At the time Mr Turnbull was still subject to the standard release conditions and was also on bail for the previous burglary.

[8] On 30 October 2017 he pleaded guilty to both charges.

District Court decision

[9] Judge Sharp adopted a starting point of 24 months’ imprisonment. He arrived at that figure by first acknowledging the following:

(a) the danger and risk inherent in burglaries of domestic dwellings, which the Judge found came to fruition when the victim arrived home;

(b) the degree of premeditation and planning; which the Judge found was present given Mr Turnbull’s history of burglary; and

(c) the impact on the victim.⁴

[10] He also referred to a number of comparable cases which due to a transcribing error are not referred to in the sentencing notes. Helpfully, however, Mr Brickell has identified them. They are Stepanicic v R,⁵ R v Tinomana,⁶ and Tepania v Police.⁷ Referring to those decisions and the leading Court of Appeal decision in Arahanga v R,⁸ Judge Sharp concluded the 24 month starting point was appropriate, uplifted by six months to reflect the postal offence which was committed while on bail.

4. Unsurprisingly the victim described herself as being very scared to enter her home after being out. She is worried, cannot sleep and becomes fearful at any noises heard at night.

⁵ Stepanicic v R [2015] NZCA 211.

⁶ R v Tinomana [2017] NZHC 794.

⁷ Tepania v Police [2013] NZHC 2327.

⁸ Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

[11] He then applied a further uplift of three months to account for Mr Turnbull’s recidivist tendencies, stating that such a course was necessary for the purposes of protection of the public.

[12] Judge Sharp then turned to consider the mitigating factors. He gave a discount of three months to acknowledge Mr Turnbull’s rehabilitative efforts and prospects. This recognised Mr Turnbull’s apparent insight into some of the underlying issues which influenced his offending, including alcoholism. The Judge acknowledged he had found employment and had been affected by his father’s ill-health.

[13] He then considered the submission that Mr Turnbull should be granted home detention, concluding he could not adopt that course given Mr Turnbull’s significant history of burglary offending.

[14] Mr Turnbull was thus sentenced to 23 months’ imprisonment on the burglary charge, to be served concurrently with a four month sentence for the postal offence.

Appellate principles

[15] This is a first appeal against sentence. Section 250(2) of the Criminal Procedure Act 2011 (“CPA”) provides the appeal must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed, and a different sentence should be imposed.⁹

[16] The touchstone is whether the sentence imposed is manifestly excessive.¹⁰ The focus is on the sentence imposed, rather than the process by which it was reached.¹¹

Grounds of appeal

[17] Mr Turnbull appeals against the sentence imposed on two grounds:

(a) the starting point was too high, having regard to previous sentencing for offending committed in similar circumstances; and

⁹ Criminal Procedure Act 2011, s 250(2).

¹⁰ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

¹¹ At [36].

(b) the Judge erred in not substituting the short sentence of imprisonment for a sentence of home detention.

[18] I shall address each of these grounds in turn.

Was the starting point excessive?

[19] Mr Brickell submits the starting point fixed by Judge Sharp was not consistent with starting points imposed in cases involving similar offending. An analysis of the case law the Judge referred to is required.

[20] It is not in dispute that while there is no guideline judgment for burglary sentencing, Aranhanga sets the frame. Relevantly, the Court of Appeal stated:¹²

“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.”

[21] The Judge considered cases within that category of burglary offences, and likewise Mr Brickell and Mr Teppett have helpfully referred me to cases where the starting point adopted was proximate to the range stated by the Court of Appeal.

[22] In Stepanicic, the Court of Appeal resentenced an offender on two charges of burglary relating to separate residential burglaries, both occurring in the early hours of the morning. The first burglary occurred at a residential address while the victim was at home and in bed. Mr Stepanicic entered and stole a number of personal items. The victim woke up and saw Mr Stepanicic crawling along the floor at the foot of her bed. Believing it to be her son, she went back to sleep. The second burglary occurred shortly after, at about 6:00 am. Again, Mr Stepanicic entered the house of a female victim who was in bed. He ripped the latches off the kitchen window to enter, and took several items of value.

¹² Aranhanga v R, above n 8, at [78] (footnotes omitted).

[23] A starting point of two years was adopted, the Court accepting the relevant aggravating factors were that both burglaries were of residential properties; they occurred at night when people were in their homes, with the attendant risk of actual danger or confrontation; a number of personal items were stolen; and the offending had significant effect on the peace of mind of the occupants.¹³

[24] In Tepania v Police, Priestley J on appeal adopted a starting point of between 22 and 24 months for one incident of burglary involving entry, while drunk, into a residential property in the early hours of the morning. The victim was disturbed and a struggle ensued. No property was taken, but the victim suffered some injuries.
Priestley J, assessing the offender’s culpability, commented:¹⁴

“... this was an unwarranted nocturnal intrusion into a private dwelling. It was fuelled by alcohol and relatively spontaneous. The appellant’s target was limited to alcohol. Home invasions are, of course, potentially dangerous because they can lead to confrontations where frequently the occupants are assaulted and terrified. In this case there was indeed a struggle, during which both participants were injured. The victim, on his own admission, had to be restrained from inflicting further damage on the appellant. No property was taken.”

[25] The struggle and the impact on the victim and his family were viewed important factors in the Judge’s assessment.¹⁵

[26] In R v Tinomana, Edwards J allowed an appeal against sentence, finding a starting point of two years ought to have been adopted. That case involved two burglaries, as well as other dishonesty offending, a wilful damage charge and a charge of breach of community work. The first incident of burglary involved Mr Tinomana approaching a property at about 7.00 pm and punching the glass window. He continued to a nearby residence where both occupants were home, entering through a ranch slider. He encountered the female victim and asked her for money. She screamed out to her husband who was asleep. Mr Tinomana left the property when the husband yelled at him to leave, but then turned and charged at the man while holding an unknown object in his hand. He punched and kicked the door causing the glass to smash. No property was taken. The second burglary occurred a number of

¹³ Stepanicic v R, above n 5, at [7], [9].

¹⁴ Tepania v Police, above n 7, at [53].

¹⁵ At [54].

months later in the early evening. Mr Tinomana’s associate entered the back yard of a residential property and stole various items he found inside the house including a laptop and a credit card.

[27] Edwards J undertook a careful review of the authorities. She commented that the fact Mr Tinomana’s offending involved an actual confrontation with the occupants of the house, which caused them great distress, made his offending more serious than that in Stepanicic, but accepted that the starting point in Stepanicic reflected two burglaries, where property was taken, whereas no property was taken by Mr Tinomana.¹⁶ She also commented the starting point adopted in Tepania suggested the Judge’s starting point (two years and six months) was too high.¹⁷

[28] I agree with Mr Brickell that the offending in Stepanicic was, at least in certain respects, more serious than that in the present case. It involved two instances of burglary where valuable goods were taken. In contrast Mr Turnbull took nothing from his single burglary. However, a significant risk of confrontation was present in both cases. That in the present case there was an actual confrontation between Mr Turnbull and the victim elevates the seriousness. However, despite this I regard the instant offending as marginally less culpable than that in Stepanicic.

[29] I am also satisfied Mr Turnbull’s offending was less serious than that in Tepania and Tinomana. The physical struggle was plainly a serious aggravating factor in Tepania, while the physical damage and threats which were present in Tinomana also elevated the seriousness. Rather than engaging in physical violence or offering threats when confronted by the victim, Mr Turnbull exited the residence but did not leave the property.

[30] Mr Teppett, for the Crown, referred me to two further cases in which starting points of two years and six months, and two years and nine months, respectively, were adopted. In my view neither case is apposite. In Lamatoa v R, the appellant was involved in two residential burglaries, from which property valued at about $6,000

¹⁶ R v Tinomana, above n 6, at [33].

¹⁷ At [35].

was taken.¹⁸ Nation J found the burglaries were premeditated and in the nature of a spree. The starting point also reflected a receiving charge which the Judge described as “serious” and “brazen”.¹⁹ Meanwhile, as Mr Teppett concedes, the 33 month starting point adopted in Sullings v Police reflected the appellant’s extensive criminal record.²⁰ Aggravating factors making that offending more serious than the present included a threat to “smash” the victim, and the appellant’s decision to pour down the sink medication used by the victim to treat her infant daughter’s chronic illness.²¹

[31] It is apparent from the foregoing that I consider Judge Sharp erred in adopting a two year starting point.

[32] The primary aggravating factors in Mr Turnbull’s offending, the actual confrontation with the victim, and the clear impact his offending has had on her, were rightly treated as serious by the Judge. But the offending did not involve the other aggravating factors which elevated the culpability in the cases referred to me.

[33] Mr Brickell submits a finding of premeditation is not available on the agreed facts, and cannot be founded on Mr Turnbull’s history of dishonesty offending. As Mr Brickell points out, there is an indication in the PAC report that Mr Turnbull was drunk at the time of the offending, and his post-offence conduct is not what would ordinarily be expected of an assailant in a premeditated burglary. However, the use of an instrument to force open the front door is indicative of some level of planning. Despite this I am satisfied Mr Turnbull’s offending was more opportunistic than planned.

[34] Moreover, while Mr Turnbull’s recidivism clearly warranted attention, that was the subject of a further three month uplift. In the circumstances of this case the mere fact that Mr Turnbull has previous convictions for burglary does not logically lead to a conclusion that the index offending was planned or premeditated. Plainly

¹⁸ Lamatoa v R [2017] NZHC 2375.

¹⁹ At [30]. The Judge found the items received, valued at $3,000, were likely to have been from an earlier burglary by the appellant’s co-offender. He also found the appellant likely had detailed knowledge of how the property received was stolen.

²⁰ Sullings v Police [2017] NZHC 601.

²¹ At [15]-[17].

Mr Turnbull’s history reveals he has a propensity to commit burglary, but that does not assist in discriminating between opportunistic or premeditated offending.

[35] In any event, of the cases cited to me Mr Turnbull’s offending is most comparable to that in Stepanicic in terms of its seriousness, and does not exhibit the kind of aggravating features in the other cases cited to me which justified starting points of more than 24 months.

[36] Assessing the matter afresh, in my view a starting point of 20 months, somewhat lower than the 24 months in Stepanicic, is called for. Indeed, I did not understand Mr Brickell to seriously suggest otherwise. But he submitted that the six month uplift to account for the postal charge and the fact that the offending took place while Mr Turnbull was on bail was excessive. Furthermore, he submitted when this uplift is combined with the three month uplift on account of Mr Turnbull’s previous offending the result is excessive.

[37] Mr Teppett rightly accepts the six month uplift for the postal charge was stern, indeed very stern, particularly given the maximum penalty. However, that uplift also included a recognition that the offending took place while he was on bail and was committed while Mr Turnbull was subject to release conditions imposed following his conviction for a previous burglary (a factor not explicitly referred to by the Judge). This combination justified a discrete uplift. However, taken in context I am satisfied the six month uplift was excessive. A four month uplift was appropriate.

[38] The other uplift of three months was given on account of Mr Turnbull’s previous offending. Prior to the present charges Mr Turnbull had previously been convicted and sentenced on three earlier occasions for burglary. While that is a relatively modest total, these convictions stand beside numerous convictions for dishonesty offending. In my view it cannot be said that a three month uplift in these circumstances is anything other than an orthodox and appropriate application of the relevance sentencing principles including the need to protect the community. For these reasons I am satisfied that the appropriate global starting point is 27 months’ imprisonment.
[39] Turning to mitigating factors, no issue is taken with the three month discount for prospects of rehabilitation. I agree with Judge Sharp that a compassionate approach was appropriate. It is heartening that Mr Turnbull has participated in a programme with the Community Alcohol and Drug Service (“CADS”). He also self- reports no alcohol use since December 2017. That commitment to self-improvement, coupled with Mr Turnbull’s success in finding a job and factoring in his father’s illness, justified a discrete three month discount.

[40] The Crown accepts the full 25 per cent discount for early pleas was available. This equates to a seven month reduction resulting in an end sentence of 18 months’ imprisonment.

Should a sentence of home detention have been substituted?

[41] I now turn to consider whether the Judge erred by declining to commute the sentence to one of home detention.

[42] Judge Sharp declined to commute Mr Turnbull’s sentence to one of home detention on the basis there was a need for deterrence, and that given Mr Turnbull’s significant history of offending a sentence of imprisonment was called for.

[43] Mr Brickell’s criticism is that in exercising his discretion not to commute the sentence to home detention the Judge was plainly wrong. He placed too much emphasis on deterrence and denunciation and failed to give sufficient weight to the evidence that imprisonment has failed to deter Mr Turnbull from re-offending. He submits Mr Turnbull is remorseful, has successfully completed CADS and has not consumed alcohol since December 2017. All these factors, Mr Brickell submits, operate against the imposition of a full-time custodial sentence and that the less restrictive outcome of home detention is appropriate.

[44] There are undoubtedly factors which operate in favour of a sentence of home detention. Mr Turnbull has taken some positive steps towards rehabilitation, including addressing his underlying issues with alcohol and gaining employment. Additionally, being released on home detention would allow him to spend time with his ailing father although I note Mr Brickell responsibly advises me that Mr Turnbull’s father’s health
has improved somewhat. I accept that under the Act’s scheme, a sentence of imprisonment cannot be imposed for the purpose of assisting an offender’s rehabilitation.²²

[45] But there are important factors in operation which in my view prevent me from commuting Mr Turnbull’s sentence. First, there is the need to denounce his conduct, deter him, and protect the community. I accept denunciation and deterrence are both served by home detention.²³ But Mr Turnbull’s history of similar offending heightens the need to impose a sentence which will protect the community.

[46] Secondly, and relatedly, imprisonment has not deterred Mr Turnbull from re- offending. As Priestley J observed in Tepania it is contrary to the hierarchy of sentences prescribed by the Act to impose a less restrictive sentence for burglary when the more onerous sentence of imprisonment has failed to produce the desired result.²⁴

[47] Thirdly, in certain cases a history of failure to comply with Court orders in similar circumstances will militate against a sentence of home detention.²⁵ One matter of concern is that the most recent spate of offending occurred while Mr Turnbull was subject to release conditions, and the postal offence occurred while he was on bail for the burglary. Mr Turnbull has also previously breached conditions of community detention and supervision. Given his history of breaching Court-ordered conditions, and offending while subject to Court orders, I cannot be confident Mr Turnbull will serve a sentence of home detention without incident. These factors necessarily mean I am not satisfied the protection of the community can be achieved by any sentence except one of imprisonment.

[48] For completeness, I have not ignored Mr Brickell’s proper submission that in the long run, the community is best protected by Mr Turnbull receiving a sentence with a rehabilitative element which will enable him to address his alcohol issues. That is a meritorious submission. However, Mr Turnbull’s history has forced my hand. His recent participation in CADS provides hope that he is properly committed to

²² Sentencing Act 2002, s 16.

²³ Fairbrother v R [2013] NZCA 340 at [30].

²⁴ Tepania v Police, above n 7, at [59].

²⁵ Hampton v Police [2014] NZHC 2423 at [28]- [29].

addressing the underlying causes of his offending. Mr Brickell advises me from the bar that unlike prisoners serving longer terms of imprisonment, prisoners such as Mr Turnbull who are serving short terms are not generally afforded the opportunity to engage or participate in pre-release rehabilitative programmes. If that is the case it is unfortunate. Given that alcohol abuse appears to lie at the root of Mr Turnbull’s offending coupled with the evidence he now appears to be addressing his addiction, I would hope and expect the prison authorities would ensure that prior to his release Mr Turnbull receives some form of appropriate counselling. That is particularly relevant given the comments in the PAC report recommending such a course.

Result

[49] The appeal against sentence is allowed in part.

[50] The sentence of 23 months’ imprisonment is quashed and substituted with a sentence of 18 months’ imprisonment.

[51] I decline to commute Mr Turnbull’s sentence to one of home detention.

Moore J

Solicitors/Counsel:

Mr Brickell, Auckland Meredith Connell, Auckland