IN THE Court of appeal OF new Zealand
	
CA537/2013
[2013] NZCA 504

BETWEEN	
DANIEL CECIL KINRAID
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
30 September 2013	

Court:	
O’Regan P, Panckhurst and MacKenzie JJ	

Counsel:	
Appellant in person
M J Grills for the Crown	

Judgment:	
21 October 2013 at 11.30 am	

JUDGMENT OF THE COURT
A	The appeal against sentence is allowed.
B	The sentence of 22 months imprisonment is quashed, and a sentence of 18 months imprisonment substituted.
C	The concurrent sentence of one months imprisonment for breach of community work is quashed.
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REASONS OF THE COURT

(Given by Panckhurst J)
The issue
[1]	The appellant challenges a sentence of 22 months imprisonment imposed in relation to two charges of burglary.  He maintains that the appropriate sentence was home detention.
The offending
[2]	The first burglary occurred on 10 May 2012.  At 3.30 am the appellant entered the premises of a transport company.  He slid under a truck gate.  Once inside the warehouse, the appellant uplifted a pair of gloves from an office.  Wearing these he cut the plastic wrapping around goods stored on wooden pallets.  After searching about six boxes he located six pairs of underwear and three containers of chocolate sauce.  The appellant was then located by staff who arrived to start work.  The items were concealed in his jacket.  Interviewed, the appellant said it was a silly thing for him to do.
[3]	The second burglary occurred at about 10.00 am on 17 November 2012.  About two weeks earlier the appellant had a brief altercation in the early hours of the morning at a city bar.  In the course of the disagreement a distinctive red hat belonging to the appellant was taken by one of those involved.  While undertaking maintenance work on a block of flats on 17 November, the appellant saw his red hat hanging in the hallway of one of the flats.  He gained entry, uplifted the hat, but also stole a laptop, a television, a jacket and other lesser items to a total value of $1,100.
[4]	That same evening the police spoke to the appellant at his home address.  He was wearing the red hat.  A search located the items taken in the burglary, save for a bottle of spirits.  The appellant said in explanation that he had only intended to retrieve the hat, but that he took the items to teach the victim a lesson.
Personal circumstances
[5]	The appellant is 24 years of age.  He has a number of previous convictions including three for burglary, all of which were committed on the same day in 2008.  He was sentenced to six months community work.  Subsequently, in 2011 and 2012 he incurred convictions for resisting the police, injuring and breaching a community work sentence.  At the time of the burglaries in 2012 the appellant was subject to an order to come for sentence if called upon, and the second burglary occurred while he was on bail in relation to the first.  Until the present offending the appellant had not been sentenced to imprisonment.
[6]	The pre-sentence report was unremarkable.  The appellant’s risk of reoffending was assessed to be low and a sentence of community work or community detention was recommended.  The appellant was in employment as a property maintenance worker for his father, a property owner.  He enjoyed supportive relationships with members of his family and expressed “regret about his actions”.
The sentencing
[7]	Judge Crosbie set a starting point of two years and three months imprisonment in relation to the two burglaries.  The first burglary attracted a starting point of 12 months and the second 15 months.  The Judge then added “an additional three months for your previous convictions”.  He contemplated, but did not impose a further uplift on account of his understanding that the appellant was subject to a sentence of community work at the time of the burglaries.
[8]	The Judge considered that a 20 percent allowance was appropriate for the guilty pleas entered to the two charges.  He reduced the notional sentence of two years and six months by eight months to arrive at the end sentence of 22 months imprisonment.  This was in fact a 26 per cent reduction.  In imposing sentence the Judge ordered that a special condition would apply for six months beyond the release date, namely that the appellant was to take such treatment, counselling or other intervention as may be directed by his probation officer.
[9]	In addition, Judge Crosbie purported to impose a sentence of one months imprisonment for a breach of community work.  He made this sentence concurrent.
[10]	Mrs Grills, however, has drawn our attention to a jurisdictional issue.  The record reveals that the appellant was not subject to a sentence of community work at the date of sentencing.  A month or so prior to his committing the second burglary in 2012 he was convicted on a charge of breaching community work, and ordered to come up for sentence if called upon within 12 months.  Accordingly, these further convictions rendered the appellant susceptible to come up for sentence, but an application pursuant to s 111(2) of the Sentencing Act 2002 triggering this had not been filed.  It follows that the one month concurrent sentence was imposed without jurisdiction.  It is quashed.
The basis of the appeal
[11]	Mr Kinraid represented himself.  He submitted that the Judge erred in imposing a prison sentence when home detention was an available, and appropriate, option.  This indeed was the sentence sought by then counsel in the District Court.  Mr Kinraid stressed that he was sorry and remorseful in relation to his offending, that he had taken steps to ensure he would not transgress again, and that he was about to become a father and assume responsibility for his partner and child.  He had the opportunity of full-time employment undertaking property maintenance for his father’s company.
[12]	Mrs Grills submitted that the sentence of imprisonment was within range, appropriate and that the sentencing Judge had not erred in the exercise of his fettered discretion in deciding that home detention would be an inadequate response.
Discussion
[13]	We are not persuaded that the Judge erred in imposing a prison sentence.  Having regard to the purposes and principles of sentencing, we consider the Judge was entitled to conclude, as he did, that two further convictions for burglary required a firm response, a short term sentence of imprisonment.
[14]	We turn to the length of the sentence.  Two matters are of concern.  Each burglary was of moderate seriousness, indeed both had curious features.  The first was not only amateurish, but more importantly the property which the appellant intended to take was not of significant value.  The genesis of the second burglary was odd, but aggravated by the opportunistic theft of property by way of pay back.  We agree that the starting point sentences of 12 months and 15 months imprisonment were available.
[15]	That said, it is difficult to also justify the uplift of three months imposed for the fact that the appellant had previous convictions.  He was hardly a recidivist offender and, moreover, this was his first sentence of imprisonment.
[16]	Secondly, the appellant was on electronically monitored bail for seven months before he was sentenced.  This was drawn to the attention of the Judge and noted by him in the course of his sentencing remarks.  However, it was not recognised in arriving at the end sentence.  In our view, these two factors have led to the end sentence being manifestly excessive.
Conclusion
[17]	In our view the appropriate sentence was one of 18 months imprisonment.  The appeal is allowed, the 22 month sentence is quashed and a sentence of 18 months imprisonment is substituted.

Solicitors: 
Crown Law Office, Wellington, for Respondent