IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-193 [2015] NZHC 2095

BETWEEN	JOSEPH RANDELL MCFALL
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	31 August 2015	

Counsel:	
C Wright for Appellant
J Murdoch for Respondent	

Judgment:	
1 September 2015	

JUDGMENT OF ANDREWS J

This judgment was delivered by me on 1 September 2015 at 11.45am pursuant to
Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland
Counsel:
C Wright, Auckland

MCFALL v NEW ZEALAND POLICE [2015] NZHC 2095 [1 September 2015]

Introduction

[1]      The appellant, Mr McFall, was sentenced to three years, seven months’ imprisonment, with a minimum period of imprisonment (“MPI") of two years, two months by Judge Gibson in the District Court at Auckland on 15 June 2015.1    The sentence was imposed for two charges of burglary, one charge of receiving (over
$1,000), three charges of receiving (under $500), one charge of unlawfully taking a motor vehicle, one charge of wilful damage and one charge of reckless driving.

[2]       Mr McFall has appealed against sentence on the grounds that the starting point was too high, excessive weight was placed on Mr McFall’s previous criminal convictions, and that the MPI imposed was excessive and unnecessary.

Factual background

[3]       In the afternoon of 11 March 2015, a green Honda motor vehicle was taken from the driveway of an address in Glen Eden.  On 12 March 2015, while making unrelated enquiries, the police located the stolen vehicle parked at an address in Manurewa.  Mr McFall was spoken to by police at this address.  He claimed that two unknown males had dropped the vehicle off there earlier that day.  These facts relate to the charge of receiving (over $1,000).

[4]       In the afternoon on 22 March 2015, Mr McFall took a silver Honda motor vehicle from an address in Epsom.

[5]       The first burglary took place between 9.30 and 10am on 23 March 2015 at a residential address in Sandringham.  Mr McFall smashed a glass doorway at the rear of the address to gain access.  Several bedrooms were searched, with drawers and sideboards thrown around.   He took three New Zealand passports, a 42 inch flat screen television, an xbox gaming console, an acoustic guitar, a laptop computer and
an Ipad.

1	Police v McFall [2015] NZDC 10995 (“the District Court decision”).

[6]       Shortly after, Mr McFall went to another residential address in Sandringham. He smashed a window into a bedroom at the front of the address to gain access.  He took a laptop computer and several items of footwear.

[7]       Later that morning on 23 March, the police observed Mr McFall driving on the wrong side of the road in the silver Honda he had stolen the day before.  The vehicle  travelled  through  an  intersection  causing  other  vehicles  to  take  evasive action.  The police then lost sight of the vehicle due to its excessive speed.  A short time later, the police located Mr McFall hiding behind a small block of shops.  The stolen vehicle was located parked on a driveway behind the block of shops.   The stolen goods from the two burglaries were located inside the vehicle and inside a recycling bin at the rear of a neighbouring house.  Three vehicle registration plates were also located in the vehicle.

[8]       The wilful damage charge arose while Mr McFall was at Avondale police station.  He became enraged, picked up a large wooden and steel table and threw it into a door inside the interview room, causing damage to the table and door.

District Court decision

[9]       Judge Gibson first recorded that Mr McFall was sentenced to three years’ imprisonment in April 2011 for burglary charges and then almost immediately upon release, he breached release conditions  and incurred further convictions for two unlawful takings and operating a vehicle recklessly.  The Judge said Mr McFall was dealt  with  leniently  on  that  occasion  by  being  given  a  sentence  of  intensive
supervision.2     The Judge took the view that  Mr McFall’s  drug addiction is the

catalyst of the present offending and referred to the pre-sentence report that recorded the present offending being committed while under the influence of illicit drugs.3

[10]     The Judge then canvassed the background facts and considered Mr McFall’s
previous convictions for burglary and unlawfully taking a motor vehicle and his other  criminal  history stretching  back  to  1985.    The  Judge  noted  a  number  of

2	District Court decision at [2].
3	At [3].

convictions for breach of release conditions and escaping from police custody which, he observed, “hardly indicates a willingness to abide by any sorts of restriction”.4

[11]     Taking into account the victim impact statements and citing comments made by the Court of Appeal in Arahanga v R,5 the Judge took a starting point of two and a half years’ imprisonment for the two burglary charges.  He then uplifted that starting point by 18 months to account for the other charges against Mr McFall, resulting in a starting point for the totality of his offending of four years’ imprisonment.6

[12]     Turning to Mr McFall’s previous convictions, the Judge took the view that:7

There is in my view a need to protect the community from someone like you who plainly is going to continue to commit burglaries until you address your drug addiction problem, and at your age that may be difficult.

The Judge considered Mr McFall to be a recidivist burglary to some extent and characterised him to be someone who has no other way of obtaining, or is unwilling to undertake any other way of obtaining funds needed to support a drug addiction.8
An uplift of six months was imposed, leading to an adjusted starting point of four

years and six months’ imprisonment.

[13]     Finally, a deduction of 11 months was awarded to account for the guilty pleas (about 20 per cent).9    The Judge considered it appropriate to impose a MPI of two years and two months.  He referred to Mr McFall’s extensive criminal history and took the view that Mr McFall had not responded well to earlier sentences and that there was a need to protect the community.10

Appellant’s submissions

[14]     Mr Wright, counsel for Mr McFall, submitted that the overall sentence was manifestly excessive.   He submitted that the starting point of two years and six

4	At [7].
5	Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
6	District Court decision at [10]–[11].
7	At [12].
8	The Judge relied in the characterisation of a recidivist burglar in Senior v Police (2000) 18
CRNZ 340 (HC).
9	District Court decision at [15].
10	At [17]–[18].

months  was  too  high,  referring  to  the  recent  Court  of  Appeal  decision  in Stepanicic v R,11 where two years was adopted as the starting point, and argued that the offending in that case was more serious than Mr McFall’s offending.   He submitted that the starting point ought to have been somewhat less than two years’ imprisonment.   Mr Wright   also   referred   to   Jones   v   R12    where   three   years’ imprisonment was adopted as the starting point for offending which, he submitted, was  significantly  more  serious  than  in  the  present  case.    Secondly,  Mr Wright submitted that the six months uplift for previous convictions was excessive given the comparatively low number of burglaries previously committed.

[15]     Mr Wright further argued that in emphasising the nature of the offending as supporting a drug habit, the Judge failed to take notice of relevant facts in the pre- sentence report, namely that Mr McFall had recently completed an intensive drug and alcohol residential programme in November 2014 which was the first time he had completed such a programme.  He submitted that Mr McFall acknowledged that he was under the influence of drugs at the time of the offending.   However, the completion of the programme was indicative of a desire to deal with his addiction, coupled with concrete steps in that direction.   He submitted that the Judge should have taken this into consideration in assessing whether Mr McFall was a recidivist burglary under Senior.

[16]     Mr Wright next submitted that no MPI should have been imposed, and the MPI imposed, at 60.5 per cent of the final sentence, was close to the maximum allowable 67 per cent, which should only be reserved for the most serious cases.   He submitted that the Judge had failed to explain why an MPI of this magnitude was required to address the s 86 factors and that the MPI imposed is out of line with MPIs imposed for burglary offending in earlier cases, citing Grace v Police13  and other cases.  Mr Wright noted that Mr McFall had never previously been subject to a
MPI and it would be unfair to leap immediately to a MPI of this length.

11	Stepanicic v R [2015] NZCA 211.
12	Jones v R [2012] NZCA 273.
13	Grace v Police HC New Plymouth CRI-2011-443-48, 13 December 2011.

Respondent’s submissions

[17]     Ms Murdoch, for the Crown, submitted that the starting point was within the available range.  However, she accepted that it is at the top end of the available range indicated  by  the  Court  of Appeal  in  Arahanga.    She  submitted  that  the  cases submitted on behalf of Mr McFall show that the appropriate starting point is between
2 – 2.5 years’ imprisonment.

[18]     Regarding the uplift for previous convictions, Ms Murdoch submitted that it was fair and within range.  Whilst Mr McFall did not have the number of previous convictions for burglary as the recidivist burglars described in Senior, the Judge also took   into   account   the   overall   scale   of   Mr   McFall’s   previous   convictions. Importantly,  the  Judge  recognised  that  Mr  McFall  also  had  eight  previous convictions for unlawfully taking a motor vehicle.

[19]     Ms Murdoch conceded that the MPI may have been stern but submitted that it was within the available range.  She noted that the offending was committed while Mr McFall was subject to a sentence of intensive supervision and that the pre- sentence report also found Mr McFall to have a high likelihood of reoffending.  She submitted that these factors, combined with a history of burglary and unlawfully interfering with motor vehicles, meant that the MPI imposed was justified.

Appeal against sentence

Approach to appeal

[20]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.   In any other case, the Court must dismiss the appeal.14

[21]     The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under

14	Criminal Procedure Act 2011, s 250(3).

the Summary Proceedings Act 1957.15    Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-ingrained” in the court’s approach to sentence appeals.16

[22]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton: in essence, it is necessary for the appellant to establish an error in the lower court’s sentence.17    The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether  a  sentence  is  manifestly  excessive  is  to  be  examined  in  terms  of  the sentence given, rather than the process by which the sentence is reached.18

Starting point

[23]     There is no tariff decision for burglary sentencing.  The Court of Appeal in R v Nguyen considered that the range of factors which relate to the criminality of the offending in burglary cases include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, impact upon owners of property, and the extent of the offending where
multiple burglaries are involved.19

[24]     Senior v Police is often cited as a guideline judgment for burglary cases.20   In that case, the High Court set out categories of burglary offending:
(a)       Category 1: First time burglary (b)       Category 2: Recidivist burglary (c)       Category 3: Spree burglary

[25]     Under category 2, Senior made the following comments which were relied upon by Judge Gibson:21

The more typical case in this category is likely to involve a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions

15	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
16	At [33], [35].
17	R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
18	Ripia v R [2011] NZCA 101 at [15]; Gibson v R [2015] NZCA 57 at [9].
19	R v Nguyen CA110/01, 2 July 2001 at [17].
20	Senior v Police, above n 8.
21	At [30].

for burglary) and who is appearing for sentence on only one or a limited number of offences. This burglar will probably be a professional burglar in the sense of being a person who burgles and steals for a living and often enough to sustain a drug habit but at what might be regarded as a subsistence level.

[26]     More recently, the Court of Appeal in Arahanga v R commented that:22

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.

[27]     Mr Wright referred to the case Stepanicic v R.23  In that case, the appellant committed two residential burglaries. One took place at 5.45am.  A female victim was home and in bed at the time.  The appellant gained entry through an unlocked door, went to the victim’s bedroom and took her backpack, shoulder bag, shoes, keys and wallet.  He also took a cell phone, video camera and a second set of keys from the kitchen.   The second burglary occurred soon afterwards. A female victim was also at home in bed.  The appellant broke into the property by ripping off the latches to the kitchen window.  He took two wallets, a camera, a laptop, earrings, keys and a gaming console.

[28]     The Court of Appeal considered the fact that that the burglaries took place at night when victims were home to be an aggravating factor.  It recognised that there was the risk of actual danger of confrontation.   It noted that at least some of the stolen  property  was  recovered.    The  Court  set  two  years’ imprisonment  as  the appropriate starting point.24

[29]     In  Carbines  v  Police,  the  appellant  unsuccessfully  appealed  against  a sentence of two years, seven months for four charges of burglary, one charge of theft and driving offences.25    The facts involved four burglaries of residential properties
between 22 May 2013 and 10 July 2013.   The goods stolen included electronic

22	Arahanga v R, above n 5 at [78].
23	Stepanicic v R, above n 11.
24	Stepanicic at [9].
25	Carbines v Police [2014] NZHC 439.

goods, tools, passports and other small items.   The sentencing Judge saw the burglaries as premeditated and that the passports were stolen to be sold into the “criminal underworld”. A starting point of two years, six months’ imprisonment was adopted for the lead offence of burglary which was not challenged on appeal.

[30]     In Newton v Police, the appellant successfully appealed against a sentence of

18  months’ imprisonment  for  one  charge  of  burglary.  The  appellant  entered  a

residential home one morning and stole a television and jewellery, to the value of

$2,000.  The sentencing judge adopted a starting point of two years’ imprisonment. Kós J considered the burglary to have been purely opportunistic, there was no risk to the  occupants  of  the  house  and  the  impact  on  the  occupants  were  limited  and transient.  Some of the property was not recovered.   In such circumstances, Kós J
saw the appropriate starting point to have been 15 months’ imprisonment.26

[31]     In the present case, there were two burglaries of residential properties, during the day.  The residents of those properties were not at home.  Nonetheless, there was some risk of confronting the occupants.  It seems that all of the stolen property was recovered when Mr McFall was located by police shortly after the burglaries.   I consider the offending to be less serious than in Stepanicic where both burglaries were at night, and the occupants were at home.  The burglary offending is also less serious than in Carbines, where there were four burglaries.

[32]     In the light of, in particular, the uplifts applied by the Judge for the balance of the offending and Mr McFall’s previous convictions, I have concluded that he erred in setting a starting point of two years, six months.  The appropriate starting point, taking into account the fact that there were two burglaries, which were of domestic properties (although not at night), and the nature of the property stolen,   was 21 months’ imprisonment.

Uplift for totality

[33]     Mr McFall has not challenged the 18 month uplift that the Judge adopted to account for the other charges (except insofar as it contributed to the overall sentence

which, he submitted, was manifestly excessive).  With a starting point of 21 months for the burglary charges, this brings the overall starting point to three years, three months’ imprisonment.

Uplift for previous convictions

[34]     I accept Mr Wright’s submission that Mr McFall could not be characterised as a recidivist burglar. Senior referred to offenders with between 20-30 previous convictions for burglary as recidivists.  Mr McFall has nine convictions for burglary
–  the  earliest  committed  in  1987.    However,  he  also  has  10  convictions  for unlawfully taking a motor vehicle, two committed recently in January 2014 soon after being released from a sentence of imprisonment for burglaries committed in
2010 and 2011.

[35]     Any uplift for previous convictions has to be proportional to the starting point. The purpose of an uplift is not to simply re-punish an offender for prior wrong-doing.27   However, Mr McFall’s recent criminal history shows a tendency to commit this type of offending, and is an indication that previous sentences have not served to deter him from further offending.   While it is to Mr McFall’s credit that he completed a rehabilitative course in 2014, I am not persuaded that the Judge erred in
applying an uplift of six months for the previous offending.  I also take account of the fact that the offending was committed by Mr McFall while he was still subject to a sentence of intensive supervision.

[36]     A six month uplift leads to an adjusted starting point of three years and nine months’ imprisonment.

Guilty plea

[37]     There is no challenge to the guilty plea discount imposed by the Judge, which was 20 per cent.  Applying a discount of that amount leads to a final sentence of three  years’ imprisonment.       I am satisfied that a sentence of that duration is appropriate for Mr McFall’s offending and his personal circumstances.

[38]     In exercising the discretion under s 86 of the Sentencing Act 2002 as to whether or not to impose a MPI, all relevant circumstances of the offender and the offending must be considered.28  A sentencing judge must have regard to s 8(e) of the Sentencing Act  which  requires  the  Court  to  take  into  account  consistency with sentencing levels in respect of similar offenders committing similar offences.29   The sentencing judge’s approach in selecting an appropriate MPI should be discernible from their sentencing remarks.30

[39]     In Grace v Police, the appellant was sentenced for 11 burglaries. He had 38 prior convictions for burglary.   The sentencing judge had imposed the maximum MPI.   On appeal, Woolford J  reduced the MPI to 50 per cent, stating that the maximum MPI should be reserved for the most serious cases.31

[40]     In Bell v R, the appellant was sentenced for a raft of charges, including 10 burglaries.32   The appellant had 24 previous convictions for burglary.  The trial judge imposed a 50 per cent MPI which was not challenged on appeal. Mallon J said that it would have been open to the judge not to impose one, but it cannot be said that it was not available.33

[41]     On the facts of this case, and in the light of Mr McFall’s history, I am not persuaded that the Judge erred in concluding that an MPI was necessary for community protection under s 86(2).  Mr McFall’s criminal history is not as serious as in Grace and Bell.  In the circumstances, I have concluded that an MPI of around
50 per cent would adequately serve to hold Mr McFall accountable, denounce his

conduct and deter him from further offending, and to protect the community.

28	Choi v R [2011] NZCA 237, (2011) 25 CRNZ 262 at [5].
29	R v Gordon [2009] NZCA 145 at [17].
30	At [18].
31	Grace v Police, above n 13, at [18]-[19].
32	Bell v R [2014] NZHC 3105.
33	At [21].

[42]     The appeal against sentence is allowed.   The sentence of three years and seven months imprisonment is quashed and a sentence of three years’ imprisonment is imposed in its place.  The order that Mr McFall is to serve a minimum period of imprisonment of two years and two months is quashed.  In place of that order, I order
that Mr McFall is to serve a minimum period of 18 months’ imprisonment.

Andrews J