IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2020-409-000182
[2021] NZHC 110	

BETWEEN	KARL JOHN SHERLOCK
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	1 February 2021	
Appearances:	N R Wham for Appellant
P N M Brown for Respondent	
Judgment:	9 February 2021	

JUDGMENT OF GENDALL J

This judgment was delivered by me on 9 February 2021 at 4 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SHERLOCK v NZ POLICE [2021] NZHC 110 [9 February 2021]

Introduction

[1]	The appellant, Mr Sherlock, pleaded guilty and was sentenced in the District Court to one year and four months’ imprisonment on charges of burglary, possession of an offensive weapon, and breach of community work.1

[2]	Mr Sherlock appeals the sentence on the grounds that it was manifestly excessive.

Facts

[3]	On 23 June 2020, the appellant was sentenced to 100 hours’ community work. He completed only 0.5 hours of this sentence, leading to the charge of breach of community work.

[4]	The charges of burglary and possession of an offensive weapon arise out of events occurring on 14 September 2020. With a co-offender, the appellant travelled to Addington, a commercial suburb of Christchurch, and used a grinder to gain access to a padlocked container on business premises. Once inside, the appellant stole an Xbox game console controller, a glass vase and some scrap metal, which he placed in his vehicle. The appellant then went back inside the container to obtain further items, during which time the police arrived and arrested him. When police searched his vehicle, they found an expandable baton, which the appellant admitted was for protection. These events led to the charges of burglary and possession of an offensive weapon.

District Court decision

[5]	Judge Couch, the sentencing Judge, in his District Court decision regarded the gravity of the appellant’s offending as moderate. In setting a starting point for the offending, the Judge identified two principal aggravating factors. The first was that the appellant travelled to the property at night and with a grinder which was considered to demonstrate clear premeditation. The second was that the appellant went to considerable effort to break into the container, which was secured by a padlock.

1 New Zealand Police v Sherlock [2020] NZDC 24141.

However, the Judge also noted that the stolen property was immediately recovered and that, by targeting a commercial area at night, there was little chance of confrontation with the occupants of the premises.

[6]	In this context, Judge Couch adopted a starting point on the burglary charge of 12 months’ imprisonment. Noting the appellant’s expandable baton could not have a practical purpose other than to cause harm to others, his Honour applied an uplift of four months for the offensive weapon charge. Further, an uplift of one month for the charge of breaching community work was applied. This led to a combined total of  17 months’ imprisonment, which the Judge considered an appropriate adjusted sentence for the totality of the offending.

[7]	Judge Couch then applied uplifts to the starting point to account for two personal aggravating factors. His Honour imposed an uplift of 15 per cent for the appellant’s extensive criminal history. A further uplift of five per cent was added to reflect the fact the offending occurred while the appellant was subject to a sentence.

[8]	The Judge then allowed the maximum discount of 25 per cent for prompt entry of the guilty pleas. This brought the end sentence on the charges of burglary and possession of an offensive weapon to one year and four months’ imprisonment, to be served concurrently with a sentence of one months’ imprisonment for the breach of community work charge. The Judge ordered destruction of the baton. Section 78(7) of the Sentencing Act 2002 was engaged so that the appellant’s sentence of community work was suspended.

[9]	Turning to consider home detention, the Judge first noted no address was available but then said he did not consider any sentence less restrictive than imprisonment would be appropriate in all the circumstances.

Principles on appeal

[10]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should

be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4

Submissions

Appellant’s submissions

[11]	Ms Wham, counsel for Mr Sherlock, submits the Judge set an inappropriate starting point, applied an uplift that was excessive, and failed to give appropriate credit for mitigating factors.

[12]	She says first that the starting point for the burglary offending of 12 months’ imprisonment is not in range. Having regard to Wratt v Police,5 Ms Wham contends that a starting point of six to nine months’ imprisonment is justified here.

[13]	The uplift of four months’ imprisonment for possession of the offensive weapon is suggested as excessive and, according to counsel, should be reduced to one to three months’ imprisonment. Similarly, Ms Wham argues the uplift for previous convictions is too high. She maintains these uplifts do not take the totality principle into account.

[14]	Importantly, it is also claimed that the Judge failed to give sufficient credit for personal mitigating factors. In support of this submission, Ms Wham suggests the appellant is entitled to discounts for remorse, for seeking a restorative justice conference, and for personal circumstances.   Total  discounts, she says, including   25 per cent for Mr Sherlock’s guilty plea, ought to total some 35 – 40 per cent.

2	Criminal Procedure Act 2011, ss 250(2) and 250(3).
3	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4	Ripia v R [2011] NZCA 101 at [15].
5	Wratt v Police [2012] NZHC 3137.

[15]	The result is that the appellant’s position is that an end sentence of between nine and 12 months’ imprisonment is instead appropriate.

Respondent’s submissions

[16]	Ms Brown, for the Crown, submits the sentence of one year four months’ imprisonment is within range and consistent with cases cited by the defendant in the District Court.6 With respect to the starting point, Ms Brown says this was entirely appropriate and she maintains the Judge’s four month uplift for the possession of an offensive weapon charge was again within range as the weapon could have inflicted serious harm. Further, she contends the one month uplift for the breach of community work charge was appropriate as the appellant had completed merely 0.5 of 100 community work hours.

[17]	In relation to the Judge’s uplifts to reflect the fact the offending occurred while subject to a sentence and for the appellant’s previous convictions, the Crown position is that the total uplift of 20 per cent (or four months) is appropriate and proportionate to the sentence as a whole. Ms Brown went further and suggested a higher uplift was available given the appellant’s history, for which he is described as a “recidivist burglar”. In support of this submission, counsel notes that substantial uplifts have frequently been upheld as appropriate in recidivist burglary cases.7

[18]	Ms Brown contends too that the Judge was correct in not providing any further discount for the appellant’s personal mitigating factors, of which counsel submits there is little or no evidence. Alternatively, Ms Brown says that, even if a discount were to be applied, the difference to the end sentence would be negligible.

Analysis

[19]	The ultimate question is whether the end sentence imposed, here being one year and four months’ imprisonment, was manifestly excessive. Within that evaluation it is necessary to examine both the total starting point adopted by Judge Couch of

6	Craigie v R [2012] NZCA 67; Benson v Police [2018] NZHC 296; Wratt v Police [2012] NZHC 3137.
7	R v Columbus [2008] NZCA 192 at [14]-[15].

17 months’ imprisonment and also both his uplift additions to reflect aggravating factors relevant to the offender,  and  any  personal  mitigating  factors,  including  Mr Sherlock’s early guilty plea. The lead offending is the charge of burglary.

[20]	The Sentencing Act 2002 provides that sentencing is to hold Mr Sherlock accountable for his offending, to promote a sense of responsibility in him, to denounce his conduct, to deter him and others from such offending, and to protect the community.8

[21]	There is no tariff case for burglary. The reason for this, as noted by the Court of Appeal, is that the circumstances in which burglary can be committed are highly varied.9 However, in Senior v Police, the Court set out three categories of offending: the first time, the recidivist, and the spree burglar.10 It emphasised that the length of the term of imprisonment to be imposed upon a recidivist will depend on the number of previous convictions, the number of offences for which the offender is appearing for sentence, and the presence of aggravating and mitigating factors. However, the Court of Appeal has doubted its value as a tariff setter.11

[22]	In R v Nguyen, the Court of Appeal identified a number of factors to be considered when determining the criminality of burglary offending. These are: the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of the property stolen, the damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.12 The most significant sentencing purposes when sentencing an habitual burglar were considered to be deterrence and community protection. The starting point arrived at should reflect the culpability inherent in the offending by reference to its circumstances.13 In fixing a starting point I have reviewed several cases of comparable offending.

8	Sentencing Act 2002, s 7(1).
9	Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
10	Senior v Police (2000) 18 CRNZ 340 at [23].
11	R v Southon (2003) 20 CRNZ 104, at [13].
12	R v Nguyen CA110/01, 2 July 2001 at [17].
13	Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [28] and [32].

[23]	In R v Stevens14 the appellant pleaded guilty to a burglary of commercial premises where he was formerly employed as a cleaner. He took advantage of the fact he had keys to the building and was able to deactivate the security system. He stole several metres of copper piping worth approximately $350, although it was almost immediately recovered. Taking into account the aggravating features of premeditation, breach of trust, and the inconvenience inherent in the theft of internal piping, the Court considered a starting point of no higher than 18 months’ imprisonment was warranted.

[24]	In Craigie v R,15 the appellant and his co-accused burgled a machinery store, taking items of a total value of $600, while the appellant’s ex-partner acted as a lookout. The Court characterised the offending as premeditated and planned, noting the appellant exploited the opportunity afforded by his ex-partner living opposite the premises to identify the target and then assist  as lookout.  Here, a starting point  of 12 months’ imprisonment was regarded as appropriately available. This demonstrated a greater degree of premeditation than is apparent in this case.

[25]	In Wratt v Police the appellant parked his car opposite Bunnings Trade Store in Napier and used wire cutters to cut the perimeter fence and enter the yard.16 He then cut a tie from a bundle of decking timber, took four lengths of timber and threw them over the fence, collected them and placed them in his vehicle. When he was about  to  drive  off,  police  stopped  and  arrested  him.  The  appellant  had  over  50 convictions for dishonest offending. The Judge decided, at the highest, a six to nine months’ imprisonment sentence could have been justified.

[26]	In Benson v Police, the appellant broke into a Subway restaurant using a builder’s claw hammer with the intention of taking money from the till.17 However, he fled upon realising the till was empty. The damage to the restaurant door was estimated to cost $1,000. The Judge noted, first, that the use of the claw hammer indicated some element of premeditation that was short of sophisticated pre-planning and, secondly, that the restaurant was closed so there was no risk of confrontation.

14	R v Stevens [2009] NZCA 190.
15	Craigie v R, above n 6.
16	Wratt v Police, above n 5.
17	Benson v Police, above n 6.

The description of the appellant as a recidivist offender was justified given his history of over 50 convictions but he was not regarded as a professional burglar. As no items of value were actually taken, the Judge characterised the offending as “at the minor end of the scale”18 and considered a starting point of around 12 months would have been at the upper end of the available range.

[27]	In light of these authorities, the starting point of 12 months for the lead offence of burglary, in my view, is perhaps stern but it is within range. With six previous convictions for charges of burglary, the appellant qualifies to be regarded as a recidivist offender, albeit at the lower end of the scale. The Judge was right to characterise his offending as premeditated, as the appellant travelled to the commercial property at night with a cordless grinder. Although the appellant demonstrated a lesser degree of premeditation than in Craigie, in which there was an element of mutual co- ordination, the appellant’s possession of both a grinder capable of successfully breaking into the container’s padlock, and an expandable baton capable of harming others upon any confrontation, indicates a degree of pre-planning similar to Benson. The kind and value of the property stolen (although the exact value was not specified) and the commercial nature of the premises entered, are also analogous to the cases mentioned above. All this suggests, in my view, that a starting point of 12 months’ imprisonment was one reasonably available to Judge Couch here.

[28]	And, in my view, the Judge’s combined five month’s uplift for the possession of an offensive weapon and breach of community work charges was appropriate and took into account the totality of the offending. Although no confrontation eventuated, the appellant’s possession of the expandable baton heightened the risk of danger to others posed by the offending. Further, the uplift is consistent with the sentencing purposes designated as most significant for recidivist burglary of deterrence and community protection.   Hence, as I see the position, the overall starting point of    17 months’ imprisonment was not excessive.

[29]	As I have noted, the Judge then applied an uplift of five per cent to reflect the personal aggravating factor that the offending occurred whilst the appellant was

18	At [35], citing R v Columbus [2008] NZCA 192.

subject to sentence. In my view, this uplift was not excessive. It was consistent with the purposes in the Sentencing Act of holding Mr Sherlock accountable and promoting in him a sense of accountability for harm done.

[30]	Judge Couch also applied an uplift of 15 per cent to account for Mr Sherlock’s lengthy criminal history. This history includes six previous convictions for burglary, seven for receiving (most recently in 2019), offences of dishonesty (most recently theft from a dwelling in June 2020), and three convictions for possession of offensive weapons (most recently in 2016). Much of the appellant’s offending is reasonably historic. To his credit, Mr Sherlock appeared to be on a desistance pathway between 2008 and 2016. However, in the context of overall recidivist burglary cases, in which a greater emphasis is placed on previous convictions, a 15 per cent uplift could be construed as lenient. In Curtis v Police,19 the Judge affirmed as appropriate an uplift of a starting point of 20 months’ imprisonment by six months (or 30 per cent) to reflect the appellant’s six previous burglary convictions. And, in Leach v Police,20 the Judge found that an uplift to a starting point of two and a half years’ imprisonment of six months (or 20 per cent) in recognition of 10 prior convictions for burglary and a history of dishonesty was appropriate. On the basis of these authorities I am satisfied the Judge’s uplift of 15 per cent was not excessive and well within range. This leads to a total sentence of 21 months’ imprisonment.

[31]	There is no dispute that the Judge’s 25 per cent discount for the appellant’s prompt guilty plea was appropriate. This meant the adjusted sentence reached was one of 16 months’ imprisonment.

[32]	The primary issue in this appeal is whether the Judge erred in providing no further credit for what are described as the appellant’s personal mitigating factors. The detailed pre-sentence report sets out that the appellant suffers from ongoing cognitive issues stemming from a significant brain injury following a car accident at age 19. After the accident, Mr Sherlock had to re-learn how to walk due to damage to the frontal lobe and spine. As a result of a bone growth protruding into his brain it is reported that he had lost 12 per cent of his frontal lobe. In addition, Mr Sherlock

19	Curtis v Police [2019] NZHC 1623.
20	Leach v Police [2016] NZHC 1565.

suffers PTSD following from the initial car accident, the symptoms of which escalated after he was first on the scene at the site of a bus crushed during the February 2011 Christchurch earthquake. The appellant also has a history of seizures and a raft of other injuries that mean he lives with chronic pain, for which he has sought illicit medication through methamphetamine. Mr Sherlock’s mother reports that these physical and mental impairments, especially damage to the frontal lobe, have impacted significantly on Mr Sherlock’s impulsiveness and consequential thinking abilities and, along with his sense  of  entitlement  and  substance  abuse,  have  contributed  to  Mr Sherlock’s propensity to offend. The author of the pre-sentence report assesses Mr Sherlock as being at low to moderate risk of reoffending, although the consumption of alcohol and illicit substances would increase this risk.

[33]	Section 9(2) of the Sentencing Act 2002 provides that the Court must take into account, to the extent that it is applicable, that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding.

[34]	The Court of Appeal in Edri noted the finding of the High Court in that matter that:21

Although any close correlation between the nature of the mental illness and the extent of discount is often difficult to discern, predictably the relative severity of the mental illness suffered by an offender, and the closeness of the causal link between the illness and the offending, are relevant considerations in identifying an appropriate discount for mental illness.

[35]	Mr Sherlock, it seems, has a mental condition, and, by rendering him more susceptible to acting impulsively and with diminished capacity to immediate and fully understand his actions’ consequences, it played some role in his offending. Although the Court was not presented with extensive medical evidence beyond the pre-sentence report, as I see it, a discount should have been given to reflect Mr Sherlock’s reduced moral culpability. The issue is what the extent of that discount should be.

[36]	In Blackwood v R,22 the defendant suffered ongoing effects from a traumatic brain injury consequent upon a serious car accident. These included difficulty

21	Edri v R [2013] NZCA at [25], cited in Hape-Kino v R [2017] NZHC 2599 at [41].
22	Blackwood v R [2011] NZCA 143.

regulating his behaviour and with skills described as “executive functions”, such as impulsivity and inflexible thinking. After being remanded in prison, the defendant was suicidal and banged his head against walls. Evidence was provided that frontal lobe damage and executive dysfunction can pose a “considerable barrier to effective social and working life”. The Court acknowledged it was uncertain the extent to which the defendant’s head injury had a role in his sexual offending, but it was satisfied it had some role. He was aged 19 at the time of the offending. A discount in the vicinity of 40 per cent was considered appropriate in the circumstances.

[37]	I do not consider that the causal link between Mr Sherlock’s brain injury and the offending here was as strong as that which prevailed in Blackwood. The defendant in Blackwood  laboured  under  a  greater  degree  of  cognitive  impairment  than  Mr Sherlock.  Moreover,  a  greater  time  has   elapsed   between   the  injury  and Mr Sherlock’s offending and Mr Sherlock has demonstrated himself capable of restraint in the past. As to this, by way of example, Mr Sherlock, following his completion of the Medium Intensity Rehabilitation Programme in 2009, was subject only to two driving convictions in the period until 2016. Hence, though the cognitive impairment of his brain injury is ongoing, it seems Mr Sherlock can plan and control his affairs such that he can hold back his impulsivity although it seems he can also premeditate  a  criminal  act.  Coupled  with  the  absence  of  youth  in  his  case  (Mr Sherlock is aged 44), in my view, a discount of 10 per cent for Mr Sherlock’s mitigating personal circumstances is appropriate here.

[38]	Furthermore, I am satisfied that Mr Sherlock’s expressions of remorse and his rehabilitative prospects justify a further  discount  which  I  set  at  five  per  cent.  Mr Sherlock has stated he accepts full responsibility for his actions and is willing to undergo assessment for residential treatment. He reports having benefitted from rehabilitative treatment in the past, and he shows insight into the contribution of substance abuse to his offending. Mr Sherlock also hopes to regain some capacity for employment through seeking ACC support and plans an appointment with South Rehab Centre to manage his chronic pain. I am hopeful such a focus on treating his substance abuse and regaining capacity for employment might provide the structure and purpose that will keep Mr Sherlock on the desistence pathway.

[39]	While I consider the Judge should have applied a discount for personal mitigating factors, remorse and rehabilitative prospects and I would have applied a discount of 15 per cent, I must take into account here the generous discount for Mr Sherlock’s guilty plea. The question on appeal must always be whether the end sentence is manifestly excessive. Using the Moses v R methodology,23 if I uplift the overall starting point sentence, noted at [28] above, of 17 months’ imprisonment by 20 per cent for prior convictions and offending subject to sentence as the Judge did, but then reduce it by 40 per cent (being a 15 per cent discount for personal factors, remorse and rehabilitative prospects and 25 per cent for guilty plea), there would be an overall reduction on the starting point of 20 per cent. That leaves an end sentence of 13 months’ imprisonment.

[40]	I am satisfied that the difference between this sentence and the sentence imposed is sufficiently material to warrant intervention by this Court. I conclude that the end sentence was manifestly excessive. It is significant that the sentence would remain one of short-term duration, with home detention thus a possibility. The appellant does not appear to have a suitable home detention address at this stage. I would, however, encourage Mr Sherlock to apply for home detention at a residential treatment facility should such an address become available (as the pre-sentence report recommended at page 6 under the heading “Sentence Comment”).

Conclusion

[41]	The appeal is allowed. The overall sentence on the charges of burglary and possession of an offensive weapon of one year and four months’ (16 months) imprisonment is quashed and replaced with a sentence of one year and one months’ (13 months) imprisonment, with leave to apply for home detention. The concurrent sentence of one months’ imprisonment for the breach of the community work charge is to remain.

...................................................
Gendall J

23	Moses v R [2020] NZCA 296.

Solicitors:
Michael Starling, Barrister, Christchurch Raymond Donnelly & Co, Christchurch