IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000043 [2018] NZHC 2709

BETWEEN	ROGER KENNETH BALLER
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	18 October 2018	

Appearances:	
R Quin for Appellant
A R A Pell for Respondent	

Judgment:	
18 October 2018	

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

BALLER v NEW ZEALAND POLICE [2018] NZHC 2709 [18 October 2018]

[1]       Mr Baller pleaded guilty in the District Court to the following charges:

(a)	Burglary (x 3)

(b)	Theft (over $1000)

(c)	Theft (between $500 and $1000) (x 2)

(d)	Possession of three methamphetamine pipes

(e)	Possession of 0.1 of a gram of methamphetamine

(f)	Possession of 1 gram of cannabis

(g)	Breaching a sentence of supervision

[2]      On 3 August 2018, Judge Burnett sentenced Mr Baller to 24 months imprisonment.1      She  declined  to  grant  him  leave  to  apply  for  home  detention.
Mr Baller appeals against sentence on the basis that the Judge adopted starting points that were too high, and this resulted in an end sentence that was manifestly excessive. He also contends the Judge erred in declining to grant him leave to apply for home detention.

The charges

[3]       Mr Baller has an acknowledged drug addiction.  His offending reflects that fact.  The theft and burglary charges all relate to incidents over a six week period in which Mr Baller stole CCTV cameras from premises. This offending was aggravated by the fact that several of his victims were charities, or not for profit organisations, who rely on public donations for funding and will no doubt struggle to replace the property he stole from their premises.

[4]       The offending resulted in Mr Baller stealing property worth approximately

$5000. It is highly likely in my view that the CCTV cameras that he stole found their

1	New Zealand Police v Baller [2018] NZDC 15957.

way into the hands of criminals. He no doubt committed the offences in order to feed his drug addiction.

[5]       The police executed a search warrant at Mr Baller’s address on 24 May 2018. There they discovered three methamphetamine pipes, 0.1 of a gram of methamphetamine and one gram of cannabis.

The Judge’s decision

[6]       In selecting a starting point for the burglary charges, the Judge referred to the well-known Court of Appeal decision in Arahanga v R.2    In that case the Court of Appeal declined to set a guideline or tariff starting point for burglaries, but said that a burglary of residential premises at the minor end of the scale is likely to result in a starting point of between 18 months and two years six months imprisonment.3   The Judge then adopted an overall starting point of 15 months imprisonment on the burglary charges. She applied a six month uplift to reflect the three charges of theft, a four month uplift to reflect the drugs charges and a one month uplift on the charge of breaching the sentence of supervision.  The Judge also applied an eight month uplift to reflect numerous previous convictions for burglary and other offending involving dishonesty. This resulted in an end starting point of 33 months imprisonment.

[7]       The Judge applied a discount of 20 per cent to reflect guilty pleas because these had not been entered early.   This resulted in the end sentence of two years imprisonment.   The Judge also cancelled existing sentences of supervision and community work.

[8]       Mr Quin had sought an adjournment of the sentencing to enable him to investigate whether Mr Baller could serve a sentence of home detention at Odyssey House.   He submitted this was necessary because Mr Baller’s addiction to methamphetamine and other drugs is clearly driving his offending.  The Judge declined the adjournment.  She expressed the view that a residential programme at Odyssey House could not be undertaken by a person subject to electronic monitoring.

2	Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
3	At [78].

She also said it would not be appropriate to grant leave to Mr Baller to apply for home detention because of his lengthy history of both offending and non-compliance with Court sentences and orders.   In addition, she was satisfied that home detention at Odyssey House would not be the least restrictive outcome. She considered a sentence term of imprisonment would be the least restrictive outcome.

Decision

The burglary and theft charges

[9]       On Mr Baller’s behalf, Mr Quin points out that the burglary charges relate to the same type of offending as the theft charges.  Furthermore, they do not relate to traditional burglary offending, in which the offender breaks into premises by forcing entry.  Instead, the burglary charges relate to incidents in which Mr Baller climbed over fences and then stood on wheelie bins to enable him to gain access to the CCTV cameras that he stole.  Mr Quin therefore submitted there was no real justification for treating the burglary and theft charges separately.  He submitted that a starting point of around 12 months imprisonment was appropriate to reflect all charges.

[10]     I accept Mr Quin’s submission that this is not a typical case of burglary involving forced entry to premises to enable property to be stolen. Rather, it relates to Mr Baller gaining entry to premises by means that do not involve damage to property. I therefore accept his submission that the burglary and theft charges should effectively be treated in the same way, and that Arahanga does not provide a great deal of assistance.

[11]     I do not accept, however, that the totality of this offending can be met by a starting point of just 12 months imprisonment. If a typical residential burglary charge justifies a starting point of between 18 months and two years six months imprisonment, it seems that the offending here justified a starting point of at least
18 months imprisonment.  I do not consider an overall starting point of 21 months imprisonment was justified, however, having regard to the means Mr Baller employed to gain entry to the premises and to the overall value of property stolen.

[12]     I also consider the Judge applied an uplift that was too great having regard to the overall culpability of the drug charges.  These related to very small quantities of drugs, and there is no suggestion of any commerciality. I consider an uplift of no more than two months imprisonment would be justified in relation to those charges.   I accept, however, that an uplift of one month was appropriate to reflect the charge of breach of supervision.  This means I consider an overall starting point of 21 months imprisonment was appropriate before taking into account aggravating and mitigating factors.

Uplift for previous convictions

[13]     Mr Baller now has numerous previous convictions for burglary and other offending involving dishonesty.  These go back as far as 1994.   It is clear he is a recidivist burglar who has used burglary as a means to support his livelihood, and now his drug addiction, for many years. I consider an uplift of around seven months would be appropriate to reflect that factor.   This results in a sentence of 28 months imprisonment before taking into account guilty pleas.

Guilty pleas

[14]     There is no dispute that the Judge appropriately applied a discount of 20 per cent to reflect guilty pleas. This produces a discount of six months, and thereby leads to an end sentence of 22 months imprisonment.

Conclusion

[15]     The ultimate question for the Court on appeal against sentence is not whether the correct sentence was imposed. There is no such thing, in the true sense, of a correct sentence because sentences generally comprise a range of starting points and a range of uplifts and discounts to reflect aggravating and mitigating factors.  The ultimate question for an appellate Court is whether the end sentence is manifestly excessive.

[16]     By an independent assessment, I have reached an end sentence of 22 months imprisonment.  This does not mean the Judge’s end sentence of 24 months is manifestly excessive. Indeed, I consider it demonstrates the end sentence is within the

available range, particularly having regard to the fact that the Judge also cancelled existing sentences of supervision and community work.

[17]     For that reason the appeal against the sentence of 24 months imprisonment must be dismissed.

Leave to apply for home detention

[18]     I consider, however, the Judge erred in declining leave to apply for home detention.4  I accept Mr Baller has a lengthy history of involvement with drugs and he also has a history of non-compliance with court orders and sentences.   It appears, however, that his addiction to drugs continues to be the driving force behind continued offending.  Unless and until this is addressed he will continue to appear before the courts.

[19]     The Judge was obviously influenced, at least in part, by her perception that Odyssey House would not permit an offender serving an electronically monitored sentence to be a residential attendee.  Mr Quin has provided me with material from Odyssey House confirming this is not correct.  Odyssey House is prepared to accept offenders who are serving electronically monitored sentences.

[20]     I also have some difficulty with the Judge’s observation that a sentence of home detention at Odyssey House is a more restrictive outcome than a sentence of imprisonment.   Given the hierarchy of sentences,5  I consider a sentence of home detention is virtually always a less restrictive sentencing outcome than a sentence of imprisonment.

[21]     Finally, I acknowledge that Mr Baller has a lengthy history of non-compliance with Court orders. It seems to me, however, that the ability of Odyssey House to deal with these issues should be addressed if and when Mr Baller applies under s 80K of the Sentencing Act 2002 for his sentence of imprisonment to be converted to a sentence of home detention.

4	A decision declining an offender leave to apply for home detention is treated as a sentence for appeal purposes: Sentencing Act 2002, s 80J.
5	Sentencing Act 2002, s 10A.

Result

[22]     It follows that the appeal against the sentence of 24 months imprisonment is dismissed, but Mr Baller is granted leave to apply for home detention under s 80I of the Sentencing Act 2002.

Lang J

Solicitors:
Crown Solicitor, Hamilton
R Quin, Barrister, Hamilton