R v Wickliffe CA387/95 [1996] NZCA 246 (20 March 1996)

Last Updated: 21 January 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND CA 387/95}

THE QUEEN

V

_{RANGI MORRIS WICKLIFFE}

Coram: Eichelbaum CJ Henry J

Heron J

Hearing: 20 March 1996 (at Auckland) Counsel: Appellant In Person

Mr R J A Marchant for Crown

_{Judgment: 20 March 1996}

_{JUDGMENT OF THE COURT DELIVERED BY HERON J}

This is an appeal against a sentence of five and a half years imprisonment imposed in the High Court on the 1st September 1995. The appellant had been remanded to that Court for sentence on the 10th August 1995 from the District Court. He had pleaded guilty to some 13 burglaries committed from the 17th September 1993 to the 15th October 1993, and then again some 10 burglaries from 1st of February 1994 to 21st of March 1994. He was also appearing on sentence for three charges of absconding on bail and was sentenced to six months imprisonment cumulative on the five year term.

An examination of the summary of facts in each of the burglary cases will show that they involve gross intrusions into the privacy of occupiers of various homes and easily disposable property was in the main stolen including on occasions property with considerable sentimental value.

The appellant's previous offending, as the Judge described, showed that the appellant had appeared on 12 previous occasions for burglaries, most of them multiple burglaries, and that in respect of those he had been sent to prison on no less than ten separate occasions. The sentencing Judge thought that the starting point was six years imprisonment for the burglaries, less one for the guilty plea, after he had referred to the appellant's personal circumstances including as he said, some indication that current support from his de facto wife might bring about better behaviour so far as the future was concerned.

The Judge also referred to a number decisions of this Court where sentences of four years imprisonment were imposed but as he said all of them had mitigating distinctions which did not exist in the present case. Burglary, although it has property elements within it, is not an offence concerning property alone and often involves an intrusion into domestic and other dwellings as was this case. Accordingly it is treated more severely as the maximum penalty of 10 years imprisonment reflects.

Chronic offending, as this undoubtedly was, was considered in R v Andrian CA

198/95 12 February 1996 where a sentence of nine years imprisonment was imposed. That sentence followed large scale burglaries and an earlier sentence of seven years imprisonment almost immediately followed by further offending. Whilst in that latter case the value of the property, the extent of personal loss suffered by victims and the scale of offending was significantly greater than this case, it is a clear indication of the Courts concern with the prevalence of burglary and the approach that it takes to chronic offending of this description.

In R v Pennall CA 222/91 13 September 1991 the Court said

"That long sentences are usually encountered where significant sums of money are involved or extensive damages done or where especially vulnerable premises (such as jewellers) have been targeted, or where the burglary is part of a criminal plan demonstrating the highly organised and sophisticated operation."

To be added to that category we feel should be those cases where persistent and chronic offending occurs and where it can often be said that the appellant is a professional burglar relying on the proceeds of burglaries as a means of existence.

The appellant in this case appeared in person having been legally represented up to only a short time before this appeal was to be heard. In his submissions he has complained of the lack of emphasis given to the fact that he had held down

employment prior to his arrest in 1994 and indeed had remained out of trouble from March 1994 until August 1995. The Probation Officer did refer to other employment and in our view mentioned these circumstances.

In this Court the appellant has indicted that the overwhelming motive for further offending since his release from his last sentence in 1993, was to his financial circumstances and the pressure put on him due to the illness of his de facto partner. The records show that he offended only a matter of a few days from being released on parole and his complaint that he was poorly served by the Social Welfare Department or the relevant authority in that regard, is difficult to accept. He put it that he was faced with no alternative but to resort to further offending and burglary in particular. We do not accept that as a credible explanation for what he did.

In the course of his submissions he referred to the lengthy time that he had already served in prison from the age of 16 years, and now felt remorse for the offending and felt that he could see some "life at the end of the tunnel", to use his expression, and that with the good influences of his girlfriend and her wide whanau connections, there was some support in place that on his release from prison could see him resume a law abiding life. In light of his previous history one would have to treat those promises with some scepticism.

In the course of the submissions that the appellant has carefully made, it became apparent that he had at the end of the second batch of offending on his arrest, co- operated with the authorities and given them information to an extent which led to the resolving of a number of enquiries and the closing of files in so far as the Police were concerned. There can be no doubt that was significant and substantial assistance. He complains that those factors were not given sufficient weight in the circumstances.

There is ample authority to the effect that some reduction in sentence can be given where such co-operation is forthcoming. See R v Grant [1992] NZCA 28; 8 CRNZ 483. We asked Mr Marchant to make some enquiries as to whether this matter had been put before the sentencing Judge, it not appearing in the detailed considerations he gave on sentencing. We have come to the view that those matters were not before the sentencing Judge as they might have been and that they should now be taken into account in considering the appropriate sentence to impose.

Having regard to the degree of co-operation and those factors, the Court is of the view that the sentence of five years imprisonment on the burglary charges, which was

discounted from six for a plea of guilty, should be further discounted to a term of four years. On the offending in relation to bail, the sentence will remain the same and remain cumulative on the burglary offending.

Accordingly the sentence on the burglary charges is quashed and in its place a sentence of four years imprisonment is imposed. The bail offending remains as before and is cumulative on the burglary, in all a sentence of four and a half years imprisonment is to be served.

Solicitors:

Crown Solicitors, Auckland for Crown