THE QUEEN v DRAGO KARL VRHOVNIK [1999] NZCA 136 (29 July 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca205/99

THE QUEEN

V

DRAGO KARL VRHOVNIK

Hearing:	29 July 1999
Coram:	Tipping J Doogue J Goddard J
Appearances:	J H M Eaton for Appellant S P France for Crown
Judgment:	29 July 1999

judgment of the court DELIVERED BY TIPPING j

[1] The appellant, Drago Karl Vrhovnik, pleaded guilty in the District Court at Christchurch to one count of burglary.He was sentenced to 12 months imprisonment.He appeals against that sentence on the grounds that it is manifestly excessive and inappropriate.

[2] A co-offender, Mr Ngarimu was involved in the same burglary.He was also convicted of wilful destruction of furniture within the dwelling house concerned, and unlawfully being in possession of a pistol which he stole from the house.Mr Ngarimu had earlier been sentenced by a different Judge to imprisonment for 2 years.He appealed and in the High Court the sentence was reduced to one of 18 months.

[3] It is necessary to examine with some care the facts which were relevant to the sentencing of Mr Vrhovnik.A summary had been prepared relating to both offenders.It asserted that both had been guilty of breaking and entering the house, and of causing the substantial damage to a very valuable antique writing desk inside.While accepting he was guilty of burglary, Mr Vrhovnik contended that he had not actually entered the premises at all.His position was that on the morning in question he had had a chance encounter with Mr Ngarimu who, unbeknownst to Mr Vrhovnik, had very recently committed the burglary. Their meeting was coincidental and there had been no prior planning.Mr Ngarimu indicated to Mr Vrhovnik that he had property stored at the house which had been the subject of his earlier burglary and he sought Mr Vrhovnik's assistance to remove the property from the address.Mr Vrhovnik accepted that he had done this but that was the extent of his involvement.He had nothing to do with damaging the desk and likewise he was not involved with the pistol.He claimed that his involvement was a spontaneous foolish act, on the spur of the moment, with an eye to making some money.

[4] When the case was first called for sentencing the Crown indicated that it did not accept Mr Vrhovnik's version of events and proposed to call evidence in support of the facts asserted in the summary.The sentencing was delayed but in the end the Crown called no evidence.Indeed the Crown accepted that Mr Vrhovnik's sentencing should proceed on the basis of the version of facts as admitted by him.

[5] Mr Eaton has pointed out that the original summary of facts was on the file for the purposes of his client's sentencing and it was therefore necessary for the sentencing Judge largely to ignore it and proceed on the basis of the facts as agreed for sentencing purposes.It is submitted that this was a rather difficult exercise and to some extent the Judge may understandably have been influenced by the original version which would have been the version on which he had been approaching the matter until he was advised of the correct basis for sentencing.

Pre-sentence report

[6] The report disclosed that the appellant was aged 41 and was a drug addict in recovery.He was also on anti-depressant medication at the time.The report outlined the version of events upon the basis of which Mr Vrhovnik was ultimately sentenced and noted that he had been out of trouble for some 6½ years.He had only one previous charge of burglary.That took place as long ago as 1975 and resulted in a conviction and discharge.The only offence of any real seriousness in his record was an aggravated robbery which also took place in 1975 and on which he was sentenced to borstal training.The probation officer indicated that he tended towards the view that despite the seriousness of the offending it was in some ways aberrant in the context of Mr Vrhovnik's post drug treatment behaviour and long term recovery.He noted that Mr Vrhovnik had readily admitted his culpability, asserting that he had been very stupid to become involved in the actions of his co-offender.His decision was made in a moment of weakness.The report recommended a suspended term of imprisonment coupled with periodic detention and supervision on special certain conditions.The probation officer indicated that he made that recommendation with a view to acknowledging the seriousness of the offending, putting in place a meaningful deterrent, recognising that Mr Vrhovnik was at the time in need of a measure of support, and ensuring that he received professional assistance should this be warranted.All in all it was a constructive and helpful report from Mr Vrhovnik's point of view.

Sentencing remarks

[7] The Judge referred initially to the fact that the co-offender had been dealt with and had received 18 months imprisonment.He recorded that he had read the sentencing remarks of the Judge who had sentenced the co-offender, and also the judgment in the High Court on appeal.He then recorded that Mr Vrhovnik had to be dealt with on a basis which was different from the co-offender.He noted that the Crown had accepted that Mr Vrhovnik's role was a lesser one.In his remarks the Judge referred to Mr Vrhovnik as having come back to the house, although the basis upon which Mr Vrhovnik was to be sentenced was that he had not been to the house earlier.The Judge correctly noted that burglaries of dwelling houses are to be regarded as serious.He referred to the pre-sentence report and the recommendation of the probation officer.Against that he recorded that the Crown had sought a deterrent sentence.The Judge referred to the comparison between Mr Vrhovnik and the co-offender, and after having said that he certainly needed to be dealt with differently, the Judge indicated that rather than impose 18 months he intended to impose 12 months.As a reflection perhaps of the changed factual basis, the Judge recorded that as he sat there:

I am still contemplating whether or not to give recognition to your circumstances and exercise my discretion ... which is to suspend the sentence.

[8] He continued by saying that he really could not find anything to distinguish between Mr Vrhovnik and the co-offender in terms of what he knew of the co-offender.He declined to suspend the prison term.He said that it did not appear to him on the face of the information he had that there needed to be any real supervision of Mr Vrhovnik, adding "you may have fallen off the wagon but you did commit a crime for which this Court intends to impose this deterrent sentence."

Appellant's submissions

[9] Mr Eaton submitted that the sentence of 12 months imprisonment was manifestly excessive and also inappropriate.The primary reason was that the Judge had failed adequately to distinguish Mr Vrhovnik's culpability from that of the co-offender.It was also suggested that the Judge had failed to have proper regard to Mr Vrhovnik's different circumstances.In essence, the submission was that the sentence should have been one short of imprisonment, or if imprisonment was appropriate the Judge had erred in not exercising his discretion to suspend the term.Mr Eaton argued that the Judge seemed to have taken as his starting point the sentence of 18 months imposed on the co-offender, and had then adjusted that starting point to reflect Mr Vrhovnik's different circumstances.In doing so it was contended the Judge had been unduly influenced by the sentence which was appropriate to the co-offender. Counsel said with justification that Mr Vrhovnik's criminal record was relatively modest, with only shoplifting offences within the past 14 years.Mr Eaton referred to the efforts which Mr Vrhovnik had made to overcome his drug dependency and also to the fact that he was under medical care for depression at the time.In relation to the question of suspension, Mr Eaton pointed out that the Judge's inability to find anything to distinguish Mr Vrhovnik and the co-offender appeared to be a reference to the personal circumstances of each. The Judge had not, so Mr Eaton argued, sufficiently recognised the difference in the actual culpability of the two offenders.Counsel also suggested that the Judge's assessment that Mr Vrhovnik was not in need of supervision, with the reinforcement of a suspended prison sentence, was flawed.He argued that this one lapse back into criminal behaviour demonstrated that Mr Vrhovnik was vulnerable and in need of assistance.It was in the public interest, so Mr Eaton submitted, to keep him out of prison, as a full time custodial sentence would return him to an environment of crime and drug abuse.Mr Eaton submitted that all in all the Judge had over-emphasised the need for deterrence and had failed to reflect the substantial progress which Mr Vrhovnik had made and the need in the public interest to give him some reinforced assistance to stay out of trouble in the future.Counsel also mentioned that the probation officer had indicated that in his view Mr Vrhovnik was in need of a measure of support.

Submissions for Crown

[10] Mr France suggested that the Judge had appreciated the different basis on which Mr Vrhovnik was to be sentenced.That may be so, although there is the difficult reference to Mr Vrhovnik having come back to the house.It is another matter whether the different basis applicable to Mr Vrhovnik was fairly reflected in the actual sentence imposed.Mr France pointed out that Mr Vrhovnik had assisted in the removal of properly worth some $30,000 from the house in return for a money sum.He argued that a deterrent element was justified.In the light of Mr Vrhovnik's role, Mr France was inclined to acknowledge that 12 months was at least at the top of the appropriate range. Counsel accepted that suspension was an available option, recognising that there had been a guilty plea, the appellant had issues for which he was receiving treatment, had been making real progress, and had not previously been in prison.Against that Mr France argued that it was open to the Judge to decide not to suspend as the circumstances were not such as to demand suspension.He suggested that the need for deterrence was a factor telling against suspension, as recognised in R v Petersen [1994] 2 NZLR 533.On that basis Mr France contended that the Judge's decision not to suspend was an available exercise of discretion.

Discussion

[11] After considering the competing contentions, we have reached the view that the sentence was too long.In the particular and rather unusual circumstances of this case the element of deterrence seems to us to have assumed greater prominence in the sentence imposed than was warranted.While Mr Vrhovnik was involved in a burglary he was essentially an accessory after the fact.The aggravating features which applied to the co-offender did not apply to him. While dwelling house burglaries are always to be regarded as serious, individual culpability must be carefully assessed.The undue prominence given to deterrence is relevant both to the length of the term and to the question of suspension.So too are Mr Vrhovnik's personal circumstances which do not appear to have been given much weight by the Judge.He had made good progress in conquering his drug addiction and had kept out of any serious trouble for 14 years.The only major offending in his past was almost 25 years earlier.He was far from being a first offender but was entitled to some credit for his efforts in difficult circumstances.His mental health was also a relevant factor, as witness the medical reports.He did have a need for supervision and assistance as the probation officer recommended.He was clearly vulnerable in his state of mind to further offending.

[12] The Judge was placed in a difficult position by being required to impose sentence on a fundamentally different factual basis from that foreshadowed in the summary of facts.He had only very short notice of that difference save that it was indicated in the pre-sentence report.It is understandable in those circumstances that he failed, as we find, to reflect the correct balance between deterrence and other factors in the sentence he imposed.

Conclusion

[13] Mr Vrhovnik has now served a little over 2 months of the sentence imposed. This is the equivalent of serving a sentence of at least 4 months imprisonment. That being so, we do not consider it necessary to include any sentence of periodic detention as a component of the sentences which we propose to substitute for the unsuspended sentence of imprisonment.The appeal is allowed, the sentence of 12 months imprisonment is quashed.In its place we impose a sentence of 9 months imprisonment suspended for 12 months, coupled with a sentence of supervision for 12 months, on the following special conditions as recommended by the probation officer:

1) that Mr Vrhovnik not associate with Taina Piripi Ngarimu for the duration of the sentence of supervision; and

2) that he undertake such psychological counselling and assessment as may be directed by his probation officer.

The suspended sentence means that if the appellant further offends within the period of suspension he is liable to serve the sentence of imprisonment in addition to any other sentence imposed.

Solicitors

Crown Law Office, Wellington