The Queen v McAllister [2001] NZCA 160; (2001) 18 CRNZ 606 (31 May 2001)

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The Queen v McAllister [2001] NZCA 160 (31 May 2001); (2001) 18 CRNZ 606

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 17/01

THE QUEEN

V

ROBERT JAMES MCALLISTER

Hearing:	31 May 2001 (at Christchurch)
Coram:	Thomas J McGechan J Hammond J
Appearances:	T W Fournier for Appellant T M Gresson for Crown
Judgment:	31 May 2001

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The sentence under appeal

[1] Mr McAllister, the appellant, pleaded guilty on the morning of his trial in the Christchurch District Court to four counts of burglary, two counts of unlawfully taking a motor vehicle, one count of unlawful interference with a motor vehicle and one count of unlawfully being in a motor vehicle. He was sentenced to a total of three years imprisonment. He now appeals against that sentence.

The facts

[2] The offences to which these charges relate occurred in May and June, 2000. In May, Mr McAllister was found in a vehicle which had been unlawfully taken from outside an address in Christchurch. The vehicle was extensively damaged and was subsequently written off. In June, Mr McAllister and another man forced entry into two business premises in Christchurch, ransacked the premises and stole money and property. Mr McAllister and a co-offender also stole two other vehicles. In total, approximately $75,000 worth of property was stolen.
[3] Mr McAllister has 24 previous convictions covering a four year period from 1995 in the Youth Court and 12 convictions in the District Court in 1999. The final two convictions were in November 1999 when a six month suspended sentence for burglary was activated following a conviction for assault. The list of convictions also includes two convictions on charges of aggravated robbery in 1996. The present offending occurred within a month of Mr McAllister having been released from prison on parole.

The sentence

[4] In the District Court, the sentencing Judge mentioned a number of aggravating factors in sentencing Mr McAllister to three years imprisonment. The most significant of these, apart from the amount of property stolen and its worth, was the fact that he had just been released from prison on parole and immediately set about the current offending. The Judge also alluded to the effect on the victims of Mr McAllister’s actions and noted that there was a reasonable inference that he and his colleagues were targeting premises and stealing to order. He also mentioned the relevance of deterrent sentencing in this case, and the impossibility of a sentence of reparation. The plea of guilty was seen as a mitigating factor, as was the appellant’s age (19 years) and immaturity. The sentencing judge therefore took a starting point of four and a half years and made reductions of six months for the guilty plea and a year for Mr McAllister’s youth.

Submissions

[5] Mr Fournier, who appeared for Mr McAllister, submitted that the four and a half year starting point taken by the sentencing Judge was excessive. He argued that Mr McAllister had only one previous conviction for burglary. The premises burgled on this occasion were unoccupied and, as they were commercial, there was no risk of danger to the public. He submitted that the only aggravating circumstance in this case was the high value of the items taken.
[6] Mr Fournier relied on Senior v Police (Unreported A139/00 High Court Christchurch, 19 December 2000), a decision of the Full Court of the High Court. In that case, three sentencing categories were recognised. Category 1 is for first time burglars and is not relevant to Mr McAllister. Category 2 is for recidivist burglars. In this category, the length of sentence generally depends on the number of previous convictions, the number of offences for which the offender appears for sentence, and the presence of aggravating and mitigating factors. A typical case in this category is said to involve a burglar appearing for sentence with perhaps 20 or 30 previous convictions for burglary. Examples of such cases are given. In all but one of these, the sentencing starting point did not exceed four years and the maximum sentence imposed was three years. Mr Fournier submitted that, as this is only Mr McAllister’s second appearance for burglary, a sentence of three years imprisonment is out of step with the sentencing tariffs in Senior for recidivist burglars.
[7] Mr Gresson, who appeared for the Crown, submitted that, having regard to the “shocking” statistics of the number of reported burglaries in the North and Mid-Canterbury Districts in a 17 month period, and the value of the property involved in this case, the sentencing Judge was correct to have regard to the need for deterrence and the protection of the public in setting the sentencing level in this case. The Judge had noted the general limitation on imprisonment contained in s 7 of the Criminal Justice Act 1985 and was mindful of not imposing a sentence which was too “crushing”.
[8] In relation to Senior, Mr Gresson argued that the Court in that case recognised that the categories were not “hard edged” and that cases may straddle more than one category. He submitted that Mr McAllister is almost within the recidivist category and that, while a starting point of four and a half years is high, it is not “out of kilter” with the starting points adopted by the Courts, particularly in the recidivist category.
[9] Mr Gresson also argued that, if the Court determines that the starting point was set too high, it is the end result which is the critical factor in considering whether a sentence is manifestly excessive. In relation to the range of sentences imposed in other burglary cases and the aggravating features of this case, the sentence of three years, he submitted, was well within the range of the Judge’s discretion. These aggravating features he listed as being: the recidivist offending; the value of the goods taken; seemingly stealing to order; acting in concert with another; the degree of planning; the gratuitous damage to property; lack of co-operation with the police; and the need for the protection of the public in Christchurch from this kind of offending. In support of this submission Mr Gresson referred to comments in Senior (at paras [34] – [36]) that burglary is to be regarded as a serious offence, and that many might regard current sentencing levels for recidivist burglars as too low, especially when a three year sentence, with an early release, will involve compulsory cessation of an offender’s criminal activities for no more than a year or so.

Our decision

[10] We do not consider that we should interfere with the sentence imposed by the sentencing Judge. It was well within the range open to him.
[11] We acknowledge that Mr McAllister’s youth and immaturity are to be taken into account. We also accept that his guilty plea, although entered late, is a mitigating factor. Nevertheless, his offending had some serious aggravating features. This was not Mr McAllister’s first conviction for dishonesty and, most significantly, the present offending occurred while he was still on parole shortly after being released from prison. The value of the goods stolen was relatively high and it appears that they were taken to order. We also take a serious view of the wilful and unnecessary damage done to the premises which were illegally entered.
[12] The categories in Senior v Police are not rigid. The Full Court itself acknowledged that the boundaries of the categories were necessarily flexible. Indeed, we note that there is a substantial gap between category 1 and category 2. It is necessary in this case to assess the facts against the categories described and the examples given in that case. In that regard, the starting point of four and a half years taken by the Judge might appear to be too high. But As Mr Gresson submitted, it does not matter in this case that the Judge’s starting point might be thought to be too high. It is the sentence itself which must be shown to be manifestly excessive. Three years imprisonment in the circumstances of this case is not manifestly excessive. Indeed, it is fully deserved.
[13] The appeal is dismissed.

Solicitors
Crown Law Office, Timaru