THE QUEEN v BRENDON NGUYEN [2001] NZCA 191 (2 July 2001)

IN THE court of appeal of new zealand

ca110/01

THE QUEEN

V

BRENDON NGUYEN

Hearing:	13 June 2001
Coram:	Gault J Anderson J Randerson J
Appearances:	M I Koya for Appellant
	K Raftery for Crown
Judgment:	2 July 2001

judgment of the court DELIVERED BY GAULT J

[1] The appellant was found guilty on 15 counts of burglary, one count of conspiracy to commit burglary, one of unlawful taking of a motor vehicle and one of attempting to defeat the course of justice.He was sentenced to concurrent terms of 6½ years imprisonment on each of the burglary charges and of five years imprisonment on the conspiracy charge.On the remaining two charges he was sentenced in each case to one year.All sentences are concurrent and he appeals against the totality of sentence of 6½ years imprisonment.

[2] Towards the end of 1999 the police became aware of a major burglary ring operating in the Central and South Auckland areas.They mounted an operation to identify the offenders.As a result they were able to apprehend a group who were believed to have been responsible for a large number of commercial burglaries.Property taken from those burglaries was estimated to be of value in excess of $1,000,000.Surveillance disclosed two storage sheds which were used to hold stolen property.

[3] On 19 December 1999, police terminated the operation and executed a large number of search warrants in the Auckland area.A vast amount of property was located inside the two storage sheds, which has been directly linked to 41 commercial burglaries.Large quantities of property were also located at various other addresses.Evidence emerged of a high degree of sophistication by a "ring" or group including the use of a scanner for monitoring police radio channels, two-way radios, cell phones and the like.

[4] The group was also well organised in "fencing" the stolen property through various people.It was in relation to one of these people, who was to be a witness for the Crown at his trial, that the appellant was charged with attempting to defeat the course of justice by attempting to influence her as a witness.

[5] When spoken to by the police the appellant made no comment.However, the police had located property from three of the burglaries in his vehicle and a large amount of stolen property was also located at his sister's address, where the police believe he stored his share of the stolen property.

[6] The offending for which the totality of sentencing is to be considered therefore involved 15 counts of burglary with property stolen of value in excess of $400,000, and conspiracy to commit burglary which encompassed the organisation of the ring of which the appellant was regarded as a leader. There were also two receiving offences and the threat to a prospective witness in an attempt to defeat the course of justice.

[7] In the District Court the sentencing Judge referred to a number of aggravating factors in arriving at a starting point for sentence of nine years imprisonment.The most significant of these, apart from the amount in value of the property stolen, was the fact that the appellant was a prime mover in a major crime ring with his co-accused, Mr Tasmania.The Judge also recognised the commercial nature of what he described as a "highly sophisticated operation".Noting the absence of a guilty plea the Judge did give credit for the fact that the Court had received submissions in support of the appellant directed to his general character and support on his release.The Judge then balanced the need for deterrence with the good features outlined in the probation report and took into account the penalty imposed on Mr Tasmania. He had been sentenced to four years imprisonment having pleaded guilty, having provided assistance to the police in the investigation of other matters and having given evidence.The sentence imposed on the appellant of 6½ years reflected a significant reduction from the nine year starting point to take account of mitigating factors.

[8] Mr Koya advanced the appeal by reference to three points.First he submitted that the starting point adopted by the Judge of nine years was too high.He referred to the approach to the concept of starting points set out in the judgment of this Court in R v Mako (2000) 17 CRNZ 272.As to the actual starting point fixed, he drew our attention to R v Andrian (1996) 13 CRNZ 449 in which the Court said that a starting point of nine years was approaching the limit, although it was upheld in that "exceptional" case.

[9] Mr Koya's second point was that the Judge had not in his sentencing remarks indicated any mitigation arising from the appellant's comparative youth.He was 19 -20 years old over the period of offending.

[10] The third point was one of disparity between the sentences under appeal and the sentences of co-offenders and, in particular, the co-offender Tongatama who had been sentenced for 11 offences of burglary and three of receiving.In his case the same sentencing Judge had referred to a starting point of 5½ - 6 years and imposed a sentence of 3½ years imprisonment.Of less strength was Mr Koya's reliance upon disparity with the sentence of Mr Tasmania who had been sentenced for 29 offences of burglary, three of receiving, one of aggravated robbery, one of money laundering and one of unlawfully taking a motor vehicle.In his case the same sentencing Judge adopted a starting point of nine years imprisonment but, having regard to mitigating factors of a guilty plea and a special factor of assistance to the authorities, the final sentence was imprisonment for four years.

[11] We were addressed by the appellant's brother on behalf of his family.He demonstrated both the concern and disappointment in the family at the appellant's offending.He also emphasised their anxiety for his rehabilitation.We were impressed, as had been the sentencing Judge, with the support for the appellant in his present predicament and for his future. Without question the appellant has much to be grateful for in his family and friends.He has let them down badly, whereas they will not do that to him.

[12] Mr Koya invited us to accept as clear evidence of a change in attitude by the appellant and a positive indication of good rehabilitation prospects, that he has taken and successfully completed a range of courses to improve his attitude and motivation.He has also successfully undertaken educational courses reflecting a significant change of approach from that exhibited during his schooling.A verifying affidavit from the appellant was tendered.

[13] For the Crown, Mr Raftery supported the nine year starting point by reference to the decision in Andrian.He submitted that the reduction from that to allow for mitigating factors was generous having regard to the leading role played by the appellant, his background of some 14 previous offences, though none of burglary, and the absence of any guilty plea.He further argued that the different sentences for the three co-offenders were entirely justified.

[14] We find the decision in Andrian oflimited assistance in assessing an appropriate sentencing level for the offending with which we are concerned in this case.

[15] We are here concerned with an offending "spree" by a group of young people over a comparatively short period.They entered and stole from commercial premises goods of considerable value.They were organised and the appellant was, if not the guiding hand, one of two principals.

[16] Andrian was a habitual burglar and thief.He was 44 years old.He was sentenced for 12 burglaries as well as other offences over a period commencing just two months after his release from prison having served a sentence of seven years for offending including 23 burglaries.His targets were suburban homes from which he took items of high value such as jewellery and family treasures.He had 78 previous convictions for burglary alone.On his appeal against his sentence of nine years for his total offending, imposed after a late plea of guilty, this Court upheld the sentence primarily on account of the need to protect the public from an incorrigible offender.The judgment cites R v Ward [1976] 1 NZLR 588 in which it was held appropriate to have regard to the predilection to offend similarly in determining the length of sentence.It was noted, however, by reference to R v Casey [1931] NZLR 594, that there remains the need to maintain proportionality between gravity of the offending to be addressed and the sentence.The Court concluded (p454):

The present is pre-eminently a case where subject to adherence to these principles, the protection of the public needs to be given weight.Indeed that was the approach of the Courts in dealing with the appellant when in 1988 he appeared for sentencing in similar circumstances.In the event the sentence of 7 years imposed on that occasion did not protect the public sufficiently. There must be a limit to which the Courts in reliance on the principle in Ward can continue to increase the sentence for broadly similar offending, and the 9 years imposed here must be at or close to it;but the case is exceptional and we are not persuaded that the sentence is manifestly excessive.For these reasons the appeal is dismissed.

[17] It is necessary in every case to assess the criminality of the particular offending.As we said in Mako, with reference to aggravated robbery, it is necessary to consider the combination of factors surrounding the offending conduct.In burglary cases, these include the degree of planning and sophistication in the offending, the nature of the premises entered, the kind and value of property stolen, damage done, the impact and potential impact upon occupants or owners of property, and the extent of the offending where multiple burglaries are involved.

[18] The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed.Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises.The value of goods stolen from commercial premises may be higher.

[19] Organisation of groups or rings for the purpose of a business in the theft and sale of goods is a factor which will increase criminality.

[20] There is little guidance in the cases on sentencing levels for members of burglary "rings".There are more cases in which those involved in such operations on a commercial scale have been convicted of receiving.Examples are R v Thai Viet Do CA444/96, judgment 5 May 1997 (five years), R v Mathieson CA211/95 judgment 10 August 1995 (two years nine months), R v Bom CA209/96, judgment 16 October 1996 (six years), R v Weavers CA68/93, judgment 23 March 1993 (five years).The sentences indicated are those actually imposed.

[21] Burglary is a different offence from receiving, involving as it does the entry of premises and (for the present consideration) theft of property.Those engaged in the burglaries can be regarded as more culpable than those who receive stolen property - although much may depend on the scale of the operations.

[22] In Senior v Police, CrA241-313, High Court, Christchurch, 19 December 2000, a Full Court reviewed sentences for professional domestic burglaries.The starting point adopted by the original sentence judge for a domestic burglary spree of seven years was not disagreed with.That involved domestic burglaries and did not have the organised crime element in the offending.

[23] We have reviewed sentencing decisions in Australia and England.The cases generally relate to domestic burglaries and reflect sentences of up to 10 years in bad cases of multiple offending - see R v Ishmael & Ors [1997] EWCA 2381, R v Bidmead [1998] EWCA 4303, R v Joyce (1985) 20 A Crim R 384, Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186.

[24] In Carter, Ross, The Australian Sentencing Digest, 1985 there is (701.01.N33) a summary of R v McDonnell & Ors CCA:NSW 251, 253/82, 17 February 1983 in which the New South Wales Court of Criminal Appeal upheld a sentence of 12 years imprisonment imposed upon the worst of a group of "hardened criminals" who over about 12 months participated in numerous break, enter and steals from non-residential premises, mainly recreational clubs. They cut open safes with oxy-acetylene equipment and stole over $43,000 in cash and goods.There is also (701.01.V11) a summary of R v Heard CCA:VIC, 17 July 1978 in which the Court of Criminal Appeal of Victoria did not consider crushing cumulative sentences of nine years for burglaries of six post offices and two banks taking a total of $22,000 in cash and stamps.The burglaries were of a highly professional character, safes being opened with oxy-acetylene equipment.

[25] We would not put the disclosed offending of the present appellant and his co-offenders in the highly professional range.There was planning and the use of telephones and radio equipment, but the detail currently before us does not go beyond that.Compared with the other sentences in New Zealand referred to, the starting point of nine years appears high.Certainly the value of the goods stolen indicates a major operation but against that it did not extend to intrusion into and thefts from private homes.The 15 burglaries of which the appellant was convicted must be considered with the conviction on the conspiracy charge and his role in the organisation.There are also the other offences to be taken into the totality.If it were material to the outcome of the present appeal we would set an appropriate starting point no higher than eight years.However, it is necessary to turn to the sentence actually imposed.

[26] The appellant did not plead guilty.The sentencing Judge nonetheless reduced the sentence to 6½ years to allow for the mitigating factor that "there are others out there that think you are worthwhile and that when you are released that something can be done".

[27] Mr Koya's submission that the Judge did not make any allowance for the appellant's young age cannot be accepted.Plainly it was because of his comparative youth that the Judge was impressed by those who supported the appellant and saw for him rehabilitation prospects.That must have been his justification for the reduction he made.

[28] Even taking account of what we have said about the Judge's starting point, we do not consider the appellant's age justifies any lower sentence than that imposed.He has previous convictions over the three years prior to his apprehension.Though the offending was not serious, he has attracted attention for a range of unlawful conduct.Rather than be deterred, he chose to engage in sustained and organised crime and involved others.There must be significant elements of personal and general deterrence in his sentence.

[29] We are not persuaded there is any merit in the disparity ground.The other principal offender, Mr Tasmania pleaded guilty and gave evidence at the appellant's trial.His circumstances for sentencing were therefore very different.

[30] Mr Tongatama also pleaded guilty.He was the youngest of the group and was a first offender.His role was as an "operative" not a director.His sentence of 3½ years reflects those factors.The Judge was entitled to differentiate his overall criminality from that of the appellant.We do not consider that the extent to which he did so requires interference with the sentence now under appeal.

[31] For these reasons the appeal is dismissed.

Solicitor

M Isaac Koya, Auckland, for Appellant

Crown Solicitor, Auckland, for Crown