THE QUEEN v FRANCIS ALLAN CHARLES BORRELL [2001] NZCA 263 (31 October 2001)

IN THE court of appeal of new zealand

ca228/01

THE QUEEN

V

FRANCIS ALLAN CHARLES BORRELL

Hearing:	30 October 2001
Coram:	Gault J Gendall J William Young J
Appearances:	R G Glover for Appellant J A Farish for Crown
Judgment:	31 October 2001

judgment of the court DELIVERED BY GAULT J

[1] The appellant was convicted after pleading guilty in the District Court at Christchurch to charges of aggravated robbery, burglary, unlawful taking of a motor vehicle and breach of parole.On 12 July 2001 he was sentenced to a total of nine years imprisonment.He now appeals against that sentence.

The Facts

[2] On the evening of 7 May 2001 after taking a car he had no authority to use, the appellant put on a balaclava for disguise and entered a suburban video store armed with a sawn-off rifle loaded with three rounds of ammunition for the purpose of obtaining money with which to purchase drugs.He confronted the lone attendant with the gun and demanded money.After obtaining some money from one till the appellant demanded access to the shop safe but the attendant was unable to open it as he did not have the combination.He obtained more money from a second till and a cash tray.In total the appellant obtained $700 before fleeing the scene.He later buried the firearm and his clothing.This incident gave rise to the aggravated robbery charge.

[3] In the second incident, on 26 May 2001, the appellant took an associate's car without his permission and drove it to a nearby tavern.He reversed the car through a set of double doors and into the bar from where he stole about $230 worth of alcohol.There was substantial damage to the premises.This incident gave rise to the charges of burglary and unlawful taking of a motor vehicle.

[4] The appellant is a drug addict with low-level motivation for change or treatment.He has a very long list of more than 100 previous convictions.Of greatest significance is 1993 offending.Then, with two others he committed an armed robbery of a Christchurch service station using an unlawfully taken motor vehicle and a sawn-off shotgun.Immediately before that, in another vehicle taken unlawfully, they committed a "ram raid" burglary on a hotel from which they stole liquor.The appellant was sentenced to imprisonment for five years for that offending.Since then he has convictions for escaping from custody twice, nine burglary offences, an assault, two drug offences and one for breach of periodic detention.

District Court Sentencing

[5] In the course of addressing the principal sentence for aggravated robbery the sentencing Judge took a starting point of eight years imprisonment by reference to the decision of this Court in R v Mako [2000] 2 NZLR 170. He related the case before him to what he perceived to be categories of offending in the judgment.He then said:

I have to take into account a starting point which reflects not only what the Higher Courts tell me but also which reflects your particular situation.I think it is a significant aggravating feature that you appear to be a person whose existence depends upon crime, and serious crime at that.That is borne out by your previous list of convictions and particularly the aggravated robbery.I think, on that basis, the starting point, bearing in mind the R v Mako, for you is eight years imprisonment.You will receive from that a discount or a credit, for your co-operation and your guilty pleas, of two years, that is 25%.

On aggravated robbery you are therefore sentenced to six years imprisonment.

[6] As to the burglary and the unlawful taking, the Judge considered that the appellant had to be classified as a recidivist offender.He noted that normally sentences of four or five years would not have been outside the range but, having regard to the totality of the offending, imposed three years imprisonment.The burglary sentence was cumulative on the six years for the aggravated robbery, resulting in a total sentence of nine years imprisonment. The appellant was convicted and discharged on the breach of parole charge.

The Present Appeal

[7] In support of the appeal Mr Glover for the appellant submitted that the sentence was manifestly excessive or wrong in principle.He referred to the decision in Mako and submitted that the Judge was incorrect to fix a starting point of eight years after seemingly concluding that the aggravated robbery fell into a category somewhere between the first and second levels in that case.He further submitted that the sentencing Judge adopted too inflexible an approach to the application of the principles set out in Mako and as a result over-stated the seriousness of the offending involved in this case.He suggested that a final sentence in the order of four years would have been appropriate and in line with Mako principles.

[8] Mr Glover also submitted that the sentencing Judge erred in principle in respect of the sentences imposed for the burglary and the unlawful taking.He endeavoured to argue that in the summary jurisdiction the maximum penalty available to the Judge was three years imprisonment so that the Judge's reference to sentences of four or five years was incorrect unless he declined jurisdiction.He further submitted that those sentences were out of line with authority, particularly that of Senior v Police (High Court, Christchurch, A139/00, judgment 19 December 2000) in which it was suggested that a recidivist burglar who pleads guilty to a single offence is unlikely to receive a sentence which exceeds three years.

[9] In response Ms Farish for the Crown sought to support the Judge's categorisation of the aggravated robbery offending and therefore the starting point of eight years.She emphasised the aggravating features of the offending, particularly the appellant's use of a loaded firearm, his extensive criminal history, and the fact that the offending took place within six months of his release from prison.

[10] With respect to the burglary and unlawful taking sentence Ms Farish correctly pointed out that under s7 of the Summary Proceedings Act 1957 the maximum sentence available to the Judge was in fact five years.She sought to support the three year sentence imposed as a direct application of the principles set out in Senior v Police where the appellant is clearly a recidivist offender and is assessed as being at a high risk of re-offending.

[11] We are concerned with two quite separate instances of offending so that there can be no objection to the imposition by the Judge of cumulative sentences.The principal issue is whether the total sentence of nine years is excessive for the totality of offending.

[12] We take the aggravated robbery first.We are surprised that the sentencing Judge and both counsel should draw from the decision in Mako, distinct categories of offending for sentencing purposes.The primary purpose in issuing that judgment was to bring an end to the approach to sentencing by counsel focussing on the appropriate category into which the offences should be placed instead of the culpability of the offender in the circumstances.

[13] The armed robbery in this case had features which demonstrated a high degree of culpability.There was the use of a loaded, high-calibre firearm. The premises were of a kind that at the time there was a likelihood of members of the public being present.The offender was disguised, and in pursuit of a substantial amount, attempting to obtain the contents of the safe as well as the tills.For an adult offender after a defended trial a sentence in the range of five to six years would be appropriate.

[14] Aggravating and mitigating factors personal to the appellant are to be taken into account.Of major importance is the fact that this was repeat offending by an experienced criminal with a very bad record and little motivation for or prospect of change.On the other hand there is to be allowed credit for the plea of guilty and assistance in helping the police locate the weapon.

[15] Although his assessment did not follow the approach set out in Mako, the conclusion reached by the Judge that the aggravated robbery called for a sentence of six years for this appellant was within a properly exercised sentencing discretion.

[16] Turning to the burglary the Judge said in his sentencing remarks.

As to the burglary and the unlawful taking, bearing in mind the number of previous convictions that you have for both of these offences, you have to be classed as a recidivist offender.There was not much money taken from the premises but there was certainly significant damage done by your ram-raid using the vehicle.

I think, ordinarily, a sentence, bearing in mind your guilty pleas, of four or five years on each of those would not be out of the way.But what I have to do is stand back and look at the totality of your offending when I come to sentence.If that burglary had been on its own I think I would have started at somewhere around six years and given you, again, a substantial discount or credit of 18 months or two years.

[17] For the particular offence of burglary, considered by itself, bearing in mind the almost identical previous offence and 45 other burglary convictions, it would be difficult to find error in a Judge determining that for the protection of the public the time has come for a lengthy term of imprisonment: R v Ward [1976] 1 NZLR 588.There is here also the unlawful taking of a motor vehicle against a background of 36 convictions for the same or similar offences.Together the offences of taking the vehicle and using it to smash into premises, for this offender, could well justify a sentence of four to five years as the Judge thought.The decision in Senior which is directed to domestic burglaries, is only marginally relevant to this case.

[18] It is on the issue of totality that we consider the Judge has erred.A sentence of imprisonment for nine years is too long, even for this offender. In our view the elements of denunciation deterrence and protection of the public will be satisfied with a total sentence of eight years.Accordingly, we allow the appeal, quash the cumulative sentences of three years for the offences of burglary and unlawful taking of a motor vehicle and substitute for each a sentence of two years.Those sentences are to be served concurrently with each other but cumulatively on the six year sentence for aggravated robbery.

Solicitors

Glover Sewell, Christchurch, for Appellant

Crown Solicitor, Christchurch