The Queen v Southon [2003] NZCA 9; (2003) 20 CRNZ 104 (13 February 2003)

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 314/02

THE QUEEN

V

CLINTON JAMES SOUTHON

Hearing:	5 February 2003
Coram:	Gault P Tipping J Anderson J
Appearances:	P Mabey QC for Appellant A Markham for Crown
Judgment:	13 February 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1] On 6 September 2002 the appellant was sentenced in the District Court at Hamilton to four and a half years imprisonment for burglary and related offences. He had been arrested in April 2002 for attempted burglary in respect of a pharmacy at Dinsdale, Hamilton, when his attempts to gain entry through a skylight activated an alarm. He pleaded guilty on arraignment following depositions. On 1 August 2002, whilst on bail for the April offending, he committed a burglary of another commercial premises in Hamilton. He pleaded guilty to that offending and was convicted by the District Court in its summary jurisdiction. For both the attempted burglary and the burglary he received a sentence of four and a half years imprisonment, to be served concurrently. He now appeals against sentence. The statutory provisions for appeal (which this Court has previously commented upon; see for example, R v Binnie CA 261/99, 6 September 1999) mean that the appeal for the attempted burglary lies to this Court but the appeal in respect of the burglary lies to the High Court. Because the appeal to this Court necessarily requires consideration of the whole of the offending for which the appellant was sentenced by the District Court, the outcome of such appeal will, perforce, be determinative of the appeal which lies to the High Court. Both counsel invited us to constitute ourselves as a full bench of the High Court to deal with that appeal, as we did in Binnie, and we accede to that request.

Nature of the offending and circumstances of the offender

[2] The attempted burglary of the pharmacy occurred only months after the appellant had been released from a sentence of one year’s imprisonment imposed on 23 August 2001 for two burglaries, possession of instruments for burglary and other offences of dishonesty. Amongst the instruments was a radio scanner intended to intercept police communications. He had attempted to impede the operation of an alarm system by cutting a telephone line. The burglary on 1 August 2002 has similar features in that he again cut a telephone line, sought entry through the roof and again his instruments for burglary included a radio scanner. Having entered the premises he searched for cash and valuables and appropriated a video camera. The attempts to disable the alarm systems were ineffectual. This led to the appellant’s swift apprehension by the police. Material loss to the victims was therefore limited, involving repairs to the telephone lines and damage to the roof.
[3] Although only 29 years of age the appellant has an invidious history of convictions for dishonesty. Before this latest offending he had 15 convictions for burglary, two for receiving, two for attempted burglary, over a dozen for theft from a vehicle as well as several for interfering with or taking motor vehicles and sundry other offences. Several previous terms of imprisonment had proved no greater deterrent to him than had sentences of periodic detention.
[4] When speaking with a Probation Officer for the purposes of a pre-sentence report the appellant attributed the April offending to ongoing relationship difficulties related to his lack of employment and to the need for money for personal reasons. He explained that he committed the August offence because he felt he had nothing to lose after his unemployment benefit was terminated when he defaulted on a court attendance. His early teenage years were characterised by dependency on cannabis and alcohol.

Reasons for sentence

[5] The Judge regarded the attempted burglary and burglary as potentially serious in terms of property loss, the same having been averted in each case by the triggering of an alarm and the early intervention by the police. There was a significant level of premeditation and preparation indicated by the possession of the burglary instruments and the cutting of telephone lines. The Judge recognised that some credit ought be given for the guilty pleas. In respect of the April offending the plea was late but the appellant pleaded promptly after the subsequent burglary. He had a background of gang involvement and extensive prior criminal activity. In this case the appellant fell broadly within the second category of offenders discussed by the Full High Court in Senior v Police (2000) 18 CRNZ 340, that is the recidivist burglar. The Judge adopted a starting point of six years and allowed credit for the guilty plea, some expression of remorse and mitigating aspects of background circumstances. In the result, he determined that the sentence should be four and a half years imprisonment and imposed that in respect of each of the attempted burglary and burglary counts, to be served concurrently. A sentence of one months imprisonment was imposed in respect of the wilful damage to the skylight and one years imprisonment was imposed for the possession of instruments. Those lesser sentences are not the subject of appeals.

Submissions for appellant

[6] Mr Mabey submitted that the Judge was correct to treat the present matter as falling within the second category of Senior. In respect of that category the High Court observed at p346, para (36):

A recidivist burglar who pleads guilty to say a single offence or even two or three offences is unlikely to receive a sentence which exceeds three years.

[7] Mr Mabey submitted that the six year starting point adopted in the present case was too high, particularly since the particular aggravating features of the breaking and entering of domestic premises were not present. He then compared the present case to several other cases in support of his general submission of manifest excess. In R v Morgan CA 311/97, 25 September 1997, this Court, whilst not interfering, considered that a term of two years imprisonment following a plea of guilty to a single count of burglary of domestic premises, by a burglar with 20 previous convictions for such offending, “was at the uppermost end of the range available to the sentencing Judge”. In Brown v NZ Police AP 32/98, High Court, Invercargill Registry, 28 August 1998, a case which Mr Mabey submitted was factually very similar to the present case, William Young J reduced to two and a half years imprisonment a sentence of three years imprisonment imposed by the District Court in respect of two charges of burglary to which guilty pleas had been entered. One of the counts related to the burglary of commercial premises by the appellant and an accomplice. Telephone wires to the premises were cut in an attempt to disable the alarm and entry was effected by jemmying open an office window. Thirty dollars in cash was stolen. The second burglary was at the premises of a golf club. Again telephone wires were cut and entrance effected by jemmying open a window. Thirty dollars in cash was removed from a gaming machine which was damaged in the process. Brown was a 29 year old man with many previous convictions including 23 for burglary. The offences in question were committed nine months after his release from imprisonment. In allowing the appeal the High Court considered the District Court’s starting point of three and a half years imprisonment too high.
[8] Mr Mabey also referred to the decision of the High Court in Stockman v NZ Police A96/00, Auckland Registry, 21 July 2000, where Rodney Hansen J allowed an appeal against a sentence of four years imprisonment imposed in the District Court on seven charges of burglary of mainly domestic premises by a 20 year old recidivist burglar with 22 previous convictions. The High Court considered that the District Court Judge’s starting point of five years was too high by one year.
[9] Counsel submitted that having regard to these authorities the appropriate starting point was four years imprisonment, not the six years which the District Court Judge had adopted. Given the inevitability of conviction and the timing of the plea for attempted burglary, six months was an adequate deduction for the pleas with the result that a sentence of no more than three years six months imprisonment should have been imposed. The appeal should be allowed by reducing the sentences of four years six months imprisonment by one year.

Crown submissions

[10] Ms Markham submitted that whilst the offending was not at the top end of the scale it was nevertheless serious. The aggravating features included the planning and professionalism indicated by the use of the radio scanner and other equipment. It was to be inferred that the appellant would have removed more property if his activities had not been fortuitously interrupted on each occasion. The proximity of the first offending to the appellant’s release from prison and the commission of the second offence whilst on bail in respect of the first are significantly aggravating factors. A defining feature of the case was the recidivism. The appellant’s 79 previous convictions included 50 for property related offences. Seventeen of those were for burglary or attempted burglary. He had been offending on a regular basis every year since 1989 and although he had been sentenced to imprisonment on no fewer than 12 previous occasions, including terms of two years, in 1997, 18 months in 1999 and one year in 2001, such sentences had not proved a sufficient deterrent. The Probation Officer assessed the risk of offending as very high.
[11] With respect to Senior both the High Court in delivering its decision and this Court in R v McAllister [2001] NZCA 160; (2001) 18 CRNZ 606 have remarked that the boundaries of the categories of burglars are necessarily flexible. Counsel pointed to the observation of the Full Court in Senior, at para 35, that many might regard current tariff sentencing levels for recidivist burglars as too low. In R v Binnie CA 261/99, 6 September 1999, this Court considered four and a half years imprisonment appropriate in the case of a 33 year old man with 56 previous convictions, including seven for burglary, who had pleaded guilty at an early stage to eight counts of burglary in respect of domestic premises. Although there was a significantly aggravating aspect in the burglaries having been generally carried out whilst the householders were asleep, significantly mitigating features were early guilty pleas, voluntary admissions as to other burglaries and remorse evidenced by apologies.

Discussion

[12] The seriousness of burglary is not to be underrated. Although the nature and risks of intrusion into private dwellings are obvious, with their sinister implications for privacy and their potential for grave offences against the person, such risks are not entirely absent in the case of the burglary of commercial premises. There is always the possibility of an encounter with someone lawfully on commercial premises. The potential for property loss goes without saying.
[13] Nor should Senior be regarded as more than a very helpful analysis of historic sentencing patterns in this area, being thereby conducive to consistency in respect of similar offenders committing similar offences in similar circumstances, as mandated by s8(e) of the Sentencing Act 2002. As recent decisions of this Court demonstrate, recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment.
[14] In our view, the most significant sentencing purposes in relation to this habitual burglar are deterrence and community protection. We need not repeat his regrettable record, but we place particular emphasis on the inadequate deterrence of previous terms of imprisonment and the severely aggravating feature of offending whilst on bail for a like crime. The circumstances called for a firm sentence and that is what the appellant received. We do not find it manifestly excessive.

Result

[15] This Court, constituted as the Court of Appeal, and the Judges in their capacity as Judges of the High Court convened as a Full High Court, respectively dismiss the appeal against sentence in relation to the count of attempted burglary and the appeal against sentence in relation to the count of burglary.

Solicitors
Crown Law Office, Wellington