NOLAN v R [2004] NZCA 170 (3 August 2004)

Court of Appeal of New Zealand

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NOLAN v R [2004] NZCA 170 (3 August 2004)

Last Updated: 23 August 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/04

THE QUEEN



v



COREY NOLAN

Hearing: 22 July 2004

Coram: O'Regan J
Panckhurst J
Paterson J

Appearances: V A Walsh for Appellant
J C Pike for Crown

Judgment: 3 August 2004

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1]

The appellant was sentenced in the District Court to six years imprisonment in relation to six charges of burglary and one of receiving. This appeal is against such sentence and is advanced on the grounds that the term of imprisonment is beyond the appropriate sentencing level and is in any event clearly excessive given, in particular, the appellant’s age of 19 years at the date of sentencing.

The facts

[2]	The appellant was released on parole on 15 September 2003 from a two year nine month sentence imposed in relation to five burglaries and three charges of unlawful taking, or getting into, motor vehicles. In late October 2003, the appellant broke and entered a rural property in Prebbleton. Electrical items to a value of about $3500 were taken, together with a valuable station wagon which was removed from a garage at the address. The vehicle was recovered in a damaged condition and some time later, a search warrant executed at the appellant’s home led to the recovery of its ignition key.
[3]	On 3 November, the appellant was involved in a further rural residential burglary in which items to a value of $600 were taken.
[4]	On 7 November, a residential property in Christchurch was entered and limited property taken, together with a motor vehicle from the garage at the address. This was used to journey to rural properties to the south west of Christchurch, from which various items were taken. In all, four burglaries were committed that day, one near Lincoln, and three on the same rural road near Burnham.
[5]	In the course of the final burglary, the property taken included three firearms and ammunition. The householder was working in the garden at the time, saw the offenders leaving the house and called the police. As a result the appellant was located in possession of property taken from the various burglaries.
[6]	A consequent search of the appellant’s home address in Christchurch resulted in the location of a motor cycle which had been taken on 30 October. This find gave rise to the receiving charge.

The sentencing decision

[7]	Prior to a preliminary hearing the appellant entered pleas of guilty upon request pursuant to s153A of the Summary Proceedings Act 1957 to all seven charges. This was on 25 November 2003. He was sentenced on 23 December.
[8]	Judge P A Moran, after reviewing the circumstances of the offending and of the appellant, concluded that an appropriate starting point was a sentence of eight years imprisonment. To recognise the pleas of guilty and the appellant’s age, a reduction of two years was allowed to produce an effective sentence of six years imprisonment. Such term was made concurrent with the sentence the appellant was already serving, after being recalled to prison in relation to his previous two year nine month sentence (upon which the release date was 13 April 2004). The Judge also considered imposition of a minimum non-parole period, but concluded that the statutory threshold was not met.
[9]	In the course of extensive sentencing remarks, the Judge identified various features which influenced his conclusions. He described the burglaries as aggravated on account of their number, their commission over a short space of time and their brazen manner. He noted as a further aggravating feature that a male co-offender had caused "collateral damage" to the homes which were entered. This added to the sense of violation felt by the victims. The Judge was also concerned that the offending occurred while the appellant was on parole following his release from prison in mid September 2003.
[10]	The burglaries themselves, which the Judge described as unsophisticated, were held to warrant a sentence of five years imprisonment before personal considerations were brought to account. The dominant personal factor was that the appellant was a recidivist offender, since at 19 years of age he had accumulated 31 burglary convictions prior to the present spate of offences. In addition, his parole history was reviewed and described as unfortunate, and an absence of remorse and insight into the impact of his offending was likewise noted.
[11]	With these additional matters in mind, the Judge described the appellant as a menace and adopted the starting point of eight years imprisonment. Finally, he made allowance for the appellant’s age, the circumstance that he was involved with a more hardened offender who was responsible for the gratuitous ransacking of properties, and took into account the guilty pleas. Hence, the effective sentence of six years imprisonment was arrived at, being a conclusion which reflected the Judge’s assessment that the dominant sentencing consideration was protection of the community.

The submissions

[12]	Mrs Walsh argued that the final starting point of eight years imprisonment adopted by the Judge was too high. She suggested that it was the result of an artificial analysis in that the Judge identified five years imprisonment as appropriate for the offending itself and added three years on account of adverse personal circumstances. Counsel’s submission was that the five year initial starting point necessarily reflected the circumstance that this was recidivist offending and that this factor was also the principal reason for adding three years to reach the eight year ceiling. Hence, it was submitted, the Judge’s reasoning involved double counting.
[13]	The other major theme of the appellant’s argument was that the final sentence was not in accord with the sentencing levels recognised as appropriate for similar offences as required by s8(e) of the Sentencing Act 2002 ("the Act"). Particular attention was drawn to R v Rohloff CA193/03, 24 September 2003. In that case, a sentence of six years imprisonment imposed in the District Court was reduced on appeal to four and a half years imprisonment. The appellant had pleaded guilty to nine charges of burglary and two of theft from motor vehicles. He was 22 years of age and a recidivist offender, having about 65 previous convictions for offences of dishonesty. He too had offended almost immediately upon his release from a sentence of imprisonment. The burglaries were of houses and in two instances of commercial premises, from which property to a value of over $50,000 was taken. After noting these factors, this Court held that the approach adopted by the sentencer was wrong in principle. An initial starting point of five years imprisonment was identified, from it a deduction made for mitigating factors including the guilty pleas, then an increase made to recognise aggravating factors. The principal such factor was the appellant’s conviction history (or recidivism) something which had been taken into account in fixing the five year initial starting point. It followed there had been double counting. Hence the original sentence was reduced to four and a half years imprisonment. Mrs Walsh sought a similar outcome in this case.
[14]	Mr Pike, while accepting that the present sentence was stern, submitted that it was within the available range, at least if regard was had to the principles recognised in R v Ward [1976] 1 NZLR 588 (CA). In that case this Court held that previous convictions may indicate such a predeliction to commit a particular type of offence as to require a longer term of imprisonment in order to provide protection of the public. We note that protection of the community from an offender is now recognised as one of the purposes of sentencing in s7(1)(g) of the Act.
[15]	In relation to the decision in Rohloff Mr Pike pointed out that although the effective sentence was reduced from six to four and a half years, it was accompanied by a three year minimum period of imprisonment. It followed, he said, that in order to achieve a true comparison of the two cases it was necessary to take account of this additional factor, otherwise the "reality" of the sentence was not being recognised. Generally the various conclusions reached by the Judge in the course of his sentencing remarks in the present case were supportable and indicated that the sentence imposed was not clearly excessive.

Discussion

[16]	Undoubtedly this was a bad case. The Judge was right to describe the appellant as a recidivist, the offending as brazen (if unsophisticated), and protection of the public as the predominant sentencing purpose. It was also necessary to have regard to the appellant’s previous offending history and to the circumstances that he offended while on parole and in order to satisfy his addictive use of P.
[17]	On the other hand two aspects of the sentencing response cause us concern. First, we are satisfied that the Judge did fall into error by adopting a two-stage approach to assessment of the starting point. Thereby we consider he double counted the circumstance of the appellant’s recidivism. It was bought to account in arriving at the initial starting point of five years, and also in increasing that starting point to eight years in recognition of personal aggravating features. Curiously, this error rather mimicked that in Rohloff (which decision, however, was not referred to at the time of the present sentencing). Second, although two cases are never identical, we are satisfied that the present offending was similar to that in Rohloff, indeed was marginally less serious if anything. In this case the offender was two years younger, had substantially fewer previous convictions and committed offences which involved property to a value of $15,000-20,000 (as compared to over $50,000). These differences required recognition.
[18]	It is true that a minimum non-parole period was imposed in Rohloff, but not in this case. We think Mr Pike was right to draw attention to that difference, since the minimum term was part of the judicial sentencing package. Where a Judge imposes a minimum term the bite of the sentence is necessarily increased by comparison to a similar effective sentence absent a minimum term.
[19]	But in the end result we conclude that the present sentence was clearly excessive. In reaching that conclusion we are particularly influenced by the appellant’s age (19 years at the date of sentencing and now 20 years), the Judge’s justifiable characterisation of the offending as unsophisticated, and the circumstance that the property taken was not of great value. In our view the appropriate sentence for these offences was four and a half years imprisonment. That is still a substantial sentence for a man of this age and sufficient, we are satisfied, to mark the aggravating features to which reference has already been made.

Result

[20]	The appeal is allowed. The sentence of six years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted. We have reconsidered the issue of a minimum term but agree with the decision and reasons of the Judge in not imposing one.

Solicitors:
Papprill Hadfield & Aldous, Christchurch for Appellant
Crown Law Office, Wellington