R v Harding CA289/04 [2004] NZCA 360 (26 October 2004)

Last Updated: 22 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA289/04

THE QUEEN

v

TAUPAKI ANTHONY HARDING

Hearing: 14 October 2004 Coram: Hammond J
Goddard J Randerson J

Appearances: T M Petherick for Appellant
G C de Graaff for Crown Judgment: 26 October 2004

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

Introduction

[1] The appellant pleaded guilty to a number of charges representing offending committed over a three month period in Palmerston North and Napier. The Palmerston North charges comprised unlawful interference with a motor vehicle and possession of instruments for conversion of a motor vehicle. The Napier charges comprised four charges of burglary, one charge of theft of a motor vehicle and one charge of receiving a motor vehicle. He initially appeared in the District Court on these and other charges arising out of the same episode of offending.

R v HARDING CA CA289/04 [26 October 2004]

[2] The other charges were driving whilst disqualified, dangerous driving, resisting a police officer, failing to stop when directed and a breach of parole. Judge Rea sentenced the appellant to an effective sentence of six months imprisonment on those charges but declined jurisdiction on the remaining charges and remanded the appellant to the High Court for sentence.

[3] On 27 May 2004 the appellant appeared before Gendall J who sentenced him to an effective sentence of five years imprisonment in respect of the Napier offending and to a cumulative sentence of one years imprisonment in respect of the Palmerston North offending.

[4] He now appeals against the total sentence of six years imprisonment on the ground that it is manifestly excessive.

Background facts

[5] The appellant was released from prison late last year and was on parole at the time of this offending. He was also a disqualified driver.

[6] The brief facts are that in the early hours of 21 December 2003 the appellant was arrested in Palmerston North for breaking into a motor vehicle and for having instruments for burglary in his possession, including surgical gloves, screwdrivers and similar implements. When apprehended by the police he had to be subdued by use of pepper spray. He appeared in the District Court in Palmerston North and was remanded on bail to appear again in that Court on 29 January 2004.

[7] Following this, and over a seven week period between 20 January and 6 March 2004, the appellant embarked upon a spate of offending in Napier. There he committed four burglaries. One was of a residential property and three were of pharmacies (one pharmacy was burgled by him on two occasions). From the pharmacies he stole considerable quantities of pseudo-ephedrine based products. These products are known to be used in the manufacture of methamphetamine.
[8] The victim impact statement from the owner of the pharmacy that was burgled by the appellant on two occasions reflects the impact of having suffered two burglaries in less than a two week period. He expressed grave concerns about his safety and the safety of his staff as the result of burglars wanting to steal pseudo- ephedrine based products and other drugs held in his pharmacy. He said it is:

Something that is on my mind all the time, I worry that I will get attacked while locking up my premises or opening them up, or it may happen to one of my staff. It is always in the back of my mind, when I’m away on holiday, I’m always wondering if my shop is safe and if it’s ok.

[9] In order to facilitate at least one of the burglaries the appellant stole a motor vehicle which he later burned out. The loss to the owner (who was not insured) was
$11,141.65. There was no prospect of the appellant making reparation in that amount and none was ordered.

[10] The appellant’s offending in Napier culminated in the burglary of a residential property. He and associates, who had accompanied him, fled when an alarm sensor was activated and the police were called. A police chase then ensued with the appellant reportedly driving at high speed through residential streets in his efforts to evade the police. By this time a warrant had been issued for his arrest for failing to appear in the District Court in Palmerston North on 29 January 2004.

The appellant

[11] The appellant, who was aged 32 years at the time of sentencing, has an extensive criminal history, with approximately 140 previous convictions. These include 33 for burglary, convictions for aggravated robbery, theft, receiving, kidnapping, assaults and injuring with intent to cause grievous bodily harm. He has served prison sentences on at least eight previous occasions of terms of up to three years.

[12] The pre-sentence report assessed him as being at a high risk of re-offending, given his extensive offending history, his limited insight into the contributors to his offending, and his “variable response” to previous sentences. He was also assessed as having a low level of motivation to change. The key factors seen as contributing
to his offending include his drug use (cannabis and methamphetamine) and his criminal associates. His explanation for having offended so soon after his release on parole was that breaking into a pharmacy “to steal pseudo-ephedrine based products to sell to those manufacturing methamphetamine” was suggested to him by associates as an easy way to make money.

The sentencing

[13] Gendall J described the appellant as a “career criminal” who has failed to learn from any of the sentences imposed on him in the past.

[14] The Judge found the only mitigating factors to be the appellant’s guilty pleas and his having admitted to the burglaries of the pharmacies after he was apprehended following the high speed chase.

[15] Gendall J listed the aggravating features as including the appellant’s conviction history, the fact that he was on bail when the Napier offending was committed and that the pseudo-ephedrine stolen from the pharmacies was “designed to be used to manufacture a class A drug”. Elaborating on that aspect Gendall J said:

[16] ... burglary of chemist shops to obtain pseudoephedrine is gravely aggravating and sentences that deter others are necessary. Those burglaries are aimed at providing supplies of the necessary pre-cursor substance to manufacture this dangerous drug. Given your criminal history you would well know the value of pseudoephedrine products. The effects of it and the social problems led to Parliament reclassifying it as a class A drug in mid- 1993. The increase in clandestine methamphetamine laboratories in the last three years has been about 300% with 40 being located in 2001 and 157 "P" labs located in 2003. It is a grave social, criminal, and medical problem, and I am going to quote to you what was said in Parliament, from the Hansard records, when methamphetamine was reclassified as a class A. I quote:

"The damage done to individuals, families and communities from this drug is simply catastrophic...and a total crackdown is supported by every member of Government."

...

[20] If the message has not been heeded now then it must be heeded for the protection of society and to deter those who manufacture "P" or commit burglaries to obtain the critical pre-cursor substance.

[16] After referring to the decision of the High Court in Senior v Police (2000) 18 CRNZ 340 and to the recent observations of this Court in R v Southon CA314/02
13 February 2003, Gendall J determined that a starting point of six years imprisonment was required in respect of the burglaries of the pharmacies. From that starting point he gave a credit of one year for the appellant’s guilty pleas. In relation to the burglary of the residential premises in Napier he imposed a concurrent sentence of three years imprisonment, on the basis that this burglary had been a part of the appellant’s offending spree in Napier. In respect of the charges of theft of a motor vehicle and receiving a motor vehicle in Napier, sentences of two years imprisonment were imposed, also to be concurrent.

[17] In respect of the Palmerston North offences of unlawful interference with a motor vehicle and possession of instruments for conversion of a motor vehicle, Gendall J imposed sentences of one years imprisonment and six months imprisonment respectively, to be concurrent with each other. As those offences comprised a separate episode in a different city, Gendall J made the effective sentence of five years imprisonment for the Napier offending cumulative upon the one year imprisonment for the Palmerston North offending.

The appeal

[18] On behalf of the appellant, Mr Petherick advanced a number of grounds.

[19] First he submitted that the adoption by Gendall J of a “considerably higher” starting point in respect of the pharmacy burglaries, as opposed to the residential burglary, was erroneous because the risk of confrontation must be higher in residential burglaries committed at night than in commercial burglaries; and because there is no indication that Parliament intended such a differential. He referred to recent amendments to the offence of burglary in the Crimes Act 1961 which he submitted “...did not see fit to reclassify the offence by drawing a marked distinction between commercial and residential premises relating to precursor substances.”

[20] The second ground of appeal advanced was that the guidelines in Senior v Police suggest that a recidivist burglar like the appellant is unlikely to receive a
sentence exceeding three years imprisonment. Further that the decision in Southon, in which a sentence of 4½ years was upheld for the burglary of a pharmacy, can be distinguished on the facts; referring to the evidence of careful planning in Southon and the commission of offences while on bail, a matter referred to as a “severely aggravating factor”. However, the appellant in this case was also on bail at the time of the Napier offending, as well as on parole.

[21] The third ground of appeal was that the discount of 16.67% was insufficient to reflect the mitigating circumstances and inconsistent with the approach taken in both Senior v Police and Southon. Mr Petherick pointed in particular to the appellant’s early guilty pleas and his full co-operation with the police. In the latter regard, Mr Petherick submitted it is unlikely that the burglaries of the pharmacies would have been proved against the appellant without his co-operation.

[22] Finally, Mr Petherick argued that there was a retrospective element to the sentence, and that Gendall J’s approach had effectively lifted sentencing levels for this kind of offending by attaching considerable weight to the purpose of the burglaries as having been to obtain pseudo-ephedrine for the illicit manufacture and distribution of methamphetamine.

Discussion

[23] Given the number and nature of the charges and the duration of the appellant’s offending, an overall assessment of his culpability with a view to imposing an end sentence to reflect the total criminality was appropriate. This was the approach that the Judge took in determining that a total effective sentence of five years imprisonment for the Napier offending was appropriate. He attached that sentence to the three charges of burglary of pharmacies which he regarded as the most serious. That choice was apt, given that three burglaries were committed and quantities of pseudo-ephedrine stolen on each occasion. The Judge rightly regarded the breaking and entering of the pharmacies for the purpose of stealing drugs or their precursors as a serious aggravating factor. The breaking and entering of the residential home was also a serious matter but, fortunately, due to the activation of the security system, the appellant and his associates were unable to carry through
their plan. Whilst they receive no credit for that, the outcome of the residential burglary was less serious than the three burglaries of the pharmacies.

[24] The starting point of six years adopted by Gendall J for the Napier offending cannot be regarded as out of range for the degree of criminality involved. As this Court remarked in Southon (at para [13]), Senior v Police is not to be regarded as other than a helpful analysis of historical sentencing patterns and cannot be relied on to limit sentences to three years imprisonment in the case of recidivist burglars. The appellant has demonstrated himself to be a recidivist burglar and whilst he is not to be punished twice for the same offending, the need to protect the public is a significant factor in the sentencing of a repeat burglar who has demonstrated no respect for the privacy and security of others.

[25] In terms of the degree of co-operation claimed by the appellant, Ms de Graaf advised that the situation was rather more complicated than his instructions would suggest. She advised that whilst the police acknowledge that the appellant was co- operative in respect of all three pharmacy burglaries, he was by that stage the suspect for those burglaries. All had been carried out using the same modus operandi and video surveillance footage from the pharmacy that he burgled twice identified him as the burglar. In addition, stolen property from one of those burglaries had been located at his girlfriend’s address, and other evidence was located in a vehicle linking him to the burglaries. It would therefore have been only a matter of time before the appellant was linked to the burglaries of the pharmacies and thus it was not a case where, but for his co-operation, the offending may have gone unsolved. We were further advised that other offending, not before Gendall J, had been “custody cleared” on the basis of co-operation by the appellant but that matter (the benefit of which the appellant has already had) could not have influenced Gendall J and cannot influence this Court.

[26] The discount to be given was a matter for the Judge’s discretion, to be determined as part of his overall assessment of the appellant’s case. In the circumstances we see no reason to depart from his exercise of this discretion. The appellant’s apparent co-operation and his guilty pleas did deserve some recognition and this was accorded by Gendall J to the extent of a 16.67% reduction. That is
within the available range. Against the extent of the credit to be accorded is the appellant’s history of recidivism; his lack of empathy for the victims or absence of any real understanding of the effect of his offending on them; and the number and nature of the charges involved. As we have noted, the purpose for which he burgled the pharmacies was properly to be regarded as an aggravating factor and it was open to the Judge to impose an exemplary sentence to reflect that. The starting point of six years was not out of line with the principles in Southon, and neither the start nor the end point of the sentence were manifestly excessive.

Result

[27] The appeal is dismissed.

Solicitors:

Gresson Grayson & Calver, Hastings, for Appellant Crown Law Office, Wellington