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RYDER v R [2005] NZCA 185 (20 July 2005)

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RYDER v R [2005] NZCA 185 (20 July 2005)

Last Updated: 7 August 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA514/04

THE QUEEN

v

HORI TORU HUREI RYDER

Hearing: 30 June 2005

Court: O'Regan, Baragwanath and Panckhurst JJ

Counsel: V C Nisbet for Appellant
R M Lithgow for Crown

Judgment: 20 July 2005

JUDGMENT FOR THE COURT

A We allow the appeal against sentence and quash the sentence imposed in the District Court. In its place, we impose a sentence of six years imprisonment on each of the 98 charges of burglary, those terms to be served concurrently, with a minimum non-parole period of four years.
B We impose a sentence of imprisonment for one year on the injuring charge and two months imprisonment on the assault charge, those sentences to be concurrent with each other, but cumulative on the six year term imposed for the burglary offences.
C This makes a total sentence of seven years imprisonment with a minimum period of imprisonment of four years.

REASONS

(Given by O’Regan J)

Introduction

[1] Mr Ryder was sentenced in the District Court in regard to 98 charges of burglary, one charge of assault and another charge of injuring with intent to injure. He pleaded guilty to all of the charges. Judge Mackintosh sentenced him to ten years imprisonment, and a minimum period of imprisonment of two thirds of the sentence was imposed. Mr Ryder appeals against that sentence.

Facts

Palmerston North Burglaries

[2] In mid-2004 Mr Ryder committed three burglaries in Palmerston North. In the first, he stole $467 in cash and took about $100 worth of Telecom phone cards from an apartment building. The second was the burglary of a church. He stole approximately $13,000 worth of computer and electronic equipment. The third involved stealing a laptop computer valued at $6,500 and some cash from a residential address. The goods taken in the second and third burglaries were sold to an associate for cash.

Wellington Burglaries

[3] Between 30 August and 10 October 2004 Mr Ryder was actively committing burglaries in the Wellington region. The sentencing Judge observed that during that period there were a total of 272 reported burglaries in the Wellington area, of which Mr Ryder admitted responsibility for 95, that being 37% of the total burglaries for that period. The police summary of facts described Mr Ryder as a "one man crime wave". The sentencing Judge said she tended to agree with that description.
[4] Mr Ryder burgled both residential and commercial premises. The majority of offending took place during the day or in the early evening. He did not carry or use tools. He took time to "case out" prospective targets and would often visit premises to assess their viability and how susceptible they would be to his methods. Cash and laptop computers were Mr Ryder’s preferred targets, although on occasions he took jewellery, electronic games and larger electrical items and small items of clothing.
[5] Mr Ryder’s burglaries were typically tidy and he was careful to ensure that he did not encounter occupants at their residential properties. However he typically did encounter occupiers when entering commercial premises, making up stories to justify his presence. It was accepted that he was not aggressive to members of the public. On occasions he dressed up as a bicycle courier to facilitate entry onto the premises. He also established a rapport with two receivers to whom he would sell the stolen goods.
[6] On 10 October the police executed a search warrant at Mr Ryder’s address in relation to stolen property from six burglaries. He was apprehended and spoken to. He admitted to committing the six burglaries, and also chose to tell the police about the offending that forms the basis of the other 92 charges. His motivation for admitting his offending was apparently to wipe the slate clean and take responsibility for his actions.
[7] Mr Ryder was remorseful for the loss and hurt he had caused the numerous complainants. A total of $8,490 worth of property was recovered but there is still $69,554.48 outstanding and there was damage caused by Mr Ryder in excess of $10,000.

Assault

[8] The assault charge relates to an incident that occurred in Palmerston North. On about 13 August 2004 at half past eight Mr Ryder was at the New World Supermarket. The victim was a sickness beneficiary who was doing his shopping. The victim could not get past Mr Ryder and politely asked him to move. Mr Ryder prevented him from doing so. Mr Ryder swore at the victim, and then punched him twice in the head. He fell backwards hitting his head and ended up unconscious on the ground. His injuries included a bruised and swollen left eye and moderate concussion.

Injuring with Intent to Injure

[9] The injuring charge relates to an incident that occurred on 25 September 2004 in the Wellington suburb of Kilbirnie. Mr Ryder was visiting an associate who had Black Power affiliation. He was approached by a neighbour who he suspected had been reporting offences to the police. Mr Ryder’s associate lured the neighbour away from the doorway, at which point Mr Ryder viciously punched him in the head. As Mr Ryder walked away the victim called out to him, and Mr Ryder turned and looked at him. Upon seeing Mr Ryder’s facial features the victim said that he would now be able to identify him to the police. On hearing that Mr Ryder went back and punched the victim another three to four times in the head with a closed fist. The victim suffered a broken jaw. Mr Ryder’s explanation to the police was that he was helping his associate deal with a situation which he viewed as "narking to the police".

District Court Sentencing Notes

[10] In sentencing Judge Mackintosh noted the victim impact statements and pre-sentence report. The impact statements describe the trauma, the inconvenience, the stress, the loss of privacy and all those sorts of emotional, financial and physical losses as a result of the burglaries.
[11] The Judge discussed Mr Ryder’s personal factors. She described his background as "very unstable", being a ward of the state since a young age and living on the streets. He had not had a particular gang affiliation which was to his credit. There was some indication in the pre-sentence report that he had been hearing voices at times, and that there are some psychological and psychiatric issues that needed exploring. The Judge said he would urge prison authorities to take those matters in hand.
[12] The Judge noted that Mr Ryder has a de facto partner, and observed that sadly it seemed to be an abusive relationship. His partner was due to have a child at the time of sentencing.
[13] The offending occurred when Mr Ryder was released on parole after serving a five year sentence. When he was on parole he had a job and his employer spoke highly of him, however he did have difficulties with accommodation and his responsibilities and it was that that seemed to lead Mr Ryder to offend again. The Judge commented that Mr Ryder was "unable to manage [his] life at all" and that he could not manage any stress.
[14] The Judge noted that Mr Ryder felt positive about telling the authorities about his offending.
[15] The Judge referred to Mr Ryder’s extensive history of prolific offending including burglaries and serious violent offences. The Judge said that as far as she could calculate, since 1995, when Mr Ryder was 18 years of age and received his first custodial sentence, he has spent the majority of his time in prison. Mr Ryder’s explanation for offending was that he was stressed and not coping with his living environment, maintaining a job and living with his partner. The Judge said that Mr Ryder was clearly at a high risk of re-offending and needed to enter an intensive programme while in prison. The Judge referred to the pre-sentence report which said that Mr Ryder has the potential to change and has some positive personal attributes.
[16] The Judge went on to state the aggravating features of the offending:

(a) Mr Ryder’s offending occurred while he was on parole, after serving a lengthy term of imprisonment for similar offending;
(b) The Judge said that this would be one of the worst burglary sprees to come before the Court. Given the timeframe, the Judge estimated that Mr Ryder must have been burgling in excess of two places per day;
(c) The fact a number of the burglaries were residential dwelling houses;
(d) There was an element of pre-meditation and on various occasions Mr Ryder disguised himself;
(e) There was a significant amount of reparation still outstanding: approximately $69,000 plus money for damage caused. The Judge said there was "absolutely no prospect" of those amounts being paid;
(f) Mr Ryder has 43 previous convictions for burglary and five for attempted burglary. He also has previous convictions for violent offending.

[17] In mitigation Judge Mackintosh noted Mr Ryder’s guilty plea and significant co-operation with police.
[18] In the sentencing exercise the Judge took into account those aggravating and mitigating features, and the principles of protection of the public, the totality of offending and deterrence of other potential offenders. The Judge also took into account a number of cases dealing with spree and recidivist burglars.
[19] The Judge considered protection of the public must be a paramount consideration, and after considering the aggravating features set a starting point of 15 years imprisonment for the burglary charges. Credit was given for guilty plea, co-operation with the police and the way Mr Ryder acquitted himself. The Judge imposed a sentence of ten years imprisonment.
[20] On the common assault charge the Judge imposed a two month concurrent prison term, and on the injuring charge a concurrent term of one year imprisonment.
[21] The Judge considered that given the extent and prolific nature of the offending between 30 August and 8 October this was a case that warranted the imposition of a minimum term of imprisonment. She considered this offending to be well outside the ordinary range of offending of this particular kind. She imposed a minimum term equal to two thirds of the sentence.

Submissions

[22] On behalf of Mr Ryder, Mr Nisbet said that the starting point was too high in this case. He referred to the decisions of this Court in R v Andrian (1996) 13 CRNZ 449, R v Tukuafu CA34/02 18 December 2002 and R v Nguyen CA110/01 2 July 2001 as demonstrating that the starting point adopted by the Judge in this case was out of line with previous authorities. In particular he argued that Andrian was a much more serious case than the present case, and in that case the starting point was 12 years.
[23] Mr Nisbet said that the Judge was wrong to treat the number of burglaries as an aggravating feature, because that was part of the determination of the starting point and therefore double counting. He also said that inability to pay reparation was not an aggravating feature, but rather the absence of a mitigating feature.
[24] Mr Nisbet also argued that there was inadequate discount allowed for the early guilty plea made by Mr Ryder, his admission of, and co-operation with the police in respect of, the 92 charges for which he was not under investigation and his general co-operation with the Police which was acknowledged by the Crown prosecutor at the sentencing hearing.
[25] On behalf of the Crown Mr Lithgow accepted that the 15 year starting point was too high. He did not accept that there was double counting of the aggravating features, but accepted that a starting point in excess of the maximum sentence for burglary was not justified in the present circumstances. He submitted that the appropriate starting point was in the region of ten years.
[26] Mr Lithgow also accepted that a significant discount was appropriate in the present case because of the significant benefit to the public from the admissions made by Mr Ryder and his co-operation with the Police as well as his early guilty plea which made considerable savings to the criminal justice system.
[27] Mr Lithgow said that the Judge had been correct to impose a minimum period of imprisonment in this case, given the necessity for protection of the public from Mr Ryder’s criminal offending. He suggested an end sentence in the region of six-seven years with a minimum non-parole period of up to two-thirds of that.

Discussion

[28] There was a considerable degree of agreement between counsel as to the appropriate outcome in this case. Indeed, Mr Nisbet indicated that he accepted that the position adopted by the Crown was an appropriate outcome of the appeal.
[29] We were told that the Crown prosecutor declined to put forward to the sentencing Judge the Crown’s suggested starting point. In our view, he should have done so. The fact that Crown counsel has now accepted in this Court that the starting point was too high confirms the undesirability of the Crown declining to give the sentencing Judge the benefit of the Crown’s view.
[30] Having considered the authorities mentioned by counsel, and also the more recent decision of this Court in R v Brooking CA419/04 7 March 2005, we are satisfied that a starting point in the region of ten years is appropriate for the 98 burglary charges in this case. That reflects the very large number of burglaries and the significant amount of property which has not been recovered. We accept that these are matters relevant to the calculation of the starting point, and not aggravating features, though we do not think that the District Court Judge double counted them as Mr Nisbet suggested.
[31] Taking into account the aggravating features, particularly the fact that the offending occurred while Mr Ryder was on parole for similar offending, and giving appropriate recognition to the mitigating factors, we determine that a sentence of six years imprisonment for the burglary counts as appropriate. In relation to the mitigating features, we give particular weight to the fact that Mr Ryder acknowledged guilt in relation to 92 offences for which he was not being investigated, pleaded guilty at the earliest moment, and provided valuable assistance to the Police.
[32] However, we believe that the two offences of violence, namely the assault at the supermarket in Palmerston North and the charge of injuring with intent to injure should be dealt with on a cumulative basis. In the words of s 84(1) of the Sentencing Act 2002, these offences are different in kind from the burglary offences. The District Court Judge imposed a sentence of one year’s imprisonment for the injuring charge and two months imprisonment for the assault charge. In our view it is appropriate to make those sentences concurrent with each other, but cumulative on the six years sentence in relation to the burglary offences.
[33] We accept Mr Lithgow’s submission that a minimum period of imprisonment was appropriate in this case. Release of Mr Ryder after one-third of his sentence would not, in our view, be sufficient for the purposes of protecting the community: s 86(2)(d) of the Sentencing Act. Taking into account the factors which have guided the determination of the nominal sentence in this case, we conclude that a minimum period of imprisonment of four years is appropriate in this case.

Result

[34] Accordingly, we allow the appeal against sentence and quash the sentence imposed in the District Court. In its place, we impose a sentence of six years imprisonment on each of the 98 charges of burglary, those terms to be served concurrently, with a minimum non-parole period of four years. We impose a sentence of imprisonment for one year on the injuring charge and two months imprisonment on the assault charge, those sentences to be concurrent with each other, but cumulative on the six year term imposed for the burglary offences. This makes a total sentence of seven years imprisonment with a minimum period of imprisonment of four years.

Solicitors:
Val C Nisbet, Wellington for Appellant
Crown Law Office, Wellington

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[3]	Between 30 August and 10 October 2004 Mr Ryder was actively committing burglaries in the Wellington region. The sentencing Judge observed that during that period there were a total of 272 reported burglaries in the Wellington area, of which Mr Ryder admitted responsibility for 95, that being 37% of the total burglaries for that period. The police summary of facts described Mr Ryder as a "one man crime wave". The sentencing Judge said she tended to agree with that description.
[4]	Mr Ryder burgled both residential and commercial premises. The majority of offending took place during the day or in the early evening. He did not carry or use tools. He took time to "case out" prospective targets and would often visit premises to assess their viability and how susceptible they would be to his methods. Cash and laptop computers were Mr Ryder’s preferred targets, although on occasions he took jewellery, electronic games and larger electrical items and small items of clothing.
[5]	Mr Ryder’s burglaries were typically tidy and he was careful to ensure that he did not encounter occupants at their residential properties. However he typically did encounter occupiers when entering commercial premises, making up stories to justify his presence. It was accepted that he was not aggressive to members of the public. On occasions he dressed up as a bicycle courier to facilitate entry onto the premises. He also established a rapport with two receivers to whom he would sell the stolen goods.
[6]	On 10 October the police executed a search warrant at Mr Ryder’s address in relation to stolen property from six burglaries. He was apprehended and spoken to. He admitted to committing the six burglaries, and also chose to tell the police about the offending that forms the basis of the other 92 charges. His motivation for admitting his offending was apparently to wipe the slate clean and take responsibility for his actions.
[7]	Mr Ryder was remorseful for the loss and hurt he had caused the numerous complainants. A total of $8,490 worth of property was recovered but there is still $69,554.48 outstanding and there was damage caused by Mr Ryder in excess of $10,000.

[10]	In sentencing Judge Mackintosh noted the victim impact statements and pre-sentence report. The impact statements describe the trauma, the inconvenience, the stress, the loss of privacy and all those sorts of emotional, financial and physical losses as a result of the burglaries.
[11]	The Judge discussed Mr Ryder’s personal factors. She described his background as "very unstable", being a ward of the state since a young age and living on the streets. He had not had a particular gang affiliation which was to his credit. There was some indication in the pre-sentence report that he had been hearing voices at times, and that there are some psychological and psychiatric issues that needed exploring. The Judge said he would urge prison authorities to take those matters in hand.
[12]	The Judge noted that Mr Ryder has a de facto partner, and observed that sadly it seemed to be an abusive relationship. His partner was due to have a child at the time of sentencing.
[13]	The offending occurred when Mr Ryder was released on parole after serving a five year sentence. When he was on parole he had a job and his employer spoke highly of him, however he did have difficulties with accommodation and his responsibilities and it was that that seemed to lead Mr Ryder to offend again. The Judge commented that Mr Ryder was "unable to manage [his] life at all" and that he could not manage any stress.
[14]	The Judge noted that Mr Ryder felt positive about telling the authorities about his offending.
[15]	The Judge referred to Mr Ryder’s extensive history of prolific offending including burglaries and serious violent offences. The Judge said that as far as she could calculate, since 1995, when Mr Ryder was 18 years of age and received his first custodial sentence, he has spent the majority of his time in prison. Mr Ryder’s explanation for offending was that he was stressed and not coping with his living environment, maintaining a job and living with his partner. The Judge said that Mr Ryder was clearly at a high risk of re-offending and needed to enter an intensive programme while in prison. The Judge referred to the pre-sentence report which said that Mr Ryder has the potential to change and has some positive personal attributes.
[16]	The Judge went on to state the aggravating features of the offending:

[17]	In mitigation Judge Mackintosh noted Mr Ryder’s guilty plea and significant co-operation with police.
[18]	In the sentencing exercise the Judge took into account those aggravating and mitigating features, and the principles of protection of the public, the totality of offending and deterrence of other potential offenders. The Judge also took into account a number of cases dealing with spree and recidivist burglars.
[19]	The Judge considered protection of the public must be a paramount consideration, and after considering the aggravating features set a starting point of 15 years imprisonment for the burglary charges. Credit was given for guilty plea, co-operation with the police and the way Mr Ryder acquitted himself. The Judge imposed a sentence of ten years imprisonment.
[20]	On the common assault charge the Judge imposed a two month concurrent prison term, and on the injuring charge a concurrent term of one year imprisonment.
[21]	The Judge considered that given the extent and prolific nature of the offending between 30 August and 8 October this was a case that warranted the imposition of a minimum term of imprisonment. She considered this offending to be well outside the ordinary range of offending of this particular kind. She imposed a minimum term equal to two thirds of the sentence.

[22]	On behalf of Mr Ryder, Mr Nisbet said that the starting point was too high in this case. He referred to the decisions of this Court in R v Andrian (1996) 13 CRNZ 449, R v Tukuafu CA34/02 18 December 2002 and R v Nguyen CA110/01 2 July 2001 as demonstrating that the starting point adopted by the Judge in this case was out of line with previous authorities. In particular he argued that Andrian was a much more serious case than the present case, and in that case the starting point was 12 years.
[23]	Mr Nisbet said that the Judge was wrong to treat the number of burglaries as an aggravating feature, because that was part of the determination of the starting point and therefore double counting. He also said that inability to pay reparation was not an aggravating feature, but rather the absence of a mitigating feature.
[24]	Mr Nisbet also argued that there was inadequate discount allowed for the early guilty plea made by Mr Ryder, his admission of, and co-operation with the police in respect of, the 92 charges for which he was not under investigation and his general co-operation with the Police which was acknowledged by the Crown prosecutor at the sentencing hearing.
[25]	On behalf of the Crown Mr Lithgow accepted that the 15 year starting point was too high. He did not accept that there was double counting of the aggravating features, but accepted that a starting point in excess of the maximum sentence for burglary was not justified in the present circumstances. He submitted that the appropriate starting point was in the region of ten years.
[26]	Mr Lithgow also accepted that a significant discount was appropriate in the present case because of the significant benefit to the public from the admissions made by Mr Ryder and his co-operation with the Police as well as his early guilty plea which made considerable savings to the criminal justice system.
[27]	Mr Lithgow said that the Judge had been correct to impose a minimum period of imprisonment in this case, given the necessity for protection of the public from Mr Ryder’s criminal offending. He suggested an end sentence in the region of six-seven years with a minimum non-parole period of up to two-thirds of that.

[28]	There was a considerable degree of agreement between counsel as to the appropriate outcome in this case. Indeed, Mr Nisbet indicated that he accepted that the position adopted by the Crown was an appropriate outcome of the appeal.
[29]	We were told that the Crown prosecutor declined to put forward to the sentencing Judge the Crown’s suggested starting point. In our view, he should have done so. The fact that Crown counsel has now accepted in this Court that the starting point was too high confirms the undesirability of the Crown declining to give the sentencing Judge the benefit of the Crown’s view.
[30]	Having considered the authorities mentioned by counsel, and also the more recent decision of this Court in R v Brooking CA419/04 7 March 2005, we are satisfied that a starting point in the region of ten years is appropriate for the 98 burglary charges in this case. That reflects the very large number of burglaries and the significant amount of property which has not been recovered. We accept that these are matters relevant to the calculation of the starting point, and not aggravating features, though we do not think that the District Court Judge double counted them as Mr Nisbet suggested.
[31]	Taking into account the aggravating features, particularly the fact that the offending occurred while Mr Ryder was on parole for similar offending, and giving appropriate recognition to the mitigating factors, we determine that a sentence of six years imprisonment for the burglary counts as appropriate. In relation to the mitigating features, we give particular weight to the fact that Mr Ryder acknowledged guilt in relation to 92 offences for which he was not being investigated, pleaded guilty at the earliest moment, and provided valuable assistance to the Police.
[32]	However, we believe that the two offences of violence, namely the assault at the supermarket in Palmerston North and the charge of injuring with intent to injure should be dealt with on a cumulative basis. In the words of s 84(1) of the Sentencing Act 2002, these offences are different in kind from the burglary offences. The District Court Judge imposed a sentence of one year’s imprisonment for the injuring charge and two months imprisonment for the assault charge. In our view it is appropriate to make those sentences concurrent with each other, but cumulative on the six years sentence in relation to the burglary offences.
[33]	We accept Mr Lithgow’s submission that a minimum period of imprisonment was appropriate in this case. Release of Mr Ryder after one-third of his sentence would not, in our view, be sufficient for the purposes of protecting the community: s 86(2)(d) of the Sentencing Act. Taking into account the factors which have guided the determination of the nominal sentence in this case, we conclude that a minimum period of imprisonment of four years is appropriate in this case.