	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2006 >> [2006] NZCA 244

The Queen v Frost [2006] NZCA 244 (6 September 2006)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

The Queen v Frost [2006] NZCA 244 (6 September 2006)

Last Updated: 13 September 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 344/05

THE QUEEN

v

BENJAMIN FROST

Hearing: 13 June 2006

Court: Ellen France, Williams and Harrison JJ

Counsel: R G Glover for Appellant
A Markham for Crown

Judgment: 6 September 2006 at 11 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Williams J)

Issue

[1] Following trial in the Christchurch District Court the appellant, Mr Frost, was convicted on eight counts of burglary. The jury found him not guilty on a further count and were unable to reach a verdict on two others (in respect of which he has since been discharged). He was discharged under the Crimes Act 1961, s 347, on a twelfth count during trial.

[2] His appeals to this Court are set out below:

(a) First, the appellant appeals against all convictions on the ground the trial Judge in summing-up was incorrect in his direction on the standard of proof. The same issue was argued before this Court on 11 May 2006 in R v Wanhalla and Court: CA321/05 and 324/05. It is common ground that Mr Frost’s appeal on this point would stand or fall on the outcome of the appeals in Wanhalla. The appeals in Wanhalla having been dismissed by this Court in its judgment of 24 August 2006, this ground of appeal fails.
(b) Second, the appellant submits that fresh evidence was available from the appellant’s mother and from his brother, Sei Frost, both of whom gave evidence for the Crown at trial. That evidence, the appellant suggested, might have materially affected the jury’s verdicts. However, counsel for the appellant, Mr Glover, acknowledged this ground of appeal could not be sustained. That is because leave to call Mrs Frost was earlier declined by this Court and the brother gave evidence at trial so the further evidence from him was not fresh. This ground of appeal fails.
(c) Third, the appellant argues that there was insufficient evidence to sustain Mr Frost’s conviction on counts 7 (Paper Plus, Barrington Mall) and 12 (Mobil Redwood Service Station). Those convictions were therefore unsound and a new trial should be ordered, at least on those counts.
(d) Finally, the appellant says that the sentence of six years imprisonment imposed on all the charges on which Mr Frost was convicted was manifestly excessive, as was the three and a half years minimum period of imprisonment also imposed.

[3] It follows that we need to deal only with the appeal against conviction on counts 7 and 12 and with the sentence appeal.

Count 7: Paper Plus, Barrington Mall

[4] The prosecution case at trial was that Mr Frost and several others engaged in a number of commercial burglaries of service stations, dairies and Asian supermarkets in Canterbury between May-August 2004. Cigarettes, tobacco and phone cards were targeted. The persons principally involved were Messrs Aylett, Strange, Robinson, the appellant and his brother. Not all were involved in all the offending and, although it broadly followed much the same pattern, the Crown at trial did not present the case on a similar fact basis.
[5] Only Mr Aylett and the appellant were said to be involved in the burglary of the Paper Plus shop in the Barrington Mall.
[6] Mr Aylett pleaded guilty shortly after apprehension to four charges of burglary and had been sentenced, though not to imprisonment, before Mr Frost’s trial began.
[7] He gave evidence for the prosecution both generally and particularly. His general evidence was that, of the group involved, Mr Frost was the "one that takes all the action pretty much ... like going in, breaking in, you know, stealing". He was the one who would "plan it all out and we’d go, we’d do basically as we were told". He spoke of the group taking balaclavas, burglary instruments and walkie talkies. Mr Frost does not drive and Mr Aylett acknowledged driving the group on occasions to commit burglaries.
[8] More specifically as far as the Paper Plus charge was concerned, Mr Aylett said only Mr Frost and he participated. They took "all the usual tools, walkie talkies, scanner, gloves, balaclava and I think there was a crowbar". He drove to the Barrington Mall carpark about 3:00am or 4:00am. Sitting in the car, he watched Mr Frost break the Paper Plus window with the crowbar, reach in and unlock the door. After a wait of, he estimated, about 30 seconds, he "felt that I had someone watching ... so I took off", leaving Mr Frost at the scene. He returned to the flat the group had been using. Mr Frost arrived at the flat some 10 to 15 minutes later with telephone cards and vouchers which he, Mr Aylett, estimated were worth about $500.
[9] Unsurprisingly, Mr Aylett was vigorously cross-examined by Mr Glover. The witness acknowledged his participation in the offending and was forced to accept certain inconsistencies in his narrative of general events. He responded to the suggestion he significantly under-estimated the interval between his driving off and Mr Frost’s return to the flat by saying "[t]o be honest I really can’t be bothered with this, eh.. I’m missing a day off work because of him.". He vigorously rejected the suggestion he was minimizing his participation and putting the blame on Mr Frost. He described the proposition that Mr Frost bought the crowbars after the burglaries as "the biggest lie I’ve ever heard". He acknowledged he was a "wee bit" angry with the appellant and annoyed with him. Cross-examination concluded with the following passage :

Q. Well the truth is that you, Strange and Robinson were the planners and the instigators of the burglaries that you’ve described today, isn’t it?
A. No I wasn’t a planner, as I said, I was just a driver.
Q. Ben Frost had nothing to do with those burglaries.
A. Which ones?
Q. The ones you’ve described.
A. Oh yeah, okay.
Q. Do you accept that?
A. No I don’t, I don’t accept that. He was there.
Q. And right from day one you’ve done your best to blame him with a view to making things go better for yourself.
A. Well, I have been asked to tell the truth so therefore I have no other choice.
Q. Well I just asked you to tell the truth and we stood here for five minutes of silence.
A. Yes.
Q. It is too hard, isn’t it?
A. No, I tell you, mate, I don’t even want to be here.
Q. I am not surprised you don’t want to be here, but there is a bit of payback for Mr Frost, isn’t it?
A. There is no payback, he just needs to accept that he is guilty. He is just as guilty as what I was.
Q. And you’ve made every endeavour to persuade the authorities of that fact from day one, haven’t you?
A. Yes.

[10] In summing-up, the Judge first reminded the jury that proof of a number of the charges largely depended on evidence of three of the alleged co-offenders, Messrs Aylett, Sei Frost and Robinson, all of whom gave evidence for the Crown. He made the point that Mr Glover’s suggestion that Mr Aylett was the Paper Plus burglar, not Mr Frost, was not a proposition put to Mr Aylett. The Judge then directed the jury that its first task in respect of all co-offenders was to assess their credibility or honesty. He gave an expanded direction as to matters they might take into account in that regard, including whether a witness had any personal interest in the outcome of the trial or a motive to give a false account of his involvement and then said :

[165] If you conclude that any of the three witnesses who I have mentioned – Mr Aylett, Mr Sei Frost, and Mr Robinson – were dishonest witnesses, then you must simply put the evidence of that witness or those witnesses out of the picture, and the evidence of that witness or those witnesses would play no further part or role in your deliberations.
[166] However, if you are satisfied that the evidence of any of those witnesses was given honestly, it does not necessarily follow that you must accept everything which that witness said as being totally reliable. That simply follows from the proposition that an honest witness may not necessarily have an accurate recollection of past events.

[11] He later directed that it was a matter for them whether the co-offenders were honest witnesses and summarised counsels’ opposing views in that regard.
[12] Mr Glover submitted the Judge’s directions were inadequate. The Judge, he said, should have expressly reminded the jury of Mr Aylett’s bitterness and anger towards the appellant. That had particular force in relation to the Paper Plus burglary where Mr Aylett’s was the only evidence against Mr Frost. A general direction in those circumstances was, he submitted, inadequate. The jury should have been directed that if it was uncertain of Mr Aylett’s veracity then, given the lack of other evidence on count 7, the appellant should have been acquitted. It was also an error to direct the jury that a dishonest witness’s evidence should be entirely disregarded: rather, the jury should have been directed it was open for it to accept parts of that witness’s evidence.
[13] For the Crown, Ms Markham submitted the Judge’s direction was both correct and adequate in the circumstances. A direction under the Evidence Act 1908, s 12C might, as a matter of discretion, have been given. Effectively it was. She relied on the lengthy directions as to assessing witnesses’ credibility as showing the jury well understood the need to approach Mr Aylett’s evidence with caution, particularly in light of the cross-examination. She made the point that Mr Frost was acquitted on count 9 which similarly depended on the evidence of a co-offender, in that case the appellant’s brother.
[14] Failure to direct that a jury might rely on parts of a dishonest or incredible witness’s evidence could only, she submitted, have benefited the appellant. Thus the direction by the Judge about the approach to a dishonest witness’s evidence was favourable to the appellant.
[15] In our view, the Judge fairly and properly directed the jury on the correct approach to the evidence of all the appellant’s co-offenders. Though not in express terms, he effectively directed them in accordance with s 12C. His general remarks included the conventional direction that the jury could accept or reject parts of a witness’ evidence. Given the defence contention that Mr Aylett’s evidence should be wholly disbelieved, any oversight on the Judge’s part to give a direction that the jury might accept parts of that witness’s evidence was of no moment. In any event, in a reasonably short trial such as the appellant’s the jury was unlikely to have forgotten Mr Glover’s vigorous cross-examination of Mr Aylett, including the lengthy pause reflected in the passage earlier cited.
[16] Taking all those matters into account, our conclusion is that this ground of appeal has not been made out. It is accordingly dismissed.

Count 12: Mobil Redwood burglary

[17] On this count the prosecution case was that two constables saw various individuals coming and going from the appellant’s address. Other individuals were seen at the Mobil Redwood service station. Identifications were not, however, possible. Very shortly after the burglary the Police executed a search warrant on the appellant’s address and found him and others sorting through a considerable amount of stolen cigarettes and tobacco, similar to items taken from the Mobil Redwood service station shortly beforehand.
[18] Mr Frost’s defence on this count was that the evidence might have established his guilt on a receiving count but did not amount to sufficient proof of burglary. Mr Glover submitted the Judge should have directed in more detail on the receiving possibility. In particular, he said, the Judge should have directed the jury that acquittal should follow if they entertained a reasonable doubt of the appellant’s guilt on the burglary.
[19] Ms Markham observed that the prosecution did not rely solely on the surveillance evidence or the doctrine of recent possession. The prosecution case included evidence of discovery of burglary tools underneath the appellant’s bed coupled with Mr Aylett’s evidence.
[20] In summing up, the Judge directed the jury as to the defence contention that Mr Frost may have been the receiver. He opined that the evidence on the Mobil Redwood charge was the strongest of all. He emphasised the burden of proof as including the Crown excluding any reasonable possibility that Mr Frost was no more than a receiver. The Judge said that it was only if the jury concluded that the "evidence is so compelling that it proves that Mr Frost was involved in the burglary i.e. as the only reasonable possibility that you would be entitled to find him guilty on count 12". He also referred to the possibility the appellant was only a receiver in the Mobil Redwood and another count when summarising the defence case.
[21] In the summing-up there were a number of references to the defence contention that the Crown could not prove Mr Frost guilty of the Mobil Redwood burglary as opposed to his receiving stolen property. The matter was fully brought to the jury’s attention. There is nothing in this ground of appeal. It, too, is accordingly dismissed.

Sentence appeal

[22] The sentence appeal was based principally on suggested disparity in the sentence imposed on the appellant as compared with that imposed on Mr Strange.
[23] In his sentencing remarks in respect of the appellant, the Judge said Mr Strange was the only member of the group who might be regarded as more culpable than Mr Frost. He noted the appellant’s present offending being committed whilst he was on parole following a term of three years’ imprisonment imposed in mid-2002 for a commercial burglary, an offence for which he had, by the time of sentence, been re-called to prison. He then noted:

[46] For present purposes I am prepared to accept that Mr Strange was the most active of the group in which you were involved at that time. Furthermore, as in your case, Mr Strange was on parole when the offending occurred, and the sentence in respect of which he had been released on parole was also for burglary offending.
[47] However, although Mr Strange had a more extensive overall record of criminal offending, his record for burglary offending was less significant then yours, because he had only four such convictions.

[24] The Judge described the sentence imposed on another co-offender as "very lenient" and recounted some five aggravating factors based on the decisions in Senior v Police (2000) 18 CRNZ 340 and R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104 (before discounting the former).
[25] The Judge then turned to whether imposition of a minimum period of imprisonment was open having regard to the fact Mr Frost’s offending fell on both sides of the amendment on 7 July 2004 to the Sentencing Act 2002, s 86. He recorded Mr Glover’s acceptance that Mr Frost’s sentencing could proceed on the basis of the present form of the section and held the imposition of a minimum period was appropriate. Otherwise the sentence would be inadequate in terms of accountability, denunciation, deterrence and community protection.
[26] He accepted the Crown’s recommendation that a sentence of five and a half to six and a half years was appropriate having regard to the sentence imposed on Mr Strange and, without more, imposed a term of six years’ imprisonment on all eight counts on which the appellant had been convicted. A minimum period of imprisonment of three years six months was imposed.
[27] Mr Strange pleaded guilty to seventeen commercial burglaries when on parole for an earlier burglary to which he had also pleaded guilty and on which he had been sentenced to two and a half years’ imprisonment. The Judge acknowledged his most recent pleas as being at a very early date. The aggravating features were offending on parole, careful planning, and his "180 odd convictions ... largely for dishonesty but including four for burglary". The only mitigating feature were the very early pleas. Had Mr Strange defended the charges, the Judge said a sentence following conviction of at least seven years would have been imposed. He imposed five years cumulative on his earlier sentence with a three year non-parole period.
[28] Mr Glover submitted the two sentences were incompatible and the disparity gross when Mr Frost had been convicted on fewer counts than the number to which Mr Strange had pleaded guilty. The appellant was justified in defending the charges brought against him as shown by the jury’s acquittal on one count, failure to agree on two others and the s 347 discharge during trial.
[29] Ms Markham pointed to the relative sophistication of the offending, the fact that $35,000 worth of goods were taken, the stress for the victims as shown by the victim impact statements and the fact that the present appellant, now aged 28, had never worked but over the past eleven years amassed 75 convictions, almost all property-related, including 22 for burglary. He had been sentenced to imprisonment on thirteen previous occasions and often offended shortly after release. She submitted there was no basis for intervention on the ground of disparity: R v Rameka [1973] 2 NZLR 592(CA), R v Lawson [1982] 2 NZLR 219(CA).
[30] Though Mr Strange pleaded guilty to more counts of burglary than those on which the appellant was convicted, he did so at a very early stage and the Judge acknowledged a number would have remained unresolved without his co-operation. His list of previous offending for burglary was less than that of Mr Frost. The sentence imposed on him was plainly affected by the totality principle in respect of his earlier sentence. Without the pleas, a sentence of at least seven years imprisonment could have been imposed.
[31] All those factors render direct comparison between the sentences imposed on Mr Strange and Mr Frost problematic.
[32] That said, a sentence of six years for the appellant with his record of previous offending for dishonesty offences - particularly for burglary offences - was not out of line especially when he offended on parole shortly after release from an earlier sentence. In those circumstances, that Mr Strange had been the "most active of the group" was fortuitous and not a notably significant factor in determining the length of sentence.
[33] In our view, it has not been demonstrated that the sentence was excessive, still less manifestly so, and the appeal against the length of sentence is dismissed.
[34] As far as the minimum period is concerned, we agree with both sentencing Judges that protection of the public is one of the most material matters to be weighed in sentencing recidivist burglars such as Messrs Strange and Frost. They are people who do not shrink from invading premises belonging to others and stealing their property. They reoffend almost immediately on release from similar previous offending. Imposition of a minimum period of imprisonment is thus indicated in many such cases to denounce such offending and provide some protection to the community from their depredations.
[35] In proportionate terms, the minimum period of imprisonment imposed on Mr Frost was not significantly different from that imposed on Mr Strange. Even without that comparison, a minimum period of imprisonment of just under 60% of the term imposed was plainly available for the Judge and is not out of range. The appeal against the minimum period of imprisonment is also dismissed.

Result

[36] At the end of that consideration, for the reasons set out in this judgment, both appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2006/244.html

[4]	The prosecution case at trial was that Mr Frost and several others engaged in a number of commercial burglaries of service stations, dairies and Asian supermarkets in Canterbury between May-August 2004. Cigarettes, tobacco and phone cards were targeted. The persons principally involved were Messrs Aylett, Strange, Robinson, the appellant and his brother. Not all were involved in all the offending and, although it broadly followed much the same pattern, the Crown at trial did not present the case on a similar fact basis.
[5]	Only Mr Aylett and the appellant were said to be involved in the burglary of the Paper Plus shop in the Barrington Mall.
[6]	Mr Aylett pleaded guilty shortly after apprehension to four charges of burglary and had been sentenced, though not to imprisonment, before Mr Frost’s trial began.
[7]	He gave evidence for the prosecution both generally and particularly. His general evidence was that, of the group involved, Mr Frost was the "one that takes all the action pretty much ... like going in, breaking in, you know, stealing". He was the one who would "plan it all out and we’d go, we’d do basically as we were told". He spoke of the group taking balaclavas, burglary instruments and walkie talkies. Mr Frost does not drive and Mr Aylett acknowledged driving the group on occasions to commit burglaries.
[8]	More specifically as far as the Paper Plus charge was concerned, Mr Aylett said only Mr Frost and he participated. They took "all the usual tools, walkie talkies, scanner, gloves, balaclava and I think there was a crowbar". He drove to the Barrington Mall carpark about 3:00am or 4:00am. Sitting in the car, he watched Mr Frost break the Paper Plus window with the crowbar, reach in and unlock the door. After a wait of, he estimated, about 30 seconds, he "felt that I had someone watching ... so I took off", leaving Mr Frost at the scene. He returned to the flat the group had been using. Mr Frost arrived at the flat some 10 to 15 minutes later with telephone cards and vouchers which he, Mr Aylett, estimated were worth about $500.
[9]	Unsurprisingly, Mr Aylett was vigorously cross-examined by Mr Glover. The witness acknowledged his participation in the offending and was forced to accept certain inconsistencies in his narrative of general events. He responded to the suggestion he significantly under-estimated the interval between his driving off and Mr Frost’s return to the flat by saying "[t]o be honest I really can’t be bothered with this, eh.. I’m missing a day off work because of him.". He vigorously rejected the suggestion he was minimizing his participation and putting the blame on Mr Frost. He described the proposition that Mr Frost bought the crowbars after the burglaries as "the biggest lie I’ve ever heard". He acknowledged he was a "wee bit" angry with the appellant and annoyed with him. Cross-examination concluded with the following passage :

[11]	He later directed that it was a matter for them whether the co-offenders were honest witnesses and summarised counsels’ opposing views in that regard.
[12]	Mr Glover submitted the Judge’s directions were inadequate. The Judge, he said, should have expressly reminded the jury of Mr Aylett’s bitterness and anger towards the appellant. That had particular force in relation to the Paper Plus burglary where Mr Aylett’s was the only evidence against Mr Frost. A general direction in those circumstances was, he submitted, inadequate. The jury should have been directed that if it was uncertain of Mr Aylett’s veracity then, given the lack of other evidence on count 7, the appellant should have been acquitted. It was also an error to direct the jury that a dishonest witness’s evidence should be entirely disregarded: rather, the jury should have been directed it was open for it to accept parts of that witness’s evidence.
[13]	For the Crown, Ms Markham submitted the Judge’s direction was both correct and adequate in the circumstances. A direction under the Evidence Act 1908, s 12C might, as a matter of discretion, have been given. Effectively it was. She relied on the lengthy directions as to assessing witnesses’ credibility as showing the jury well understood the need to approach Mr Aylett’s evidence with caution, particularly in light of the cross-examination. She made the point that Mr Frost was acquitted on count 9 which similarly depended on the evidence of a co-offender, in that case the appellant’s brother.
[14]	Failure to direct that a jury might rely on parts of a dishonest or incredible witness’s evidence could only, she submitted, have benefited the appellant. Thus the direction by the Judge about the approach to a dishonest witness’s evidence was favourable to the appellant.
[15]	In our view, the Judge fairly and properly directed the jury on the correct approach to the evidence of all the appellant’s co-offenders. Though not in express terms, he effectively directed them in accordance with s 12C. His general remarks included the conventional direction that the jury could accept or reject parts of a witness’ evidence. Given the defence contention that Mr Aylett’s evidence should be wholly disbelieved, any oversight on the Judge’s part to give a direction that the jury might accept parts of that witness’s evidence was of no moment. In any event, in a reasonably short trial such as the appellant’s the jury was unlikely to have forgotten Mr Glover’s vigorous cross-examination of Mr Aylett, including the lengthy pause reflected in the passage earlier cited.
[16]	Taking all those matters into account, our conclusion is that this ground of appeal has not been made out. It is accordingly dismissed.

[17]	On this count the prosecution case was that two constables saw various individuals coming and going from the appellant’s address. Other individuals were seen at the Mobil Redwood service station. Identifications were not, however, possible. Very shortly after the burglary the Police executed a search warrant on the appellant’s address and found him and others sorting through a considerable amount of stolen cigarettes and tobacco, similar to items taken from the Mobil Redwood service station shortly beforehand.
[18]	Mr Frost’s defence on this count was that the evidence might have established his guilt on a receiving count but did not amount to sufficient proof of burglary. Mr Glover submitted the Judge should have directed in more detail on the receiving possibility. In particular, he said, the Judge should have directed the jury that acquittal should follow if they entertained a reasonable doubt of the appellant’s guilt on the burglary.
[19]	Ms Markham observed that the prosecution did not rely solely on the surveillance evidence or the doctrine of recent possession. The prosecution case included evidence of discovery of burglary tools underneath the appellant’s bed coupled with Mr Aylett’s evidence.
[20]	In summing up, the Judge directed the jury as to the defence contention that Mr Frost may have been the receiver. He opined that the evidence on the Mobil Redwood charge was the strongest of all. He emphasised the burden of proof as including the Crown excluding any reasonable possibility that Mr Frost was no more than a receiver. The Judge said that it was only if the jury concluded that the "evidence is so compelling that it proves that Mr Frost was involved in the burglary i.e. as the only reasonable possibility that you would be entitled to find him guilty on count 12". He also referred to the possibility the appellant was only a receiver in the Mobil Redwood and another count when summarising the defence case.
[21]	In the summing-up there were a number of references to the defence contention that the Crown could not prove Mr Frost guilty of the Mobil Redwood burglary as opposed to his receiving stolen property. The matter was fully brought to the jury’s attention. There is nothing in this ground of appeal. It, too, is accordingly dismissed.

[24]	The Judge described the sentence imposed on another co-offender as "very lenient" and recounted some five aggravating factors based on the decisions in Senior v Police (2000) 18 CRNZ 340 and R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104 (before discounting the former).
[25]	The Judge then turned to whether imposition of a minimum period of imprisonment was open having regard to the fact Mr Frost’s offending fell on both sides of the amendment on 7 July 2004 to the Sentencing Act 2002, s 86. He recorded Mr Glover’s acceptance that Mr Frost’s sentencing could proceed on the basis of the present form of the section and held the imposition of a minimum period was appropriate. Otherwise the sentence would be inadequate in terms of accountability, denunciation, deterrence and community protection.
[26]	He accepted the Crown’s recommendation that a sentence of five and a half to six and a half years was appropriate having regard to the sentence imposed on Mr Strange and, without more, imposed a term of six years’ imprisonment on all eight counts on which the appellant had been convicted. A minimum period of imprisonment of three years six months was imposed.
[27]	Mr Strange pleaded guilty to seventeen commercial burglaries when on parole for an earlier burglary to which he had also pleaded guilty and on which he had been sentenced to two and a half years’ imprisonment. The Judge acknowledged his most recent pleas as being at a very early date. The aggravating features were offending on parole, careful planning, and his "180 odd convictions ... largely for dishonesty but including four for burglary". The only mitigating feature were the very early pleas. Had Mr Strange defended the charges, the Judge said a sentence following conviction of at least seven years would have been imposed. He imposed five years cumulative on his earlier sentence with a three year non-parole period.
[28]	Mr Glover submitted the two sentences were incompatible and the disparity gross when Mr Frost had been convicted on fewer counts than the number to which Mr Strange had pleaded guilty. The appellant was justified in defending the charges brought against him as shown by the jury’s acquittal on one count, failure to agree on two others and the s 347 discharge during trial.
[29]	Ms Markham pointed to the relative sophistication of the offending, the fact that $35,000 worth of goods were taken, the stress for the victims as shown by the victim impact statements and the fact that the present appellant, now aged 28, had never worked but over the past eleven years amassed 75 convictions, almost all property-related, including 22 for burglary. He had been sentenced to imprisonment on thirteen previous occasions and often offended shortly after release. She submitted there was no basis for intervention on the ground of disparity: R v Rameka [1973] 2 NZLR 592(CA), R v Lawson [1982] 2 NZLR 219(CA).
[30]	Though Mr Strange pleaded guilty to more counts of burglary than those on which the appellant was convicted, he did so at a very early stage and the Judge acknowledged a number would have remained unresolved without his co-operation. His list of previous offending for burglary was less than that of Mr Frost. The sentence imposed on him was plainly affected by the totality principle in respect of his earlier sentence. Without the pleas, a sentence of at least seven years imprisonment could have been imposed.
[31]	All those factors render direct comparison between the sentences imposed on Mr Strange and Mr Frost problematic.
[32]	That said, a sentence of six years for the appellant with his record of previous offending for dishonesty offences - particularly for burglary offences - was not out of line especially when he offended on parole shortly after release from an earlier sentence. In those circumstances, that Mr Strange had been the "most active of the group" was fortuitous and not a notably significant factor in determining the length of sentence.
[33]	In our view, it has not been demonstrated that the sentence was excessive, still less manifestly so, and the appeal against the length of sentence is dismissed.
[34]	As far as the minimum period is concerned, we agree with both sentencing Judges that protection of the public is one of the most material matters to be weighed in sentencing recidivist burglars such as Messrs Strange and Frost. They are people who do not shrink from invading premises belonging to others and stealing their property. They reoffend almost immediately on release from similar previous offending. Imposition of a minimum period of imprisonment is thus indicated in many such cases to denounce such offending and provide some protection to the community from their depredations.
[35]	In proportionate terms, the minimum period of imprisonment imposed on Mr Frost was not significantly different from that imposed on Mr Strange. Even without that comparison, a minimum period of imprisonment of just under 60% of the term imposed was plainly available for the Judge and is not out of range. The appeal against the minimum period of imprisonment is also dismissed.