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The Queen v Whiteman [2006] NZCA 342 (7 December 2006)

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The Queen v Whiteman [2006] NZCA 342 (7 December 2006)

Last Updated: 12 December 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/06

THE QUEEN

v

ROSS WHITEMAN

Hearing: 28 November 2006

Court: Ellen France, Chisholm and Gendall JJ

Counsel: R G Glover for Appellant
S B Edwards for Crown

Judgment: 7 December 2006 at 11 am

JUDGMENT OF THE COURT

A Time for filing appeal extended.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1] This is an appeal against a sentence of two years three months imprisonment imposed upon the appellant after he pleaded guilty to counts of burglary, unlawfully taking a motor vehicle and driving whilst disqualified. The appeal is out of time and the appellant sought an extension of time for filing the appeal. As the appellant originally acted for himself and the delay is not inordinate the Crown does not oppose the application, the time for filing the appeal is extended so as to enable the matter to proceed on the merits.

Background

[2] On 27 April 2004 the appellant, having been convicted for driving with excess breath alcohol and driving whilst disqualified, was sentenced to an effective term of 15 months imprisonment and disqualified from driving indefinitely. Upon his release from prison but whilst on release on conditions the appellant, on 8 August 2005, converted a motor vehicle from a car yard in Dunedin damaging it and another vehicle as he drove from the yard to commercial premises nearby. He then proceeded to burgle those premises entering through a storage area and stole plumbing goods to the value of $2,766. The property was placed in the rear of the stolen utility vehicle and driven to supermarket premises in Dunedin, where he drove into a vehicle of a member of the public causing damage to the value of $826. He then proceeded to drive north from Dunedin to Palmerston on State Highway 1 and was observed to be driving erratically. He was located in Palmerston in the driver’s seat of the stolen vehicle with the stolen property in it.
[3] The appellant pleaded guilty. The sentencing Judge in the District Court at Dunedin on 14 March 2006 had a psychiatric report before him. The psychiatrist recorded the appellant had an obsessive compulsive disorder. The psychiatrist said the disorder had affected the appellant for many years; that the likelihood of the appellant’s re-offending was extremely high; and it was difficult to know how to address that prognosis. The psychiatrist’s opinion was there were no psychiatric reasons to preclude a term of imprisonment but that on release from imprisonment, treatment and follow-up with a community mental health team was required. The psychiatrist had expressed the view that the appellant was:

a 43-year-old man with an extensive history of offences committed for economic purposes as well as a pattern of impulsive and reckless offending compounded by alcohol abuse and a long-standing disdain for authority. More recently he has developed a moderately severe mental illness, the effects of which have negatively impacted upon his ability to integrate into the community in a prosocial and functional manner.

Sentencing remarks

[4] The Judge approached the matter by looking at the totality of the offending and that the taking of the motor vehicle was to enable him to commit a burglary of commercial premises at a time when he was disqualified from driving. He took as a starting point a sentence of three years imprisonment and allowing the mitigating features which included the plea of guilty and the matters set out in the psychiatric report gave a "discount" of nine months resulting in a final effective sentence of two years three months imprisonment on the lead charge of burglary.

Submissions

[5] The principal ground in support of the appeal was that in light of the appellant’s psychiatric disorder and the authorities of Senior v Police (2000) 18 CRNZ 340; R v McAllister [2001] NZCA 160; (2001) 18 CRNZ 606; and R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104, the starting point should have been "in the range of two years". The appellant says that a discount of 25-30% should have then been given because of the psychiatric background.
[6] The appellant also submits the Judge erred by sentencing on the basis that the appellant had six previous convictions for burglary when in fact he only had three. There is a further submission that the Judge failed to give sufficient weight to the fact that property taken had been recovered with reparation orders being made in respect of the damage caused.

Discussion

[7] On the impact of the psychiatric disorder, the Judge had before him the psychiatrist’s view that any sentence of imprisonment would be harder for the appellant to serve, than the usual offender, by reason of his psychiatric or psychological disorder but that a community-based sentence was not possible given the risk he posed to the community. It is apparent from the criminal history of the appellant that he had served terms of imprisonment on multiple occasions from at least 1989. The sentencing Judge referred to those and other matters in the psychiatric report and to the pre-sentence report which supported the view that there was a risk of re-offending; that compliance with community-based sentences was poor; and that the appellant’s counsel had accepted that a term of imprisonment was appropriate.
[8] Plainly, the impact of a prison term on the appellant arising from his disorder was taken into account.
[9] The allowance for the guilty plea and personal illness disorder factors granted by the Judge represented 25%. In the circumstances, that was an appropriate recognition of the mitigating factors including the psychiatric disorder.
[10] The Judge when imposing sentence referred to the appellant having six previous burglary convictions, which was in error given that he had only three recorded burglary convictions although he had two convictions for possession of instruments for burglary and one for being unlawfully in a building. We can understand how the appellant might feel aggrieved that the sentencing Judge referred to six previous burglary convictions but the fact is he could be accurately described as a serious dishonesty offender. This was not just the case of the sentencing of a recidivist burglar, but the sentencing of a man who had also stolen a motor vehicle and was convicted of driving whilst disqualified. They were obvious aggravating features.
[11] The starting point of three years imprisonment in light of the features mentioned was at the higher end of the scale but we do not regard it as excessive or inappropriate in the circumstances. (Mr Glover for the appellant did not suggest it was excessive.) Certainly, the aggravating features of the appellant’s previous convictions, his pre-meditation and overall activity (he has 16 convictions for unlawfully taking motor vehicles and other multiple convictions) showed disregard for the authority of the Court. It is significant in our view that in 1998 the appellant was sentenced to a term of an effective 21 months imprisonment, which sentence was upheld on appeal to the High Court on 20 February 1998, in respect of uniquely similar offending where he broke into a car yard, converted or stole a van and used it in the commission of a further burglary.
[12] An effective sentence of two years three months imprisonment may have been at the higher end of the scale but it could not be regarded as inappropriate, given the need to protect the public from the repetitive crimes of the appellant. A community-based sentence was not suggested as being appropriate by anyone and the term of imprisonment imposed was within the permissible range. For completeness we add that the appellant has now been released on parole, but pursued the appeal because he wished his parole period to be shorter. But the requirement that he be subject to some supervision whilst on parole, and until his release date, is clearly necessary to protect the public from the acknowledged risks of further offending.

Result

[13] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[7]	On the impact of the psychiatric disorder, the Judge had before him the psychiatrist’s view that any sentence of imprisonment would be harder for the appellant to serve, than the usual offender, by reason of his psychiatric or psychological disorder but that a community-based sentence was not possible given the risk he posed to the community. It is apparent from the criminal history of the appellant that he had served terms of imprisonment on multiple occasions from at least 1989. The sentencing Judge referred to those and other matters in the psychiatric report and to the pre-sentence report which supported the view that there was a risk of re-offending; that compliance with community-based sentences was poor; and that the appellant’s counsel had accepted that a term of imprisonment was appropriate.
[8]	Plainly, the impact of a prison term on the appellant arising from his disorder was taken into account.
[9]	The allowance for the guilty plea and personal illness disorder factors granted by the Judge represented 25%. In the circumstances, that was an appropriate recognition of the mitigating factors including the psychiatric disorder.
[10]	The Judge when imposing sentence referred to the appellant having six previous burglary convictions, which was in error given that he had only three recorded burglary convictions although he had two convictions for possession of instruments for burglary and one for being unlawfully in a building. We can understand how the appellant might feel aggrieved that the sentencing Judge referred to six previous burglary convictions but the fact is he could be accurately described as a serious dishonesty offender. This was not just the case of the sentencing of a recidivist burglar, but the sentencing of a man who had also stolen a motor vehicle and was convicted of driving whilst disqualified. They were obvious aggravating features.
[11]	The starting point of three years imprisonment in light of the features mentioned was at the higher end of the scale but we do not regard it as excessive or inappropriate in the circumstances. (Mr Glover for the appellant did not suggest it was excessive.) Certainly, the aggravating features of the appellant’s previous convictions, his pre-meditation and overall activity (he has 16 convictions for unlawfully taking motor vehicles and other multiple convictions) showed disregard for the authority of the Court. It is significant in our view that in 1998 the appellant was sentenced to a term of an effective 21 months imprisonment, which sentence was upheld on appeal to the High Court on 20 February 1998, in respect of uniquely similar offending where he broke into a car yard, converted or stole a van and used it in the commission of a further burglary.
[12]	An effective sentence of two years three months imprisonment may have been at the higher end of the scale but it could not be regarded as inappropriate, given the need to protect the public from the repetitive crimes of the appellant. A community-based sentence was not suggested as being appropriate by anyone and the term of imprisonment imposed was within the permissible range. For completeness we add that the appellant has now been released on parole, but pursued the appeal because he wished his parole period to be shorter. But the requirement that he be subject to some supervision whilst on parole, and until his release date, is clearly necessary to protect the public from the acknowledged risks of further offending.