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The Queen v Paul [2006] NZCA 68 (26 April 2006)

Last Updated: 9 May 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA409/05

THE QUEEN

v

ERNIE O'NEAL PAUL

Hearing: 4 April 2006

Court: O'Regan, John Hansen and Harrison JJ

Counsel: W D McKean for Appellant
B J Horsley for Crown

Judgment: 26 April 2006

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The sentence of imprisonment of nine years six months imposed in the High Court is quashed and a sentence of nine years and one month is substituted.

REASONS
(Given by John Hansen J)

[1] The appellant pleaded guilty to charges of burglary, aggravated robbery and kidnapping. Salmon J sentenced him to an effective sentence of nine and a half years imprisonment. This is an appeal against that sentence.
[2] The appellant seeks leave to appeal out of time.

Background facts

[3] On 19 May 2001, at approximately 3am, the appellant, and a co-offender, Johnstone, travelled to a remote farm in Northland. The appellant smashed in the back door of the dwelling house, waking the 86 year old sole occupant. The appellant told the complainant that the car had run into the door and asked him for directions to Pawarenga. The complainant gave them directions and they both left. The complainant secured the door and returned to bed. About 10 minutes later the appellant and his co-offender, Johnstone, returned. The appellant was disguised and Johnstone was armed with a knife that he had obtained from the complainant’s kitchen. They demanded money, and Johnstone tied up the complainant with a television ribbon aerial. The appellant searched the house.
[4] They took cash, a television, a video, food, and clothing from the complainant. They also took a quantity of keys belonging to the complainant’s vehicles. One telephone was smashed and a cordless unit was placed in a kitchen sink full of water to disable it.
[5] The pair decamped, leaving the complainant helpless and bound on the floor. He was not located for some six hours, and although experiencing a great deal of pain fortuitously did not suffer any permanent injuries.

The sentencing

[6] The appellant appeared for sentence before Salmon J in the High Court at Whangarei on 23 November 2001. After referring to R v Mako [2000] 2 NZLR 170 the Judge identified that he had first to determine a starting point, and then determine any addition for the home invasion provisions which then applied. Having reached that figure, the Judge took into account aggravating and mitigating features relating to the particular offender.
[7] Based on Mako he found the appropriate starting point was one of seven years, with an addition for the home invasion elements of three years. This brought the starting point to ten years.
[8] The Judge, because the offending was committed while on parole and because the appellant had a serious list of previous convictions, increased that starting point to 12 years imprisonment. Having considered the mitigating factors, and in particular the relatively early guilty plea, he imposed a sentence of nine and a half years imprisonment.
[9] In relation to the co-offender, Johnstone, taking into account his age and the lack of a serious record of previous convictions, the Judge did not increase the starting point for aggravating features. Taking into account the mitigating features he made an allowance of two and a half years, resulting in an effective sentence of seven and a half years.

Submissions

[10] In written submissions counsel for the appellant did not address the fact that the appeal was nearly four years out of time.
[11] In his affidavit the appellant states that after sentencing his lawyer, Mr Dodds, advised him the sentence was too high. He agreed with the lawyer he should appeal and Mr Dodds said he would take care of it. Throughout 2002 and 2003 he deposes he rang Mr Dodds on a number of occasions and also wrote to him. Usually he got the answerphone and would leave a message, but on two occasions he did speak to Mr Dodds. Mr Dodds advised him he was planning to come down to Auckland and when he did he would come to the prison to interview him. He refers to one letter from Mr Dodds dated 6 October 2004 which refers to the author receiving a call from a Mr Robertson who had passed on the appellant’s concerns. The letter continued that he would be happy to discuss matters with the appellant and would visit him when he was next able to come down to Auckland.
[12] The appellant signed an appropriate waiver and the Crown were apparently promised an affidavit by Mr Dodds. However, Mr Horsley advised that no affidavit has been received.
[13] In oral argument counsel for the appellant, Mr McKean, argued that the delay was attributable to the failure by Mr Dodds to pursue the appeal, or at least to a misunderstanding between the appellant and Mr Dodds. He said the appellant always wanted the appeal pursued and his inability to arrange for the necessary steps to be taken should not be held against him.
[14] Mr Horsley, for the Crown, argued that the delay of almost four years in filing the appeal had not been adequately explained. He argued that because there had been no attempt to pursue the appellant’s appeal rights in a timely fashion, and because the merits of the appeal were not particularly strong, the public interest favouring finality in the Court process meant leave should not be granted.
[15] On the merits of the appeal Mr McKean argued that the additional two years for the aggravating features identified by the Judge was too great. He submitted that committing an offence while on parole did not justify such an increase. He further submitted that the Judge failed to take into account the fact that the appellant was recalled on his earlier sentence leading to a double penalty.
[16] It was also submitted that because the Judge found the appellant and Johnstone were equally culpable the disparity between the two sentences was excessive.
[17] The Crown submitted that the additional two years added by the Judge was not simply because of offending while on parole. Mr Horsley submitted that the Judge also referred to the appellant’s extensive list of previous convictions which related to burglary, aggravated burglary, and violence.
[18] In relation to disparity, the Crown submitted the critical question was whether a reasonably minded independent observer, aware of all of the circumstances of the offence and the offenders, would think that something had gone wrong with the administration of justice. It was submitted that in this case the general principles of disparity do not readily apply. There was no challenge to the starting point of ten years, and there was a clear distinction between the offenders identified by the Judge that warranted the additional two years imprisonment imposed on the appellant.
[19] Finally, the Crown submitted the Judge was not in error in failing to take into account the period prior to sentencing that the appellant had spent on either remand or subject to the recall of his original sentence.
[20] Mr Horsley submitted that in this case the initial period of remand would be taken into account administratively. The five months from the application to recall until sentence that would not be taken into account administratively did not warrant any reduction in sentence.

Discussion

[21] In the absence of an affidavit from Mr Dodds we must accept the evidence placed before us by the appellant. The letter attached to his affidavit corroborates his version of events. In those circumstances we consider it appropriate to grant leave out of time.
[22] This Court considered tariffs and starting points for aggravated robberies in Mako. At [58] the Court said:

[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[23] Whether the Judge reached ten years by taking a seven year starting point from Mako, and adding three years under the then applicable home invasion provisions, or whether he simply applied the last sentence in the above citation, the starting point of ten years is uncontroversial. Indeed, Mr McKean did not really take issue with it.
[24] Commission of offences while on parole, and significant and relevant previous convictions, are both elements that can justify an increase in sentence.
[25] In R v Harvey CA89/01 19 June 2001 this Court said:

[11] We agree with the Judge below that seven years was an appropriate starting point. It was proper for the Judge then to take into account the fact that the offending occurred while the appellant was on parole. That is a substantial aggravating factor additional to the others which have been mentioned.
[12] A longer sentence on this account reflects the Court's denunciation of the appellant's preparedness to offend after being released earlier than his final release date – something done because he had convinced the parole authority that he was not likely to commit any further offence after release and while still subject to his sentence. There was an understanding that the privilege of early release would not be abused.

[26] In R v Ward [1976] 1 NZLR 588 this Court laid down that where the previous convictions of an accused indicate a predilection to commit a particular type of offence, for the protection of the public, it will take the previous convictions into consideration and lengthen the period of confinement accordingly.
[27] We are satisfied the aggravating features in this case were serious. The offending took place approximately six months after the appellant had been released on parole from a seven year sentence for charges of aggravated wounding and breaking and entering. It is appropriate for the sentencing Judge to denounce an offender’s preparedness to offend in a similar way shortly after release on parole.
[28] In this case the Judge was right to take into account the similar previous convictions, and to increase the sentence imposed to protect the public. The appellant has a significant record of offences involving serious violence. He had earlier convictions for aggravated wounding, breaking and entering, aggravated robbery, numerous burglaries, common assaults, and assaults of police officers.
[29] We accept there were clear grounds to distinguish the co-offender who was not on parole, and whose previous offending is not comparable with that of the appellant.
[30] In this case the Judge gave both accused a two and a half year allowance for their early guilty pleas. We are not attracted to counsel’s argument that there is disparity because on a mathematical calculation it is a 25% discount for Johnstone and only 20% for the appellant.
[31] In R v Lawson [1982] 2 NZLR 219 McMullin J, in delivering the decision of the Court, stated at 223:

The disparity argument is not infrequently raised in this Court. For that reason we reiterate that differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate. But the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice. A number of expressions have been used to capture this concept, namely "the disparity is so gross that a justifiable sense of injustice would persist", that right-thinking members of the public are likely to say "there is something wrong here" - R v Potter [1977] Crim LR 112. But the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice. We note that recently in England similar viewpoints have been expressed by the Court of Appeal (Criminal Division): R v Weekes (1980) 74 Cr App R 161 and R v Coffey (1976) 74 Cr App R 168n.

[32] In this case the sentencing Judge has taken a robust and sensible view in giving the same allowance of two and a half years to both accused. It could not be said that the slight proportionate difference that benefited Johnstone was such that it would "not to be consonant with the appearance of justice". Allowances for guilty pleas are not something to be approached on a mathematical basis. While the appellant may feel aggrieved by the difference, that is not enough to satisfy the test set out above.
[33] We accept that the Judge did not specifically take into account that the appellant was recalled on his earlier sentence after being charged, so that five months of the time spent in custody awaiting sentence was not time on remand and would not be deducted from the sentence. The appellant was remanded in custody on 21 June 2001 and sentenced on 23 November 2001. The application for recall was filed on 16 July 2001, and made final on 23 August 2001. The effect of s 81 of the Criminal Justice Act is to require the remand period from 21 June 2001 until the application for recall on 16 July 2001 to be taken into account administratively. But the period from the application to recall until sentencing is not taken into account administratively. This does not seem to have been drawn to the Judge’s attention.
[34] In R v Repia CA12/95 26 May 1995 the Court accepted that a period of 15 months spent in prison by Repia on recall for a murder conviction did not count as time spent on remand for the purposes of calculating when she would be released from the present sentence. Further, there was information before the Court that the Parole Board would have reviewed the matter of her release again well before her trial date, but they were precluded while a trial was pending. The effect of that delay to trial, that was not the fault of Repia, resulted in the loss of remand time to be taken into account for her release in respect of the conviction being considered by the Court. In the unusual circumstances of that case the Court concluded the interests of justice required there to be a reduction from two and a half years to two years imprisonment.
[35] In R v Beri CA91/96 25 September 1996 the appellant was sentenced to four years imprisonment for conspiracy to commit aggravated robbery and a cumulative term of nine months imprisonment for escaping lawful custody. At the time when those offences occurred Beri was serving a life sentence imposed upon him in November 1985 for conspiracy to supply heroin and for importation of heroin. This Court recognised that he did not have the benefit of a reduction under s 81 because subs (8) states that the section is not to apply in respect of remand time while subject to a full-time custodial sentence. However, this Court concluded that the restriction imposed upon the sentencing Judge under subs (2) also did not apply. In those circumstances this Court held the Judge should have taken into account the remand period. The remand period in that case was 18 months, and, coupled with the overall sentence of 57 months, was deemed to be excessive in the circumstances. This Court concluded:

But where a further sentence is imposed either cumulatively or concurrently and there has been an extended period of remand after the parole date of the earlier sentence, that is a factor which may have to be taken into account so as to avoid an element of double punishment.

[36] Harvey involved a sentence of six and half years imprisonment, concurrent, on counts of aggravated robbery and wounding with intent to cause grievous bodily harm.
[37] After Harvey’s arrest on 27 September he was remanded in custody. As he was on parole there was an application to recall the appellant that was granted on 26 October. His status thereafter until sentencing, on 12 December, was that of a sentenced prisoner. That meant that the period between 26 October and 12 December, approximately one and a half months, did not qualify to be taken into account under s 81 of the Criminal Justice Act 1985.
[38] The Court stated:

[13] Nevertheless, where there has been a recall before sentencing for a subsequent offence, the position arising under s 81(8) ought to be taken into account so that there is not an element of double punishment which results in practice in an excessive sentence.
[14] We are not however persuaded that we would be justified in interfering with the present sentence merely because the Judge has not specifically referred to this question. The period in issue is minimal in the context of an appropriate point of eight years before taking into account mitigating factors and an eventual sentence of 61/2 years. There was more than ample allowance for the only significant mitigating factors, the plea of guilty and the expression of remorse. If the Judge had fixed a sentence of 6 years 8 months it would not have been disturbed as excessive. No injustice to the appellant has resulted even if the Judge has not turned her mind to the question of s 81(8).

[39] Further, in R v Baynes-Carter CA60/98 28 May 1998 this Court stated:

... in the case of a prisoner who has been recalled, when referring to the fact that the prisoner offended shortly after release, or while on parole, a sentencing Judge needs to take care that an accused is not unfairly penalised in a double fashion, or that such an appearance is given.

[40] In this case we accept that approximately five months did not qualify to be taken into account administratively under s 81 Criminal Justice Act 1985. Clearly the Judge was not referred to this question. We are satisfied that there is an element of double punishment present here. If the Judge had been aware of this we do not consider he would have added on two years for the aggravating features. For that reason we reduce the sentence by five months.
[41] Accordingly, we allow the appeal against sentence, quash the sentence imposed in the High Court and substitute a sentence of nine years and one month.

Solicitors:
Webb Ross Johnson, Whangarei for Appellant
Crown Law Office, Wellington

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[1]	The appellant pleaded guilty to charges of burglary, aggravated robbery and kidnapping. Salmon J sentenced him to an effective sentence of nine and a half years imprisonment. This is an appeal against that sentence.
[2]	The appellant seeks leave to appeal out of time.

[3]	On 19 May 2001, at approximately 3am, the appellant, and a co-offender, Johnstone, travelled to a remote farm in Northland. The appellant smashed in the back door of the dwelling house, waking the 86 year old sole occupant. The appellant told the complainant that the car had run into the door and asked him for directions to Pawarenga. The complainant gave them directions and they both left. The complainant secured the door and returned to bed. About 10 minutes later the appellant and his co-offender, Johnstone, returned. The appellant was disguised and Johnstone was armed with a knife that he had obtained from the complainant’s kitchen. They demanded money, and Johnstone tied up the complainant with a television ribbon aerial. The appellant searched the house.
[4]	They took cash, a television, a video, food, and clothing from the complainant. They also took a quantity of keys belonging to the complainant’s vehicles. One telephone was smashed and a cordless unit was placed in a kitchen sink full of water to disable it.
[5]	The pair decamped, leaving the complainant helpless and bound on the floor. He was not located for some six hours, and although experiencing a great deal of pain fortuitously did not suffer any permanent injuries.

[6]	The appellant appeared for sentence before Salmon J in the High Court at Whangarei on 23 November 2001. After referring to R v Mako [2000] 2 NZLR 170 the Judge identified that he had first to determine a starting point, and then determine any addition for the home invasion provisions which then applied. Having reached that figure, the Judge took into account aggravating and mitigating features relating to the particular offender.
[7]	Based on Mako he found the appropriate starting point was one of seven years, with an addition for the home invasion elements of three years. This brought the starting point to ten years.
[8]	The Judge, because the offending was committed while on parole and because the appellant had a serious list of previous convictions, increased that starting point to 12 years imprisonment. Having considered the mitigating factors, and in particular the relatively early guilty plea, he imposed a sentence of nine and a half years imprisonment.
[9]	In relation to the co-offender, Johnstone, taking into account his age and the lack of a serious record of previous convictions, the Judge did not increase the starting point for aggravating features. Taking into account the mitigating features he made an allowance of two and a half years, resulting in an effective sentence of seven and a half years.

[10]	In written submissions counsel for the appellant did not address the fact that the appeal was nearly four years out of time.
[11]	In his affidavit the appellant states that after sentencing his lawyer, Mr Dodds, advised him the sentence was too high. He agreed with the lawyer he should appeal and Mr Dodds said he would take care of it. Throughout 2002 and 2003 he deposes he rang Mr Dodds on a number of occasions and also wrote to him. Usually he got the answerphone and would leave a message, but on two occasions he did speak to Mr Dodds. Mr Dodds advised him he was planning to come down to Auckland and when he did he would come to the prison to interview him. He refers to one letter from Mr Dodds dated 6 October 2004 which refers to the author receiving a call from a Mr Robertson who had passed on the appellant’s concerns. The letter continued that he would be happy to discuss matters with the appellant and would visit him when he was next able to come down to Auckland.
[12]	The appellant signed an appropriate waiver and the Crown were apparently promised an affidavit by Mr Dodds. However, Mr Horsley advised that no affidavit has been received.
[13]	In oral argument counsel for the appellant, Mr McKean, argued that the delay was attributable to the failure by Mr Dodds to pursue the appeal, or at least to a misunderstanding between the appellant and Mr Dodds. He said the appellant always wanted the appeal pursued and his inability to arrange for the necessary steps to be taken should not be held against him.
[14]	Mr Horsley, for the Crown, argued that the delay of almost four years in filing the appeal had not been adequately explained. He argued that because there had been no attempt to pursue the appellant’s appeal rights in a timely fashion, and because the merits of the appeal were not particularly strong, the public interest favouring finality in the Court process meant leave should not be granted.
[15]	On the merits of the appeal Mr McKean argued that the additional two years for the aggravating features identified by the Judge was too great. He submitted that committing an offence while on parole did not justify such an increase. He further submitted that the Judge failed to take into account the fact that the appellant was recalled on his earlier sentence leading to a double penalty.
[16]	It was also submitted that because the Judge found the appellant and Johnstone were equally culpable the disparity between the two sentences was excessive.
[17]	The Crown submitted that the additional two years added by the Judge was not simply because of offending while on parole. Mr Horsley submitted that the Judge also referred to the appellant’s extensive list of previous convictions which related to burglary, aggravated burglary, and violence.
[18]	In relation to disparity, the Crown submitted the critical question was whether a reasonably minded independent observer, aware of all of the circumstances of the offence and the offenders, would think that something had gone wrong with the administration of justice. It was submitted that in this case the general principles of disparity do not readily apply. There was no challenge to the starting point of ten years, and there was a clear distinction between the offenders identified by the Judge that warranted the additional two years imprisonment imposed on the appellant.
[19]	Finally, the Crown submitted the Judge was not in error in failing to take into account the period prior to sentencing that the appellant had spent on either remand or subject to the recall of his original sentence.
[20]	Mr Horsley submitted that in this case the initial period of remand would be taken into account administratively. The five months from the application to recall until sentence that would not be taken into account administratively did not warrant any reduction in sentence.

[21]	In the absence of an affidavit from Mr Dodds we must accept the evidence placed before us by the appellant. The letter attached to his affidavit corroborates his version of events. In those circumstances we consider it appropriate to grant leave out of time.
[22]	This Court considered tariffs and starting points for aggravated robberies in Mako. At [58] the Court said:

[23]	Whether the Judge reached ten years by taking a seven year starting point from Mako, and adding three years under the then applicable home invasion provisions, or whether he simply applied the last sentence in the above citation, the starting point of ten years is uncontroversial. Indeed, Mr McKean did not really take issue with it.
[24]	Commission of offences while on parole, and significant and relevant previous convictions, are both elements that can justify an increase in sentence.
[25]	In R v Harvey CA89/01 19 June 2001 this Court said:

[26]	In R v Ward [1976] 1 NZLR 588 this Court laid down that where the previous convictions of an accused indicate a predilection to commit a particular type of offence, for the protection of the public, it will take the previous convictions into consideration and lengthen the period of confinement accordingly.
[27]	We are satisfied the aggravating features in this case were serious. The offending took place approximately six months after the appellant had been released on parole from a seven year sentence for charges of aggravated wounding and breaking and entering. It is appropriate for the sentencing Judge to denounce an offender’s preparedness to offend in a similar way shortly after release on parole.
[28]	In this case the Judge was right to take into account the similar previous convictions, and to increase the sentence imposed to protect the public. The appellant has a significant record of offences involving serious violence. He had earlier convictions for aggravated wounding, breaking and entering, aggravated robbery, numerous burglaries, common assaults, and assaults of police officers.
[29]	We accept there were clear grounds to distinguish the co-offender who was not on parole, and whose previous offending is not comparable with that of the appellant.
[30]	In this case the Judge gave both accused a two and a half year allowance for their early guilty pleas. We are not attracted to counsel’s argument that there is disparity because on a mathematical calculation it is a 25% discount for Johnstone and only 20% for the appellant.
[31]	In R v Lawson [1982] 2 NZLR 219 McMullin J, in delivering the decision of the Court, stated at 223:

[32]	In this case the sentencing Judge has taken a robust and sensible view in giving the same allowance of two and a half years to both accused. It could not be said that the slight proportionate difference that benefited Johnstone was such that it would "not to be consonant with the appearance of justice". Allowances for guilty pleas are not something to be approached on a mathematical basis. While the appellant may feel aggrieved by the difference, that is not enough to satisfy the test set out above.
[33]	We accept that the Judge did not specifically take into account that the appellant was recalled on his earlier sentence after being charged, so that five months of the time spent in custody awaiting sentence was not time on remand and would not be deducted from the sentence. The appellant was remanded in custody on 21 June 2001 and sentenced on 23 November 2001. The application for recall was filed on 16 July 2001, and made final on 23 August 2001. The effect of s 81 of the Criminal Justice Act is to require the remand period from 21 June 2001 until the application for recall on 16 July 2001 to be taken into account administratively. But the period from the application to recall until sentencing is not taken into account administratively. This does not seem to have been drawn to the Judge’s attention.
[34]	In R v Repia CA12/95 26 May 1995 the Court accepted that a period of 15 months spent in prison by Repia on recall for a murder conviction did not count as time spent on remand for the purposes of calculating when she would be released from the present sentence. Further, there was information before the Court that the Parole Board would have reviewed the matter of her release again well before her trial date, but they were precluded while a trial was pending. The effect of that delay to trial, that was not the fault of Repia, resulted in the loss of remand time to be taken into account for her release in respect of the conviction being considered by the Court. In the unusual circumstances of that case the Court concluded the interests of justice required there to be a reduction from two and a half years to two years imprisonment.
[35]	In R v Beri CA91/96 25 September 1996 the appellant was sentenced to four years imprisonment for conspiracy to commit aggravated robbery and a cumulative term of nine months imprisonment for escaping lawful custody. At the time when those offences occurred Beri was serving a life sentence imposed upon him in November 1985 for conspiracy to supply heroin and for importation of heroin. This Court recognised that he did not have the benefit of a reduction under s 81 because subs (8) states that the section is not to apply in respect of remand time while subject to a full-time custodial sentence. However, this Court concluded that the restriction imposed upon the sentencing Judge under subs (2) also did not apply. In those circumstances this Court held the Judge should have taken into account the remand period. The remand period in that case was 18 months, and, coupled with the overall sentence of 57 months, was deemed to be excessive in the circumstances. This Court concluded:

[36]	Harvey involved a sentence of six and half years imprisonment, concurrent, on counts of aggravated robbery and wounding with intent to cause grievous bodily harm.
[37]	After Harvey’s arrest on 27 September he was remanded in custody. As he was on parole there was an application to recall the appellant that was granted on 26 October. His status thereafter until sentencing, on 12 December, was that of a sentenced prisoner. That meant that the period between 26 October and 12 December, approximately one and a half months, did not qualify to be taken into account under s 81 of the Criminal Justice Act 1985.
[38]	The Court stated: