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The Queen v Burnie [2007] NZCA 54 (8 March 2007)

Last Updated: 16 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA331/06
[2007] NZCA 54

THE QUEEN

v

WAYNE MICHAEL BURNIE

Hearing: 15 February 2007

Court: Arnold, Panckhurst and Priestley JJ

Counsel: M M Wilkinson-Smith for the Appellant
P K Feltham for Crown

Judgment: 8 March 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
B The sentence of reparation is quashed.
C The terms of imprisonment imposed in respect of the burglary charges laid summarily are quashed. Terms of three years imprisonment are substituted to be served concurrently with one another and concurrently with the lead sentence.
D The appeal against the imposition of the term of six years imprisonment on the burglary charge laid indictably is allowed. A term of five years and four months imprisonment is substituted.
E The minimum term of imprisonment of four years imposed under s 86 is quashed. A minimum term of imprisonment of two years and eight months is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeal

[1] The appellant, who is now aged 38, has amassed a large number of convictions for burglary and entering with intent over a 21 year period.
[2] His last round of offending took place over a three week period in December 2005 - January 2006. This offending was a regrettable lapse on the appellant’s part. In October 2004 the appellant had been released on parole having served a third of the five year sentence imposed in January 2003 in respect of 13 burglary convictions and nine convictions of entering with intent.
[3] The appellant pleaded guilty in the North Shore District Court to eight charges of burglary, two of aggravated assault, one of assault with a weapon, one charge of dangerous driving, two of reckless driving, and four traffic related charges of failure to stop.
[4] On 24 April 2006 Judge Perkins sentenced the appellant to six years imprisonment on all eight burglary convictions. A minimum term of four years imprisonment, representing two thirds of the sentence was imposed. Lesser terms of 18 months and six months imprisonment, to be served concurrently, were imposed in respect of the assaults. The penalties imposed in respect to the driving offences are immaterial to this appeal.

The offending

[5] The burglaries, although not involving large sums of money, were pre-meditated and mean. The spree took place in Epsom and Devonport in Auckland and in Cambridge in the Waikato. Each burglary involved the appellant during daylight hours entering premises occupied by elderly people and making off with cash, credit cards, and valuables. In some cases the appellant had observed the elderly occupant of the premises and then exploited the fact that the house was open and easily entered. During the Epsom burglary the appellant was caught inside a bedroom by the 90 year old property owner and her son. He assaulted them both during the course of his escape.
[6] The driving offences and one of the assault charges were laid as the result of reckless or dangerous driving. The appellant was avoiding police patrols in the Waikato, reaching speeds of 180 kph on the open road and 140 kph on a suburban street.

The offender

[7] In addition to his early guilty pleas there were other arguably mitigating factors before the Judge. During the 14 months which followed the appellant’s release on parole he appeared to have taken steps to address his difficulties. For 12 months he had been employed as a glazier. His employer, who knew of his criminal history, volunteered that he had no problems with the appellant’s work, honesty, or behaviour.
[8] The appellant had also received help from a counsellor who had first met him through the Addiction Treatment Unit at Waikeria Prison. The counsellor referred to the appellant’s exceptional progress. She considered the appellant had shown "quite significant changes in his beliefs, values, and attitudes" and had been productively involved in the community since his release. The counsellor further considered the appellant was a person willing to try hard and learn from his mistakes.
[9] The pre-sentence report alluded to these factors. The report also referred to the appellant’s responsibilities to his daughter, he having gained primary care of her whilst on parole. The report confirmed the appellant had been attending counselling sessions until January 2006 and also the struggles and pressure to which he had been subjected.
[10] The report referred to his 133 prior convictions, over half of which were for dishonesty offences, and to the entire range of sentences to which he had been subjected over 21 years. The explanation which the appellant advanced for his offending was that he had resorted to methamphetamine as a result of the added pressures of living in the community and family responsibilities. That drug had led to the burglaries.

The sentencing

[11] Counsel for the respondent concedes that the sentencing process was flawed in two respects. First, of the eight burglary charges the appellant faced, only one had been laid indictably. Thus in respect of seven of the eight burglary charges a sentence in excess of five years was not open to the Judge (s 7 Summary Proceedings Act 1957). This jurisdictional aspect appears to have eluded the prosecutor and counsel in the District Court.
[12] Secondly, confusion resulting from a late change in the appellant’s representation, coupled with the Judge fixing, without apparent explanation, on the maximum two thirds minimum period of imprisonment prescribed by s 86 of the Sentencing Act 2002, have led Ms Felton to suggest this Court should reassess the minimum term. Ms Felton further submitted that the offending was not so serious as to justify the full two thirds minimum term. In her submission a minimum term of around 50% was appropriate.
[13] In an affidavit, Ms Dolbel who appeared for the appellant on sentencing, deposes that she was only retained on the day of the sentence, that she had no opportunity to file written submissions, and that she has no recollection of the Judge raising the minimum term issue. In any event she had no opportunity to research or to make detailed submissions on that issue.
[14] The Judge correctly summarised the offending. He referred to Senior v Police (2000) 18 CRNZ 340. He considered the appellant was both a recidivist and a spree burglar. He commented that "it looks like this offending was committed soon after release".
[15] He referred to the appellant’s remorse and insight and also to the appellant’s lamentable criminal history. He observed that there was a need to ensure the public was protected from the appellant and that the offending justified "a large element of denunciation".
[16] The Judge considered he should not adopt the maximum term of ten years as a start point but considered, with reference to the various cases cited in Senior v Police, that an eight year start point was appropriate. He considered that a meaningful discount for the guilty pleas was appropriate but that "a gradation upwards from ... previous sentences" was justified to send a clear message that unless the appellant stopped burglary, longer sentences were going to be served.
[17] The Judge then reduced the eight year start point to a sentence of six years imprisonment to take account of the guilty pleas. He considered that a minimum sentence of four years imprisonment was appropriate to reflect all four s 86 Sentencing Act purposes of accountability for harm to victims, denunciation, deterrence, and community protection. He also imposed a reparation sentence for the full sums involved in the burglaries.

Discussion

[18] Mrs Wilkinson-Smith challenged the sentence on a number of grounds. She did not quarrel with the imposition of a minimum term of imprisonment nor did she oppose Ms Felton’s suggested range of around 50%. However, in counsel’s submission, an end sentence of five years should be the maximum sentence. Counsel submitted that the Judge was under a misapprehension that the offending had occurred shortly after the appellant’s release on parole. She further submitted that there was no indication the Judge had considered the efforts the appellant had made to rehabilitate himself. Far from being a "turn around offender" the defendant had displayed a number of positive qualities before his relapse, for which he had received no credit.
[19] Ms Feltham cautioned against focusing on mitigating factors at the risk of overlooking the seriousness of the offending and the need to weigh properly deterrence, denunciation, accountability for harm to victims, and community protection factors. In her submission an eight year start point was appropriate as was a 25% discount for remorse, guilty pleas, and other mitigating factors.
[20] Both counsel agreed that the Judge’s reparation sentence, ordered without discussion, was probably an undesirable sentence given that the appellant would be in prison for some years and would eventually be released with a reparation order hanging over him, presenting clear difficulties with his rehabilitation. This Court accepts that a reparation sentence should not be imposed here. The pre-sentence report notes that the appellant has no significant savings or assets. Although he was prepared to make modest weekly payments by way of reparation on his release the Judge did not weigh the efficacy of that offer. Nor has this Court sufficient information to assess the appropriateness of a reparation sentence.
[21] Had the Judge appreciated that only one of the burglary charges had been laid indictably, in our judgment his approach would have been to use that conviction as the lead sentence. The number of offences and their nature required significant weight to be given to the summarily laid charges.
[22] The Judge was correct to classify the burglary offending, in terms of Senior v Police, as both recidivist and spree. In addition to the burglaries the Judge needed to weigh the predatory nature of the burglaries on elderly victims, the assaults on two occupants, and the public risk inherent in the appellant’s driving.
[23] Because of those factors this Court declines to interfere with the Judge’s start point of eight years. His start point fairly reflects the totality of the overall offending, including its recidivist and spree elements.
[24] This Court considers, however, that the Judge erred in the two year, (25%), discount he gave for mitigating factors. That figure could not be challenged solely on the basis of the guilty pleas. However, it is not apparent what discount, if any, the Judge gave to reflect the appellant’s remorse, the reparation sentence which, although inappropriate, was nonetheless imposed, and the efforts which the appellant had made during the previous 14 months (ultimately unsuccessful) to rehabilitate himself. This Court considers that those mitigating factors (excluding reparation) in combination justify a discount of 30% or slightly over. An end sentence of five years and four months ought to have resulted.
[25] Turning to s 86 factors and the minimum term of imprisonment, this Court’s judgment is that the elements of deterrence, protection of the community, and accountability, and denunciation loom large. In terms of the provision, eligibility for parole after serving a term of one year nine months imprisonment (one third) would be insufficient for those purposes.
[26] Accordingly, particularly having regard to the need to protect the community from repeat spree burglaries of this type, we consider a minimum term of imprisonment of two years eight months (i.e. 50% of the end term) is appropriate.

Result

[27] The appeal against sentence is allowed.
[28] The sentence of reparation is quashed.
[29] The terms of imprisonment imposed in respect of the charges laid summarily are quashed. Terms of three years imprisonment are substituted to be served concurrently with one another and concurrently with the lead sentence.
[30] The appeal against the imposition of the term of six years imprisonment on the burglary charge laid indictably is allowed. A term of five years and four months is substituted.
[31] The minimum term of imprisonment of four years imposed under s 86 is quashed. A minimum term of imprisonment of two years and eight months is substituted.

Solicitors:
Crown Law Office, Wellington

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[1]	The appellant, who is now aged 38, has amassed a large number of convictions for burglary and entering with intent over a 21 year period.
[2]	His last round of offending took place over a three week period in December 2005 - January 2006. This offending was a regrettable lapse on the appellant’s part. In October 2004 the appellant had been released on parole having served a third of the five year sentence imposed in January 2003 in respect of 13 burglary convictions and nine convictions of entering with intent.
[3]	The appellant pleaded guilty in the North Shore District Court to eight charges of burglary, two of aggravated assault, one of assault with a weapon, one charge of dangerous driving, two of reckless driving, and four traffic related charges of failure to stop.
[4]	On 24 April 2006 Judge Perkins sentenced the appellant to six years imprisonment on all eight burglary convictions. A minimum term of four years imprisonment, representing two thirds of the sentence was imposed. Lesser terms of 18 months and six months imprisonment, to be served concurrently, were imposed in respect of the assaults. The penalties imposed in respect to the driving offences are immaterial to this appeal.

[7]	In addition to his early guilty pleas there were other arguably mitigating factors before the Judge. During the 14 months which followed the appellant’s release on parole he appeared to have taken steps to address his difficulties. For 12 months he had been employed as a glazier. His employer, who knew of his criminal history, volunteered that he had no problems with the appellant’s work, honesty, or behaviour.
[8]	The appellant had also received help from a counsellor who had first met him through the Addiction Treatment Unit at Waikeria Prison. The counsellor referred to the appellant’s exceptional progress. She considered the appellant had shown "quite significant changes in his beliefs, values, and attitudes" and had been productively involved in the community since his release. The counsellor further considered the appellant was a person willing to try hard and learn from his mistakes.
[9]	The pre-sentence report alluded to these factors. The report also referred to the appellant’s responsibilities to his daughter, he having gained primary care of her whilst on parole. The report confirmed the appellant had been attending counselling sessions until January 2006 and also the struggles and pressure to which he had been subjected.
[10]	The report referred to his 133 prior convictions, over half of which were for dishonesty offences, and to the entire range of sentences to which he had been subjected over 21 years. The explanation which the appellant advanced for his offending was that he had resorted to methamphetamine as a result of the added pressures of living in the community and family responsibilities. That drug had led to the burglaries.

[11]	Counsel for the respondent concedes that the sentencing process was flawed in two respects. First, of the eight burglary charges the appellant faced, only one had been laid indictably. Thus in respect of seven of the eight burglary charges a sentence in excess of five years was not open to the Judge (s 7 Summary Proceedings Act 1957). This jurisdictional aspect appears to have eluded the prosecutor and counsel in the District Court.
[12]	Secondly, confusion resulting from a late change in the appellant’s representation, coupled with the Judge fixing, without apparent explanation, on the maximum two thirds minimum period of imprisonment prescribed by s 86 of the Sentencing Act 2002, have led Ms Felton to suggest this Court should reassess the minimum term. Ms Felton further submitted that the offending was not so serious as to justify the full two thirds minimum term. In her submission a minimum term of around 50% was appropriate.
[13]	In an affidavit, Ms Dolbel who appeared for the appellant on sentencing, deposes that she was only retained on the day of the sentence, that she had no opportunity to file written submissions, and that she has no recollection of the Judge raising the minimum term issue. In any event she had no opportunity to research or to make detailed submissions on that issue.
[14]	The Judge correctly summarised the offending. He referred to Senior v Police (2000) 18 CRNZ 340. He considered the appellant was both a recidivist and a spree burglar. He commented that "it looks like this offending was committed soon after release".
[15]	He referred to the appellant’s remorse and insight and also to the appellant’s lamentable criminal history. He observed that there was a need to ensure the public was protected from the appellant and that the offending justified "a large element of denunciation".
[16]	The Judge considered he should not adopt the maximum term of ten years as a start point but considered, with reference to the various cases cited in Senior v Police, that an eight year start point was appropriate. He considered that a meaningful discount for the guilty pleas was appropriate but that "a gradation upwards from ... previous sentences" was justified to send a clear message that unless the appellant stopped burglary, longer sentences were going to be served.
[17]	The Judge then reduced the eight year start point to a sentence of six years imprisonment to take account of the guilty pleas. He considered that a minimum sentence of four years imprisonment was appropriate to reflect all four s 86 Sentencing Act purposes of accountability for harm to victims, denunciation, deterrence, and community protection. He also imposed a reparation sentence for the full sums involved in the burglaries.

[18]	Mrs Wilkinson-Smith challenged the sentence on a number of grounds. She did not quarrel with the imposition of a minimum term of imprisonment nor did she oppose Ms Felton’s suggested range of around 50%. However, in counsel’s submission, an end sentence of five years should be the maximum sentence. Counsel submitted that the Judge was under a misapprehension that the offending had occurred shortly after the appellant’s release on parole. She further submitted that there was no indication the Judge had considered the efforts the appellant had made to rehabilitate himself. Far from being a "turn around offender" the defendant had displayed a number of positive qualities before his relapse, for which he had received no credit.
[19]	Ms Feltham cautioned against focusing on mitigating factors at the risk of overlooking the seriousness of the offending and the need to weigh properly deterrence, denunciation, accountability for harm to victims, and community protection factors. In her submission an eight year start point was appropriate as was a 25% discount for remorse, guilty pleas, and other mitigating factors.
[20]	Both counsel agreed that the Judge’s reparation sentence, ordered without discussion, was probably an undesirable sentence given that the appellant would be in prison for some years and would eventually be released with a reparation order hanging over him, presenting clear difficulties with his rehabilitation. This Court accepts that a reparation sentence should not be imposed here. The pre-sentence report notes that the appellant has no significant savings or assets. Although he was prepared to make modest weekly payments by way of reparation on his release the Judge did not weigh the efficacy of that offer. Nor has this Court sufficient information to assess the appropriateness of a reparation sentence.
[21]	Had the Judge appreciated that only one of the burglary charges had been laid indictably, in our judgment his approach would have been to use that conviction as the lead sentence. The number of offences and their nature required significant weight to be given to the summarily laid charges.
[22]	The Judge was correct to classify the burglary offending, in terms of Senior v Police, as both recidivist and spree. In addition to the burglaries the Judge needed to weigh the predatory nature of the burglaries on elderly victims, the assaults on two occupants, and the public risk inherent in the appellant’s driving.
[23]	Because of those factors this Court declines to interfere with the Judge’s start point of eight years. His start point fairly reflects the totality of the overall offending, including its recidivist and spree elements.
[24]	This Court considers, however, that the Judge erred in the two year, (25%), discount he gave for mitigating factors. That figure could not be challenged solely on the basis of the guilty pleas. However, it is not apparent what discount, if any, the Judge gave to reflect the appellant’s remorse, the reparation sentence which, although inappropriate, was nonetheless imposed, and the efforts which the appellant had made during the previous 14 months (ultimately unsuccessful) to rehabilitate himself. This Court considers that those mitigating factors (excluding reparation) in combination justify a discount of 30% or slightly over. An end sentence of five years and four months ought to have resulted.
[25]	Turning to s 86 factors and the minimum term of imprisonment, this Court’s judgment is that the elements of deterrence, protection of the community, and accountability, and denunciation loom large. In terms of the provision, eligibility for parole after serving a term of one year nine months imprisonment (one third) would be insufficient for those purposes.
[26]	Accordingly, particularly having regard to the need to protect the community from repeat spree burglaries of this type, we consider a minimum term of imprisonment of two years eight months (i.e. 50% of the end term) is appropriate.

[27]	The appeal against sentence is allowed.
[28]	The sentence of reparation is quashed.
[29]	The terms of imprisonment imposed in respect of the charges laid summarily are quashed. Terms of three years imprisonment are substituted to be served concurrently with one another and concurrently with the lead sentence.
[30]	The appeal against the imposition of the term of six years imprisonment on the burglary charge laid indictably is allowed. A term of five years and four months is substituted.
[31]	The minimum term of imprisonment of four years imposed under s 86 is quashed. A minimum term of imprisonment of two years and eight months is substituted.