The Queen v Curran [2008] NZCA 138 (27 May 2008)

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The Queen v Curran [2008] NZCA 138 (27 May 2008)

Last Updated: 9 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA487/07

[2008] NZCA 138

THE QUEEN

v

PETER JOHN CURRAN

Hearing: 21 May 2008

Court: Hammond, Robertson and Wild JJ

Counsel: R J Stevens for Appellant
N P Chisnall for Crown

Judgment: 27 May 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] Mr Curran appeals against his conviction on two charges of burglary of residential properties in Otematata. He entered pleas of guilty to these offences, and to a charge of burglary of a Palmerston Four Square Store. On each of the first two he was sentenced to terms of three years’ imprisonment. On the third to six months’ imprisonment. All terms were to be served concurrently. There is no jurisdiction for this Court to deal with the third (summarily laid) charge which has to be considered in the High Court.
[2] Notwithstanding his guilty pleas, Mr Curran now appeals against conviction on the basis that there has been a miscarriage of justice because he did not commit any of these crimes.
[3] Mr Curran says the burglaries of the houses on either side of his own address in Otematata were committed by a person he identified (who was his sister’s boyfriend at the time) and who was staying with him when the burglaries were committed.

Background

[4] It is common ground that Mr Curran was initially arrested for receiving some of the property taken during the house burglaries, as was his sister. They were both escorted to the Oamaru Police Station. Mr Curran made a statement denying any involvement in the house burglaries, although he made comments inculpatory of receiving.
[5] Mr Curran says that after he and his sister were bailed to her address in Palmerston, pressure was put upon him by the burglar and by his sister. She was concerned that her child might be taken from her and the boyfriend was worried about returning to prison from where he had been released only a month earlier. Mr Curran further says that he was warned that people would ‘deal to him’ if he narked.
[6] As a result Mr Curran swears that he went to the Palmerston Police Station and subsequently made a second statement in which he admitted that he alone committed the burglaries. He says he knew of the details of these burglaries because of what he was told by the burglar.
[7] Mr Curran complains that although he had counsel assigned to him from the time of his arrest, counsel was inattentive, seldom saw Mr Curran and when a substitute came to see him, she pressured him into pleading guilty so that he could get a discount for a plea. The appellant’s assertion is that he was never properly advised.

The legal framework

[8] A person who pleads guilty can appeal against conviction, but will only succeed in exceptional circumstances: R v Le Page [2005] 2 NZLR 845. Mr Curran falls within the issue posed by the Court in R v Ripia [1985] 1 NZLR 122, 127:

The real issue in the present case is whether the appellant understood the nature of the charge against him and, in the face of that understanding, made his own decision, albeit with his counsel’s advice, to plead guilty.

[9] There are more generalised comments of the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730. They were adopted by this Court in R v Scurrah CA159/06 12 September 2006 where it was said:

[17] The approach seems to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

This Court recognised there could be an exceptional situation when it said at [20]:

. . . although there was no error on the part of counsel (in the sense that what counsel did, or did not, do was objectively reasonable at the time), an appeal will be allowed because there is a real risk that there has been a miscarriage of justice.

[10] Mr Stevens submits that this appeal is in that exceptional category.
[11] This is not a question of counsel having failed to follow instructions, or done anything which was objectively unreasonable at the time. Rather it appears that Mr Curran now says that counsel should not have accepted his instructions and should have insisted that he defend the charges because he was consistently asserting that he did not commit the crimes.

Discussion

[12] Mr Curran’s current evidence of his non-involvement, other than as a receiver, needs to be considered in light of the statement which he made to Senior Constable Lowe. It is difficult to accept that this detailed statement made on 14 March came from a person who was not involved in committing the burglaries.
[13] Mr Curran has produced a letter from his sister, dated 20 June 2007, which appears to be consistent with the claim that Mr Curran was taking the rap to protect his sister and her former boyfriend. On the basis of that letter there is no explanation as to why, subsequent to that date, he entered pleas of guilty before Judge Abbott on 20 July 2007.
[14] The proposition that his guilty pleas were the product of pressure and fear does not gel with the timing. There is no explanation as to why he would persist in this course of action. When she wrote her letter, Mr Curran’s sister had already lost her child. She indicated in her letter that the boyfriend had left her, and that she would support Mr Curran. The man who was the source of the threats had gone away. These factors suggest that Mr Curran made a considered decision (on the basis of advice) regarding the likelihood of his being found guilty at trial and decided to plead guilty.
[15] Mr Curran did not quibble with the evidence of Ms Saunderson-Warner (attending the callover on behalf of Mr Savage) that Judge Abbott pointed to the difficulties Mr Curran faced in defending the charges and told him there would be a discount for guilty pleas.
[16] There is no difference between any of the witnesses that up until 20 July 2007 the consistent instructions were to defend. It was only on that day, after there was comment not only from the Bench but from the lawyer that, as he said in his own affidavit:

I decided I should plead guilty to get a lesser sentence even though I hadn’t done the burglary.

[17] There is no suggestion that in the month between that date of entering the pleas and the imposition of sentence by Judge Moran on 22 August, that he indicated any wish to change his decision. Although he asserts he had only a brief discussion with Mr Savage prior to sentence, there is no suggestion that this issue was raised.
[18] The fact that he knew exactly what he was doing is encapsulated in the Judge’s sentencing notes where he says:

You deny responsibility for the offences. Well you can’t do that because you have pleaded guilty to them. What it does mean, of course, is you can’t really claim the benefit of any deep seated remorse but, nonetheless, I give you credit for the guilty pleas that you have entered because that is an acknowledgement of responsibility and it certainly saves the Crown and the Court the time and expense associated with trials and so you do get a credit, albeit a limited credit, given that your guilty pleas came on arraignment.

[19] As against the total circumstances, we are left in no doubt that this is a case where Mr Curran made an informed decision which he now wants to change. There is no basis to do so and there is not a credible narrative that the allegations against him were not true. This case does not come within the “exceptional circumstances” which justify quashing convictions after pleas of guilty.
[20] The appeal against conviction is dismissed.

Sentence appeal

[21] The Crown accepted that a term of three years’ imprisonment was stern, but submitted it was justified.
[22] It is submitted by counsel for the appellant that the sentence was manifestly excessive because the Judge:

(a) adopted a starting point which was too high in the circumstances;

(b) failed to give sufficient weight to the appellant’s personal circumstances and the guilty pleas;
(c) gave too much weight to the aggravating factors; and
(d) failed to consider s 8(g) of the Sentencing Act 2002.
[23] The Judge said:

[4] The aggravating features, the bad features of your offending are these. You didn’t just burgle one house you burgled two of them. These are neighbouring houses so you preyed upon your neighbours. You didn’t just take things, in one of them you committed acts of wanton damage. You caused loss of $4,000 that will never be recovered and the impact of your offending on these unfortunate victims is far wider and far deeper than a simple loss of property. The sense of outrage and the sense of violation, the sense of loss of security is severe, is acute.

[5] Looking at the crimes that you committed on the 10th March, there is absolutely nothing that can be said by way of mitigation in relation to the offences that you committed and I accept the Crown submission that, looking at these two burglaries before turning to matters personal to you, a sentence in the range of three and a half to four years would be appropriate.

[24] On the basis of the information before the Court, this was a justified response to burglaries which were particularly mean-spirited and irresponsible.
[25] As to the specific appeal points we note:

Starting point

[26] Complaint is made that the Judge adopted a starting point, as urged for by the Crown, of between three and four years. This included the aggravating factor of a significant previous history which the Judge then said he was not going to treat as warranting an increase. Notwithstanding this arguable inconsistency, we are satisfied that the starting point for three separate burglaries (including two neighbours’ properties), wanton destruction of irreplaceable personal chattels and deliberate and malicious trashing of a house, called for a deterrent and denunciatory approach.

Personal circumstances and the guilty pleas

[27] Mr Stevens stressed the unfortunate background of Mr Curran and the fact that, although he had 86 convictions for dishonesty (including 14 for burglary), the last was in 1996. He argued there had been stability in his life and circumstances over a substantial period and that there had been a fracture of personal relationships with disastrous consequences.
[28] That may have some validity, but offending generally had not ceased. Through the ensuing decade Mr Curran had frequent appearances, even if some offending was at the less serious end of the scale. Balance was required, and the inevitable reality was that the appellant had lapsed into a level of criminality which the community should not be required to endure. His pleas of guilty were at a late stage and the allowance given was well within the sentencing discretion available to the Judge.

Too much weight to the aggravating factors

[29] Mr Stevens submitted that the fact that it was a neighbour’s home was not aggravating. We do not agree. The concept of community is not dead within this country. Although the financial loss may have been $4,000, the nature of the burglary and the wanton destruction were significant issues.
[30] The Judge was entitled to conclude that the “sense of outrage and the sense of violation, the “sense of loss of security [was] severe, [was] acute”. Criminal offending does not happen in a vacuum and it impinges on people with normal human responses. The Judge’s assessment was an available inference from the facts.

Ignoring provisions of the Sentencing Act

[31] We do not accept that there was a failure to have proper regard to s 8(b) of the Sentencing Act.
[32] The Court was faced with a man who, since 1974, has been a regular and persistent offender. The nature of the offending has altered over the years, but his inability or unwillingness to conform to the normal standards required in a civilised society cannot be overlooked.
[33] Time and again Courts have adopted merciful responses and non-intrusive alternatives. But this is a man in his late 40s who is still offending in a way which is unacceptable.
[34] Options to imprisonment having been tried and failed, the least restrictive outcome here inevitably involved taking this man out of circulation so he could not offend for a significant period.

Assessment

[35] The Judge was dealing with three separate offences which occurred over a couple of months. Only two of those matters are before us, but in conformity with comparable authorities, they alone justified a starting point of not less than three years. A significant uplift was appropriate in light of Mr Curran’s history and the fact that, although now a middle-aged man, he is still involved in ongoing criminal activity. Four years cannot be outside of range. Allowing for a 25% discount for pleas of guilty (which could have been earlier) the three year effective sentence is sustainable.
[36] The appeal against sentence lacks merit and cannot succeed.

Palmerston burglary

[37] This Court lacks jurisdiction to deal with this matter as to either conviction or sentence. Mr Curran was charged with this after he was in custody in respect of the Otematata charges and the records indicate he eventually entered a plea of guilty.
[38] The reasoning relating to the two other charges applies equally to any challenge to his conviction on this count, although that aspect was not actively advanced. The sentence of six months’ imprisonment was concurrent so has no effect on the actual time that Mr Curran is required to spend in prison. If he wishes to pursue that matter, he will have to do so in the High Court.

Result

[39] The appeals against conviction and sentence are dismissed.

Solicitors:
Fanselows, Dunedin, for Appellant
Crown Law Office, Wellington