The appeal is allowed.
The minimum period of imprisonment of three years is quashed and a minimum period of imprisonment of two years six months is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1] Vincent James Clayton appeals against a sentence imposed on him by Judge Crosbie in the District Court at Christchurch on 21 September 2007. The overall sentence was five years, comprising an effective sentence of four years on 34 charges of receiving and ten charges of fraud and a cumulative sentence of one year on a charge of using a document with intent to defraud. The Judge ordered that a minimum period of imprisonment of three years be served. There is no challenge to the five year end sentence. The minimum period of imprisonment is the focus of the appeal.

Background

[2] The charges against the appellant followed a police operation in Christchurch that focused on a burglary and receiving ring. The organised criminal ring targeted houses under construction. The appellant was provided with items, principally valuable household items and materials, sourced from these burglaries by a burglar, Mr L. In addition, the appellant received property stolen from dwelling houses, commercial premises, property in transit and, in one case, a cellular phone derived from a street robbery.
[3] These facts gave rise to the 34 charges of receiving which involved property to the value of $54,617. The appellant was found guilty of these charges following trial by jury. He pleaded guilty prior to trial to ten counts of fraud.
[4] The appellant also pleaded guilty to a charge of using a document with intent to defraud. This related to his use of a driver’s licence, issued in an associate’s name but with the appellant’s photograph, to obtain goods and credit to a value in excess of $50,000.

Sentence

[5] The sentencing Judge, who was also the trial Judge, found that the appellant was “essentially in the business of crime” and that the offending was organised and extensive. He found as aggravating features of the offending that it had continued over a period of some years and that by providing a market for burglars, the appellant and a co-offender, Mr Machirus, perpetuated an “insidious underground industry”.
[6] The Judge said that in sentencing the appellant and three co-offenders, the most important principle was deterrence, both of the offenders and of those in the criminal community who operate and participate in this type of organised offending.
[7] After considering various relevant authorities including R v Bom CA209/96 16 October 1996, Police v Som HC WN CRI 2005-485-141 4 November 2005, and R v Lasike HC AK CRI 2004-44-7103 7 September 2006, the Judge took a starting point of four and a half years for the lead receiving charges, which he reduced to four years. He imposed concurrent sentences for the other receiving charges and the fraud charges. He then imposed a cumulative sentence of one year for the identity fraud charge, to reach the end sentence of five years.
[8] Turning to the issue of a minimum period of imprisonment under s 86 of the Sentence Act 2002, the Judge said that the period of imprisonment under s 84(1) of the Parole Act 2002 would be insufficient for the purposes of accountability, denunciation and deterrence, and imposed on the appellant a minimum period of imprisonment of three years.

Grounds of appeal

[9] The appellant’s appeal against the imposition of a minimum period of imprisonment is on three grounds:

The imposition of a minimum period of imprisonment of three years in relation to the total sentence of five years imprisonment was unlawful having regard to s 86(1) of the Sentencing Act.

The sentencing Judge failed to articulate his reasons for imposing a minimum period of imprisonment.

While it is open to a sentencing Judge to impose a minimum period of imprisonment on his or her own motion, a Judge who decides to embark upon that course should give the parties the opportunity to make submissions, which the Judge did not do.

Minimum period of imprisonment unlawful

[10] Section 86 of the Sentencing Act provides:

Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The Court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.

(3) [Repealed.]

(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of–

(a) two-thirds of the full term of the sentence; or

(b) 10 years.
(5) For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.
[11] Mr Raftery, for the Crown, accepted that the minimum term must relate only to the sentence for which a minimum period of imprisonment is statutorily available and that in this case a minimum term was available only on the lead sentence of four years imposed for the receiving charges.
[12] We agree. Section 86(1) provides that when a determinate sentence is imposed the Court may impose a minimum period of imprisonment in relation to “that particular sentence”. Accordingly there was no jurisdiction to impose a minimum period of imprisonment in relation to the cumulative sentence in this case: R v Kite [2007] NZCA 385; R v Bell [2007] NZCA 17.
[13] The minimum period of imprisonment of three years imposed in this case exceeds two-thirds of the lead sentence of four years and must be reduced. The sentence of one year imposed for the charge of identity fraud did not qualify for imposition of a minimum period of imprisonment under s 86(1), not being a sentence of more than two years. However, we observe that had the sentences been structured as concurrent rather than cumulative sentences, a minimum period of imprisonment of three years would have been available in respect of the appellant.
[14] Later in this judgment we consider whether the imposition of a minimum period of imprisonment was appropriate and, if so, its proper length.

Reasons for minimum period of imprisonment should have been articulated/Opportunity to make submissions

[15] Counsel for the appellant addressed the second and third grounds of appeal together. Ms Bulger said that the sentencing submissions filed by counsel for the appellant in the District Court did not appear to address the issue of a minimum period of imprisonment at all.
[16] She submitted that while the Crown’s written submissions noted that it would be open to the Court to find that the minimum term otherwise applicable would be insufficient for the purposes of accountability, denunciation, deterrence and protection of the community, that simply restated the legislation. She said the issue did not appear to have been addressed in oral submissions nor was any indication given by the sentencing Judge that he was considering a minimum period of imprisonment.
[17] Counsel further submitted that when the Judge imposed a minimum period of imprisonment he simply restated the legislation:

[75] I turn now finally to the issue of a minimum term of imprisonment. The Court may consider a minimum term under s 86. The Crown submits that it would be open to the Court to find that the minimum term it would otherwise apply would be insufficient for the purposes of accountability, denunciation, deterrence and protection of the community. It is my view that the period applicable under s 80(4)(1) of the Parole Act would be insufficient for the purposes of holding you to account, denouncing your conduct, deterring you and others in the community. Therefore, Mr Clayton, you will have a minimum non-parole period of three years and you, Mr Machirus, two years.

[18] Ms Bulger submitted that the Judge was required to do more than that; he must give reasons and an explanation to show that careful consideration was given to the imposition of a minimum period of imprisonment and its length.
[19] Counsel referred to R v Taueki [2005] 3 NZLR 372 (CA) as to the appropriate exercise to be undertaken when considering a minimum period of imprisonment. First, the sentencing court must arrive at the appropriate finite sentence. If that sentence is greater than two years, the court must then consider whether the one-third minimum period provided in s 84(1) of the Parole Act 2002 is insufficient to satisfy all or any of the purposes in s 86(2). If a minimum period of imprisonment is deemed appropriate, its length must then be determined.
[20] Counsel noted that this Court anticipated at [58] of Taueki a “careful review” of all relevant matters before a minimum period of imprisonment was imposed. She submitted that such a careful review was lacking in this case. Ms Bulger cited from R v Blackmore CA29/05 18 May 2005:

[45] A trial Judge must carefully identify why that Judge considers a minimum parole period is appropriate, and how any resultant term was reached. We appreciate that this aspect of a case often comes at the end of a relatively lengthy (and fraught) sentencing, the relevant considerations often overlap with other aspects of the sentencing which the Judge has already traversed, and the exercise is inherently difficult. That said, this aspect of a case is of the greatest significance to the public and a prisoner, and appellate review is rendered difficult if this aspect of a case is dealt with in only a sentence or two, as was the case here in this instance.

[21] She submitted it was therefore open to this Court to conclude that the sentencing Judge found no factors additional to those upon which he relied in imposing the finite sentence to justify the imposition of a minimum period of imprisonment.
[22] We refer, first, to counsel’s submission that the appellant was not given the opportunity to make submissions about the imposition of a minimum period of imprisonment. As the Crown accepted, if the Judge determines to exercise the power under s 86, the parties must be given the opportunity to be heard: R v Boyd CA89/03 24 June 2003 at [16]. In Boyd a minimum period of imprisonment was imposed despite no request having been made by the Crown. This Court observed that if the sentencing Judge did not invite submissions from counsel, the result would have been contrary to natural justice and s 27(1) of the New Zealand Bill of Rights Act 1990.
[23] However, in this case, the Judge recorded at [75] of his sentencing notes the Crown’s submission that it was open to the Court to impose a minimum period of imprisonment, and the appellant does not appear to dispute that. The issue having been put on the table by the Crown, it was up to the defence to respond. It was not for the Judge to provide the opportunity for submissions when the need to respond had been clearly signalled by the Crown’s submission.
[24] As to the provision of reasons for imposing a minimum period of imprisonment, it is a requirement of s 31 of the Sentencing Act that reasons be given for the imposition of a sentence. But as this Court said in Taueki, the primary focus for the sentencing court in determining whether a minimum period of imprisonment should be imposed, is the statutory test at s 86(2):

[55] The primary focus of the first question is the statutory test in s 86(2), as set out at para [52] above. As this Court recently noted in R v Walsh (CA281/04, 19 May 2005) at para [25], the four factors referred to in s 86(2) are matters which correspond with four of the purposes of sentencing set out in s 7(1) (s 7(1)(a), (e), (f) and (g)). The question before the Court is whether serving one-third of the nominal sentence is insufficient for all or any of those four purposes. The Court must focus on those purposes when determining whether to impose a minimum period of imprisonment. ...

[25] In this case, Judge Crosbie reminded himself at [75] of the four purposes in s 86, namely accountability, denunciation, deterrence and protection of the community. He said that in his view the one-third minimum period under s 84(1) of the Parole Act would be insufficient to meet the purposes of holding the appellant and Mr Machirus to account, denouncing their conduct and deterring them and others from like offending. Thus the Judge focused on the statutory test in s 86(2) and the purposes he found to be relevant in this case. He had previously stated at [35] of his sentencing notes that he regarded deterrence, both general and particular, as the most important sentencing principle that applied, given the nature and extent of the offending in this case.
[26] Mr Raftery submitted that the Judge properly turned his mind to the purposes of s 86, and in the course of his sentencing notes adequately referred to the reasons for the imposition of a minimum period of imprisonment. He submitted that the nature and extent of the offending in this case justified the imposition of a minimum period of imprisonment.
[27] We agree, for the following reasons. It must be assumed that the Judge relied on the same factors of the offending and the offender as he took into account when determining the finite term when he turned to consider a minimum period of imprisonment. That was the assumption made in R v Wirangi [2007] NZCA 25, but in that case this Court was not persuaded that those factors justified the imposition of a minimum period of imprisonment. Here, the Judge referred throughout his sentencing notes to the extensive burglary and receiving ring which targeted houses under construction and that the appellant in particular was also involved in receiving other stolen items, mainly electrical goods such as televisions and stereos. He identified twelve venues, including Mr Clayton’s home, where stolen property of which the appellant was found guilty of receiving was located. He accepted that Mr Clayton and Mr Machirus (on whom a minimum period of imprisonment of two years was imposed) were “at the top of the criminal pyramid”, and that Mr L burgled to order, so that they were in reality his employers. He noted the value of the property involved, $54,617 in the case of Mr Clayton, and that the appellant had a high risk of re-offending.
[28] The Judge carefully detailed and discriminated among the facts and features that related to each of the four offenders he was sentencing. Thus, while his reasons for imposing minimum periods of imprisonment on Mr Clayton and Mr Machirus were brief, the relevant factors were clearly articulated previously in his sentencing notes.
[29] The offending was extensive and carefully planned with property stolen to order. It continued over a period of time and was purely for commercial gain. The appellant was in the business of receiving stolen goods. In those circumstances we consider it was clearly open to the Judge to impose a minimum period of imprisonment in relation to the appellant, and he was not wrong to do so.

Length of minimum period of imprisonment

[30] The Judge (incorrectly) imposed a minimum term of three years, being 60% of the end sentence of five years. The maximum period under s 86 is two-thirds of the relevant sentence.
[31] On an appeal against the imposition or length of a minimum period of imprisonment, the appellant must show, if he or she is to succeed, that the sentence was wrong in principle or was seriously out of line with other appellate authority. In the present case, we have no doubt that the imposition of a minimum period of imprisonment was warranted, for the reasons given above.
[32] There do not appear to be any directly relevant appellate authorities in the area of receiving: Bom, which is the leading authority on sentencing for sophisticated, extensive receiving offending, predates the imposition of minimum periods of imprisonment. There are, however, a number of appellate authorities dealing with sentencing for serious dishonesty offending, and these show that minimum periods of imprisonment in the 60% to 66% range have often been imposed. In R v Rohloff CA193/03 24 September 2003, a minimum period of imprisonment of two-thirds (three years) was imposed in respect of nine counts of burglary where the value of the property stolen was $52,653. In R v Orchard CA123/03 24 October 2003, a minimum period of imprisonment of two-thirds (four years six months) was imposed in respect of 597 counts of using a document where the value involved was some $1.5m. In R v Frost CA344/05 6 September 2006, a minimum period of imprisonment of 60% (three years six months) was imposed in respect of eight counts of burglary.

Result

[33] The appeal is allowed. The minimum period of imprisonment of three years is quashed and a minimum period of imprisonment of two years six months is substituted.

Solicitors:
Crown Law Office, Wellington

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