Stewart v R [2010] NZCA 257 (18 June 2010)

Last Updated: 23 June 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA119/2010

[2010] NZCA 257

BETWEEN WILLIAM ALEXANDER STEWART
Appellant

AND THE QUEEN
Respondent

Hearing: 18 May 2010

Court: William Young P, Chisholm and Keane JJ

Counsel: G B Henderson for Appellant
B Hawes and S J Jamieson for Respondent

Judgment: 18 June 2010 at 3 pm

JUDGMENT OF THE COURT

1. Subject to the reservation of leave for an application to be made to set aside the reparation order, the appeal is dismissed.
   

B Minimum term of imprisonment reduced to four years and two months.
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REASONS OF THE COURT

(Given by Chisholm J)

[1] While on the run from the police between October 2008 and May 2009 the appellant embarked on a crime spree. Following apprehension he faced 47 charges including numerous counts of burglary. Having pleaded guilty to those charges he was sentenced in the District Court at Christchurch to a total of seven years and four months imprisonment, with a minimum period of imprisonment of four years and 10 months. He was also ordered to pay reparation of $75,000.
[2] The appellant appeals against both the sentence and the imposition of a minimum period of imprisonment. He contends that the sentence is manifestly excessive because there was no credit for remorse. And he contends that in all the circumstances a minimum period of imprisonment should not have been imposed. It is common ground that there was an error in the calculation of the minimum period, and that if it stands it could be no more than four years and two months.

The offending

[3] On 2 July 2008 the appellant was released from Rolleston Prison on special conditions of parole. Following a breach of those conditions he failed to appear in the District Court on 3 October 2008 and a warrant was issued for his arrest. Further warrants for his arrest were issued when he also failed to appear on several minor charges as well as a recall warrant to complete his previous sentence.
[4] In the meantime he had embarked upon his spree of offending. Before he was ultimately apprehended he had burgled numerous Mid-Canterbury dwellings, pharmacies and other business premises. In many cases properties were damaged. One house in Leeston was burgled three times. Numerous items were stolen and drugs were taken from pharmacies. Most of the stolen property was not recovered. It was established that several burglaries involved a co-offender, but the appellant has not provided the police with any assistance as to the identity of that person.
[5] Apart from the burglaries the appellant was involved in other offending including the theft of eight motor vehicles and a motor cycle. Six of the motor vehicles were four wheel drive utilities, and most of them were late models. One vehicle valued at about $70,000 was burnt out, and other vehicles were damaged to varying degrees.
[6] At various times the appellant was seen by the police but managed to elude them. On 16 December 2008 he was seen driving a vehicle near Christchurch and sped off when the red and blue flashing lights in the patrol car were activated. During the ensuing chase the appellant lost control of his vehicle and narrowly missed colliding with another vehicle. Eventually he abandoned the vehicle and fled on foot.
[7] On another occasion, 10 February 2009, the appellant was pursued by the police at high speeds for about 80 kilometres. He sped through Mayfield township at 160 kph. When he was ultimately cornered and the officer tried to arrest him, there was a struggle, the appellant broke free, threatened the officer with an iron bar, rammed the police vehicle blocking his path, and made good his escape.
[8] On 11 March 2009 the police located a house in which he had been living. Some stolen property was recovered and a semi-automatic rifle (as well as ammunition) was found. A methamphetamine pipe was also found.
[9] Eventually the appellant was arrested on 27 May 2009 following yet another police chase. Before his arrest he had repeatedly rammed police vehicles forming a “moving block”. Upon arrest he was found to be in possession of cannabis. He declined to make any comment about his offending.
[10] All this offending had occurred while the appellant was on parole.
[11] Reparation amounting to just under $34,000 was sought by the victims, that sum excluding any reparation sought by either the police, or insurance companies who had paid claims. It was considered that if these were included, the total amount of reparation sought would be in excess of $300,000. The sentencing Judge considered the loss and damage caused by the appellant and any co-offenders to be in the vicinity of $350,000.[1] About thirty victim impact reports were provided, with many victims describing a climate of apprehension that prevailed while the appellant was on the loose.
[12] The appellant was charged with burglary (23 counts), unlawfully taking/interfering with motor vehicles (six counts), theft (five counts), possession of cannabis/utensils (three counts), unlawful possession of a firearm, escaping, dangerous driving (three counts), failing to stop (three counts), breach of parole, and failure to answer District Court bail.

The appellant

[13] At the time of sentencing the appellant was 48 years of age. His previous convictions include obstructing the police, driving at a dangerous speed, possession and cultivation of cannabis, and violence. On 2 February 2007 he was sentenced to three years and three months imprisonment for a variety of offending including kidnapping and wounding with intent to injure. He has no assets or savings and has unpaid fines of $6,185.
[14] According to the probation officer he is intelligent and articulate. He told the probation officer that his offending began after he had been severely beaten by the police and that he was not in the right frame of mind to think logically. He said he avoided the police because he was afraid and that he is prepared to engage in restorative justice and wants to rejoin society. The appellant also covered these matters in a letter to the Court. The probation officer considered that there is a medium risk of re-offending.

Sentencing in the District Court

[15] After traversing the offending Judge Erber identified the aggravating features relating to the offending: a large number of offences including burglary of dwellings and pharmacies; extent of the loss and damage; and the impact on victims. He considered that there were no mitigating features.
[16] Personal aggravating and mitigating factors were then considered. On the aggravating side the Judge identified, first, the appellant’s previous convictions for which he was sentenced in September 2007 and, secondly, the fact that he offended while on parole. On the mitigating side he took into account the appellant’s guilty plea which he considered included any remorse.
[17] Starting at nine years the Judge added one year for the personal aggravating factors. He also decided that the “violent” escape on 10 February 2009 required a cumulative sentence and added a further one year to reflect that offending. Having reached 11 years, the Judge then allowed a one third discount for the guilty plea (three years eight months), thereby arriving at the overall sentence of seven years and four months.
[18] Individual sentences were then imposed in relation to each charge. Burglary of the dwelling that was also burgled on two other occasions was taken as the lead offence and the appellant was sentenced to six years and four months on that charge. A cumulative sentence of one year’s imprisonment was imposed on the escape charge. The other offences attracted concurrent sentences.
[19] Given that a determinate sentence of more than two years had been imposed for a particular offence, the Judge turned his attention to the issue of whether there should be a minimum period of imprisonment. Having considered s 86 of the Sentencing Act 2002, the absence of any previous convictions for burglary, and the prompt guilty plea, the Judge commented:

[38] A number of the victims complain that they have lost property which they would like to have back. You have not helped in that regard, nor have you helped in identifying any other person or persons who may have assisted you. You are entitled to your right of silence but you cannot then submit in the same breath that you are really repentant for your behaviour.

It was the Judge’s view that release after serving one third of the sentence would be “quite insufficient” having regard to the nature and duration of the offending, especially its impact on the citizens of Mid-Canterbury. He imposed a minimum non-parole period of four years and ten months, which represented two thirds of the overall sentence.

[20] We pause to note that it is common ground that in terms of s 86 of the Sentencing Act the Judge could only impose a minimum period of imprisonment not exceeding two thirds of the particular sentence that conferred jurisdiction to impose the minimum non-parole period. That was the lead burglary charge that had attracted a sentence of six years and four months, two thirds of that sentence being four years and two months. If the sentences had been structured differently the minimum period of four years and 10 months would have been within jurisdiction.
[21] Returning to the sentencing remarks, the final matter considered by the Judge was the question of reparation:

[41] ... I have looked at the matters as a whole and it seems to me that firstly the total amount of reparation which could be payable is beyond your reasonable resources. You say that you have a genuine ability, (and I note that you are nodding your head to me), to pay $75,000 if when you are released you can get back into the sale and purchase of land ...

The Judge said that he was taking the appellant “at his word” and imposed a reparation order of $75,000 which was suspended until release.

Appeal against length of sentence

[22] No issue is taken with the sentencing Judge’s approach to the starting point, the uplift for personal aggravating factors, or the cumulative sentence for escaping. Mr Henderson sensibly accepted that these components of the sentence were unassailable. That concession reflects the reality that this was serious and prolonged offending involving numerous victims. Not only was the appellant on parole, but for the most part he was also on the run from the police. Apart from the massive property loss and damage, his actions when attempting to avoid arrest placed lives at risk. A stern reaction from the Court was entirely justified.
[23] Mr Henderson argued that over and above the credit for the guilty plea there should have been further credit for remorse which, he submitted, had been demonstrated by the appellant’s offer to pay a very large sum by way of reparation and his willingness to attend a restorative justice conference with any of the complainants that were interested in doing so (there are none). While Mr Henderson acknowledged that in terms of R v Hessell the discount for a guilty plea would generally incorporate remorse,[2] he noted that this Court had accepted that “exceptional remorse, demonstrated in a practical and material way, can attract its own reward”.[3] He claimed that the order for payment of $75,000 by way of reparation qualified as exceptional.
[24] As Judge Erber noted, there are occasions where it will be appropriate to recognise remorse with a sentence discount going beyond what is appropriate for a plea of guilty.[4] But we cannot reconcile the appellant’s claim that he was truly repentant with his failure to either assist with the recovery of missing property or to identify others who had assisted him. Apart from that we consider that the appellant’s offer of reparation was completely unrealistic. It is apparent from the reparation report that he has no savings and no assets. Moreover, he has outstanding fines totalling $6,185. According to the appellant’s letter to the sentencing Judge he bases his belief that he could pay back the victims on the contention that he “bought and sold waterfront properties in Nelson and Christchurch for 15 years”. No further information is provided and the reality is that whatever involvement he might have had in such activities, he has nothing to show for it now.
[25] While s 10 of the Act requires the Court to take into account any offer of amends, including financial amends, subs (2) provides:

(2) In deciding whether and to what extent any matter referred to in subsection (1) should be taken into account, the court must take into account-

(a) whether or not it was genuine and capable of fulfilment; and

(b) whether or not it has been accepted by the victim as expiating or mitigating the wrong.

The capability of the appellant to make good his offer of amends must be viewed with scepticism. In fact, the sentencing Judge made it clear that he was simply taking the appellant “at his word”,[5] rather than expressing confidence in his ability to repay. As we have already noted, the Judge had earlier expressed doubts about the level of remorse shown by the appellant.[6] Moreover, the appellant’s offer to participate in restorative justice was not accepted by the victims, again a factor to be taken into account under s 10(2)(b).

[26] In short, we conclude that the Judge did not err by declining to allow an additional discount to reflect those factors and the appellant’s appeal against the length of the sentence cannot succeed.
[27] It is also worth mentioning that when sentence was imposed the Judge and counsel were under the impression that the appellant still had further time to serve on the sentence imposed on 2 February 2007. For that reason he made the sentence of seven years and four months cumulative on that sentence. As it turned out the previous sentence had been completed on 30 December 2009 and from that time the appellant had been on remand. Thus the actual sentence that will be served by the appellant was less than anticipated by the Judge at the time, which can probably be regarded as a lucky break for the appellant.

Appeal against minimum period of imprisonment

[28] In support of this component of the appeal Mr Henderson provided us with a letter from the appellant and a copy of a sentence plan which has been formulated since the appellant’s incarceration for this offending. It involves courses and rehabilitation programmes, including alcohol and drug rehabilitation. The appellant has already completed and passed two preliminary courses and he says that he is determined to turn his life around and become a useful member of society. He wants the order for a minimum period of imprisonment to be removed because it will set back his eligibility for some programmes where he could not be accepted until close to his parole eligibility date.
[29] While the appellant’s objective of turning his life around is laudable, the issue for us is whether the Judge erred by imposing a minimum period of imprisonment pursuant to s 86 of the Act. A minimum period of imprisonment can be imposed if the Court is satisfied that release after serving one third of the sentence would be 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.

Judge Erber decided that having regard to the nature and duration of the offending and its impact on the victims those purposes could not be achieved in the absence of a two thirds minimum period of imprisonment. He did not err in reaching that conclusion. Subject to what we are about to say, this component of the appeal must also fail.

[30] As already mentioned, there was an error in the calculation of the minimum period of imprisonment and it is necessary to rectify that error. The minimum period of imprisonment will therefore be reduced by eight months from four years and 10 months to four years and two months.

Outcome

[31] For the foregoing reasons the appeal against the length of the sentence is dismissed and the minimum period of imprisonment is reduced to four years and two months. However, we are uneasy about the order for reparation which might hold out false hopes for those seeking reparation. We are therefore reserving the right to either the appellant or the Crown to bring the issue of reparation back to the District Court for further consideration if they so wish.

Solicitors:
Crown Law, Wellington for Respondent

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[1] R v Stewart DC Christchurch CRI-2008-009-13612, 5 February 2010 at [6].
[2] R v Hessell [2009] NZCA 450, (2009) 24 CRNZ 612 at [24]–[28].
[3] R v Hessell at [28].
[4] At [38].
[5] At [41].
[6] At [38]. See above at [24].