[1] Between November 2009 and March 2010 the appellant committed three burglaries and an attempted burglary of houses in Napier and Gisborne. He was on parole at the time of the burglaries and by March 2010 he had breached a release condition. In April 2010 he pleaded guilty to all of this offending. Judge Adeane sentenced him to three years, nine months’ imprisonment for the offending.[1]
[2] In January 2010 a co-offender in the November burglary, Mr Ross, was sentenced to 18 months’ imprisonment for that single burglary. In this appeal the appellant complains about a claimed lack of parity between the appellant’s starting point of three years and six months’ imprisonment for the November burglary and Mr Ross’ starting point sentence of two years and three months’ imprisonment for the same offending. Further, the appellant says the Judge’s increase to the starting point for the offending to take account of aggravating features is too high.

Facts

[3] In November 2009 the appellant, with Mr Ross and two others, drove to a house in Napier. The appellant went onto the property, forced open a set of French doors and entered the house. One other of the group also entered the house. Mr Ross was sentenced on the basis that it was not him who had entered the house.
[4] Once inside a large amount of property valued at $90,000 was taken. The property was removed from the house and all of those present then helped load the property into the car. Further, one of the four offenders (not Mr Ross) stole a vehicle parked in the garage at the house.
[5] On 20 March 2010 the appellant walked up to the front door of a house in Gisborne intending to burgle the house. The appellant was confronted by the owner and left. Later that evening the appellant went to the house next door and broke into the property through the garage. He took a television set and an I-Pod valued at $2,820.
[6] The next day the appellant went to another house in Gisborne and broke in forcing open French doors. Once inside he removed a television set and a computer and took the items outside to wait for an accomplice to pick him up. A silent security alarm had been triggered at the house and the appellant was apprehended shortly afterwards.
[7] As to the breach of release conditions the appellant was released from prison in May 2009. As part of his release conditions he was obliged to live at an address in Napier. By March 2010 he was no longer living at that address.
[8] Judge Adeane was aware of the sentence imposed on Mr Ross. He considered that the appellant had greater culpability than Mr Ross. The appellant had broken into and entered the property in Napier in November 2009 and Mr Ross had been “a mere lookout”[2] who never entered the property.
[9] The Judge considered, therefore, the November 2009 offending for the appellant justified a starting point of three and a half years’ imprisonment.[3] He added an uplift for the burglary offending in Gisborne, the appellant’s previous bad record and the fact that the Gisborne offending was committed while the appellant was on bail. This led to a sentence of five years’ imprisonment.[4] The Judge reduced the uplifted sentence to reflect the appellant’s guilty pleas, resulting in a final sentence of three years, nine months’ imprisonment for all of the offending.[5]

Discussion

[10] The appellant’s submission is that the starting point for the November 2009 burglary at three and a half years’ imprisonment was too high compared with Mr Ross’s starting point of two years and three months’ imprisonment. Further, the appellant says the sentence imposed had too much emphasis on his past record.
[11] Dealing first solely with the November 2009 offending. The evidence established that the appellant was the primary offender. His co-offender, Mr Ross, loaded the car with the stolen goods. The appellant went onto the property, broke in, took the goods and transported them to the car. Further, the appellant’s past offending record was much worse than that of Mr Ross. The appellant’s record of offending spanned 15 years including five burglary convictions and a large number of dishonesty offences resulting in several sentences of imprisonment. The appellant said he stole to order and Judge Adeane described him as “a professional burglar”.[6] By contrast, Mr Ross’ offending began in 2008, with two previous burglary convictions and five convictions for dishonesty. The appellant was 31 years of age and Mr Ross 18 years of age at the time of the offending.
[12] Further, the appellant was on parole at the time of the November burglary. In contrast this was the first occasion in which Mr Ross had been imprisoned. These differences alone justified the different starting sentences.
[13] However the appellant was also being sentenced for two more burglaries, an attempted burglary and a breach of parole conditions. These were all committed while he was on bail for the November 2009 offending. This further offending required a significant increase to the November 2009 burglary sentence. For this offending and the aggravating features identified, the uplifted starting point of five years’ imprisonment was well within the range available to the Judge.
[14] We are satisfied, therefore, that there was no inappropriate disparity between the starting points of the appellant and Mr Ross for the November burglary and that the uplifted starting point and final sentence for this offending were well within the range available to the Judge.
[15] For the reasons given the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Marsh DC Napier CRI-2009-041-4370, 29 April 2010.
[2] At [14].
[3] At [15].
[4] At [16].
[5] At [17]-[18].
[6] At [7].

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