[1] The appellant appeals against a sentence of 18 months imprisonment imposed after trial on one count of burglary by Judge Crosbie in the District Court at Christchurch on 30 June 2010.[1]
[2] The appellant and an associate were both involved in the burglary of a residential property at about 7.45pm on 13 June 2009. They drove to the address. One waited by the car while the other entered the property and stole a 42 inch plasma television and two stereo speakers valued at approximately $2,500 in total. The items were placed in the boot of the vehicle and the two offenders drove off. A neighbour had observed events and phoned Police, who stopped the offenders as they were leaving the street.
[3] The co-offender Mr Karatai pleaded guilty. He was sentenced by Judge Farish, on 18 November 2009, for the burglary and some unrelated offending.[2] The summary of facts upon which the plea was entered indicated that it was Mr Karatai who entered the house. However, in sentencing Mr Karatai the Judge accepted his counsel’s submission that he was the driver of the vehicle and that he was not the principal offender. After referring in some detail to mitigating personal circumstances for Mr Karatai, Judge Farish said that, given his background, nine months imprisonment would be appropriate. She then allowed a full discount of 30 per cent for an early guilty plea, to reach an end sentence of six months.
[4] In sentencing the appellant, Judge Crosbie noted this discrepancy as to the respective roles of the offenders. He said:

[18] ... [Mr Karatai] was also sentenced on the basis that he was the driver and there rather seems to have been, as there often is in my experience, an offender getting in first and he got in first and was, on that basis, able to effectively characterise his own involvement first. It does not sit that well with the facts that came out in the hearing but then the facts will not be entirely known, as far as your participation is concerned, because from your side the evidence that was given was quite unreliable. I think it is fair to characterise your participation as being a person who assisted the person who broke into the house and stole the television but, as the Crown says, it does not make you any less a party to the offending. ...

[5] The Judge adopted a starting point of 15 months. He treated as an aggravating feature of the offending that it was a residential dwelling. The Judge added three months to reflect the aggravating factor of the appellant’s previous convictions, leading to an end sentence of 18 months.
[6] Counsel for the appellant advances the appeal on the basis that there was a significant and unjustified discrepancy between the 15 months starting point adopted by the Judge for the appellant and the nine month starting point adopted for the co-offender. Counsel submits that the proper approach was for the trial Judge, having expressly accepted that the appellant was the secondary party, to take a starting point of nine months and to have applied the uplift of three months to reflect the earlier offending. She accordingly submits that the end sentence should have been 12 months and that the sentence of 18 months was manifestly excessive.
[7] Counsel for the respondent submits that the 15 month starting point adopted here was squarely within the range endorsed by this Court for a single count of burglary of a residential dwelling and cites R v Columbus,[3] R v Povey,[4] and R v Stevens.[5] Counsel submits that the starting point of nine months imprisonment taken for the co-offender, given the lesser role accepted by Judge Farish, was inadequate in the light of those cases. She accordingly submits that the discrepancy between the two sentences is explained by the unduly lenient sentence on the co-offender. Counsel for the respondent submits that even where the difference in sentence between co-offenders is marked or gross and unjustifiable the Court will be hesitant to undermine public confidence in the integrity of the sentencing process by reducing an otherwise appropriate sentence, and refers to the decision of this Court in R v Zhou.[6]
[8] Because the role which Judge Farish assigned to the co-offender was, on her acceptance of the co-offender’s submission, essentially the same role as that adopted by Judge Crosbie for the offender, the respective starting points, having regard only to the circumstances of the offending, should be directly comparable. However, the nine months adopted by Judge Farish is not directly comparable with the 15 months starting point adopted by Judge Crosbie. Judge Farish did not specify a starting point which had regard only to the circumstances of the offending. She had, before reaching the point of fixing the nine months, referred extensively to mitigating personal circumstances of the co-offender. The nine month starting point taken by her made allowance for all personal mitigating factors other than the guilty plea, for which a separate 30 per cent reduction was given.
[9] When regard is had to that difference in approach, Judge Farish’s starting point, having regard only to the circumstances of the offending, must have been at least three months higher, probably in the range of 12 to 15 months. There is, on that basis, no significant discrepancy between the two starting points.
[10] We consider that the 15 month starting point adopted by Judge Crosbie for the appellant was within the available range. In Columbus, a starting point of one year was considered appropriate for an offender who, acting alone, forced open the vehicle access door of a residential property and stole a mountain bike together with gardening tools and a tool box. We see the offending here as more serious. Two offenders were involved. The entry was to the house itself, and it occurred at night. The value of the property taken was considerably greater. In Povey a starting point of two years for entry by night into a woman’s apartment, with two offenders involved, a degree of premeditation, and the presence nearby of a weapon, was held to be fully justified. In Stevens, for a burglary of commercial premises by one offender, this Court held that the appropriate starting point would have been no higher than 18 months. A starting point of 15 months in this case is not inconsistent with any of those cases.
[11] In this case, because the role for which Mr Karatai was sentenced was essentially the same as that for which the appellant was sentenced, no question of relative culpability between the two offenders arises. We do not accept Ms Sewell’s submission that a lesser degree of culpability should attach to the driver of the vehicle than to the offender who entered the property. Both are parties to and guilty of the offence. Both carried out essential roles in the burglary. Their culpability is not significantly different.
[12] For these reasons, we are satisfied that the sentence imposed was not manifestly excessive. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

[1] R v Curry DC Christchurch CRI-2009-009-9050, 30 June 2010.
[2] R v Karatai DC Christchurch CRI-2009-009-11614, 18 November 2009.
[3] R v Columbus [2008] NZCA 192.
[4] R v Povey [2009] NZCA 362.
[5] R v Stevens [2009] NZCA 190.
[6] R v Zhou [2009] NZCA 365

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/491.html