Skipper v R [2011] NZCA 250 (3 June 2011)

Last Updated: 14 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA700/2010 [2011] NZCA 250

BETWEEN FLOYD KINGI SKIPPER Appellant

AND THE QUEEN Respondent

Hearing: 24 May 2011

Court: Glazebrook, Simon France and French JJ

Counsel: P N Allan for Appellant K Laurenson for Crown

Judgment: 3 June 2011

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by French J)

Introduction

[1] Mr Skipper was charged in the District Court with one count of aggravated burglary and one count of burglary simpliciter. At the conclusion of the Crown case, the aggravated burglary count was reduced to burglary simpliciter, and Mr Skipper then entered guilty pleas to both counts.
[2] He was sentenced to four years’ imprisonment.[1]
[3] Mr Skipper now appeals that sentence on the grounds that the Judge’s starting point of four and a half years’ imprisonment was too high and that the Judge failed to have regard to the totality principle.

Factual background

[4] On 11 October 2009 Mr Skipper and his co-offender, a Mr Maxwell, entered a residential property at 6.10 a.m. The property was situated in Barbadoes Street, Christchurch. It consisted of a single-level dwelling divided into two separate flats.
[5] The two men, both aged in their 40s, broke into the rear flat. They stole bedding, a backpack, shoes and laundry powder, which they put into their car parked outside. The occupants of the rear flat were home at the time, but were unaware anyone had entered their property.
[6] Mr Maxwell then knocked on the door of the front flat. The front flat was occupied by a Mr Murphy. When Mr Murphy opened the door, Mr Maxwell struck him on the head with a wooden baton. Mr Murphy fell to the ground and Mr Maxwell continued to beat him about the legs. Items were then taken from Mr Murphy’s flat, including clothing, a computer, a computer keyboard, a knife set, a backpack, several DVDs and some jewellery.
[7] Fortuitously, while the two men were still removing items, a police patrol vehicle happened to pass by.
[8] Police apprehended Mr Maxwell holding the keyboard. Mr Skipper fled the scene, but was located a short distance away. Most, but not all, of the stolen property was recovered.
[9] At the time of the two burglaries, Mr Skipper was already on bail for three other dishonesty offences: burglary, theft, and unlawfully taking a motor vehicle. The unlawful taking offence had been committed in June 2009, the burglary and theft in August 2009 while he was on bail for the unlawful taking. For ease of reference, this judgment refers to all three offences collectively as “the August offences”.
[10] Mr Skipper pleaded guilty to the August offences and was sentenced on 28 October 2009 to a term of imprisonment of 18 months.
[11] The trial of the Barbadoes Street burglaries did not take place until early-September 2010.
[12] At the close of the Crown case, Mr Maxwell pleaded guilty to aggravated burglary and burglary. As already mentioned, the count of aggravated burglary against Mr Skipper was reduced to burglary simpliciter, and he then pleaded guilty to what had become two counts of burglary simpliciter.

The sentencing in the District Court

[13] The trial Judge, Judge Crosbie, sentenced the two co-offenders together on 1 October 2010.
[14] In the case of Mr Maxwell, the Judge identified an appropriate starting point to be five and a half years’ imprisonment, with an uplift to six years because the offending took place while Mr Maxwell was subject to release conditions.
[15] As regards Mr Skipper, Judge Crosbie noted that although Mr Maxwell’s offending was more serious, the fact that actual violence had been used was nevertheless an aggravating feature of Mr Skipper’s own offending:

[24] ... while you were not the lead offender you were part of a premeditated burglary where an innocent householder was beaten and injured and that is a significantly aggravating feature. And so I do distinguish between the two of you but not completely and that is because an assault on a householder must be seen as a calculated bi-product [sic] of a residential burglary at night.

[16] In the case of Mr Skipper, the Judge took a starting point of four years on the lead offence, being the burglary of Mr Murphy’s flat. He then increased that by six months to reflect the burglary of the rear flat, with a further uplift of six months on account of Mr Skipper’s previous convictions and the fact that he was on bail at the time of offending.
[17] Mr Skipper’s previous convictions included seven burglaries, the most recent of which had of course occurred in August 2009.
[18] Judge Crosbie then considered the timing of Mr Skipper’s guilty plea and gave a one-year discount, arriving at an end sentence of four years’ imprisonment.

Grounds of appeal

[19] On appeal, Mr Allan did not take issue with the amount of the uplift for the previous convictions, nor the discount allowed for the guilty plea. He submitted that the sentence of four years’ imprisonment was nevertheless manifestly excessive because:

• (a) The starting point was too high, having regard to the starting point adopted for Mr Maxwell, who was significantly more culpable.
• (b) A starting point of four and a half years was out of line with the authorities which suggest the appropriate starting point should only have been three years.
• (c) The Judge should have reduced the end sentence on account of totality, having regard to the sentence imposed for the August offences.

Discussion

Was a starting point of four and a half years’ imprisonment too high?

[20] Mr Allan argued that while the Judge recognised the need to distinguish between the two offenders, he failed to do so adequately. In Mr Allan’s submission, that was because of what Mr Allan described as “an over-focus” on Mr Murphy, and a mistaken finding of fact. According to Mr Allan, the Judge’s assumption that Mr Skipper had entered Mr Murphy’s flat and thus knew of the assault while he was removing property was without any evidential foundation. Mr Allan suggested that the evidence was consistent with Mr Skipper remaining outside at all times.
[21] Mr Allan further submitted that in any event, even if Mr Skipper had entered Mr Murphy’s flat, the starting point of four and a half years was still too high having regard to cases such as R v Columbus[2] (starting point one year) and R v Povey[3] (starting point two years).
[22] We disagree with that analysis.
[23] Mr Skipper’s legal representative (not Mr Allan) was aware prior to sentencing that there was a disagreement regarding whether or not Mr Skipper had entered Mr Murphy’s property or stayed outside by the car. Further, at the time Mr Skipper entered his pleas, the Judge had expressly noted that what had happened to Mr Murphy would be treated as an aggravating feature of the burglary. Yet no disputed facts hearing was sought. Counsel was obviously content to rely on submissions. In those circumstances, it was clearly open to the Judge to make factual findings based on his assessment of the Crown case, and it cannot now be contested otherwise.
[24] In our view, the Judge was also clearly entitled to regard the violence as an aggravating feature of Mr Skipper’s offending. While Mr Skipper pleaded guilty to burglary simpliciter, not aggravated burglary, the presence of violence nevertheless remains highly relevant. Mr Skipper burgled Mr Murphy’s home while the latter was being assaulted. The violence facilitated the burglary and, as pointed out by counsel for the Crown, the indignity of being burgled while the assault was taking place would have exacerbated the harm to the victim.
[25] The fact that actual violence was used does distinguish this case from the cases of Columbus and Povey. Columbus involved one burglar, no violence, no weapon and the entry only of a garage. While the appellant in Povey carried a weapon, he did not enter the victim’s home himself and no actual violence occurred.
[26] We accept it may possibly be arguable that the distinctions are not such as to justify adding two and a half years to the starting point. However, even if that were so, ultimately it makes no difference to the outcome.
[27] That is because in our view the Judge’s uplift of only six months on account of Mr Skipper’s previous convictions and the fact he was on bail was too light. In our view, these were significant aggravating factors which would have justified an uplift of 18 months. We also consider the Judge was very generous in allowing a discount of 12 months for the late guilty pleas. Mr Skipper had offered to plead guilty at the first pre-trial conference if the Crown downgraded the aggravated burglary, which it declined to do until the close of its case. However, as noted by the Judge, Mr Skipper could still have pleaded to one of the burglaries, thereby signalling to the jury that he had accepted his involvement in that one, but distancing himself from the first. However, he chose not to do that, and ran them both.
[28] As has often been said, the focus of an appellate Court must primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.
[29] An end sentence of four years was in range.

Did the Judge err in failing to take totality into account?

[30] By the time of the sentencing, Mr Skipper had completed the prison sentence that had been imposed for the August offences. His status at the time of sentencing was that he was on remand.
[31] In those circumstances, Mr Allan submitted that the Judge was required to take totality into account and consider whether a five and a half year term of imprisonment was an appropriate sentence for the August and Barbadoes Street offences combined. Had the Judge applied the totality principle, there would, Mr Allan argued, have been a reduction by an amount recognising the previous sentence.
[32] The thrust of Mr Allan’s argument was that back in 2009 the Court had an option whether to sentence Mr Skipper for the August offences or wait for the outcome of the Barbadoes Street charges and deal with both sets of offences at the one time. If the Court had deferred all matters until after the trial, the Judge would have been obliged to take totality into account. Mr Allan submitted that as a matter of general principle, Mr Skipper should not be disadvantaged simply because the Court took the other option and he happened to have finished serving the first sentence by the time of the second.

Discussion

[33] As noted in Adams,[4] the essence of the totality principle is that, when arriving at the appropriate sentence for several offences, a sentencing Judge must not only consider each offence individually but must also assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of the offending.
[34] It is of course well established that the totality principle is not limited to sentencing on a single occasion for multiple offences. It has also been held to apply in situations where there are successive sentencings for connected events,[5] or successive but proximate sentencings for unrelated events.[6] Further, it has been held to apply despite a lack of proximity where the second sentencing involved the imposition of a long sentence cumulative on the first sentence of which only a small proportion had been served.[7]
[35] We accept, too, that in principle the mere fact the first sentence has been served by the time of the second sentencing is not itself an automatic bar to application of the totality principle, although it may tell against it. Mr Allan told us he had been unable to find any direct authority. However our research has identified at least one Court of Appeal decision, R v Fissenden,[8] where totality was applied notwithstanding the fact the first sentence had already been served.
[36] The facts of this case, however, differ from Fissenden in two important respects. First, the offending under review in Fissenden had occurred before the offending that was the subject of the sentence already served, whereas in this case the Barbadoes Street burglaries took place after the offending for which Mr Skipper was sent to prison for 18 months. Secondly, the Barbadoes Street offending occurred while Mr Skipper was on bail. Those circumstances, combined with the fact it was unrelated offending and the sentence had already been served, persuade us that this was not an appropriate case for totality to apply, and there was accordingly no obligation on Judge Crosbie to take totality into account.
[37] For completeness, we wish to make two further points.
[38] The first is that even if totality had been applied, we are not convinced the outcome would have been any different.
[39] The second is that in our view it was entirely appropriate for the District Court to sentence Mr Skipper in October 2009 for the August offences rather than wait for some indefinite time in the future for resolution of the Barbadoes Street charges. At that stage Mr Skipper had chosen to plead not guilty to both Barbadoes Street burglaries, and was therefore presumed innocent, with a trial date at least six months away.

Result

[40] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Skipper DC Christchurch CRI-2009-009-016793, 1 October 2010.
[2] R v Columbus [2008] NZCA 192.
[3] R v Povey [2009] NZCA 362.

[4] Bruce Robertson (ed) Adams on Criminal Law - Sentencing (online looseleaf ed, Brookers) at [SA85.01].
[5] See for example R v Pineaha CA236/82, 3 December 1982.
[6] See for example R v Nuku [1969] NZLR 343 (CA).
[7] R v Johansen CA42/97, 23 May 1997.
[8] R v Fissenden CA364/95, 21 February 1996.