Peters v R [2011] NZCA 334 (22 July 2011)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Peters v R [2011] NZCA 334 (22 July 2011)

Last Updated: 26 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/2011 [2011] NZCA 334

BETWEEN RICHARD HETA PETERS Appellant

AND THE QUEEN Respondent

Hearing: 18 July 2011

Court: Stevens, Potter and Ronald Young JJ

Counsel: D P Hoskin for Appellant B D Tantrum for Respondent

Judgment: 22 July 2011 at 1.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Introduction

[1] The appellant, Richard Heta Peters, was charged with burglary together with Antonio Peters. Both entered guilty pleas to that charge and were sentenced by Judge Moses in the District Court at Manukau on 17 December 2010.[1] The appellant was sentenced to two years, two months’ imprisonment and now appeals against that sentence. The main ground of appeal is stated to be disparity with the sentence of his co-offender, who was sentenced to ten months’ home detention.

Factual background

[2] The summary of facts upon which the guilty pleas were entered records that the appellant and his co-offender, while driving in their vehicle at mid-morning on 12 March 2010, entered the driveway of a rural property and proceeded towards the house. The appellant went around the left side of the house where he saw an open window. He entered through the window and uplifted a small black toilet bag and a small green jewellery box with two gold chains inside.
[3] Antonio Peters, concerned at the length of time the appellant was absent, also left the vehicle and entered the house through the same window. They then entered the family room where they disturbed the complainant. She immediately ran from the house through a ranch slider. She was chased by one of the offenders (although the appellant denied this to the probation officer who prepared his pre-sentence report). The complainant ran a further fifteen metres and jumped off a retaining wall at the edge of the lawn in an attempt to evade the offenders. She received grazing and a substantial blow to her left cheek area as a result.
[4] The offenders then returned to their vehicle and drove away from the address. Shortly afterwards they were stopped by police who observed erratic driving behaviour.

Sentencing

[5] The Judge took a starting point for sentencing of two years, three months’ imprisonment for both offenders. In each case he added six months by way of uplift to the sentence for the significant list of previous convictions of the offenders, to reach a starting point of two years, nine months’ imprisonment. He then gave the appellant a credit for his guilty plea of just over twenty per cent, which reduced the sentence to two years, two months’ imprisonment. He said that in reaching that sentence he had taken into account both the remorse expressed and the guilty plea. He noted that since the sentence was of more than two years’ imprisonment, the issue of home detention did not arise.
[6] In respect of Antonio Peters, from the revised starting point of thirty-three months’ imprisonment, the Judge allowed a reduction of four months to reflect the length of time spent by the offender on electronically monitored bail. He allowed the same twenty per cent discount for the guilty plea, so that the end sentence was twenty-three months’ imprisonment. He then considered home detention.
[7] The Judge concluded, “by the very finest of margin”, that because Antonio Peters has supportive parents, a young family and a job (a letter from his employer confirming past employment and a continuing offer of employment was presented to the Court), he was prepared to give him a last opportunity by imposing home detention. The Judge took into account that Antonio Peters had spent some time in custody before being granted bail and gave two months credit for that, reaching a sentence of ten months’ home detention. He imposed a number of conditions relating to that sentence.

Appellant’s submissions

[8] The appellant submitted that the sentences of the two co-offenders should be the same or similar and that the appellant should have been sentenced to home detention, as was Antonio Peters. It was submitted that both are of similar ages, the appellant aged 29 years and Antonio Peters 25 years of age at the date of sentence, and there was nothing in the offending itself which distinguished the two offenders.
[9] Mr Hoskin suggested that because at the time of sentencing there was no appendix available to the pre-sentence report for the appellant which had been prepared on 13 October 2010, this operated to the appellant’s disadvantage compared with his co-offender, for whom there was a home detention appendix annexed to the pre-sentence report dated 9 December 2010.
[10] While accepting that the sentence imposed of two years, two months’ imprisonment was not excessive, Mr Hoskin submitted that there was a gross disparity between this sentence imposed on the appellant and the sentence of ten months’ home detention imposed on his co-offender, which should be addressed by the intervention of this Court on appeal.

Evaluation

[11] The different sentences imposed on the appellant and his co-offender do not result in disparity, but rather reflect a distinction in the sentencing outcomes for the two offenders. There is a rational basis for the distinction made by the sentencing Judge, as the Crown identified in its written submissions:

• (a) The criminal histories of the two offenders differ, although both are properly described as having a significant list of previous convictions. The appellant has previous convictions for burglary (x 21), using a document (x 4) and theft (x 3). Relevantly, by way of comparison with the previous offending of his co-offender, he has convictions for aggravated robbery (x 2), common assault and threatening to kill/do grievous bodily harm. The offending history of Antonio Peters includes burglary (x 22), using a document (x 30), theft (x 7), and receiving (x 2). But apart from a common assault conviction some considerable time ago, there are no previous convictions for violence.
• (b) The appellant was subject to a sentence of imprisonment and was on parole when he committed the burglary. He was sentenced to three years’ imprisonment on 9 November 2007 for a number of burglaries and other offences and was still subject to that sentence when he committed this offending on 12 March 2010.
• (c) Antonio Peters had obtained employment prior to sentencing, which was confirmed in writing by his employer.
• (d) The pre-sentence reports indicate that Antonio Peters had a more supportive family environment within which to serve a non-custodial term, although the home detention appendix produced for the appellant after sentencing indicates a suitable home detention address with his partner.

[12] It was open to the Judge to take into account the period spent by Antonio Peters on electronically monitored bail.[2] No allowance may be made for time spent in custody prior to sentencing,[3] but the appellant will receive credit against the sentence of two years, two months’ imprisonment for the time he spent in custody prior to sentencing.
[13] The offending histories of both offenders show that they are recidivist burglars. The sentence imposed on the appellant of two years, two months’ imprisonment was lenient, and Mr Hoskin did not disagree with that. Antonio Peters may well be regarded as fortunate to have been given a final opportunity by the sentence of home detention, to move on with his life and to cease involvement in criminal behaviour. But given the appellant’s offending history, the fact that he committed this burglary while on parole for like offending, which had warranted a sentence of three years’ imprisonment, and the absence of any past work experience or commitment to the discipline of work or work related activity, there is a proper distinction to be made between the situations of the appellant and his co-offender.

Result

[14] There is no basis on which this Court should intervene on appeal. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Peters DC Manukau CRI-2010-055-624, 17 December 2010.
[2] R v Faisandier CA185/00, 12 October 2000; R v Nepe [2008] NZCA 98.
[3] Sentencing Act 2002, s 82.