Burkhart v R [2013] NZCA 314 (19 July 2013)

Last Updated: 25 July 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA178/2013 [2013] NZCA 314
BETWEEN	KIERAN JOHN BURKHART Appellant
AND	THE QUEEN Respondent

Hearing:	10 July 2013
Court:	Stevens, Heath and Cooper JJ
Counsel:	C D Bean for Appellant K J Cooper for Respondent
Judgment:	19 July 2013 at 11.45 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The appellant, Mr Burkhart, together with a co-offender Kyle Devlyn was convicted following a jury trial in the Hamilton District Court of two counts of jointly receiving stolen property. He was sentenced by Judge Connell to 12 months’ imprisonment.^[1]
[2] The appeal against sentence was initially advanced on the basis that the Judge erred in setting the starting point, in assessing the personal circumstances of the appellant, and in failing properly to consider home detention as the least restrictive outcome. Before us the appeal against the failure to impose a sentence of home detention was not pursued. Given the proximity of the appellant’s release date on 11 August 2013, counsel contended for a reduction in the length of the sentence of imprisonment. Counsel was concerned that nothing should occur that might affect the release date.

Background

[3] On 10 February 2012 the police executed a search warrant at a secure storage facility rented by the appellant. Inside they located a welder valued at approximately $3,500 and a Samsung television valued at between $500–$1000. Both items had been reported stolen in burglaries in Hamilton. The welder was stolen in a burglary of commercial premises in Grasslands Place on 4 or 5 October 2011, while the television was stolen in a burglary of a residential address in Jeanette Street on 25 October 2011.
[4] The appellant denied ownership of the items, claiming that they belonged to Mr Devlyn. The appellant and Mr Devlyn were tried together and both were convicted jointly of receiving stolen property.

Sentencing

[5] Judge Connell noted the appellant had 34 previous convictions including one for receiving and five convictions for burglary (and a finding of case proven in respect of a sixth burglary dealt with in the Youth Court). The Judge also observed that at the time of the offending, the appellant was still subject to release conditions following a sentence of seven months’ imprisonment imposed in February 2011.
[6] The Judge adopted a starting point of twelve months’ imprisonment before imposing an uplift of three months to account for the fact that the appellant had previous convictions for dishonesty offences. Finally, a three month discount was allowed for the fact that the appellant had expressed motivation to rehabilitate himself following the birth of his first child.
[7] Judge Connell then considered whether a sentence of home detention was appropriate. He noted that the appellant’s position was not helped by the fact that he had a previous conviction for a breach of home detention. Although the Judge sympathised with the appellant’s desire to take up the responsibilities of being a new father, he noted that this should have been taken into account by the appellant at the time of the offending. For these reasons, home detention was not available.
[8] Accordingly, an end sentence of 12 months’ imprisonment was imposed.

Issue one: starting point

[9] Mr Bean for the appellant submits that the starting point of twelve months’ imprisonment was manifestly excessive. He relied on Tipiwai v Police, where Clifford J imposed a nine month uplift for offending involving receiving stolen property (x 4), using a document (x 3), failing to answer bail, and breach of community work.^[2] He submits that by comparison, this case involved only two counts of dishonesty, there is no suggestion of participation in an organised criminal group, and the receiving did not occur directly after the theft of the items. Thus Mr Bean submits that a starting point in the range of four to six months imprisonment was appropriate.
[10] Ms Cooper for the respondent submits that the starting point was within range. In R v Singh, the appellant pleaded guilty to two counts of receiving stolen computer equipment (eight laptop computers).^[3] He was sentenced to six months’ imprisonment with leave to apply for home detention, from a probable seven or eight month starting point. The appellant’s co-offender, Mr Roiall, received a starting point of twelve months imprisonment. This Court upheld Mr Singh’s sentence, noting:^[4]

Receiving conducted on the scale apparent in this case is a particularly pernicious activity providing as it does a ready market for thieves.

[11] Counsel also referred us to other cases dealing with sentencing for receiving stolen property of similar amounts.^[5] Ms Cooper submits that in the present case the stolen property came from burglaries, both commercial and residential. Receivers of property stolen in burglaries can be said to encourage the commission of this form of offending by providing a ready market for thieves. On the basis of the above authorities, she submits that the starting point of 12 months’ imprisonment was appropriate.

Issue two: error in consideration of personal circumstances

[12] When considering whether a sentence of home detention was available, Judge Connell referred to the fact that the appellant had recently become a father. He remarked:

[41] Can [his sentence] be served by way of home detention, I have my sympathies with him. I think he does deserve some credit for taking up the responsibilities of being a father. What I do not fully accept is that that is not something that could not have been in his mind at an earlier time than this. In other words he would have known that his partner was about to have a baby and yet that does not seem to have slowed him down at that point in time. It is only on the birth of his child, which he has missed and I acknowledge that is a difficult thing for him, but at some point he has to understand that we all have responsibilities in life, we tend to all keep ourselves out of trouble, so we actually have a freedom to do what he now wants to do. It is a little late in my view to come to the Court saying “look forgive all my past behaviours because I want to be with my son”.

[13] Mr Bean submits that at the time the offending took place, in October 2011, the appellant’s partner could not have been pregnant (as the baby was born in March 2013). Therefore the Judge was wrong to consider that the fact of the pregnancy ought to have been borne in mind by the appellant at the relevant time. He submits that the error is important because this factor weighed heavily in the Judge’s reasoning in relation to a potential sentence of home detention.
[14] In reply Ms Cooper submits that this was a comment illustrating the Judge’s attempts to inform the appellant that missing out on important life events is a risk that people take when they offend. It was a general warning of the consequences of engaging in criminal activity. Overall, the discount of 20 per cent given to reflect the appellant’s genuine wish to stop offending was fair and reasonable in the circumstances.

Discussion

[15] We deal first with a factual matter. As we have recorded^[6] the Judge referred to the fact that at the time of the offending the appellant was subject to release conditions following an earlier sentence. Mr Bean advised that this was not in fact the case. Ms Cooper acknowledged that the Judge erred in this respect and we accept that the appellant was not subject to release conditions.
[16] However, despite this error, we are satisfied that this appeal is without merit. The appellant was convicted of two charges of receiving stolen property, with a total value of between $4000–$4500. When this offending is viewed in light of the comparator cases identified by the respondent we consider that, while the starting point of 12 months may have been towards the top of the available range, it was nevertheless available to the Judge. Any error regarding the appellant’s release status was not relevant to the determination of the starting point.
[17] Next we are satisfied that the inaccuracy in the Judge’s comments concerning the appellant’s partner’s pregnancy did not have any material effect on the sentence imposed. The Judge’s overall message was that the appellant’s past offending cannot be entirely excused by the fact he has now determined to rehabilitate himself. This message is not affected by the fact the appellant did not know of the pregnancy at the time of the offending. The steps taken by the appellant to rehabilitate himself are commendable – and are to be encouraged. However the discount of three months (or 20 per cent) given for rehabilitation was on the generous side.
[18] Given the circumstances of the offending and the appellant’s previous record of offending, the sentence was not manifestly excessive. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Devlyn DC Hamilton CRI-2012-019-927, 19 March 2013.

^[2] Tipiwai v Police HC CRI-2007-483-14, 17 October 2007. The lead charge of burglary attracted a starting point of six months’ imprisonment.

^[3] R v Singh CA17/05, 19 May 2005.

^[4] At [11].

^[5] R v Ellis [2012] NZCA 513 and R v Taiepa [2009] NZCA 120.

^[6] At [5] above.