Devlyn v R [2013] NZCA 462 (4 October 2013)

Last Updated: 9 October 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA268/2013 [2013] NZCA 462
BETWEEN	KYLE ADAM DEVLYN Appellant
AND	THE QUEEN Respondent

Hearing:	18 September 2013
Court:	Miller, Cooper and Lang JJ
Counsel:	W N Dollimore for Appellant B D Tantrum for Respondent
Judgment:	4 October 2013 at 2.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time within which to appeal is granted.
2. The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

[1] Mr Devlyn pleaded guilty in the District Court to two charges of burglary and four charges of receiving stolen property. He also pleaded guilty to charges of being unlawfully in possession of a sawn-off shotgun and ammunition. He pleaded not guilty to two further charges of receiving, but was subsequently found guilty on both those charges following trial by jury. On 19 March 2013, Judge Connell sentenced Mr Devlyn to an effective term of two years eight months imprisonment.^[1]
[2] Mr Devlyn seeks to appeal on the basis that the sentence is manifestly excessive because the Judge selected starting points for individual sentences that were too high. He also argues that the Judge ought to have applied a discount to reflect the fact that he had been subject to a 24 hour curfew for approximately eight months prior to his trial.

Application for extension of time

[3] Mr Devlyn filed his appeal against sentence slightly out of time. He now seeks an extension of time within which to appeal.
[4] The Crown does not oppose an extension of time being granted. We therefore make an order granting an extension of time within which to appeal.

The offending

[5] On the night of 4 October 2011, a commercial property in Hamilton was burgled. A welder having a value of approximately $3500 was stolen from the premises. On 25 October 2011 another burglary occurred, this time at a residential address in Hamilton. Among the items stolen was a Samsung television set worth between $500 and $1000.
[6] On 10 February 2012, the police executed a search warrant in respect of a storage unit rented by Mr Devlyn and an associate. The police discovered the stolen welder and television set inside the unit. Mr Devlyn admitted storing items in the unit, but denied any knowledge of the stolen goods. Mr Devlyn and his associate stood trial on these charges, but were both found guilty by the jury.
[7] On 10 February 2012 the police also executed a search warrant at Mr Devlyn’s work address. Mr Devlyn arrived during the course of the search. When the police searched his vehicle, they found a sawn-off shotgun and four shotgun cartridges behind the driver’s seat. Mr Devlyn does not hold a firearms licence. He told the police that he had the shotgun and ammunition for his protection. This led to the charges of being unlawfully in possession of a firearm and ammunition. Mr Devlyn pleaded guilty to these charges at callover after being committed for trial on them.
[8] On the night of 19 April 2012, building materials were stolen from a construction site in Hamilton where a dwelling was being built. Thieves returned to the site on the night of 5 July 2012, and again stole building materials. The police found items stolen on both dates when they executed a search warrant at Mr Devlyn’s home address on 10 July 2012.
[9] The police also found two further stolen items during the search of Mr Devlyn’s address on 10 July 2012. They recovered a Panasonic television set that had been stolen in early January 2011 in a burglary of a residential address in Hamilton, and a Toshiba laptop computer that had been stolen from a vehicle in Taupo on 13 February 2012. These had values of approximately $700 and $1100 respectively.
[10] On 19 June 2012, whilst Mr Devlyn was on bail in respect of the charges arising out of the searches carried out on 10 February 2012, he entered a commercial address in Hamilton and broke into two containers. He discovered that one of the containers contained only a quantity of coat hangers, but he stole some of these. He then stole a large number of items from the second container. These included three rifles and numerous power tools. These had a total value of $4900, and have not been recovered.
[11] Mr Devlyn pleaded guilty at callover to two charges of burglary and four charges of receiving stolen property. The latter were laid as a result of the items found by police during the search of his home address on 10 July 2012.

The structure of the sentence

[12] The Judge divided the charges into two groups for sentencing purposes. The first group comprised the two receiving charges relating to the items found during the search of the storage unit on 10 February 2012, together with the charges relating to the sawn-off shotgun and ammunition. The second group comprised the two burglary charges, together with the four receiving charges laid as a result of the items found during the search of his home on 10 July 2012.
[13] The Judge took the lead charge in the first group to be the charge of receiving the welder. He adopted a starting point of 12 months imprisonment on that charge, but did not increase it to reflect the charge of receiving the Samsung television set. The Judge considered the firearm and ammunition charges would normally attract a starting point of 12 months imprisonment. Having regard to totality principles, however, he applied an uplift of just four months imprisonment on those charges. He then reduced that sentence by two months to reflect Mr Devlyn’s guilty pleas. This produced an end sentence in respect of the first group of charges of 14 months imprisonment. The Judge imposed that sentence on the charge of receiving the welder, and then imposed concurrent sentences on the remaining charges.
[14] The Judge took the lead charge in respect of the second group of charges to be the charge relating to the burglary of the container in which Mr Devlyn had stolen property worth $4900. He took a starting point of 18 months imprisonment in respect of that charge, and then applied an uplift of six months to reflect Mr Devlyn’s culpability in respect of the remaining charges in this group. This produced an end starting point of two years imprisonment. The Judge then applied a discount of six months, or 25 per cent, to reflect Mr Devlyn’s guilty pleas. This produced an end sentence of 18 months imprisonment on this group of charges. The Judge imposed that sentence on the lead burglary charge, and directed that Mr Devlyn was to serve it cumulatively on the lead sentence imposed in respect of the first group of charges. He then imposed concurrent sentences in respect of the remaining charges in the second group.

Decision

Were the starting points too high?

[15] Counsel for Mr Devlyn submitted that the starting point on the lead receiving charge was outside the available range, and should not have been more than six to nine months imprisonment. We disagree. Although the starting point may be regarded as being towards the upper end of the available range, we do not consider it was excessive given the fact that it was effectively adopted in respect of both receiving charges on which Mr Devlyn had been found guilty. The value of the items in question was also a relevant factor, because the welder and the Samsung television set had a combined value of approximately $4500.
[16] Furthermore, the offending occurred against a background of drug use by Mr Devlyn. The pre-sentence report recorded that he was consuming a considerable amount of methamphetamine on a daily basis at the time of the offending. Stolen property is commonly used as consideration for the purchase of drugs. We therefore consider it likely that this was a contributing factor to Mr Devlyn’s offending.
[17] Any residual concern about the starting point evaporates, in our view, when the end sentence imposed in respect of the first group of charges is taken into account. The fact that Mr Devlyn was in possession of a sawn-off shotgun was clearly a matter for concern, particularly his association with drugs. His explanation that he had the weapon for protection also suggests there was a risk he would have had resort to it if the need arose. We consider the Judge would have been justified in applying an uplift of significantly more than four months to reflect Mr Devlyn’s culpability in respect of the firearm and ammunition charges.
[18] In addition, the Judge applied a discount of 50 per cent in respect of the firearm and ammunition charges when the Supreme Court has held that the maximum permissible discount for a guilty plea component is 25 per cent.^[2] As a result, Mr Devlyn received an effective end sentence of just two months imprisonment in respect of the firearm and ammunition charges.
[19] These factors persuade us that Mr Devlyn received a lenient sentence in respect of the first group of charges.
[20] Counsel for Mr Devlyn submitted that the starting point adopted in respect of the lead charge in the second group was also outside the available range. He pointed out that the burglary of the container involved no more than cutting a padlock and removing the contents. Counsel likened it to the low level burglary of commercial premises.
[21] We accept that the burglary charges were towards the lower end of the scale, but Mr Devlyn nevertheless stole goods worth $4900 in the offending that formed the basis of the lead charge. As always, the real issue is not the manner in which the Judge constructed the sentence, but the end result. The end result in the present case was a starting point of two years imprisonment on two charges of burglary and four charges of receiving stolen property. We do not consider that to be outside the available range.
[22] Furthermore, the Judge would have been entitled to apply an uplift in respect of the second group of charges to reflect the fact that this offending occurred whilst Mr Devlyn was on bail on the first group of charges. Mr Devlyn is fortunate that the Judge did not take this step.
[23] When all of these factors are taken into account, we do not consider the Judge adopted starting points that led to a sentence that can be described as being manifestly excessive.

Did the Judge err in failing to apply a discount to reflect restrictive terms of bail?

[24] Mr Devlyn was on bail for eight months on terms that required him to abide by a 24 hour curfew. Counsel for Mr Devlyn says that he asked the Judge to apply a discount to reflect this fact, and that the Judge erred in not doing so.
[25] The Judge did not mention this issue in his sentencing remarks, but we do not see any error of sentencing principle in the approach he took. It is now well established that a sentencing Judge may apply a discount to reflect the fact that an offender has been subject to restrictive bail conditions for a lengthy period prior to trial or sentence. This Court has observed on several occasions that this issue falls very much within the discretion of the sentencing Judge, and that an appellate court is unlikely to disturb a sentence on this ground alone.^[3]
[26] Our conclusion that the sentence Mr Devlyn received in respect of the first group of charges was lenient is in any event determinative of this point. It means that the end sentence cannot be regarded as manifestly excessive even taking into account the fact that Mr Devlyn was subject to restrictive bail conditions for a reasonably lengthy period before his trial.

Result

[27] The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent

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

^[2] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

^[3] Bennett v R [2012] NZCA 173 at [25]; Te Kahu v R [2012] NZCA 473 at [34].