Ibell v R [2013] NZCA 514 (23 October 2013)

Last Updated: 30 October 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA449/2013 [2013] NZCA 514
BETWEEN	JESSE LEE IBELL Appellant
AND	THE QUEEN Respondent

Hearing:	15 October 2013
Court:	White, Venning and Andrews JJ
Counsel:	C J Tennet for Appellant H W Ebersohn for Respondent
Judgment:	23 October 2013 at 2.30 pm

JUDGMENT OF THE COURT

1. Time is extended for the appellant’s appeal to be brought.
2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

[1] On 8 November 2012, the appellant appeared for sentence in the District Court at Hamilton on 12 charges, including three charges or burglary, one charge of attempted burglary, and three charges of receiving stolen property. Judge R G Marshall sentenced him to five years’ imprisonment and ordered that he serve a minimum period of imprisonment (MPI) of two years and six months.^[1] The appellant has appealed against sentence on the grounds that both the sentence and the MPI are manifestly excessive.
[2] The appeal was filed out of time and the appellant seeks an extension of time to appeal. The Crown does not oppose the application. Accordingly, time is extended for the appeal to be brought.

Background

[3] On 14 September 2007, the appellant was sentenced to four years’ imprisonment on a number of charges, including ten of burglary. On 22 June 2011, he was sentenced to three months’ imprisonment, cumulative upon the four-year term, on a charge of wounding with intent to injure.
[4] Between 27 January and 10 March 2012, the appellant committed two offences of burglary, three offences of receiving, and the offence of driving while forbidden (the January-March offending). At the time, he was subject to postrelease conditions.
[5] On 30 April 2012, the appellant was sentenced to four months imprisonment on five charges of breaching post-release conditions, during the period from 5 January to 16 February 2012.
[6] On 7 June 2012, the appellant escaped from Waikeria Prison with Wayne Holmes. On the same day, the appellant unlawfully took a motor vehicle in Kihikihi, committed a burglary at an address at Pukekohe, and attempted to commit a burglary at another address in Pukekohe. On 10 June 2012, the appellant was in custody at the Whangarei Police Station. He broke the leg of a metal chair. On 26 June 2012, the appellant was in custody at Springhill Prison, and caused damage to his cell (the June offending).

District Court sentencing

[7] For the January-March offending, on a stand-alone basis, the Judge adopted a starting point of three years, six months’ imprisonment, uplifted by six months “to recognise [the appellant’s] recidivist burglary convictions and pattern of behaviour”.^[2] For the June offending, again on a stand-alone basis, the Judge adopted a starting point of two years, six months’ imprisonment, uplifted by six months for “[the appellant’s] previous behaviour by way of burglaries as a personal aggravating factor”.^[3] The Judge then reduced the total seven year starting point on a totality basis, “as there will be some double counting for [the appellant’s] previous convictions”.^[4]
[8] The Judge recorded that the June offending was aggravated by the fact that the appellant was at the time an escaped prisoner, but maintained an adjusted starting point of six years, six months’ imprisonment. He then allowed a discount to arrive at the end sentence of five years’ imprisonment.^[5] The Judge then concluded that a MPI should be imposed for half of the sentence; that is, two years and six months.

Appeal submissions

Parity with co-offender

[9] Mr Tennet first submitted that, in respect of the June offending, the appellant’s sentence should be on a par with that imposed at Mr Holmes’ sentencing. He submitted that the appellant and Mr Holmes had escaped together, been on the run together, and been caught together.
[10] We do not accept that there is any lack of parity between the sentences. The appellant was sentenced on charges of escaping from a penal institution, unlawfully taking a motor vehicle, burglary, attempted burglary, wilful damage, and intentional damage. The starting point for the appellant’s sentencing for the June offending (with uplift) was 36 months’ imprisonment. Mr Holmes was sentenced on charges of escaping from a penal institution, unlawfully getting into a motor vehicle, attempting to escape from custody, and intentional damage. The starting point for his sentencing (overall offending, and with uplift) was 25 months’ imprisonment. Bearing in mind that the appellant’s offending included the charges of burglary and attempted burglary (which Mr Holmes did not face) and the more serious charge of taking a motor vehicle (in the appellant’s case) rather than getting into a motor vehicle (in Mr Holmes’ case) the higher starting point for the appellant’s offending is appropriate.
[11] We reject the submission that the appeal should be allowed on the grounds of a lack of parity with Mr Holmes’ sentence.

Were the sentences manifestly excessive?

[12] Mr Tennet next submitted that the adjusted starting point of four years’ imprisonment for the January-March offending was manifestly excessive, as it was double-counted by six months as a result of the uplift of six months for the appellant’s previous convictions. Mr Tennet submitted that classifying the appellant as a “recidivist burglar” placed him in category 2 of the categories set out in Senior v Police, in respect of which a Full Court of the High Court observed than an offender “is unlikely to receive a sentence which exceeds 3years”.^[6] Mr Tennet also referred to the comments of this Court in R v Columbus, as to the need to guard against “fixing the starting point by imposing a sentence which is primarily a punishment for previous offending”.^[7]
[13] We accept, as a matter of principle, that it would not be correct to adopt a starting point for burglary offending which is based on the offender being a recidivist burglar (that is, in the Senior category 2) and then to uplift the starting point to take account of those burglary convictions. However, notwithstanding the Judge’s reference in this case to the appellant’s previous convictions, we are not persuaded that the adjusted starting point for the January-March offending was manifestly excessive.
[14] We are satisfied that the initial starting point of three years, six months’ was appropriate given the aggravating features of the appellant’s offending:

• (a) Both burglaries were of residential properties. In the course of one of the burglaries the occupant (a woman) returned home and the appellant ran from the address. The woman was confronted by the appellant’s associate, who has not been identified.
• (b) The appellant took property valued at about $15,000 in the course of the other burglary. The items taken included a firearm, scope, and suppressor, together with ammunition and loading equipment. The items also included personal banking documents, which the appellant attempted to use to transfer money into his own account.
• (c) The appellant’s offending included the three receiving charges, in respect of which the Judge did not apply a specific uplift. In total, the burglary and receiving offences involved items totalling about $53,000 in value.

[15] Further, we are satisfied that it would have been open to the Judge to apply a significant uplift to take account of the fact that the January-March offending was committed while the appellant was subject to post-release conditions.
[16] Mr Tennet also submitted that the starting point for sentencing on the June offending was too high. Like the January-March offending, the June offending had serious aggravating features. The two targeted addresses were residential, and at one of them the appellant disturbed the occupant, a woman who was at home alone in bed, unwell. The appellant again took bank cards and attempted to use them to obtain cash. Further, the appellant was at this time an escaped prisoner, and had facilitated his offending by unlawfully taking a motor vehicle.
[17] Mr Tennet next submitted that the Judge had double-counted the effect of the appellant’s history of previous convictions by adopting a starting point for each set of offending in category 2 of Senior, then applying an uplift for the appellant’s previous burglary convictions. We do not accept this submission. In each case, an uplift was required for factors other than the appellant’s previous history: in the case of the January-March offending, the appellant was subject to post-release conditions, and in the case of the June offending, he was an escaped prisoner. Further, for each set, the starting point adopted was well justified on the basis of the appellant’s offending.
[18] As Mr Tennet acknowledged, while it is important to look at how a sentence is constructed, it is the end result that counts.^[8] Standing back, we are not persuaded that the individual starting points led to an end sentence which was manifestly excessive for the appellant’s offending.
[19] We note, first, this Court’s observation in R v Southon, that “recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment”.^[9] Secondly, we are satisfied that the individual starting points for the two groups of offending were well within the available range for the appellant’s offending. Starting points of between three and five years’ imprisonment have been upheld by this Court for similar offending.^[10]
[20] Further, the appellant was given the benefit of a discount of 18 months for his guilty pleas. While the guilty pleas on some charges were entered on the appellant’s first appearance, that was not the case in respect of other charges. We also observe, as did the Supreme Court in Hessell v R:^[11]

... the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

[21] In this case, the prosecution case against the appellant could only be described as strong.
[22] We reject the submission that the sentences were manifestly excessive.

Should a minimum period of imprisonment have been ordered?

[23] Mr Tennet acknowledged that if he were to succeed in his submissions on the appeal against sentence, a MPI could be seen to be appropriate. However, if the appeal were not successful, he submitted that a MPI was inappropriate, as the sentence imposed on the appellant was already a deterrent sentence. He accepted that the Judge appropriately set out the relevant factors to be considered in his sentencing, but he submitted that the Judge had then misapplied those factors, and not set out the reasons for his decision to impose a MPI. He further submitted that the offending itself was not sufficiently serious for a direction that the appellant serve one half of the sentence, nor was there any particular matter concerning the appellant himself which justified the MPI.
[24] We are not persuaded that the Judge made any error in considering imposing a MPI. The Judge set out his consideration of the Sentencing Act 2002, s 86(2) factors in the sentencing decision.^[12] The particular factors referred to by the Judge were:

• (a) to hold the appellant accountable for the harm done;
• (b) to denounce the appellant’s conduct;
• (c) to deter the appellant and others from committing the same or similar offences; and
• (d) to protect the community.

[25] We are not persuaded that the Judge erred in considering any of those factors. The need to protect the community is particularly relevant in the appellant’s case. He has a serious history of convictions for burglary, in respect of which he received terms of imprisonment in August 2005 and September 2007. He also has numerous convictions for taking or using documents for pecuniary advantage, receiving stolen property, theft and being unlawfully in a building, over the same period. He had numerous charges of burglary found proved against him in the Youth Court, between May 2003 and April 2005. In a pre-sentence report prepared in respect of his conviction for breaching post-release conditions, it was noted that the appellant’s conduct “represents a continuing pattern of behaviour indicating an indifference to the law”, and he was assessed as being “at a very high risk of re-offending”.
[26] In all the circumstances, we are not satisfied that the Judge made any error of principle, took into account irrelevant factors, or failed to consider relevant factors, in exercising his discretion to impose a minimum period of imprisonment of half of the term of imprisonment. Accordingly, we reject the submission that a MPI should not have been ordered.

Result

[27] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Ibell DC Hamilton CRI-2012-019-1559, 8 November 2012.

^[2] R v Ibell, above n 1, at [15].

^[3] At [16].

^[4] Ibid.

^[5] We note that although the Judge stated that he was allowing the full discount for a guilty plea of 25 per cent (at [17]), the discounted sentence of five years was based on a miscalculated 20 month credit. The discount from the starting point was thus in fact 18 months or approximately 23 per cent.

^[6] See Senior v Police (2000) 18 CRNZ 340 (HC) at [36].

^[7] R v Columbus [2008] NZCA 192 at [15].

^[8] Citing R v MacCulloch [2005] 2 NZLR 665 (CA).

^[9] R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104 at [13].

^[10] See, for example, Makene v R [2013] NZCA 178; Harrison v R [2011] NZCA 80; and Swinburne v R [2010] NZCA 568.

^[11] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].

^[12] R v Ibell, above n 1, at [18].