Cecil v R [2013] NZCA 541 (5 November 2013)

Last Updated: 13 November 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA448/2013 [2013] NZCA 541
BETWEEN	JUNIOR CECIL Appellant
AND	THE QUEEN Respondent

Hearing:	23 September 2013
Court:	French, Winkelmann and Panckhurst JJ
Counsel:	T J Darby for Appellant B D Tantrum for Respondent
Judgment:	5 November 2013 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

An organised criminal group

[1] On 11 June 2013 the appellant, and others, were sentenced for their participation in an organised criminal group involved in burglaries of commercial premises using vehicles unlawfully taken for this purpose.^[1] The appellant was sentenced on the participation charge, seven charges of burglary, two charges of converting motor vehicles and one charge of obstructing the course of justice. An end sentence of eight years seven months’ imprisonment was imposed, with a minimum period of imprisonment of three years and nine months.
[2] Virtually every step in the sentencing decision is the subject of challenge. The grounds of appeal are that the starting point adopted by Lang J was excessive, personal mitigating factors were not recognised, the discount for the guilty pleas was inadequate, the minimum period of imprisonment (MPI) was wrongly imposed, the cumulative term for obstructing the course of justice was wrong in principle and the sentence was disparate by comparison to those imposed in the District Court on two other members of the group.

The offending

[3] In the period from June 2011 to early January 2012 at least five men comprised the organised criminal group.
[4] On 21 June 2011 entry was gained to credit union premises at Papatoetoe and an Automatic Teller Machine (ATM) was forcibly removed. A converted truck was used to transport the ATM to Wiri, where $21,000 was obtained from the ATM.
[5] On 29 September 2011 further credit union premises at Otahuhu were targeted. A vehicle converted 12 days earlier was twice reversed into the front of the premises to dislodge an ATM from its mountings. Extensive damage was caused to the premises and the vehicle, which was abandoned. A converted van was used to remove the ATM to Onehunga, where gas cutting equipment and a grinder were used to open the ATM and $81,000 was obtained.
[6] On 4 December 2011 members of the group entered the secure yard of a company at Wiri, and selected two trucks from the yard for use in another burglary. One of the vehicles was driven through the perimeter fence, and both were taken to credit union premises at Mangere. In the early hours of 5 December 2011 the truck that had been driven through the perimeter fence was reversed repeatedly into a wall to gain entry into the building. Attempts to dislodge an ATM from its mountings were unsuccessful, in part because of the structural damage caused to the building in gaining entry. After a time the offenders desisted, abandoned the damaged vehicle and drove off in the remaining one.
[7] On 6 December 2011 a car and a van were unlawfully taken in Manukau and Panmure. In the early hours of 7 December 2011 the car was reversed through the front of service station premises at Manurewa in order to dislodge an ATM. It was loaded into the van and driven to Hunua, where gas cutting equipment was used to open the ATM and about $1,200 was removed. Subsequently the van was driven to Papakura and set on fire, resulting in its destruction.
[8] On 28 December 2011 a converted utility truck was used in the course of a burglary of fast food premises in Manukau. The offenders used a metal bar to make a hole in the side of the building, through which they gained entry and commenced a search for a safe. An alarm was activated, and the utility was then used in an endeavour to forcibly remove the safe from the building. Both the building and vehicle were extensively damaged before the offenders decamped.
[9] Between 30 December 2011 and 1 January 2012 a truck was unlawfully taken from commercial premises in Manukau. In the early hours of 1 January 2012 the truck and a converted car were driven to commercial premises at Otahuhu. The truck was reversed into a side wall to gain access to a safe inside the premises. Near neighbours alerted the police who arrived at the scene, but could not apprehend the offenders before they made off in the car. A pursuit began, but was abandoned.
[10] On successive days in mid-January 2012 four men who had been interviewed by the police in relation to the burglaries and related offending were visited by the appellant and two other members of the group. The men who had been interviewed were threatened and told they would suffer retribution if they revealed anything to the police. The appellant added “deny everything”, and told the men to say that anything they had said previously was when they were “on drugs or high”.
[11] The following day the interviewed men were again approached by the appellant and other members of the group. The appellant spoke to each of them individually concerning their speaking to the police. The appellant then said that one of the men should get “the bash now”, and instructed his brother to assault that man. The initial blow was considered inadequate, and the appellant required that further blows be struck.
[12] When interviewed by the police the appellant denied involvement in the offending.
[13] As a result of the burglaries the group obtained about $111,000 in cash or property from the various premises. In addition, property damage of about $356,000 was caused to buildings and vehicles, although the appellant was not directly implicated in the offending that accounted for about $50,000 of this figure.

The sentencing decision

[14] Justice Lang viewed the burglaries as the lead offences. However, he fixed a starting point by reference to the seven burglaries and the “associated offending” in which the appellant was involved as a member of the organised criminal group.^[2] A starting point of eight years six months was adopted.
[15] The appellant had an extensive criminal record, including numerous convictions for burglary and unlawfully taking motor vehicles. The Judge made a “modest” uplift of six months to mark the appellant’s repeat offending.^[3] The indicated term of nine years’ imprisonment was then reduced by 15 per cent in recognition of the guilty pleas entered “on the eve of [the] trial”.^[4] This reduced the indicated sentence to seven years seven months.
[16] The Judge then considered whether the imposition of an MPI was warranted. He was of the opinion that the offending was of such seriousness that to recognise the principles of accountability, denunciation and deterrence, and to promote the protection of the community, a minimum term of three years nine months was required.
[17] Finally, a discrete sentence was imposed in relation to the charge of obstructing the course of justice. Justice Lang accepted that standing alone this crime warranted a starting point of about two years’ imprisonment, but in recognition of the guilty plea and “having regard to totality” a sentence of one year’s imprisonment was appropriate.^[5]
[18] The end sentence, eight years seven months, was structured by the imposition of terms of seven years seven months on each of the burglary charges, three years on the charge of participating in a criminal group and one year on the two charges of unlawfully taking vehicles. These sentences were to be served concurrently, but the one year term for obstructing the course of justice was imposed as a cumulative sentence.

The lead sentence: seven years seven months

Was the starting point excessive?

[19] Mr Darby argued that the starting point of eight years six months was clearly excessive by comparison to the starting points adopted in other similar cases. Indeed, he criticised the starting point as much too high when measured against the maximum penalty for burglary of 10 years’ imprisonment because the index offending was not near to the most serious of its kind.^[6] Moreover, the appellant’s highest previous sentence for burglary was 18 months’ imprisonment and the “graduation” to an eight and a half year starting point was “too extreme”.
[20] We do not accept these contentions. They do not reflect the Judge’s reasoning. Justice Lang first considered the burglaries in isolation. By reference to the most comparable case, R v Baleitavuki, he was satisfied that “any one of the burglaries” in which significant damage and loss of property was caused would justify a sentence of three to three and a half years.^[7]
[21] However, Lang J assessed the offender’s culpability in the round, in particular by reference to several factors. These were: the method adopted by the group, including the unlawful taking of vehicles, the use of them to facilitate the offending and the consequent significant damage to vehicles and premises. The total value of property damage, and cash and goods stolen, was over $460,000. He also noted the duration of the group’s offending, and the significant level of planning it involved.
[22] The starting point of eight and a half years was fixed by reference to not just the seven burglaries, but the “associated offending” as well.^[8] We are not persuaded that the starting point of eight years six months in the appellant’s case, and the eight year starting points in relation to his two co-offenders, were excessive when the approach adopted is properly understood. In reality the starting points reflected all of the offending, save for the charge of obstructing the course of justice.

Personal mitigating factors

[23] Counsel argued that the Judge erred in not making a deduction for three personal mitigating factors: remorse, family circumstances and an offer to make amends. It was submitted that these factors together justified a one year reduction from the starting point.
[24] The appellant is 33 years of age. The pre-sentence report was generally unfavourable. It noted the extent of the appellant’s previous convictions, his poor response to community based sentences, the escalation in the seriousness of his offending and, realistically, recommended a sentence of imprisonment.
[25] However, the report described the appellant as “a very good father when not under the influence of alcohol or drugs”, and noted his statement that his children provided motivation for him to improve and be a good father and provider for his family. With regard to remorse, the report writer said that the appellant had “apologised for his behaviour” and “expressed remorse for his actions”. He also agreed to make reparation by payments from his benefit “if ordered by the Court”.
[26] Justice Lang did not refer to these aspects in the course of his sentencing remarks. That, we infer, was because he did not regard any of these three matters as mitigating factors warranting recognition. The pre-sentence report speaks for itself. It demonstrates that lip service was paid to the claimed factors, but nothing more tangible was evident.

Allowance for the guilty pleas

[27] After the uplift of six months to reflect repeat offending, Lang J reduced the indicated sentence of nine years’ imprisonment by 15 per cent, or one year five months, to reflect the guilty pleas to the 11 charges. The appellant was apprehended in late January 2012 and entered guilty pleas to an amended indictment on 3 May 2013. The Judge characterised the pleas as entered on the eve of trial.
[28] Mr Darby, however, stressed that the appellant initially faced 54 charges, disclosure by the prosecution was slow and the pleas were entered immediately after an amended indictment containing only 11 charges was filed. Counsel submitted that in these circumstances a reduction of 20–25 per cent was warranted.
[29] We do not accept this proposition. Crown counsel provided additional information concerning the background circumstances. The significantly reduced indictment did not cover a lesser scope of offending. Rather, for example, charges of intentional damage relating to vehicles and premises were removed, leaving these aspects as aggravating features of the burglaries – as opposed to additional charges. Secondly, blood was found at the scene of one of the burglaries that matched the appellant’s profile held in the databank. Mr Cecil nonetheless opposed a suspect compulsion order until the date upon which it was to be heard. Following the making of the order there was further delay before a sample was taken and analysed, and this necessitated a final tranche of disclosure in 2013.
[30] Hence, it is apparent that the guilty pleas were entered following a delay of 15 months and late in the trial process. In our view the allowance of 15 per cent was appropriate.

Minimum period of imprisonment

[31] Mr Darby argued that an MPI should not have been imposed. He submitted that Lang J gave inadequate reasons to explain the need for an MPI in terms of the relevant test.^[9] Counsel noted that judges are subject to a statutory requirement to give reasons.^[10]
[32] The Judge said that he considered the appellant’s offending to be of such seriousness that all four factors identified in the subsection were engaged. He added that the normal parole eligibility date would fall before the sentence achieved accountability, denunciation and deterrence; and, given the appellant’s offending history, the Judge also saw the need for an MPI to protect the public.
[33] We regard the reasons given as commendably succinct, but also adequate to the occasion. The Judge’s remarks, read in context, readily convey the reasons which prompted the imposition of an MPI.

Obstruction of the course of justice

[34] Counsel submitted that this charge should have incurred a concurrent sentence because the test for a cumulative sentence was not met.^[11] A cumulative sentence is generally appropriate for an offence different in kind to the principal offending, whether or not such offence is part of a connected series of offences. Here, Mr Darby submitted, the obstruction charge was closely connected to the dishonesty charges, given that one aspiration of the organised criminal group was to avoid detection in relation to the property offending.
[35] No doubt this is so, but it does not follow that the Judge erred in imposing a cumulative term. To the contrary, the obstruction charge was clearly different in kind to the dishonesty offending and required the imposition of a cumulative term. Otherwise, a serious offence that strikes at the administration of justice would have gone unmarked in any realistic sense.

Disparate sentences

[36] Two co-offenders were raised in this context. The first, Alan Hamilton, is clearly distinguishable from the appellant. He faced five charges of burglary and three charges of unlawfully taking a motor vehicle. He was 17 years of age and a first offender. His sentence, eight months’ home detention, reflected prompt guilty pleas, genuine remorse, his age and lack of previous convictions, and the Judge’s acceptance that he had been under the influence of older offenders. These factors explain the lenient sentence, and render drawing a comparison between that case and this one pointless.
[37] The other co-offender was Joe-Joe Crombie, who was sentenced on a charge of participation in the organised criminal group and related charges of theft of a motor vehicle (5), burglary (5) and intentional damage (4).^[12] Mr Crombie was also sentenced on a historic burglary charge from 2007. The District Court Judge adopted a starting point of five and a half years’ imprisonment for the group offending. He imposed an end sentence of four years’ imprisonment after making a 25 per cent reduction for guilty pleas entered at an early opportunity, plus remorse. An uplift was considered, but not imposed because Mr Crombie’s involvement in serious offending had tailed off somewhat prior to the group offending in 2011. The burglary committed in 2007 was met with a sentence of two years’ imprisonment, but this was a concurrent term.
[38] Mr Crombie was 40 years of age at the date of sentencing. His previous history included numerous convictions for burglary and unlawful taking, as well as some assaults, driving offences and the like. Most of the burglary convictions were entered in the 1990s, or earlier, with a gap of nine years prior to the 2007 burglary and a gap of almost four years before the group burglaries commenced. No doubt it was to this pattern that the Judge referred when remarking that Mr Crombie’s serious offending had tailed off somewhat. The guilty pleas were entered following a sentence indication hearing on 24 July 2012 and the sentencing took place in early September 2012. This is compared to the appellant’s pleas that were not entered until May 2013. We also note that Mr Crombie’s pre-sentence report had some positive features, including confirmation of his remorse. His involvement in the group offending was attributed to his addiction to alcohol and, in particular, methamphetamine.
[39] Although there are some points of difference in the personal circumstances of the appellant and Mr Crombie, these were reflected in the discounts they each received. The disparity of four years seven months in their end sentences is essentially a product of the different starting points adopted. Justice Lang adopted eight years six months in relation to the group offending, whereas the District Court Judge began at five and a half years. There is no rational explanation for this three year difference.
[40] Justice Lang then imposed a further 12 month sentence on the appellant for obstructing the course of justice, which was to be served cumulatively. Mr Crombie was not involved in this aspect, albeit he was fortunate not to receive a cumulative term for the unrelated 2007 burglary.
[41] Is the disparity such as to require our intervention? A difference between the sentences received by co-offenders does not automatically warrant appellate intervention. First it must be determined which sentence is out of line. We are in no doubt that Mr Crombie received a very lenient sentence. We consider Lang J was right in adopting a starting point of eight years and six months for the group offending in which the appellant was involved. A similar starting point would have been appropriate in Mr Crombie’s case.
[42] Where an unjustified disparity exists, and it is so marked as to tend to bring the administration of justice into disrepute, appellate intervention may be required. Otherwise, a reasonable observer aware of all the circumstances would consider that something had gone wrong with the administration of justice,^[13] since consistency in the treatment of like offenders is an important sentencing principle.^[14] But where, as here, the problem arises from an unduly lenient sentence it makes no sense to reduce the correct sentence to bring about consistency. A reasonable observer would not consider that appropriate. Two wrongs do not make a right.^[15] Hence, the appellant’s sentence must stand.

Result

[43] For the reasons explained, the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Cecil [2013] NZHC 1384.

^[2] R v Cecil, above n 1, at [24].

^[3] At [27].

^[4] At [28].

^[5] At [37].

^[6] Sentencing Act 2002, s 8(d).

^[7] At [23], citing R v Baleitavuki HC Auckland CRI-2005-004-22544, 15 September 2006.

^[8] At [24].

^[9] Sentencing Act, s 86(2).

^[10] Section 31.

^[11] Section 84.

^[12] R v Crombie DC Manukau CRI-2011-092-19593, 4 September 2012.

^[13] R v Lawson [1982] 2 NZLR 219 (CA) at 223.

^[14] Sentencing Act, s 8(e).

^[15] Mau’u v R [2011] NZCA 385.