McRae v R [2013] NZCA 75 (26 March 2013)

Last Updated: 3 April 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA642/2012 [2013] NZCA 75

BETWEEN TERRY RIKI MCRAE Appellant

AND THE QUEEN Respondent

Hearing: 6 March 2013

Court: Ellen France, Keane and Miller JJ

Counsel: C D Bean for Appellant K Raftery for Respondent

Judgment: 26 March 2013 at 11 am

JUDGMENT OF THE COURT

1. The time for filing the appeal is extended.
2. The appeal is dismissed.

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REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] Terry McRae pleaded guilty to one charge of burglary. He was sentenced by Judge Burnett to a term of imprisonment of three and a half years.[1] He appeals against sentence on the basis it is manifestly excessive. The appeal focuses on the appropriateness of the starting point adopted, the uplift for personal aggravating features and the discount for mitigating factors.

Background

[2] We adopt the description of the events giving rise to the charges as set out in Judge Burnett’s sentencing remarks.
[3] On the evening of 26 December 2011 the appellant, who was 23 years of age at sentencing, his 16-year-old girlfriend, and a 14-year-old boy went up to a residential property. The young girl was left outside the property to act as a lookout. The appellant and the 14-year-old went on to the residential property.
[4] They approached the dwelling and went around to the rear of the property. They then forced open a lock on the side of the garage and went inside it.
[5] Once inside they took a number of items including a new barbecue and trolley, bench-drop saw, belt sander and a large collection of tools and garden implements including a pair of bolt cutters. These goods had an approximate value of between $800 and $1500.
[6] As the two were taking the items down the driveway past the house, the 73-year-old victim, the homeowner, was inside the house and he heard noises outside. He came outside the house and confronted the offenders. The victim was struck on the back of the head with the bolt cutters by the 14-year-old. The appellant continued on with the items that he had stolen and left the property. When he got to the road it seemed that the noise created, both by the items being taken and by the victim’s cries, caused neighbours to appear. The appellant then dumped the property and with his girlfriend left the property. They were later located in a house not far from the scene.
[7] The victim sustained significant injuries in the attack. He spent seven weeks in hospital during which time he had some six operations and suffered a number of injuries including orbital facial fractures, fractures at the base of his skull on the right side of his head and face, considerable swelling to both eyes and to his left elbow, as well as an injury to the right eye that has resulted in permanent loss of sight. The victim has also suffered various medical problems as a result of the blows he received and now has reduced mobility and confidence.
[8] The appellant’s girlfriend was given the opportunity of pleading guilty to the burglary then not being charged with the aggravated wounding. She accepted that option. At the time the appellant was sentenced, the young woman had not been sentenced but was in the Youth Court. The 14-year-old boy admitted the offending in the Youth Court and was sentenced to the maximum penalty of six months supervision with residence.

The sentencing remarks

[9] The Judge identified two aggravating features of the offending. First, Judge Burnett observed that in the circumstances, with a lookout posted, the possibility of confrontation must have been anticipated. The Judge noted that the summary of facts distinguishes between the appellant and the young boy because it was the boy who was the assailant. The appellant “simply continued on leaving the property with the stolen items he had with him”.[2] The second aggravating feature of the offending was that the appellant had involved two young people in the offending.
[10] On this basis, the Judge took a starting point of three years and eight months imprisonment. From that point, the Judge applied an eight month uplift reflecting the appellant’s prior burglary offending and the fact the appellant was on bail at the time of this offending and subject to a sentence of intensive supervision.
[11] The discount the Judge said she afforded for the appellant’s guilty plea was 15 per cent. Judge Burnett considered there were no other mitigating features. The pre-sentence report showed that remorse was non-existent. The appellant’s motivation for change was low and the resultant risk of reoffending was high. Judge Burnett acknowledged that whilst in custody the appellant had received a National Certificate in Bakery at level 2.
[12] The Judge declined to make any downward adjustment for any questions of totality. This question arose because the appellant’s offending occurred whilst on bail for another burglary. The Judge pointed out that the other offending was quite separate and had occurred some time earlier, in September 2011.

The starting point

[13] The appellant says the starting point adopted was manifestly excessive. The principal submission is that the Judge was wrong to proceed on the basis that only a “modest adjustment” was required to differentiate between the starting point in this case and that adopted in Skipper v R.[3] Mr Bean on behalf of the appellant says the offending in Skipper was considerably more serious than that of the appellant.
[14] Like the appellant, Mr Skipper pleaded guilty to burglary in a situation where his co-offender inflicted violence on the homeowner. Mr Skipper and his co-offender, Mr Maxwell, went up to the front door of the house they were to burgle and knocked on the door. When the door was opened, Mr Maxwell struck the homeowner on the head with a wooden baton and continued to beat him about the legs after he fell to the ground. However, Mr Bean argues it is significant that the violence in Skipper was inflicted to facilitate the burglary and was more sustained in nature.
[15] We see no merit in this point. We agree with Mr Raftery for the Crown that the distinction the appellant seeks to draw with respect to Mr Skipper’s offending and that of the appellant is not a significant one. Both the appellant and Mr Skipper were parties to a burglary involving the infliction of violence. Mr McRae did not initiate the violence and nor did he initiate that offending. But he took the opportunity to continue the burglary when the victim was hit by making off with the goods.
[16] Whilst the violence in Skipper was more sustained, the violence in this case immediately incapacitated the victim and caused serious injury. What occurred illustrated the risks of confrontation involved in such offending particularly where more than one offender is involved.
[17] The Judge made a downwards adjustment of four months for the differing circumstances in Skipper. In that case, a starting point of four years was adopted on the lead offence. (There were uplifts for a second burglary charge and for previous convictions and offending whilst on bail.) We see no error in the Judge’s approach.

The uplift

[18] The appellant says the uplift of eight months for personal aggravating factors including offending whilst on bail was manifestly excessive.
[19] We consider that this uplift was within range. The appellant was on bail for burglary and subject to an intensive supervision sentence at the time of this offending. He has four previous convictions for burglary and two convictions for robberies by assault. With this uplift, the outcome is a stern one but, in our view, that is an appropriate outcome.

The discounts for mitigating factors

[20] The appellant says he should have been given some reduction on a totality basis. That is because, Mr Bean submits, this offending “falls hard on the back” of his previous sentence for a burglary in the same street.
[21] It is also submitted some adjustment should have been made for youth and more than 15 per cent applied as a discount for the guilty plea. As to the latter, Mr Bean points out that once the assault charge was excluded from the indictment, the appellant pleaded guilty.
[22] We agree with Judge Burnett that no downward adjustment was necessary on a totality basis. The earlier offending was committed on 30 September 2011. The appellant was convicted and sentenced to one year and one month’s imprisonment on 29 February 2012. We were told he finished serving that sentence on or about 25 to 27 July 2012. Therefore, when he was sentenced for the present offending, he had completed his previous sentence but was on bail awaiting sentence. These two factors tell against any adjustment for totality although, as was said in Skipper where the same issue arose, the fact the sentence has been served is not itself an “automatic bar” to totality considerations.[4]
[23] We see no basis for criticising the absence of any discount for youth. As we have noted, the appellant was 23 years of age at sentencing.
[24] Finally, as to the guilty plea discount, the Judge has in fact applied a discount of about 20 per cent. We would not have seen any particular difficulty in the 15 per cent discount that Judge Burnett thought she was applying. The guilty plea was entered post-committal and the case against the appellant was a strong one. But certainly no criticism can be made of the 20 per cent actually given.

Result

[25] For these reasons, although we extend the time for filing the appeal, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v McRae DC Hamilton CRI-2012-019-1679, 10 August 2012 [sentencing remarks].

[2] Sentencing remarks at [12].
[3] Skipper v R [2011] NZCA 250.
[4] Skipper v R, above n 3, at [35].