Burgess v R [2014] NZCA 363 (31 July 2014)

Last Updated: 6 August 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA200/2014 [2014] NZCA 363
BETWEEN	ROBIN ADRIAN BURGESS Appellant
AND	THE QUEEN Respondent

Hearing:	9 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	P E Dacre QC for Appellant C A Harold for Respondent
Judgment:	31 July 2014 at 3.30 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

[1] The appellant, Robin Burgess, pleaded guilty to one count alleging that between 1 January 2008 and 21 April 2010 he received property knowing that it was stolen, or being reckless as to whether or not it was stolen. The charge was a representative one.
[2] In the Auckland District Court Judge Rea sentenced Mr Burgess to three years and six months’ imprisonment.^[1] Mr Burgess contends that the sentence was manifestly excessive. He argues that the Judge took a starting point that was too high and that greater allowances should have been made in respect of his health and personal circumstances.
[3] The prosecution had a history which Mr Dacre QC described as “unfortunate and lengthy”. However, for the purposes of this appeal it is unnecessary to address that history in detail.

Background

[4] Mr Burgess, together with his wife, owned and operated a second-hand shop in Avondale, Auckland. The business bought and sold second-hand goods, including jewellery.
[5] Police carried out an investigation of second-hand dealers operating in the Auckland region which had the consequence that on 21 April 2010 Mr and Mrs Burgess were arrested and charged with nine counts of receiving. Following committal, the Crown Solicitor filed an indictment in which three counts alleged representative offences respectively for the years ending 31 December 2008, 31 December 2009 and the period between 1 January and 21 April 2010. Six other charges were laid alleging receipt of particular items of jewellery.
[6] For various reasons the trial was scheduled for four successive dates, but was unable to proceed. A further fixture was allocated in July 2013 for a three week fixture to commence on Monday 17 February 2014. However, following discussions the Crown agreed to present an amended indictment which replaced the original nine counts with one representative charge. That charge alleged Mr Burgess received property between 1 January 2008 and 21 April 2010, knowing that it was stolen or being reckless as to whether or not it was stolen. The particulars referred to gold jewellery and watches.
[7] When Mr Burgess was arraigned on 13 February, he pleaded guilty to that charge. On the same day, the Crown decided not to proceed against Mrs Burgess: her name was manually crossed out on the indictment. Subsequently, she pleaded guilty to a charge laid under the Secondhand Dealers and Pawnbrokers Act 2004, and fined. She was discharged on the nine counts of receiving in the original indictment.

The facts

[8] Prior to his arraignment, Mr Burgess had indicated that he disputed the value of the property that he had allegedly received. The Crown had initially asserted that he had received gold to the value of $1,646,031.26 together with specified items of jewellery that had been the subject of six of the counts in the original indictment. As a consequence, a disputed facts hearing was scheduled for the purposes of s 24 of the Sentencing Act 2002. That hearing commenced on 4 March 2014 and began with the Crown calling evidence from Mr Lincoln Astley, the manager of Regal Castings Ltd. That company paid the appellant for gold buttons that he produced by melting down gold jewellery which he received.
[9] After Mr Astley’s evidence the hearing was adjourned for possible resolution at the request of the parties. As a result of the discussions that then ensued, the appellant accepted that “the amount of gold received by him during the period of offending was in the order of $250,000”.
[10] An agreed summary of facts was signed incorporating the $250,000 figure. Included in the summary of facts were statements recording that the charge of receiving was a representative charge covering actions of the defendant between 1 January 2008 and 2 April 2010. It was said:

During this period the Accused purchased gold, jewellery and watches from criminals throughout the Auckland region.

In the case of gold jewellery, the Accused would test and weigh the gold, paying cash for items at a rate based on its scrap value.

The Accused would often neither request nor record any acceptable form of identification from the seller and thereby [sic] were not recorded in the dealer record of the store.

At times the Accused would meet sellers at locations such as the Massey Domain, the Lincoln Green Hotel and other car parks throughout Auckland in order to purchase gold and jewellery items.

These transactions were conducted at all hours of the day and night and on all days of the week. Again at no time did the Accused request any acceptable form of identification from the seller nor did he comply with the Secondhand Dealers and Pawnbrokers Act 2004.

Having obtained the jewellery, the Accused would then classify the jewellery according to its purity, remove the precious stones and melt the items producing ‘gold buttons’.

The gold buttons were then taken to Regal Castings Ltd, an Auckland Gold Refinery where it was refined producing 99.9% pure gold and other precious metals.

The Accused was then paid by the refinery, receiving cash and cash cheques for the gold. There are no corresponding deposits for the money received from Regal Castings being deposited into any of the BURGESS personal or business bank accounts.

[11] The summary continued by referring to the records available for the appellant’s business for the 2008 and 2009 calendar years and for the period 15 January to 9 April 2010. Those records showed respectively the purchase of 157 items of jewellery valued at $41,520, 149 items of jewellery valued at $37,190 and 18 items of jewellery valued at $6,040. This was contrasted with the records, for the same period, of jewellery items sold by the appellant’s business. In each case, the latter figure exceeded the former by a considerable amount. Further, again for each of those time periods, the summary of facts detailed information from the secondhand dealer records obtained from Regal Castings Ltd showing that the defendant sold gold to the company, in the form of melted buttons, weighing respectively 16.81 kilograms, 39.05 kilograms and 12.54 kilograms. When refined, the gold and the jewellery sold was valued at $386,122.58, $917,680.92 and $342,227.76. It was said that the appellant had received payment of those amounts from Regal Castings Ltd.
[12] Under the heading “Total Quantum” the summary said:

The above figures can form a basis upon which to draw an inference as to the amount of stolen property received by the Accused. Mr Burgess does not accept that all of the gold referred to above as having been sold to Regal Castings Ltd represents stolen gold.

For the purposes of sentencing, Mr Burgess accepts that the amount of gold received by him during the period of offending was in the order of $250,000.

[13] The summary also referred to the fact that when a search warrant was executed at the appellant’s home a number of items of jewellery known by the police to be stolen were found. These included a ladies’ Rolex wrist watch valued in 2001 at $3,700; a nineteenth century ladies snap bracelet in 18 carat gold, fitted with 17 early European-cut diamonds valued at $15,000; an Omega watch valued at $950; an amethyst pendant attached to a plaited gold chain valued at $2,000 and a ladies nine carat ring fitted with stones valued at $595.
[14] The Judge made an order for the return of those items, which had a combined value of $22,245.

The sentence

[15] On the basis of that summary, Judge Rea thought it was clear that over the period covered by the charge Mr Burgess was an “active fence of stolen property”.^[2] He noted that he had bought stolen property from criminals, to the value of an agreed figure of a quarter of a million dollars. He said:

[3] Just so Mr Burgess can be clear about this, the allegation is that in total he received from the company that he sold the gold to, some $1.6 million. That is a staggeringly large amount of money in the context of something like this but it is not what Mr Burgess is charged with. He is charged with dishonestly obtaining quarter of a million dollars as a result of his criminal activities over a two and a half year period.

[16] Those observations reflected the summary of facts. The Judge continued:

[4] The Court is perfectly entitled to infer that this operation that Mr Burgess was running caused untold grief to any number of people who had their jewellery stolen and whose jewellery ended up with Mr Burgess and that he was prepared to melt it down and dishonestly dispose of a quarter of a million dollars worth of it.

[17] The Judge noted that only some of the property had been recovered. He observed that the offending was serious and adopted a starting point of four and a half years’ imprisonment. In assessing the allowance to be made for the guilty plea he put on one side delays attributable to the disputed facts hearing. He gave a credit of eight months for the plea, although it was late. He allowed a further four months to acknowledge that Mr Burgess had a heart condition which would make the sentence of imprisonment more onerous. The result was a sentence of three years and six months’ imprisonment.

The appeal

[18] The principal issue advanced on appeal is that the starting point was too high. While accepting that the offending was significant, Mr Dacre submitted that the Judge had erred in inferring that Mr Burgess had caused “untold grief” to a number of people who had their jewellery stolen and melted down. Mr Dacre referred to an explanation for the offending given by Mr Burgess to the author of the pre-sentence report. In brief, Mr Burgess claimed that he had sold gold that he had received through an associate and friend whom he knew and understood to be a licensed dealer. That person was an employee of Regal Castings Ltd. Mr Dacre also referred to remarks made by counsel at the disputed facts hearing which, consistently with the explanation given by Mr Burgess, were to the effect that while Mr Burgess would accept he had acted recklessly, he had not knowingly received stolen property. Mr Dacre submitted that the Judge should have sentenced on this basis.
[19] Mr Dacre noted that there was no explanation provided by the Crown as to the basis on which the quantum had been so significantly reduced from that originally alleged. He submitted that in the circumstances, the Crown could not invite the Judge to draw an inference about the amount of stolen property. A related submission was that the summary of facts should have been amended more extensively than it was to reflect appropriately the resolution arrived at following the disputed facts hearing.
[20] The difficulty with Mr Dacre’s argument is that it runs contrary to the agreed summary of facts which was the only basis upon which the appellant could properly be sentenced by the Judge.
[21] Mr Burgess’s explanation to the author of the pre-sentence report that he had sold gold that he had received through an associate and friend does not align with the summary, in particular the statement that during the period 1 January 2008 to 21 April 2010 Mr Burgess purchased gold, jewellery and watches from criminals throughout the Auckland region. It is also inconsistent with the further statements in the summary that he would often neither request nor record any acceptable form of identification from the seller, and that he would meet sellers at different locations throughout Auckland, conducting transactions at all hours of the day and night and on all days of the week. We are also of the view that it is not possible to sustain the submission of mere recklessness in the face of these facts.
[22] As the Judge noted, the value of the stolen gold received by Mr Burgess was acknowledged by him as having an approximate value of $250,000. This was a very significant figure albeit much less than that referred to in other parts of the summary of facts. It also did not account for the value of the jewellery not reduced to melted down gold. We consider that the Judge was entitled to infer as he did in his sentencing remarks that many people would have been affected by the theft of the jewellery. It is axiomatic that items of the kind stolen would in many cases have strong sentimental value and be irreplaceable for that reason. Mr Burgess, by receiving the stolen jewellery, contributed to the loss suffered by the owners of it, and facilitated the criminal activities of the thieves.
[23] In order to make sense of the agreed summary of facts it was necessary for the Judge to put on one side figures referred to in the summary that implied stolen jewellery to a value higher than $250,000 had been received. This is what the Judge did. But other parts of the agreed summary were still indicative of Mr Burgess being involved in the receipt of stolen property in a very substantial way, and certainly not limited to dealings with one supplier.
[24] There is no guideline judgment for offending of this nature. In R v Clayton this Court referred to the Court’s earlier decision in R v Bom^[3] as the leading authority on sentencing for “sophisticated, extensive receiving offending”.^[4] In Bom the appellant was one of a number of co-accused involved in a substantial burglary and receiving ring, described by the sentencing Judge as a “veritable supermarket for clearing stolen property”. The appellant was described as one of the principal receivers of the stolen goods and was convicted of four charges of receiving stolen property and one of conspiring with others to receive stolen property. It appears that the main argument run on appeal concerned whether the sentence of six years’ imprisonment imposed on the appellant was consistent with the sentences imposed on his co-offenders. There is no discussion of the value of the stolen property received. It is clear from the judgment however that the activity was substantial. There were no mitigating considerations; the six year term upheld was also the starting point.
[25] In Clayton, the appellant was sentenced to an effective term of four years on 34 charges of receiving, and 10 charges of fraud with a cumulative sentence of one year on a charge of using a document with intent to defraud and a minimum period of imprisonment of three years. The facts that gave rise to the 34 charges of receiving involved property to the value of $54,617. The sentencing Judge found that the appellant had been involved in an organised criminal ring that targeted valuable household items and materials and took a starting point of four and a half years for what this Court described as the “lead receiving charges”.^[5] The main issue before the Court was whether a minimum term should have been imposed. The Court did not comment on the starting point adopted by the sentencing Judge.
[26] Having regard to these authorities the starting point of four and a half years’ imprisonment adopted in this case does not seem excessive, in view of the extent of Mr Burgess’s activities, the quantity of jewellery involved and its value, the premeditation, and the methodology employed whereby significant amounts of gold jewellery were melted down to form buttons, thereby precluding recovery of the original items and no doubt making it easier to move the gold on. The offending occurred over a lengthy time period and was plainly for commercial gain.
[27] Mr Dacre relied on Miny v Police in which the appellant was convicted on one representative charge of receiving stolen jewellery over a 13 year period.^[6] As with Mr Burgess, the appellant was the owner operator of a second-hand shop in Wellington. There was a disputed fact hearing to determine the value of the stolen jewellery received. The Crown asserted that the property had a value of $161,600 but the District Court Judge declined to make a finding to that effect. On sentencing, a starting point of three and a half years’ imprisonment had been adopted. The High Court held that the sentence of two years’ imprisonment based on that starting point was not manifestly excessive.
[28] In the present case, the value of the property has been established and is significantly greater than what the police asserted was the value of the stolen property in Miny. Moreover, the dealing in Miny was with one individual. Here, Mr Burgess was involved with a number of different suppliers whose identity he neither requested nor recorded.
[29] We are satisfied in the circumstances that the starting point adopted by the Judge was not excessive.
[30] The remaining issue raised by Mr Dacre concerned the allowances made for various mitigating factors and in particular to recognise Mr Burgess’s poor health and straightened circumstances as a consequence of his conviction. Mr Dacre argued that a further four months should have been allowed for these considerations, adding to the eight months that the Judge allowed in respect of the late guilty plea.
[31] As we have already noted, the Judge allowed four months in respect of Mr Burgess’s heart condition. A further four months would have resulted in a total deduction of eight months on account of the appellant’s personal circumstances. We are not persuaded that there would be any proper justification for that approach and consider the allowance given in the District Court was sufficient.

Result

[32] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Burgess DC Auckland CRI-2010-004-14161, 21 March 2014.

^[2] At [2].

^[3] R v Bom CA209/96, 16 October 1996.

^[4] R v Clayton [2008] NZCA 348 at [32].

^[5] R v Clayton, above n 4, at [7].

^[6] Miny v Police HC Wellington CRI-2003-485-97, 10 December 2003.