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Court of Appeal of New Zealand |
Last Updated: 11 March 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
9 February 2015 |
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Court: |
Wild, MacKenzie and Lang JJ |
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Counsel: |
M J Phelps for Appellant
B F Fenton for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeal, which is against sentence, is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
[1] The appellant was sentenced by Judge Rea in the District Court at Napier on 7 August 2014 on eight counts of theft, burglary, receiving stolen property, and interfering with a motor vehicle.[1] He pleaded guilty to those offences. He was sentenced to three years and two months imprisonment. He appeals against that sentence.
[2] The offending occurred on several separate occasions between April and June 2013. We describe them briefly:
- (a) The appellant went to a busy reserve well known as a walking area. The complainants had parked their vehicle there while walking in the reserve. The appellant used a hammer, which he had taken with him, to smash the driver’s window to gain entry. The complainants returned in time to hear the window being smashed and to see the appellant standing by with the hammer in his hand.
- (b) The appellant broke into a vehicle parked on a street in Napier. He stole property from it and took the vehicle, intending to sell it and the property to associates. When he was unable to do so, he removed the property and discarded the vehicle.
- (c) The appellant went onto a building site on which there was a large trailer. The site was secured by a padlocked gate. He contacted an associate about disposing of the trailer, then went to the site, cut the padlock, and removed the trailer. He then arranged through the associate for the trailer to be sold.
- (d) The appellant stole a motor vehicle and boat trailer parked at a boat ramp while the owner was out fishing. He forced entry to the vehicle and drove off. He arranged a sale through an associate.
- (e) The appellant received five chainsaws stolen in the burglary of a shop in Waipawa.
- (f) The appellant received property stolen from a hobby shop in Hastings.
- (g) The appellant received a four-wheel farm bike stolen from a farm in the Wairoa district.
- (h) The total property taken or received and not recovered was valued at over $47,000 and there was further property taken or received and subsequently recovered.
[3] In sentencing, the Judge took a starting point of two and a half years imprisonment for the burglary of the building site from which the motor vehicle and trailer were stolen.[2] He uplifted that by 18 months to reflect all of the other offending, leading to a total starting point of four years imprisonment.[3] The Judge added six months to reflect the appellant’s criminal history.[4] He gave a credit of nine months for the appellant’s good behaviour whilst on EM bail and for his expression of remorse and “totally unrealistic offer of making amends”.[5] He allowed a discount of seven months to reflect the guilty pleas, leaving an effective end sentence of three years and two months imprisonment.[6] He imposed a sentence of six months imprisonment on the balance of the charges to be served concurrently.[7] He did not impose a minimum period of imprisonment because of the time the appellant had spent on EM bail in compliance with its conditions.[8]
[4] The appellant raises two grounds in support of the submission that the sentence was manifestly excessive:
- (a) the starting point adopted for the burglary was too high; and
- (b) the discount for the guilty plea was insufficient.
[5] Mr Phelps for the appellant, referring to Senior v Police,[9] R v Columbus,[10] and Arahanga v R,[11] submits the starting point of two and a half years imprisonment for the burglary was too high and a starting point of 18 months imprisonment would have been appropriate.
[6] We are satisfied the two and a half years starting point was not outside the available range. As the Judge said, the circumstances show the appellant was in the business of scoping out properties with valuable goods on them, trying to organise in advance purchasers of the property, then taking and on-selling it for as much money as he could. We agree with the Judge’s description of the appellant as being “in the business of thieving”.[12] That factor distinguishes this offending from the opportunistic burglary of a shed on a residential property which was involved in R v Columbus.[13] It also takes it out of the description of “[d]welling house burglaries at the relatively minor end of the scale”, which were described in Arahanga v R as attracting starting points of approximately 18 months to two years and six months imprisonment.[14] A starting point at the top of that range cannot be assailed. The authorities referred to by counsel for the respondent support the starting point. In R v Anglem this Court said that while a three and a half year starting point “may not have been available” for the burglary of commercial premises where $43,000 worth of property was stolen, it was available once personal aggravating factors were taken into account.[15] There was also a later offending spree including theft, a house burglary, receiving and aggravated assault. This Court adopted two and a half year end points (after aggravating personal factors and a plea discount) for each of those offences, giving a total of five years. In Gage v R this Court described a starting point of two and a half years for the burglary of an electronics store in which $45,000 worth of property was stolen as “well within the range”.[16] While the burglaries in those cases may be viewed as somewhat more serious than here, both cases support Judge Rea’s starting point.
[7] Furthermore, it is not appropriate to look at the starting point for the burglary in isolation. An uplift of 18 months was applied for the remaining offending, which had led the Judge to describe the appellant as “operating as a professional or commercial thief at a very high end of dishonesty”.[17] The appellant, unsurprisingly, does not take issue with that 18 month uplift, but submits it ought to have been applied to a lower starting point for the burglary. As we have held, the starting point for the burglary was not excessive. But, if a lower starting point had been taken for that, a higher uplift for the remaining offending would have been appropriate. The total starting point of four years imprisonment for the totality of the offending was within range. A comparison with the total end sentence of five years imprisonment imposed by this Court in R v Anglem supports that conclusion.[18] So too does the starting point of five years imprisonment, upheld by this Court in Taylor v R, for a comparable spree of offending.[19]
[8] Mr Phelps submits the discount for the guilty pleas of seven months (approximately 15 per cent) was inadequate and should have been 25 per cent.
[9] This was not a guilty plea offered at the first opportunity. The appellant first appeared in September and October 2013. The entry of pleas followed the police’s acceptance of a proposal by the appellant’s counsel, following a change of counsel, in which some of the charges originally laid were amended. The maximum discount for a guilty plea is 25 per cent.[20] The circumstances of this case did not justify a discount at, or close to, that maximum. The discount applied by the Judge was within range.
[10] For these reasons, the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
for Respondent
[1] R v Kaihau DC Napier CRI-2013-082-422, 7 August 2014.
[2] At [24].
[3] At [26].
[4] At [26].
[5] At [27].
[6] At [27].
[7] At [27].
[8] At [28].
[9] Senior v Police (2000) 18 CRNZ 340 (HC).
[10] R v Columbus [2008] NZCA 192.
[11] Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
[12] R v Kaihau, above n 1, at [9].
[13] R v Columbus, above n 10, at [18].
[14] Arahanga v R, above n 11, at [78].
[15] R v Anglem [2009] NZCA 358 at [15].
[16] Gage v R [2014] NZCA 140 at [14] and [22].
[17] R v Kaihau, above n 1, at [20] and [26].
[18] R v Anglem, above n 15, at [16].
[19] Taylor v R [2012] NZCA 329.
[20] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
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