Archbold v R [2015] NZCA 493 (23 October 2015)

Last Updated: 29 October 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA176/2015 [2015] NZCA 493
BETWEEN	SHANE COLIN EDWARD ARCHBOLD Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	R G Glover for Appellant J E L Carruthers for Respondent
Judgment:	23 October 2015 at 3 pm

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of five years’ imprisonment is quashed and a sentence of four years eight months substituted.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] Shane Archbold was convicted on one charge of aggravated burglary following a jury trial in the Christchurch District Court. Judge O’Driscoll imposed a sentence of five years’ imprisonment.^[1] The Judge reached this sentence by taking a starting point of four and a half years’ imprisonment and uplifting that by six months to reflect Mr Archbold’s previous convictions.
[2] Mr Archbold appeals the sentence on the ground that it is manifestly excessive as a result of the Judge taking too high a starting point. There was no direct challenge to the uplift but, for the reasons we discuss later, we have also considered that aspect of the sentence.

Offending and sentencing in the District Court

[3] Mr Archbold went to a residential address on the morning of 21 March 2014 for the purpose of collecting money from the complainant. What happened next was the subject of conflicting accounts at trial but the jury clearly preferred the complainant’s account and the Judge sentenced on the basis of that account.
[4] Judge O’Driscoll’s description of the offending was as follows:

[7] The evidence of the victim was that he woke to find you at the end of his bed and that you demanded money from him. When he said that he did not have any money, his evidence was that you punched him in the forehead and then took a tyre iron that was in the room and his evidence was that you indicated to him that you were going to take out his eye. There was evidence that there was a struggle in the room and there was evidence, which I find the jury accepted, that you then struck the victim over the head with the coffee table. That, again, was also in the room.

[8] The victim attempted to contact the police. There was, according to him, a threat made about calling the police. You left the scene.

[9] It would appear that, whatever happened, there was a tussle involving you and the victim. If you were assaulted or injured to any extent in what occurred, I think that you only have yourself to blame for that and it is quite understandable that what occurred is in terms of the victim acting entirely in self-defence.

[5] The evidence was that the door to the house was not locked and the Judge did not proceed on the basis that Mr Archbold forced his way in.
[6] The Judge referred to the victim impact statement and the pre-sentence report, noting particularly that Mr Archbold was assessed as being at high risk of reoffending because of his history and his failure to address the causes that had led to previous appearances.^[2] He then turned to the aggravating features of the offending, identifying the assault on the complainant but rejecting the Crown’s submission that there were other features beyond those inherent in the charge:

[13] ... The charge that I must deal with you is one of aggravated burglary and it is important that I do not double count the elements of the charge along with what might be regarded as aggravating factors.

[14] The elements of the charge involved your unauthorised entry into the victim’s address and the element of the charge also involves the use of the tyre iron and coffee table as a weapon. Those are not what I would regard as aggravating factors. They are inherent in the seriousness of the charge that you face.

[15] The Crown have also indicated that what occurred involved a high level of violence. I do not think that this case can be described as involving a high level of violence, particularly compared with other cases that come before the Court and I am not sure it can also be said that there was a focus on the head of the victim even though I accept the evidence that I heard that a coffee table was hit over the head of the victim.

[7] There had been an earlier sentence indication by Judge Farish; on the material then available she identified an appropriate starting point of between three and four years.^[3] However, Judge O’Driscoll said in relation to the starting point:

[25] In deciding the appropriate starting point, I have taken into account the elements of the charge which the Crown have proved beyond reasonable doubt. That involves the unlawful entry by you into the victim’s property. It also involves the use of weapons and I find that there was a threat made against the victim when you were aware that the police were going to be called. I also take into account the maximum penalty for this charge which is one of 14 years imprisonment.

[26] Taking all those matters into account, my view on the aggravated burglary charge is that an appropriate starting point is one of four and a half years imprisonment. I intend to increase that by six months to take into account your previous convictions for violence. The sentence on the aggravated burglary charge will therefore be one of five years imprisonment. I do not find that there are any mitigating factors relating to either the offence or to you to reduce that. ...

Appeal

Starting point

[8] Mr Glover, for Mr Archbold, acknowledged that Judge O’Driscoll’s remarks were balanced and careful, particularly his rejection of the Crown submissions that the case involved a high level of violence and his care not to double count elements of the charge as aggravating factors.
[9] However, Mr Glover submitted that the Judge erred in not referring to any authorities, particularly R v Mako_,^[4] on which the Crown had based its submissions at sentencing and which Mr Glover accepted may properly be applied by analogy in cases of aggravated burglary.^[5] Mr Glover particularly relied on the range of appropriate starting points indicated in Mako for the aggravated robbery of a shop and street robbery by an offender armed with a weapon.^[6] In the former, where the offender was alone and, although armed, did not inflict actual violence and took only a small amount of money, this Court considered that a starting point of around four years was appropriate.^[7] For the latter, a street robbery by an armed offender who does not actually inflict any violence was regarded as attracting a starting point of between 18 months and three years, with cases involving actual physical enforcement requiring a higher starting point.^[8]
[10] Mr Glover identified the following factors as relevant to the assessment sanctioned by Mako: the degree of planning was limited and extended only to the recovery of money; Mr Archbold was alone (his mother had driven him to the address but remained outside); he did not take a weapon with him but simply used what came to hand; he did not take any property; he did not commit any other offence while he was on the premises; and the injuries to the complainant were minor cuts and abrasions that healed without any long term effects. Mr Glover submitted that, taking these factors into account and applying the approach in Mako, the appropriate starting point was between three and four years.
[11] Mr Carruthers, for the Crown, pointed to two decisions of this Court involving similar offending that he said indicated that the starting point taken by the Judge was within the available range. In R v Patrick the offender used a metal pipe to break a glass ranch-slider door, entering his former wife’s home.^[9] She and her sister and the children in the house were able to escape without being harmed. This Court considered the appropriate starting point to be three years nine months. However, that offending was clearly less serious than in the present case because there was no actual violence inflicted.
[12] In R v Drewett this Court considered that a starting point of four years six months’ imprisonment was appropriate for offending in which the complainant’s former partner smashed a glass windowpane to gain access to her house and after being arrested and bailed returned, armed with a wooden stick, and entered the home where he punched his former partner several times.^[10] We do not accept Mr Carruthers’ submission that the offending in the present case should be viewed as more serious than Drewett because of Mr Archbold’s use of both a weapon and his fists. There were serious aggravating features in Drewett, notably the fact that the offender forced his way into the complainant’s home twice within a short time and that there were young children in the house.
[13] We consider that, despite the differences in the cases, the overall level of criminality in the present case is comparable to that in Drewett. In particular, not only was there actual violence inflicted but Mr Archbold also threatened the complainant when he saw him trying to call the police. Further, although the Judge did not refer to it specifically, the violence inflicted in the complainant’s bedroom was followed by additional violence in the lounge when the complainant was trying to call the police. While the complainant was on the floor, curled in a foetal position to protect the phone Mr Archbold punched him in the back. The complainant could not say how many punches there were, just that “he started punching and I just stopped feeling it”. In addition, although the injuries inflicted were minor, the complainant was left shaken and afraid for himself and his son to the extent that he was afraid to go out of the house for several months. These were matters that the Judge was entitled to take into account in fixing the starting point and we therefore consider that the starting point of four years six months, while stern, was within the range available.

Uplift

[14] Although there was no direct challenge to the uplift of six months imposed to reflect Mr Archbold’s previous convictions for violence we consider that this was too high.
[15] In considering the appropriateness of an uplift to reflect previous convictions it is helpful to bear in mind statements previously made by this Court as to the basis for taking that step.^[11] In Beckham v R this Court said that:

[84] The rationale for uplifting a prisoner’s sentence to take into account prior criminal history has been explained by this Court in R v Casey and in R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced again for an offence which he had already expiated. This does not mean that previous convictions must be ignored, particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted. Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character.

(footnotes omitted)

[16] The Judge imposed the uplift on the basis that Mr Archbold had nine convictions for violence, presumably relying on the pre-sentence report. However, Mr Archbold’s criminal and traffic history shows seven convictions for actual violence and one of threatening to kill, all several years old. The offence dates were 2009 (male assaults female and threatening to kill, both on the same day), 2005 (male assaults female), 2004 (male assaults female), 2000 (assaulting a police officer), 1998 (robbery by assault and assault with intent to injure) and 1995 (injures with intent to injure). There was also a Youth Court notation for assaults with intent to injure as a result of an incident in 1993 although we do not consider that was relevant to sentencing.
[17] Mr Archbold also has numerous other convictions or Youth Court notations entered between 1992 and 2009. During that period he offended every year. But no offences of any kind are recorded between late 2009 and the current offending.
[18] Mr Archbold does, unquestionably, have a very poor record and the nature of the current offending justifies some response for the purposes of personal deterrence. However, given that the majority of Mr Archbold’s convictions are not for violent offences and that he had not offended for a period of four years before the current offending it cannot be said that there is any recent pattern that requires a significant uplift. We consider that an appropriate uplift would have been two months. This might be viewed as a relatively slight adjustment to be made on appeal but for the reasons expressed in Beckham it is important to ensure that any uplift is genuinely necessary and only imposed to the extent that it is required.

Result

[19] The appeal is allowed. The sentence of five years’ imprisonment is quashed and a sentence of four years eight months substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Archbold [2015] NZDC 1125. Judge O’Driscoll also imposed a cumulative sentence of six months’ imprisonment on a separate charge of escaping from custody, and a sentence of one month’s imprisonment on a charge of resisting arrest to be served concurrently with the escape sentence. Those sentences are not challenged and nor is any issue of totality raised.

^[2] At [12].

^[3] R v Archbold DC Christchurch CRI-2014-009-3342, 3 October 2014.

^[4] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

^[5] R v Watson CA224/03, 24 October 2003 at [27]; R v Drewett [2007] NZCA 48 at [15].

^[6] R v Mako, above n 4, at [54]–[59].

^[7] At [56].

^[8] At [59].

^[9] R v Patrick [2008] NZCA 115.

^[10] R v Drewett, above n 5.

^[11] Beckham v R [2012] NZCA 290 (footnotes omitted); Hodgkinson v R [2012] NZCA 478.