Sullivan v R [2016] NZCA 100 (7 April 2016)

Last Updated: 18 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA2/2015 [2016] NZCA 100
BETWEEN	MICHAEL KIERAN SULLIVAN Appellant
AND	THE QUEEN Respondent

Hearing:	9 February 2016
Court:	French, Simon France and Ellis JJ
Counsel:	L L Heah for Appellant M L Wong for Respondent
Judgment:	7 April 2016 at 2.30 pm

JUDGMENT OF THE COURT

1. The appeal against the sentence of five years and six months’ imprisonment is dismissed.
2. The minimum period of imprisonment of two years and nine months is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] The appellant, Mr Sullivan, appeals a sentence of five years and six months’ imprisonment imposed by Judge Farish in the District Court at Christchurch for a number of property offences, together with two firearms offences and a driving offence.^[1] It is submitted the sentence is manifestly excessive in itself, and also incorrect because it failed to have regard to a sentence imposed on Mr Sullivan eight months earlier, for which there should have been a totality adjustment. Finally, the appropriateness of imposing a minimum term of imprisonment (MPI) of 50 per cent is challenged.

Offending

[2] In August and September 2013, while on bail for an unrelated charge, Mr Sullivan was involved in numerous burglaries of commercial premises in Christchurch. In respect of some of the burglary charges, CCTV footage showed there to have been more than one offender. The offending followed a similar pattern. A vehicle would be stolen and used to force entry into enclosed yards. Goods would then be taken, often using the stolen vehicle for transport. The vehicle would then be abandoned. At some of the premises damage was done to items left behind, such as car windows being smashed.
[3] The total value of goods taken was around $240,000. Due to circumstances described below, much of the property was recovered but the direct losses still exceed over $50,000. The victim impact statements also make plain that significant indirect costs in dealing with the offending were incurred.
[4] One of the items taken was an Isuzu truck. Mr Sullivan was subsequently located sleeping in it, along with cell phones containing photographs of the stolen goods. Mr Sullivan was also in possession of a knife, which is the subject of a separate charge. Inquiries then led the police to a storage unit that Mr Sullivan had begun renting a year earlier. The storage unit was described by Judge Farish as “an Aladdin’s Cave of burgled and stolen items”.^[2]
[5] As well as goods stolen in the burglaries, police located two firearms and ammunition for a different type of gun in the storage unit. The evidence led at trial established Mr Sullivan was conducting some of the burglaries to fill orders he had received for goods. It was also plain he possessed the firearms for the purposes of trade on the black market.
[6] Out of this activity Mr Sullivan faced 16 charges, being three of unlawful use of motor vehicles, seven of burglary, one of theft, one of driving while disqualified, three relating to the firearms and ammunition, and one relating to the possession of a knife. In addition, there were two charges from offending committed in January 2014, being another charge of unlawful use of a motor vehicle, and one of possessing a methamphetamine pipe.
[7] Mr Sullivan pleaded guilty, one month before trial, to the three firearms charges, the possession of a knife charge, and the possession of the pipe charge. He was convicted following a jury trial on all other counts, with Judge Farish describing the prosecution case as “overwhelming”.^[3]
[8] Finally, brief reference is needed to other discrete offending committed by Mr Sullivan. In April 2014, so some eight months prior to the sentencing before Judge Farish, Mr Sullivan was sentenced by Judge Saunders in the District Court at Christchurch to 22 months’ imprisonment.^[4] Most of this offending was committed after the commercial burglaries, but was resolved by an early guilty plea and prompt sentencing. The charges involved attempting to pervert the course of justice, wilful damage, providing false details to a police officer, and two charges of driving while disqualified.
[9] It is this 22 month sentence that Judge Farish is said to have wrongly ignored when she sentenced Mr Sullivan in December of the same year. It should be noted Mr Sullivan had actually completed serving the 22 month sentence by the time Judge Farish sentenced him in December.^[5]

Sentencing

[10] Judge Farish fixed a starting point of six years’ imprisonment for all the August/September offending. There was then a two month uplift for the two later offences. Finally, an eight month uplift was applied for Mr Sullivan’s history of prior offending, leaving six years and 10 months’ imprisonment.
[11] By way of deduction there was five months given for rehabilitative efforts, and a 10 per cent discount for guilty pleas. This left an end sentence of five years and six months’ imprisonment to which an MPI of 50 per cent was attached.
[12] In light of the appeal grounds, some elaboration of the Judge’s reasoning is required in relation to the six year starting point, the lack of any adjustment to reflect the April 2014 sentence, and the imposition of the MPI.
[13] Turning first to the starting point, the Judge identified six aggravating factors: the extent of the offending over a short time (including the number of businesses targeted), premeditation, the presence of other offenders, the targeting of vulnerable businesses involved in the Christchurch rebuild, the scale of the loss, and the possession of firearms.^[6]
[14] The Judge did not expressly consider the April 2014 sentencing.
[15] In relation to the MPI, Judge Farish described the issue as “finely balanced”.^[7] Her Honour was concerned about Mr Sullivan’s criminal record and the failure of previous release conditions to effect change. However, it was the nature of the offending that the Judge focused on most. Her Honour considered parole eligibility after one third would not hold Mr Sullivan sufficiently accountable, nor sufficiently deter and denounce his offending.^[8]

Discussion

Starting point

[16] No issue can be taken with a six year starting point for this offending. The Judge correctly identified the aggravating factors, some of which we reiterate. There were numerous burglaries, and the offending appears to have in part been targeted to meet specific orders. The sums involved are significant, there was wanton damage inflicted during some of the burglaries, and the offending had considerable impact on the victims. The Judge noted some were “quite vulnerable” because of the rebuild in Christchurch and that Mr Sullivan had deliberately used that to his advantage.^[9] Further, the fact his illegal possession of firearms was for the purpose of unauthorised sale is a serious aggravating factor.
[17] The appeal is primarily based on a comparison between these facts and those involved in R v Nguyen.^[10] There the offender was sentenced in relation to 15 counts of burglary involving more than $400,000, as well as a count of conspiring to commit burglary, which was based on the proposition Mr Nguyen was a ringleader of a sophisticated burglary enterprise responsible for commercial burglaries involving more than $1,000,000. After reviewing various domestic and overseas authorities this Court concluded a starting point of no higher than eight years would be appropriate.^[11]
[18] Nguyen is certainly a more serious case than the present, but, of course, the starting point here was much lower. Also, as in all these situations, there are different factors that influence the outcome. For example, Mr Nguyen did not have firearms in his possession ready to be traded. The Crown has referred to other decisions supportive of the starting point.^[12] We agree they broadly reinforce the proposition that the present case is not out of line, but our comments on Nguyen are sufficient to respond to the primary proposition advanced for the appellant.

Totality adjustment

[19] The fact Mr Sullivan had completed the April sentence is not a bar to considering it from a totality perspective, although obviously the fact the sentence has been served is a relevant factor.^[13] Here, one can advance arguments either way as to whether regard should have been had to the previous 22 month sentence. On the one hand, the earlier sentencing involved different offending and the sentence had been served. On the other hand, there was an overlap in time in that the offending sentenced in April was actually committed after this property offending.^[14] Further, both sets of offences occurred within a short period of time (August to January). Finally, one of the December offences was actually part of the same incident that was otherwise sentenced in April.
[20] Given these factors, we incline to the view that regard should have been had to the earlier sentencing, and that some sort of totality assessment should have been undertaken. However, what adjustment that might have required need not now be analysed since it would be offset by what was an excessive credit for Mr Sullivan’s guilty pleas. The five guilty pleas were entered only a month before trial and had no real impact on it. Thirteen more serious charges still went to trial, and witnesses still had to give evidence. The 10 per cent discount was assessed as requiring a reduction of 11 months (a figure that in fact equates to nearly 15 per cent). This level of discount is unsupportable, and a credit of two to three months is the most that could have been expected. It follows that the final sentence is not manifestly excessive, regardless of whether some modest totality adjustment should have been made.^[15] This aspect of the appeal must fail.

MPI

[21] The Judge described this as a borderline assessment, but in her discretion came down in favour of an MPI. The question on appeal is whether that can be said to be wrong.
[22] The offending itself had features that merited denunciation and general deterrence. The concept of commercial burglaries to order is troubling, and casts a different light on what might otherwise seem to be a short period of outofcontrol spree offending. Denunciation and accountability were the prime factors relied on by the Judge, and are legitimately in issue.
[23] In terms of personal deterrence, the offending was committed while on bail, and Mr Sullivan’s offending since 2009 suggests he is not being deterred by current responses. In September 2010, for burglary offending committed the previous year, Mr Sullivan was sentenced to two years and three months’ imprisonment. Since his release he has been convicted of 14 property offences, seven driving offences, and charges of failing to answer bail, obstructing the course of justice, breaching community work, breaching detention conditions, and giving a false identity. There is also the firearms offending. It is a situation that could well support a firm response.
[24] However, weighing against imposing an MPI for personal deterrence reasons is the fact the Judge considered Mr Sullivan’s subsequent efforts at rehabilitation merited recognition in terms of a five month discount.^[16] The Judge noted Mr Sullivan had “a long way to go”, but accepted there was a commitment to change.^[17] That being so, we do not consider the imposition of an MPI for personal deterrence reasons is available or would be consistent with the rehabilitation credit.
[25] Returning then to the offending itself, the matters of particular concern have already informed a significant starting point. There is also the fact Mr Sullivan had just served 11 months for the other offending. Without an MPI, for all the offending involved in the April and December sentencings, the minimum time Mr Sullivan would need to serve is 33 months.^[18] At that point, he would be eligible for parole, but would not necessarily be released. With the MPI, that figure increases to 44 months before he is eligible. On normal parole rules one would need an 11year sentence before a person is exposed to a nonparole period of that length.^[19]
[26] We consider that when the effect of both sentences is considered, an MPI of 50 per cent leads to a manifestly excessive sentence. It cannot be said that the nonparole period of nearly three years Mr Sullivan would otherwise be subject to is insufficient to denounce his conduct or hold him accountable. Mr Sullivan’s commitment to change is also relevant to this assessment.^[20] Accordingly the MPI order is quashed.

Conclusion

[27] The appeal against the sentence of five years and six months’ imprisonment is dismissed.
[28] The minimum period of imprisonment of two years and nine months is quashed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Sullivan DC Christchurch CRI20130098411, 11 December 2014.

^[2] R v Sullivan, above n 1, at [5].

^[3] R v Sullivan, above n 1, at [4].

^[4] Police v Sullivan DC Christchurch CRI-2013-009-7327, 11 April 2014.

^[5] Being a short term sentence he was required to serve half, and there was custodial remand credit to be factored in: Parole Act 2002, ss 86(1) and 90.

^[6] R v Sullivan, above n 1, at [22].

^[7] At [34].

^[8] At [34].

^[9] R v Sullivan, above n 1, at [22(d)].

^[10] R v Nguyen CA110/01, 2 July 2001.

^[11] At [25].

^[12] R v Anglem [2009] NZCA 358; Taylor v R [2012] NZCA 329; Kaihau v R [2015] NZCA 40; and Paku v R [2011] NZCA 269.

^[13] R v Fissenden CA364/95, 21 February 1996; Skipper v R [2011] NZCA 250 at [35].

^[14] Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [SA9.15(3)] and [SA85.04] suggests this is usually seen as a reason to consider totality.

^[15] The focus is on the sentence imposed rather than the process by which it is reached: Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Criminal Procedure Act 2011, s 250.

^[16] R v Sullivan, above n 1, at [28].

^[17] At [27].

^[18] Being 11 months’ on the short term sentence, plus onethird of the five year and six month sentence.

^[19] Parole Act 2002, s 84(1).

^[20] It is well settled that ss 7, 8 and 9 of the Sentencing Act 2002 are all relevant to the determination of the imposition of an MPI: R v Nguyen [2009] NZCA 239 at [31] and [33], and R v Gordon [2009] NZCA 145 at [48].