R V JAMES AND ORS HC CHCH CRI-2007-009-006663 [2009] NZHC 364 (26 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                              CRI-2007-009-006663



                                       REGINA



                                           v



                          MICHAEL
ANTHONY JAMES
                           SHAUN THOMAS GUEST
                            CRAIG PHILIP BARRON



Appearances: T Mackenzie
& R Thomas for Crown
             T W Fournier for Prisoner, James
             D Ruth for Prisoner, Guest
             G Lascelles
for Prisoner, Barron

Judgment:      26 March 2009


                   SENTENCE OF HON. JUSTICE FRENCH



[1]    Craig Philip Barron,
Shaun Thomas Guest, Michael Anthony James, you
each appear for sentence this morning on a charge of demanding with intent to steal
under s239(2) of the Crimes Act 1961.       The maximum penalty for this offence is
seven years' imprisonment.


[2]    The three
of you were charged jointly as parties to the offence, along with
another man by the name of Peter Boyd. Mr Boyd pleaded guilty prior
to the trial.
He has already been sentenced by another Judge.


[3]    The three of you pleaded guilty at the end of the Crown case.



R V JAMES AND ORS HC CHCH CRI-2007-009-006663 26 March 2009

[4]       The facts of the offending are that on 5 March 2007 the
victim's house was
burgled. Among the items of property stolen were two Holden motor vehicles, one
was a 1997 Holden Commodore Senator
valued at $26,000, and the other, a 1988
Walkinshaw Holden Commodore valued at $40,000.


[5]       Although police suspected that
the three of you were involved in the
burglary, and you were originally charged with burglary, there was insufficient
evidence. It
follows, of course, that I must sentence you on the basis that the identity
of the burglars has never been established and that you
took no part in the burglary
itself.


[6]       I pause here also to record that prior to depositions you were originally
charged
with blackmail, which carries the maximum penalty of 14 years'
imprisonment. Blackmail however requires proof of a threat of serious
damage to
property. The Crown took the view that a threat not to return the cars was outside the
scope of such a requirement and
hence decided post-depositions not to proceed with
blackmail, but to replace it with the charge of demanding with intent to steal.
That
remained the position even although at the trial the victim gave evidence of receiving
a threat to burn the cars. However, you
have not been convicted of blackmail, a point
that has been strongly emphasised to me by your respective counsel.


[7]       The
two motor vehicles were both limited editions and collectors' items.
They were the victim's pride and joy. A Holden devotee, he was
devastated by their
loss to the point it affected his health and even led to him feeling suicidal.


[8]       The victim was so
keen to recover his cars, he offered a reward of $5000
through the newspaper.


[9]       On or about 12 April 2007, the victim was
advised by an associate to contact
Mr Boyd. Mr Boyd told the victim he had been approached by a man who said he
knew where the cars
were, and that the $5000 was not good enough, it had to be
$17,000. Various discussions then ensued between the victim and Mr Boyd
about
securing the return of the vehicles in exchange for a payment. Mr Boyd relayed

information back and forwards from his contact
to the victim. At one point, Mr
Boyd provided the victim with photographic proof the cars were still safe.


[10]   Mr Boyd told
the victim he did not know the identity of the man he was
dealing with. However, that was not true. He knew the person he was dealing
with
was Mr Barron. It was Mr Barron who told him the $5000 was not enough and who,
it seems, was also able to supply the photographic
evidence within a short period of
the request for proof having been made.


[11]   At critical points in the various discussions
there is some evidence of contact
between Mr Boyd and Mr Barron, followed by contact between Mr Barron and Mr
James. There is no admissible evidence as to the content
of that contact.


[12]   It is known, however, that at least by 9 May 2007 one of the stolen vehicles
was being stored in a garage
owned by the sister of Mr Guest.


[13]   On 15 May 2007, the victim handed over $17,000 in cash to Mr Boyd. Later
that evening Mr
Boyd contacted him and advised him that one of the cars could be
collected at a location in Sumner. The victim immediately drove
to that location and
found his Senator vehicle. Later that same evening, the victim received a second
phone call from Mr Boyd, who
told him where the other car, the Walkinshaw, could
be found in Addington.


[14]    Mr Boyd was at the location in Addington himself.
He had arrived there
with Mr Barron in the latter's car, and witnessed the arrival of the Walkinshaw,
which contained two men in
balaclavas.


[15]   According to the evidence of Mr Boyd at trial, which was not challenged,
when the Walkinshaw car arrived, Mr
Barron wound down his window and said
"everything is OK". Mr Barron then asked Mr Boyd for the money. Mr Boyd
handed over the $17,000
cash to Mr Barron, whereupon Mr Barron asked him to get
out of the car. The two men in balaclavas and Mr Barron then left in Mr Barron's
car. Mr Boyd remained behind and later met up with the victim.

[16]   The following day, police executed search warrants. They
found Mr James
in possession of $13,700 of the victim's ransom money, together with a balaclava
and a key to one of the stolen vehicles.
Mr James' fingerprints were also found on
the steering column of one of the stolen cars. Mr Guest was found in possession of
$1000
of the ransom money. $2300 of the ransom money is still outstanding, and
the Crown seeks reparation.


[17]   I have read the victim
impact report. It tells of a series of personal crises
which ensued after the vehicles were taken. These include relationship problems,
feelings of inadequacy, weight-loss, insomnia and, as I have mentioned, suicidal
tendencies. The vehicles were not insured.


[18]
  As also mentioned above, Mr Boyd pleaded guilty prior to the trial and was
sentenced by another Judge, Fogarty J.


[19]    In
sentencing Mr Boyd, Fogarty J referred to the decision of R v Marshall
HC Wellington CRI 2006-091-2105, 4 July 2007, Simon France
J. He also stated
that he was going to treat Mr Boyd leniently for three reasons. First because of his
guilty plea; secondly the
fact Mr Boyd would be giving evidence at the trial; and
thirdly, because at 53 years of age he was a first offender.


[20]   Mr
Boyd was sentenced to 250 hours community work with six months'
supervision, and ordered to pay $750 reparation to the victim on
account of
emotional harm. It is clear Fogarty J sentenced Mr Boyd on the basis that he was
only the go-between or the middleman.


[21]   Unfortunately, Fogarty J's sentencing notes do not record the starting point.
Counsel for the Crown, Mr Mackenzie, advises
that the Crown recommended a
starting point of between 12 and 18 months' imprisonment. Mr Ruth points out that
this recommendation
could hardly have been accepted by the Judge, having regard to
the end sentence.


[22]   In its written submissions, the Crown identified
the following aggravating
factors of the offending:

              i)      Pre-meditation. It is said the victim's vehicles were
targeted
                      for their collector status before the blackmail then began.


              ii)     Success of the
offending , the ransom demanded having been
                      paid.


              iii)    Duration of the offending. It is
said that for two months Mr
                      Roberts was the subject of the offenders' manipulation, with
                 
    the prisoners sitting in line above Mr Boyd.


              iv)     The effect on the victim.


              v)      The value
of the property demanded.


              vi)     The amount sought, increasing from $5000 to $17,000 and
                      said to be a significant amount of money for the
victim, who
                      was already facing the loss of two major investments.


              vii)    Planning/sophistication.
It is said the prisoners had specific
                      roles and played them out, involving many different acts over
      
               several weeks.


[23]   In terms of individual culpability, the Crown submits that a justified finding
on the evidence
is that Messrs Barron and James are at the top of the ladder, with Mr
James perhaps sitting higher than Mr Barron. Mr James is said
to have been found
with the majority of the ransom money, but appears to have "strategically distanced
himself from being too hands
on, save for the evening of 15 May."


[24]   The Crown acknowledges that Mr Barron was not found in possession of any
of the ransom
money, but refers to the fact that it was he who received the $17,000
on the night of the takeover from Mr Boyd.


[25]   The Crown
also refers to the fact that Mr Barron was able to access both the
vehicles to obtain photographs within a short period, and also
allegedly had
significant day-to-day involvement with Mr Boyd and Mr James.

[26]   As to Mr Guest, the Crown submits that he is
a true secondary participant,
and was a lesser player. The Crown submits that his culpability is higher than Mr
Boyd, but falls below
that of Mr Barron.


[27]   The written submissions then go on to submit that the appropriate starting
point ranges are: Mr James
­ three to three and a half years' imprisonment; Mr
Barron ­ two and a half to three years' imprisonment; Mr Guest ­ two to two and
a
half years' imprisonment.


[28]   This analysis is strongly disputed by counsel for the prisoners.


[29]    Counsel for Mr James,
Mr Fournier, submits that the involvement of Boyd
and Barron was greater in terms of being more culpable as the primary negotiators,
whereas Mr James' involvement only came at the end, at the time of the handover.


[30]   Counsel for Mr Barron, Mr Lascelles, submits
that the participation of Mr
Barron was the same as Mr Boyd. Like Mr Boyd, Mr Barron was no more than an
intermediary. Mr Lascelles
points out that no property stolen from the car owner's
house or missing from the recovered vehicles was ever found in Mr Barron's
possession, and there is no evidence that he retained any of the money.


[31]   Counsel for Mr Guest, Mr Ruth, submits that Mr Boyd's
culpability was far
higher than his sentencing reflects, and that the only reliable evidence as far as Mr
Guest is concerned is that
he was involved in the storage and delivery of one of the
vehicles for reward. Mr Ruth submitted that Mr Guest could most accurately
be
described as a "flunky".


[32]   I have carefully considered all the submissions that have been made.


[33]    The first point
I would like to make is that I accept that the first aggravating
feature identified by the Crown cannot possibly be considered an
aggravating
feature. It would only be sustainable if the burglary charges had been maintained
and a conviction entered.

[34]  
That said, the second point I would make is that the offence of demanding
with intent to steal is nevertheless a serious offence,
and that there are important
considerations of general deterrence at force.


[35]    The starting point, in my view, must be a term
of imprisonment.


[36]   The third point I would make is that it is implicit in the plea of guilty that
each accused knew money
was being demanded of the victim with a threat not to
return the stolen vehicles, and with the intent of keeping the money. Each
intended
to assist, help or facilitate the commission of that offence and undertook acts which
had that purpose and effect. To the
extent that statements attributed to Messrs James
and Barron in their pre-sentence reports suggest otherwise, they are not accepted.


[37]   Having heard the evidence, I am still satisfied that of all the offenders Mr
Boyd was the least culpable. Significantly, unlike Messrs Guest and James, he did
not
know where the vehicles were stored, and he handed over all of the ransom
money to Mr Barron, the latter being the negotiator and
primary player at the time of
the handover. Mr Boyd was not the one who had the capability to determine
ultimately whether or not
the victim ever saw his vehicles again.


[38]   The fact that Mr James was found in possession of the lion's share of the
ransom
money points to greater culpability on his part, but that must be tempered by
reference to the fact that Mr Barron was the one heavily
involved in the negotiations.
I am satisfied that Mr Barron had a more central role than Mr Boyd.


[39]   In my view, having regard
to the comparator cases and all the circumstances,
including of course the sentence that was imposed on Mr Boyd, I consider the
appropriate
starting point, having regard to the offending and degree of culpability,
to be as follows:


               i)     Mr Guest: 12
months' imprisonment;


               ii)    Mr Barron: 16 months' imprisonment;


               iii)   Mr James: 20 months' imprisonment.

[40]   I recognise that these starting points are lower than those recommended by
the Crown. However I consider the Crown starting
points to be out of line with the
case law, especially having regard to the factual situation here.


[41]   I turn then to consider
the individual circumstances, and consider whether
there are any mitigating or aggravating features relating to each of you personally
which would warrant an adjustment upwards or downwards from the starting point.


[42]   Turning first to you, Mr James.


[43] 
 Aged 47, you are currently serving a term of imprisonment for drug and
firearms offending, with a statutory release date of 3 November
2010. Excluding
those offences, which occurred after the events at issue in this case, you have 80
previous convictions dating back
to 1976. These involve a variety of offences
including dishonesty offences. You are assessed at high risk of reoffending. It also
appears from the pre-sentence report that you feel no remorse whatsoever.


[44]   On the credit side is your guilty plea. However,
that came at a very late
stage, after the end of the Crown case. In those circumstances, following R v Walker
 [2009] NZCA 56, the discount should be in the region of 10%. That brings me to an
end sentence of 18 months.


[45]   Mr Fournier rightly submits
that I must have regard to the totality principle,
because, as I said before, this offending occurred before the offending for which
you
were sentenced last year.


[46]   Looking at the total offending, and the overall criminality, I have decided that
I will allow
a discount of another six months, to bring the total end sentence to 12
months' imprisonment.


[47]   As regards the issue of reparation,
Mr Fournier submits that the victim has
suffered no financial loss because he was prepared at his own initiative to have
sustained
a loss of $5000 anyway.        I do not find that a particularly attractive
argument, but it has a certain compelling logic.

[48]
  The victim has suffered financial loss resulting from the damage to the
vehicle, but again, I do not believe it is proper to sheet
that home to you, because you
have not been convicted of the burglary. The victim has also suffered financial
harm, but again I accept
Mr Fournier's point that there is insufficient evidence
linking you to being a main causative factor. In all the circumstances ,
I have
decided to make no order of reparation against you.


[49]   In its written submissions the Crown also sought a minimum non-parole
period. That request was not supplemented by any submissions at today's hearing,
and I am not prepared to accede to it.


[50]  
Michael Anthony James, on the charge of demanding with intent to steal you
are convicted and sentenced to a term of imprisonment
of 12 months. That term is to
be cumulative on the term that you are currently serving.


[51]   Turning then to Mr Barron.


[52]
   The pre-sentence report tells me you are 43 years of age. You have four
previous convictions, only two of which are relevant for
present purposes, being
convictions for receiving in 2000 and 2002. On those occasions you were fined.


[53]   You are employed
as the foreman of a local panelbeating business, a position
you have held for some 17 years. It appears from the pre-sentence report
and the
letters I have read that you are held in high regard by your employer and the
customers who wrote letters. It also seems
clear that you have a strong sense of
family, providing support not only to your wife and young children, but also to your
widowed
mother and handicapped sister.


[54]   The writer of the pre-sentence report assesses you at low risk of reoffending
given your
lack of offending history. Home detention is not recommended because
your marriage is said to be under considerable stress, owing
to the current charge.
Instead, the writer recommends a sentence of community work and reparation.

[55]   It is unclear to what
extent this recommendation was influenced by your
account of your offending to the report writer. You are recorded as having stated
that you had no part in the offending, that your only wrongdoing was trying to help
the victim locate his cars, and that you were
unaware of your associates' intentions
until they were apprehended by police. However you have pleaded guilty to this
offence, and
I must sentence you on the basis I have already outlined at [36].


[56]   Notwithstanding your criminal record, which the Crown
concedes has limited
relevance anyway, I am prepared to make a significant adjustment downwards on
account of your good work record
and your personal family circumstances.


[57]   In addition, I am also prepared to give you a credit for your guilty plea,
although
because of its lateness the discount must, of necessity, be limited.


[58]   In my view, looking at all the circumstances, I am
prepared to reduce the
starting point by nine months on account of personal mitigating factors. That brings
me from a starting point
of 16 months to a term of seven months' imprisonment.


[59]     Such a sentence renders you eligible to be sentenced to home detention.
As
mentioned above, this is not recommended by the probation service because of
marital difficulties.   However, quite independently of that, I have come to the
conclusion that
home detention, or any community-based sentence for that matter,
would not be an appropriate response, given the seriousness of the
offending. I am
mindful of the principles enunciated in R v Iosefa  [2008] NZCA 453 and R v Hill
 [2008] NZCA 41, but in my view the principles of deterrence and denunciation must
be paramount, and they demand a custodial sentence. I am also
mindful of issues of
disparity in relation to the sentence imposed on Mr Boyd, but in terms of culpability
and the personal factors
identified by Fogarty J, I consider that there is a significant
difference between your case and that of Mr Boyd.


[60]   You are
accordingly sentenced to a term of seven months' imprisonment. I
also order you to pay reparation in the sum of $750 to Mr Roberts,
the victim, on
account of his emotional harm.

[61]    Mr Guest, I am not prepared to sentence you today until such time as I
receive
the pre-sentence report.      Because a community-based sentence is a
possibility in your case, the remand will continue to be on
bail, until 9 April 2009 at
9.15 a.m.




Solicitors:
Crown Solicitor, Christchurch
G R Lascelles, Christchurch
T W Fournier, Christchurch
D Ruth, Christchurch