Bell v R [2014] NZHC 3105 (5 December 2014)

Last Updated: 12 December 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2014-412-25 [2014] NZHC 3105

BETWEEN	CARL ALAN BELL Appellant
AND	THE QUEEN Respondent

Hearing:	19 November 2014
Appearances:	A Dawson for the Appellant C E R Power for the Respondent
Judgment:	5 December 2014

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Bell was convicted of 10 counts of burglary,¹ two counts of unlawfully taking a motor vehicle,² one count of theft of a motor vehicle,³ two counts of theft,⁴ and one count of assault.⁵ He was sentenced in the District Court at Dunedin to five years imprisonment, with a minimum period of imprisonment of two and a half years.⁶ He appeals against his sentence on the ground that it is manifestly excessive.

The offending

[2] The first four burglaries were committed by Mr Bell and a co-offender, Ms Livesey. They drove around in Ms Livesey’s vehicle and targeted semi-secluded industrial and rural properties to burgle. On the night of 7/8 March 2014 they went

_{to an industrial site where they took copper wire from inside the building, a radiator}

¹ _{Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years imprisonment).}

² _{Section 226(1) (maximum penalty of seven years imprisonment).}

³ _{Sections 219 and 223(b) (maximum penalty of seven years imprisonment).}

⁴ _{Sections 219 and 223(d) (maximum penalty of three months imprisonment).}

⁵ _{Section 196 (maximum penalty of one year imprisonment).}

⁶ _{R v Bell DC Dunedin CRI-2014-012-1252, 23 July 2014.}

BELL v R [2014] NZHC 3105 [5 December 2014]

from a Land Rover, and a battery from a digger. On a date between 9 and 30 March

2014, they broke into another property, where they took brass fittings and other metals. On 31 March 2014, they entered a farm property and removed brass tap fittings and copper pipes, as well as lead pipes. On the night of 7/8 April 2014 they entered an industrial yard, took brass fittings, a socket set, and a chainsaw.

[3] On the night of 18/19 April 2014 Mr Bell took a car from a residential street. He changed the plates and drove around with it for a few days before selling it to a wrecker for $1,500. On the night of 20/21 April 2014 Mr Bell broke into a residential property and took jewellery, perfume and alcohol to the value of roughly

$3,000.

[4] On 25 April 2014 Mr Bell stole a car. He stole license plates from a vehicle in a car yard and put those on the car he had stolen. He then drove to another location where he sold some scrap metal, and then broke into a cottage where he took a copper planter, alcohol and meat. On 27 April 2014 he broke into a rural property and took shoes, clothing, petrol, a petrol tank, and another chainsaw.

[5] On 29 April 2014 the police found one of the vehicles Mr Bell had stolen. Inside the car they found many of the stolen items. Mr Bell then went to a car yard and stole another vehicle. He drove it to a petrol station, filled it up with $16 worth of petrol, and drove off without paying. That night he broke into a rural property where he stole clothing, a cellphone, fuel, and other items. He also took license plates from a vehicle on that property. On 30 April 2014 Mr Bell went to a commercial truck company premises, breaking into the building and taking alcohol and cash. He also broke into a car on the premises and stole fuel cards.

[6] The police endeavoured to apprehend Mr Bell on 3 May 2014. Mr Bell ran off and a police officer chased him on foot. Mr Bell ran towards an off duty police officer who demanded that he stop. Mr Bell lashed out with his fists and legs but failed to connect. He was pepper sprayed and taken into custody. He admitted his offending. The total loss attributable to Mr Bell from this offending was $4,461.

The offender

[7] At the time of the offending Mr Bell was 40 years of age and unemployed. He has a longstanding opiate addiction. The burglaries were carried out to raise money to pay for drugs. His present offending occurred while he was on parole for similar offending. He has 24 previous convictions for burglary for the period between 1999 and 2012 (of which 10 have occurred since 2004). He has many other convictions for dishonesty offences, including theft and receiving property. He has been sentenced to imprisonment on a number of occasions.

[8] Prior to sentencing Mr Bell participated in a restorative justice meeting with the two victims of the residential burglary. This was the first occasion he had done so. He apologised to them and acknowledged the impact his offending had on them. The victims accepted his apology.

The District Court decision

[9] The Judge considered that an appropriate starting point for the burglaries would be four and a half years. He added one year for the motor vehicle offences. He then added three months for the assault, leading to a provisional sentence of five years and nine months. He added an uplift of 12 months for previous convictions and the fact that Mr Bell offended on parole. He then allowed a 25 per cent discount for the guilty plea. This led to an end sentence of five years imprisonment. The Judge considered that a minimum period of imprisonment was necessary, and he fixed this at 30 months imprisonment. No order was made as to reparation.

Assessment of appeal

[10] Counsel for Mr Bell submits that the starting point of four and half years for the burglary offending was too high and that an appropriate starting point would have been three to three and a half years. He submits that, having taken such a high starting point, it was excessive to uplift that by one year for the motor vehicle offences (no issue is taken with the three month uplift for the assault), and to uplift that by a further one year because of Mr Bell’s previous convictions and because he was on parole when he offended.

[11] Counsel for Mr Bell compares the sentence imposed on Mr Bell with that imposed in Peters v R.⁷ In that case, a starting point of four years was adopted on 18 charges of burglary and one attempted burglary, all of residential properties, and where the value of the stolen property was $200,000. The High Court considered that the four year starting point imposed by the District Court was appropriate and could have been higher. An uplift of two years was imposed for a comparable

history and that the offending occurred on bail. The High Court considered that the overall sentence of six years, before credit for mitigating factors, could not be characterised as excessive.

[12] In the present case it is appropriate to consider the burglaries with the motor vehicle offending. It was connected in time and circumstances with the burglaries. It was dishonesty offending which was part and parcel of the spree of offending carried out over eight weeks to obtain money to pay for drugs. The Judge reached an overall sentence of six and a half years for the burglaries, the motor vehicle offending, and with an uplift for previous convictions and offending on parole. I agree with counsel for Mr Bell that Peters involved more serious offending than here. There were more burglaries, they were of residential properties and the value of the stolen property was considerably greater. The motor vehicle offending in the present case was not sufficiently serious to warrant the discrepancy either. Mr Peters was cooperative with the police in that he identified the other burglaries he committed once he was caught. Again, that does not warrant the discrepancy given the significantly greater aggravating factors in the Peters offending as compared with the present case.

[13] Of course one example of a lower sentence for more serious offending does not mean that the sentence in the present case is manifestly excessive. That example could be an anomaly. A review of some other authorities, however, confirms that it is not.

[14] One such authority is Swinburne v R.⁸ That case involved four burglaries of residential properties where the total property taken or damaged was $13,531. The

⁷ _{Peters v R [2014] NZHC 1158}

⁸ Swinburne v R [2010] NZCA 568.

offender had committed 14 previous burglaries and the present offending was committed while on home detention. The Court of Appeal considered that a starting point of three and a half years was justified and that an uplift of six months for personal aggravating factors was modest.

[15] The present offending could be viewed as a little more serious than in Swinburne because of the larger number of burglaries, the motor vehicle offending and because the offending was committed while on parole. On the other hand the present offending involved mainly industrial properties and the value of property taken was less. In light of these matters, the six and a half year total in this case is excessive compared with the four year total in Swinburne.

[16] A further example is McCreath.⁹ That case involved theft of $70,000 worth of goods and 13 residential burglaries with total property stolen of between $10,000 to $15,000. The offending occurred when the offender was subject to a sentence of supervision.¹⁰ The offender also had a considerable history of dishonesty offending, including 14 convictions for burglaries. The Court of Appeal considered that the four and a half year sentence for the burglaries, which was cumulative on a sentence of three years for the theft, was within range. An uplift of 12 months for the personal aggravating factors was regarded as “if anything, light”.¹¹

[17] A direct comparison with McCreath is not straightforward because there was other offending,¹² there were additional personal aggravating factors,¹³ and there was also an adjustment for totality.¹⁴ However, if the four and a half year cumulative starting point for the burglaries in that case was within range, the same starting point in this case was excessive. This case involved a lesser number of total burglaries, the

_{burglaries were mainly of industrial properties, and property of lesser value was}

⁹ _{McCreath v R [2014] NZCA 142.}

¹⁰ Mr McCreath was also convicted on breaches of a sentence of intensive supervision and breaches of protection orders. A cumulative sentence of three months for this offending was also viewed as being within range.

¹¹ _{McCreath v R, above n 9, at [29].}

¹² _{The charges of breaching intensive supervision and contravening protection orders.}

¹³ In addition to the previous convictions and that the dishonesty offending occurred when Mr McCreath was subject to a sentence of intensive supervision, the breach of protection orders occurred when Mr McCreath was in custody on the charges of theft and burglary.

¹⁴ An adjustment for totality and for guilty pleas brought the end sentence down to six years and three months, which the Court of Appeal regarded as an appropriate response to Mr McCreath’s criminality overall.

taken. The total dishonesty offending (inclusive of the motor vehicle offending) was less serious than the burglaries in McCreath.¹⁵

[18] In my view a starting point of no more than four years was appropriate for the burglary and motor vehicle offending taking into account totality.¹⁶ To that, three months need to be added for the assault and 12 months need to be added for the previous offending and because Mr Bell was on parole. That would give a total sentence of five years and three months imprisonment before credit for mitigating factors. That sentence appropriately reflects the overall criminality of this offending

by this offender, before mitigating factors, in my view.

[19] Counsel for Mr Bell submits that, in addition to the credit for the guilty plea, a further 10-15 per cent credit should have been allowed for Mr Bell’s attendance at a successful restorative justice conference, his remorse and his willingness to undergo treatment and change. In my view the Judge was correct to view with scepticism that Mr Bell would not be back before the courts, even though his remorse and desire to change were genuine. The Judge was also not wrong to decide against allowing any discount for the attendance at the restorative justice conference.

[20] That said, as I am adjusting the sentence in any event because the overall starting point was too high for the overall criminality on a totality basis, I consider a further adjustment can be made for this aspect. This was Mr Bell’s first restorative justice conference and it does seem that it helped the victims to discuss with Mr Bell the impact of the offending on them. I would allow a five per cent discount for this. With that discount, and with a 25 per cent discount for the guilty plea, the end

_{sentence comes down to 45 months imprisonment (three years and nine months).}

15. Other examples confirm that the starting point here for the burglaries and the motor vehicle offending was too high. This case was less serious than R v Tikitiki HC Auckland CRI-2007-

004-14004, 28 October 2008; Marsh v R [2010] NZCA 445; R v Falala HC Auckland [2013] NZHC 2841; Lawson v R [2013] NZCA 369; and R v Sherlock [2008] NZCA 555 because they all involved a series of residential burglaries and where the value of the property taken was considerably greater. The starting points in those cases ranged from four years to five and a half years imprisonment.

16. Another way to consider the offending is to start with three and half years for the burglary, uplifted by six months for the motor vehicle offending, taking into account totality.

[21] There is no challenge to the imposition of a minimum period of imprisonment. While it would have been open to the Judge not to impose one, it cannot be said that it was not available either. Counsel advises that Mr Bell would not have expected to have been released after serving one third of his sentence in any event, given his history. The Judge imposed a minimum period of 30 months –

50 per cent of the total end sentence.¹⁷ That minimum period requires adjustment

with the revised sentences I am imposing. Fifty per cent of the lead sentence here would mean a minimum period of 21 months. That is the minimum period I impose.

Result

[22] The appeal is allowed. The sentences imposed in the District Court are quashed. The following sentences are imposed in their place:

(a) on the first burglary charge, a sentence of three years and six months;

(b) on each of the balance of the burglary charges, a sentence of three years and six months (concurrent);

(c) on each of the unlawful taking of a motor vehicle charges, a sentence of six months imprisonment (concurrent);

(d) on the theft of a motor vehicle, a sentence of six months (concurrent); (e) on the two other thefts, a sentence of one month (concurrent); and

(f) on the assault, a sentence of three months (cumulative).

[23] The minimum period of imprisonment of 30 months is quashed. It is replaced with a minimum period of 21 months.

_{Mallon J}

¹⁷ The Judge’s sentencing notes do not state how the overall end sentence was to be allocated. It appears from the criminal record that the 30 months was imposed in respect of a sentence of five years.