Full Judgment
(Given by Andrews J)
Introduction
[1] Following a trial in the District Court at Hamilton before Judge Spiller and a jury, the appellant was convicted on a charge of burglary. He has appealed against the sentence of two years and two months imprisonment imposed on him.[1]
Background
[2] In the early hours of 14 January 2012 the appellant and three others drove to a shopping centre at Hamilton known as œThe Base?. They forced open an outside door and gained entry to a storeroom used by Dick Smith Electronics. They stole a number of electronic items including PlayStations, Xbox 360 consoles, laptops, and Apple computers. The total value of goods taken was approximately $45,000. They also stole various items from the retail shop.
[3] Shortly after leaving The Base the group came to the attention of the police. The police attempted to stop the vehicle with flashing red and blue lights and a siren. The group failed to stop and were pursued through residential streets. After a period of time the vehicle pulled into a residential address and the occupants of the vehicle fled on foot. A police dog and police officer tracked and located the appellant and two other people nearby, however the fourth person was not located at the time. When the vehicle was searched, the police located the property taken from Dick Smith Electronics.
District Court sentencing
[4] A sentencing indication had been given to the appellant prior to trial in respect of the charges then faced by the appellant, being one charge of burglary, a charge of conversion of a motor vehicle and an alternative charge of unlawfully getting into a vehicle.[2] The Judge indicated a starting point of two years and six months imprisonment, uplifted by one month on account of the appellants previous burglary convictions, and by a further month because the present offending had occurred while the appellant was on bail. The Judge also indicated a reduction of two months to reflect the fact that the appellant had been on electronically monitored bail and a further reduction should the appellant plead guilty, to result in an end sentence indication of two years three months imprisonment. The appellant did not plead guilty on the basis of the sentence indication and proceeded to trial. He was convicted on a single charge of burglary.
[5] At sentencing, Judge Spiller adopted a starting point of two years and two months imprisonment, in the light of the appellants involvement in the case, but also taking into account aggravating features relating to the offending. Those aggravating features were planning and premeditation, the involvement of multiple offenders, the value of the property taken (albeit recovered) and damage to the rear door of the shopping centre. The Judge did not impose an uplift in respect of the appellants previous convictions, but imposed an uplift of one month to reflect the fact that the appellants offending had occurred while he was on bail. He then deducted one month to recognise remorse shown in the appellants letter of apology, to reach the end sentence of two years and two months imprisonment.
Submissions
[6] For the appellant, Mr Boot submitted that the starting point was too high, that the Judge failed to take account that the appellant had been on electronically monitored bail (EM bail) between April and September 2013, and that the sentence imposed on the appellant was not in line with those imposed on the appellants co-offenders. In particular, he submitted that there was no evidence that the appellant was directly involved in the burglary, and that his involvement was at a lower level than his co-offenders. Mr Boot submitted that the appropriate starting point, having regard to the appellants culpability, would have been around 21 months imprisonment.
[7] Mr Boot submitted that the fact that the appellant was sentenced on only one charge justified a lower starting point. Further, he submitted that the Judge should have allowed a reduction of three months for the period of EM bail. Mr Boot submitted that, taking into account the matters of disparity and further deductions, the end sentence should have been around 18 months imprisonment.
[8] For the respondent, Ms OSullivan submitted that the starting point adopted was within range and that, in light of the appellants bail and conviction history, no discount was required to reflect time spent on EM bail. She also submitted that there was no basis for distinguishing between the appellants role in the burglary and those of his co-offenders, and that the starting points adopted for the appellants cooffenders provide no immediate basis for any purported disparity.
Discussion
The appellants role in the offending
[9] Mr Boots submission that the appellant took a lesser role in the offending than did his co-offenders was based on his contention that the appellant remained in the get-away vehicle. However, as the Full Court of this Court observed in R v Mako, there is no basis for distinguishing between the various assigned roles of participants in burglaries.[3]
[10] The evidence at trial was that the appellant stood by the boot of the car as it was loaded with the stolen goods, and that he was the last participant to get back into the car after the burglary. The appellant had contended at trial that he was in effect an unwilling bystander, but the jury in finding him guilty of burglary clearly rejected that contention, and found that he knew of the burglary, and participated in it.
[11] At sentencing, while not expressly defining the appellants role, or comparing it with those of his co-offenders, the Judge took into account the extent of the appellants involvement in the burglary.[4]
Was the starting point too high?
[12] It is to be noted that there is no œguideline? case for burglary sentencing. As this Court noted in Arahanga v R:[5]
This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. ...
[13] In R v Anglem, this Court held that the appropriate starting point for the burglary of commercial premises from which electronic goods worth approximately $43,000 were taken (including recognition for the appellants criminal history and future risk) was three years and six months imprisonment.[6] In R v Stevens this Court considered that the appropriate starting point for the burglary of commercial premises, taking copper piping valued at $350, was no higher than 18 months imprisonment.[7]
[14] On that analysis we accept the submission for the respondent that the starting point adopted for the appellant, of two years and two months imprisonment, was well within the range for offending of this kind.
[15] We also accept Ms OSullivans submission that there was no basis for a reduction in the starting point on the basis that the appellant was convicted on the burglary charge, alone. As we have noted, the sentencing indication took account of both the charge of burglary and the charge of conversion of a motor vehicle, and a higher starting point was indicated. The sentencing Judges starting point of two years and two months was appropriate for the burglary conviction alone.
Disparity between the appellants sentence and that of his co-offenders?
[16] As noted above, the Judge did not describe the appellants role in the offending, and he did not compare it with those of his co-offenders. In a multi-offender case, the sentencing Judge should identify the particular role of the offender being sentenced, and those of the co-offenders, and should refer to the starting points and end sentences imposed on the co-offenders, if they have been sentenced separately. Although in the present case, the appellants three co-offenders had been sentenced (and the starting points and end sentences referred to in the appellants sentencing indication), the Judge did not do this.
[17] We have obtained the sentencing notes for the appellants co-offenders. Levi Morgan was sentenced on 19 June 2012, on the charge of burglary, only.[8] The starting point adopted was two years imprisonment, with an uplift of six months for Mr Morgans previous convictions, and a discount of seven months for his guilty plea. The end sentence was one year and eleven months imprisonment.
[18] Mihaka Smith was sentenced on 14 November 2012, having pleaded guilty to burglary, conversion of a motor vehicle, and theft of two cars.[9] On the burglary charge, the sentencing Judge adopted a starting point of two years and six months imprisonment. The Judge then applied an uplift for the conversion and theft charges, and a discount of an equivalent amount, for Mr Smiths guilty pleas, to reach an end sentence of two years and six months imprisonment.
[19] Te Aihurangi Tangiora was sentenced on 8 March 2013, on charges of burglary and unlawfully getting into a motor vehicle.[10] In his case the sentencing Judge adopted a starting point of two years imprisonment on the burglary charge, then applied an uplift of four months on account of Mr Tangioras previous offending, and an equivalent discount for his guilty pleas and his progress in rehabilitative programmes while awaiting sentencing. The end sentence was 12 months home detention, subject to special conditions.
[20] One of the principles of sentencing set out in s 8 of the Sentencing Act 2002 is:
8 Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court”
...
(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances ...
[21] In Macfarlane v R this Court, regarding disparity between the sentences of co-offenders, said:[11]
Disparity between the sentences of co-offenders will lead to a reduction in the sentence under appeal only if the difference is so marked as to lead a œreasonably minded independent observer aware of all the circumstances of the offence and of the offenders? to œthink that something had gone wrong with the administration of justice?. The difference must be œunjustifiable? or œgross?. A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
(footnotes omitted)
[22] We are not persuaded that there is such disparity here. The starting point for the appellants sentence (two years and two months imprisonment) was less than that adopted for Mr Smith, and more than that adopted for Mr Morgan and Mr Tangiora. However, it was also well within the available range for similar offending. Further, having presided over the trial, rather than sentencing on a summary of facts after a guilty plea, the Judge was well placed to determine the appropriate starting point.
Should there have been a reduction for the time spent on EM bail?
[23] Section 9(3A) of the Sentencing Act provides that in considering whether it is appropriate to make a deduction for time spent on EM bail, the sentencing Judge must consider the period of time spent on bail, the relative restrictiveness of the EM bail conditions, and the offenders compliance with bail conditions during the period of EM bail.
[24] The appellant was on bail for a previous alleged offence when the burglary took place. Between January and December 2012, he was charged with further offending, namely male assaults female, wilful trespass, and two breaches of community work. He also breached his bail conditions six times. His bail was revoked after the sixth breach.
[25] In 10 April 2013, the appellant was released on EM bail. He remained on EM bail until 2 September 2013, when he was arrested and charged with offences (three charges of threatening to kill, and charges of wilful damage, male assaults female, and assault with intent to injure) alleged to have been committed in Whangamata, some distance from his EM bail address. He was then remanded in custody until his trial on the burglary charge.
[26] We are not persuaded that a further discount was warranted by the fact that the appellant was on EM bail between April and September 2013. In the light of the appellants breaches of bail, his further offending while on ordinary bail and while on EM bail, no discount for the approximately five months he was on EM bail was warranted.
Result
[27] In all of the circumstances of this case, we are not satisfied that the end sentence of two years and two months imprisonment was manifestly excessive. Accordingly, for the reasons set out above, the appeal against sentence is dismissed.
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[1] R v Gage DC Hamilton CRI 2012-019-4767, 18 November 2013 [Sentencing judgment].
[2] R v Gage DC Hamilton CRI-2012-019-4767, 2 September 2013.
[3] R v Mako [2000] 2 NZLR 170 (CA) at [64].
[4] Sentencing judgment, above n 1, at [11].
[5] Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
[6] R v Anglem CA283/09, 20 August 2009.
[7] R v Stevens [2009] NZCA 190.
[8] R v Morgan DC Hamilton CRI-2012-019-3429, 19 June 2012. (Mr Morgan pleaded not guilty to other charges and was convicted after trial and sentenced separately.)
[9] R v Smith DC Hamilton CRI-2012-019-4767, 14 November 2012.
[10] R v Tangiora DC Hamilton CRI-2012-019-4767, 8 March 2013.
[11] Macfarlane v R [2012] NZCA 317 at [24].