Aldersley v The Queen

[2005] NZCA 237

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/05

THE QUEEN

v

MARCUS ANTHONY ALDERSLEY

Hearing:11 October 2005

Court:Glazebrook, Ronald Young and Doogue JJ

Counsel:J H M Eaton for Appellant

A Markham for Crown

Judgment:17 October 2005 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

[1]       Mr Aldersley was convicted on 25 February 2005 on two counts of receiving stolen property under s 258(2) of the Crimes Act 1961.  He was sentenced by Judge Erber on 14 March 2005 to two years and six months imprisonment and ordered to pay $12,000 in reparation.  He now appeals against that sentence. 

Facts

[2]       Mr Aldersley operated an automotive wrecking business in Christchurch.  On 4 February 2004, Mr Aldersley’s yard was inspected by the Automotive Dismantlers and Recyclers Association, Mr Aldersley having been warned in advance of the inspection.  The inspector located two stolen vehicles.  The vehicles had been stripped and their parts spread around the yard.  The inspector’s attention was drawn to the cars because they were both late model cars, whereas the others in the yard were 1980’s models.  They also had no panel or bumper damage.  The cars had been stolen from a yard in Maces Road, Christchurch, between 31 May and 8 August 2003.  They were together valued at $30,000.

[3]       The inspector referred the matter to the police.  On 1 March, the police executed a search warrant at the yard and all parts previously seen by the inspector were present.  After the warrant was executed, Mr Aldersley continued to ring the police as he located other small parts that he believed belonged to the two cars.

[4]       Mr Aldersley gave evidence at trial that he had purchased the vehicles for $5,000 from a friend he refused to name.  He claimed that he thought the sale was legitimate, because his friend had told him the cars did not comply with New Zealand motor vehicle regulations.

Summary of the sentencing remarks of Judge Erber

[5]       Judge Erber observed that there was no doubt that Mr Aldersley was very cooperative with the police.  He had shown them where parts of the cars were and later told the police about further parts, even though he had had the opportunity of disposing of them. 

[6]       The Judge identified, as an aggravating feature of the offending, Mr Aldersley’s previous offending.  In November 2002, Mr Aldersley had been sentenced to one years imprisonment for, among other things, a number of charges of receiving.  That sentence was still running at the time that Mr Aldersley committed these offences.

[7]       Judge Erber referred to Mr Eaton’s description of Mr Aldersley as a naïve and an inexperienced businessman.  Mr Eaton had emphasised that, despite the advance warnings given to Mr Aldersley, he took no steps to get rid of the vehicles.  The Judge also noted the two positive references that were put before him.  He said, however, that it was nevertheless clear that a term of imprisonment had to be imposed. 

[8]       The Judge went on:

I have regard to the purposes and principles of sentence set out in s 7 and s 8 of the Sentencing Act.  The aggravating features are that the previous sentence imposed for receiving had not come to an end when this receiving occurred; and of course there is no plea of guilty.  A plea for guilty at an early time would have materially affected the length of sentence that would have been imposed.

[9]       The Judge then noted that Mr Aldersley had unpaid fines and said that there was no prospect that those fines could be paid.  He thus remitted all the fines, but said that, if the fines included reparation, the reparation was not remitted. 

[10]     The Judge then noted that there was “very little in the way of mitigating factors except your efforts to better yourself”.  The Judge concluded that an appropriate sentence was two years and six months’ imprisonment and ordered reparation in the sum of $12,000, taking the view that an order in excess of that sum ($30,000 had been sought) would be excessive. 

Submissions of the appellant

[11]     Mr Eaton, for Mr Aldersley, accepted that a sentence of imprisonment was appropriate, considering the value of the vehicles and the fact that Mr Aldersley had received a custodial sentence in relation to recent offending.  He submitted, however, that a sentence of two years and six months was manifestly excessive for four reasons. 

[12]     First, Mr Eaton submitted that the sentencing Judge failed to give appropriate weight to mitigating factors and, in particular, to Mr Aldersley’s level of cooperation. 

[13]     Secondly, Mr Eaton submitted that the Judge gave inappropriate weight to the previous convictions.  He submitted that the convictions related to a situation where the police searched premises that Mr Aldersley shared with four others and located a number of stolen items.  Each item was the subject of a separate charge of receiving.  A deal was struck with the prosecution, whereby Mr Aldersley took responsibility in return for charges not being pursued against the flatmates.  Counsel for Mr Aldersley submitted that, although it is accepted that the previous convictions were an aggravating feature, they were not so significant as to give rise to the sentence that was imposed.

[14]     Thirdly, Mr Eaton submitted that the Judge failed to have proper regard to the provisions of s 10(1)(a) and 2(a) of the Sentencing Act 2002 and, in particular, to the offer to make amends.

[15]     Fourthly, Mr Eaton submitted that the Judge wrongly treated the absence of a guilty plea as an aggravating feature.  He submitted that the Judge had referred to aggravating features in the plural and the second factor referred to was the absence of a guilty plea.  Mr Eaton submitted that those comments give rise to a risk that Mr Aldersley has been punished with a heavier sentence because he did not plead guilty. 

[16]     It was also submitted that the order for reparation was inappropriate.  It was accepted that Mr Aldersley made an offer to pay reparation.  Mr Eaton submitted, however, that that offer was made on the basis that Mr Aldersley would not be imprisoned and would therefore be able to continue to derive income from employment.  The offer was made following a pre-sentence interview, which recommended a community-based sentence.  However, that offer was rendered unrealistic when the Judge imposed a sentence of imprisonment. 

[17]     Mr Eaton also submitted that there was no analysis by the Judge as to whether the offer of reparation was capable of fulfillment or why $12,000 was appropriate reparation. 

Submissions of the Crown

[18]     Ms Markham, for the Crown, submitted that the sentence imposed was not manifestly excessive.  She submitted that the aggravating features of the offending were:

(a)The vehicles were of significant value, but were effectively worthless when located by police.

(b)The offending was for commercial gain.

(c)Mr Aldersley has relevant previous convictions and his reasons for pleading guilty to the earlier charges of receiving are irrelevant.

(d)The previous sentence (12 months’ imprisonment) was inadequate deterrence.

(e)The offending occurred during the currency of the previous sentence. 

[19]     The Crown also disputed Mr Aldersley’s submission that his “co-operation” was a “very special feature” of the offending warranting a discount.  The Crown submitted that Mr Aldersley denied the offending, continues to maintain his innocence and refused to name the person who supplied him with the stolen cars.  The Crown also noted that Mr Aldersley acknowledged that a number of people (including the informant) had seen the cars in his yard.  The Crown submitted that, in these circumstances, Mr Aldersley might have considered that his best strategy was to “act innocent” and rely on his “inexperience” in the industry.

[20]     With respect to the order of reparation, the Crown submitted that Mr Aldersley had said that the proposed $75 per week was to come from his sickness benefit.  It was not contingent on him continuing to derive income from employment.  The Crown submitted that, assuming that Mr Aldersley continues to qualify for a sickness benefit on his release, there is no reason why he cannot continue to make the payments of $75 per week.  At this rate, the reparation will be repaid in three years after release. 

[21]     Ms Markham drew attention to the change in the legislative provisions governing reparation orders.  The Summary Proceedings Act 1957 was amended in June 2002 to extend the maximum duration periods of attachment orders and time payments from one year to five years (see ss 86(2), 86A(2)(a) and 105(4) of the Summary Proceedings Act; and Hall’s Sentencing at SA40.7). 

[22]     Ms Markham also submitted that it was relevant that Mr Aldersley received the benefit of having $14,157.00 of fines remitted.  We note that the Crown makes no challenge to the procedure for the remission of fines in this case.

Discussion

[23]     In our view, the sentence imposed, although stern, was within the available range, given the gravity of the offending (as identified by the Crown at [18](a) and (b) above), Mr Aldersley’s previous convictions and the fact that this offending took place while the sentence on that previous offending was still current.

[24]     As to the four points made by Mr Eaton, we reject his submission that Judge Erber failed to have proper regard to the level of co-operation by Mr Aldersley.  The co-operation really only amounted to not taking steps to rid himself of the evidence against him.  It did not extend to providing or offering to provide evidence against accomplices and it was not accompanied by any acknowledgement of guilt.  Had Mr Aldersley taken steps to conceal evidence this would have been an aggravating feature.  The fact he did not destroy evidence cannot, however, be a mitigating one.

[25]     Secondly, we reject Mr Eaton’s submission that the Judge gave inappropriate weight to Mr Aldersley’s previous convictions.  In particular, we reject the submission that seeks to minimise Mr Aldersley’s culpability in relation to those earlier offences as it is inconsistent with his plea of guilty.  The earlier offending was also relatively serious relating as it did to ten charges of receiving on two different occasions some six months apart.

[26]     Thirdly, we reject Mr Eaton’s submission that the Judge failed to have regard to Mr Aldersley’s offer to make amends.  It was not an offer that provided immediate or full reparation to the victim and the Judge was clearly aware of it.

[27]     Fourthly, we do not accept Mr Eaton’s submission that the Judge treated the absence of a guilty plea as an aggravating feature.  Mr Eaton put too much emphasis on the fact that the Judge referred to “factors” in the plural.  There were in fact two aggravating factors identified by the Judge – the earlier convictions themselves and the fact that the current offending occurred during the currency of the sentence for the earlier offending.  The remarks about the lack of a guilty plea have to be read in context.  When that is done, it is clear that the Judge was remarking on the absence of a mitigating factor.  He was merely pointing out that the sentence would have been lighter had the mitigating factor of a guilty plea been present.

[28]     As for the reparation order, there is, in our view, nothing wrong in principle with the Judge ordering the level of reparation that he did.  It was in line with Mr Aldersley’s offer of reparation, which had not been premised on his continued employment.  We also accept the Crown’s submission that the time period over which the reparation is to be paid is not unreasonable.  The remission of fines is also relevant to this analysis.

Result

[29]     For the above reasons, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington