Andrews v R
[2012] NZCA 61
•5 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA455/2011 [2012] NZCA 61 |
| BETWEEN SHANNON RICHARD ANDREWS |
| AND THE QUEEN |
| Hearing: 23 February 2012 |
| Court: Wild, Ronald Young and Andrews JJ |
| Counsel: E J Forster for Appellant |
| Judgment: 5 March 2012 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Andrews appeals sentences totalling six years imprisonment with a minimum period of imprisonment of three years, imposed on him in the Napier District Court by Judge Adeane on 24 June 2011.[1] Mr Andrews had pleaded guilty to four counts of receiving and one of burglary.
[1] R v Andrews DC Napier CRI-2009-020-3923, 24 June 2011 [sentencing remarks].
We outline the background and summarise the sentence before dealing in turn with each of the four points Mr Forster advanced in support of the appeal. We will refer to further relevant parts of the Judge’s sentencing remarks in dealing with each ground of appeal.
Background
Hawkes Bay was plagued with burglaries of dwelling houses in 2009. Over 2000 were reported to the police, who thought the true level was significantly higher.
The police had information that Mr Andrews was actively engaged in receiving the property stolen in the burglaries. On 2 September 2009 the police executed a search warrant at the home of a Ms Edmonds in Flaxmere in Hawkes Bay. Ms Edmonds was at home. Mr Andrews was also there. The two had been in a relationship for about 10 years and had two children, although Mr Andrews lived elsewhere.
In Ms Edmonds’ home the police found a considerable amount of stolen property.
The upshot was that Mr Andrews was charged with three counts of receiving stolen goods, as well as a conspiracy charge. The charges covered all sorts of household items, a Landrover Discovery, firearms, hunting gear, a camera and a laptop. Ms Edmonds was also charged with a number of counts of receiving.
Essentially the Crown case against Mr Andrews was that he was the active receiver and the one involved in selling or otherwise disposing of the stolen goods. The Crown alleged that Ms Edmonds was the passive receiver: her main role was to provide her house for the storage of the stolen goods.
Mr Andrews defended the charges. He was committed for trial. He applied repeatedly for bail, eventually successfully to Judge Rea on 29 March 2010. The fact that he was arrested within days for breaching his bail conditions did not deter him from again seeking bail. His applications were unsuccessful until Judge Adeane eventually again granted him bail. The Judge did that with what he termed “considerable misgivings”, but against “clear assurances of a personal kind given by Andrews to the Court”.[2]
[2] Sentencing remarks at [13].
For reasons not presently relevant, Judge Adeane on 10 February 2011 declined Mr Andrews’ request for a sentencing indication. When the trial of Mr Andrews and Ms Edmonds began on 28 March 2011, Mr Andrews was not there. A warrant for his arrest was issued. Ms Edmonds did turn up. Upon arraignment, she pleaded guilty to one count of receiving stolen property and one count of conspiring to receive stolen property.
Three days earlier, on 25 March 2011, Mr Andrews broke into a home in Hastings. He placed a large flat screen television and a laptop on one of the beds ready to take. He went through the house tipping out drawers and pulling clothing from wardrobes. He took jewellery from the master bedroom and pocketed it. At that point he was disturbed by a member of the family who returned home, confronted him and detained him. While this family member was ringing the police Mr Andrews made off. He was located and arrested on 31 March 2011, but the jewellery he had stolen has not been located.
Mr Andrews pleaded guilty to that burglary upon being charged, and was remanded in custody. On 28 April 2011 he pleaded guilty on arraignment to four receiving charges (including one of conspiracy) under an amended indictment, and was discharged on a fifth. In his sentencing remarks, when referring to the conspiracy charge, Judge Adeane stated that the received stolen property had “an estimated value in excess of $100,000”.[3]
[3] At [1].
We have recounted these events because they prompted Judge Adeane to say this to Mr Andrews when sentencing him:
[17] … Throughout these proceedings you have variously shown yourself to be vociferous, manipulative, demanding and self-assertive. You are quick to resort to allegations of incompetence and bias on the part of others when assessing the causes of your present predicament. You are entirely bereft of moral scruples, as evidenced by your failure to attend for trial after being granted bail on compassionate grounds and by your subsequent decision to commit a further very serious dwelling house burglary while at large, on the run, in breach of your bail conditions.
The Crown accepts that the Judge erred in stating that Mr Andrews was “on the run” when he committed the burglary on 25 March 2011.
The sentence under appeal
The Judge recorded the Crown’s submission that Mr Andrews’ receiving offending was “close to the worst of its kind”, and that the Crown was contending for a starting point of seven and a half to eight and a half years imprisonment (five and a half to six and a half years with an uplift of two years for the additional counts).[4] The Judge noted that the maximum sentence for all the receiving charges, including the conspiracy charge, was seven years imprisonment. The Judge took a starting point for each of the receiving charges of five years imprisonment. From that five year starting point the Judge allowed Mr Andrews a discount of five per cent (or three months imprisonment) to reflect his guilty pleas. That gave a net sentence of four years and nine months imprisonment for the receiving charges.
[4] At [20].
The Judge then imposed a cumulative sentence of two and a half years imprisonment for the burglary Mr Andrews had committed on 25 March 2011. From that starting point, the Judge allowed a discount of 25 per cent for the guilty plea and a further 25 per cent “to ameliorate a sentence which would otherwise be excessive in totality”.[5]
[5] At [25].
The sentence of four years and nine months imprisonment for the receiving charges plus the cumulative sentence of 15 months imprisonment for the burglary yielded the total sentence of six years imprisonment challenged on this appeal.
Sentence manifestly excessive
The nub of this submission was that Judge Adeane’s sentencing starting point of “an effective six years 10½ months”[6] was manifestly excessive when compared with the sentencing starting point of six years upheld by this Court in Paku v R.[7] Mr Paku pleaded guilty to knowing participation in an organised criminal group, four counts of burglary of residential properties from which property worth $15,000 was stolen (either by Mr Paku alone or by him and other members of the group), and four counts of receiving property worth $18,000 from burglaries committed by others in the group. This Court explained the components of the sentencing starting point for Mr Paku thus:
[6] Mr Paku’s six year starting point comes about by allotting four and a half years’ imprisonment for the property offences, adding 12 months for the organised criminal enterprise charge, and then six further months for personal aggravating factors. The immediate issue, therefore, is whether five and a half years (four and a half years plus 12 months) was an excessive starting point for all the offending.
[6]We quote here from Mr Forster’s submissions. His arithmetic was: 5 years starting point for the receiving charges + 2½ starting point for the burglary = 7½ years – 7½ months discount for totality = 6 years 10½ months.
[7] Paku v R [2011] NZCA 269.
So, any comparison with Paku presents difficulties. In Paku the sentencing Judge was striking a starting point for all the offending, whereas Judge Adeane rightly imposed a cumulative sentence for the discrete burglary committed by Mr Andrews while on bail awaiting trial on the receiving charges. The Court in Paku considered “a starting point of five and a half years was well within range”.[8] That starting point excluded the six months uplift for personal aggravating factors. Perhaps that five and a half year starting point could be compared with Judge Adeane’s five years starting point for the receiving charges. But the difficulties even with that comparison are that the Paku starting point was for a mixture of receiving and burglary charges, and the value of the property Mr Andrews was charged with receiving was far in excess of the $33,000 worth burgled or received by Mr Paku. On the other hand, Mr Paku was being sentenced for knowing participation in an organised criminal group that had burgled property worth around $200,000, whereas Mr Andrews was sentenced on one count of conspiracy to receive. Relevant to this is the point made in Paku, that the culpability of offenders in an organised criminal group “is wider than their individual offences”.[9] The same applies to the conspiracy to receive charge for which Mr Andrews was being sentenced.
[8] At [13].
[9] At [11].
Another difference between this case and Paku is that Mr Paku’s starting point included a six month uplift to reflect offending while serving a sentence of home detention and a bad previous offending record. Judge Adeane imposed no uplift, notwithstanding that Mr Andrews had previously been convicted and imprisoned for both receiving and burglary. One similarity is that some of Mr Paku’s offending was committed while he was serving a sentence of home detention, and Mr Andrews committed his burglary while on bail awaiting trial.
Overall, we consider attempting to draw any useful comparisons with Paku is difficult, and we do not consider the sentence of five and a half years imprisonment upheld in Paku provides any support for Mr Andrews’ contention that his six year sentence was manifestly excessive.
Judge Adeane referred to this Court’s decisions in R v Andrian,[10] R v Bom[11] and R v Weavers[12] as providing “[h]elpful reference” to “a sentencing approach to upper-end receiving”.[13] He rightly assessed the scale of offending in each of those cases as “somewhat worse than that of Mr Andrews”.[14] This Court in R v Clayton has referred to Bom as “the leading authority on sentencing for sophisticated, extensive receiving offending”.[15] Ms Mildenhall submitted that the operation in the present case was a relatively sophisticated one. She contended that Mr Andrews was clearly an integral part of, if not the principal behind, a sizeable commercial operation. He traded directly with buyers, via cellphone, and dealt in a wide range of high-value stolen goods including, and of most concern, stolen firearms. As Judge Adeane viewed Andrian, Bom and Weavers as providing a reference point, we refer briefly to the facts and sentence in each.
[10] R v Andrian (1996) 13 CRNZ 449.
[11] R v Bom CA209/96, 16 October 1996.
[12] R v Weavers CA68/93, 29 March 1993.
[13] Sentencing remarks at [20].
[14] At [20].
[15] R v Clayton [2008] NZCA 348 at [32].
In Andrian a sentence of nine years imprisonment was upheld for “offending comprised by 12 counts of burglary and nine of receiving overall” involving forced entry into Wellington suburban homes over a one year period.[16] Approximately $250,000 worth of property was stolen. Mr Andrian pleaded guilty on arraignment. He consented to a pecuniary penalty order of some $63,000 under the Proceeds of Crime Act 1991 over monies he had in bank accounts.
[16] R v Andrian at 452.
In Bom the appellant was sentenced to six years imprisonment after being found guilty on four charges of receiving stolen property and one charge of conspiracy to receive stolen property. Mr Bom was one of three men who received a “huge volume” of property stolen from residential homes in Christchurch. Much of that property was recovered. The sentencing Judge considered Mr Bom and his co-receivers “were running a veritable supermarket for clearing stolen property”.[17] The sentence was upheld on appeal.
[17] R v Bom HC Christchurch T87/95, 16 May 1996.
Weavers involved an unsuccessful appeal against an effective sentence of five years imprisonment imposed after Mr Weavers pleaded guilty to 29 charges of receiving and 10 of false pretences. The charges arose out of an extensive and sophisticated operation in which late model cars were stolen, fitted with new identification and chassis numbers removed from cars in Australia, and re-sold to unsuspecting buyers. The operation had spanned three years. Twenty nine cars worth a total of some $944,000 were recovered by the police. Over $490,000 had gone into bank accounts operated by Mr Weavers.
Andrian, Bom and Weavers were decided between 1993 and 1996. R v Clayton, to which we referred in [20] above, is a more recent sentencing authority, though the challenge in this Court was only to the minimum period of imprisonment. Not challenged was the five year end sentence imposed in the District Court after a jury found Mr Clayton guilty of 34 charges of receiving. He had also pleaded guilty to 10 counts of fraud and one of using a document with intent to defraud. The receiving charges followed a police operation in Christchurch that focused on a burglary and receiving ring. That ring had targeted houses under construction. Mr Clayton had received valuable household items and materials stolen in the burglaries or stolen from dwelling houses and commercial premises, or while property was in transit. The property involved had a value of some $54,000.
The sentence under appeal could be viewed as stern. But it was for receiving on a substantial scale, and for a brazen burglary. Ms Mildenhall’s categorisations of the receiving operation as “relatively sophisticated” and “a sizeable commercial operation” are apt. We regard the sentence of six years imprisonment as within the range available to the Judge, and not as manifestly excessive. We accordingly dismiss the first ground of appeal.
Insufficient discount for totality
The challenge here is to the discount of 25 per cent (seven and a half months) from the cumulative sentence for the burglary “to ameliorate a sentence which would otherwise be excessive in totality”.[18] Mr Forster submitted first that the Judge had erred in principle “by not doing a final step in sentencing assessing whether the total end point was excessive in terms of the total offending”. Secondly, he contended that the Judge had assessed totality relative to the burglary sentence and not the total sentences.
[18] Sentencing remarks at [25].
These two submissions seem to us to make the same point: the discount for totality was insufficient. It is a point we reject. As Mr Forster acknowledged, this Court’s concern on a sentence appeal is with the effective or end sentence, rather than the means the sentencing judge took to that end. The aim of the guidance offered by this Court in cases such as Taueki[19] and Columbus[20] is to assist sentencing judges in arriving at the correct end result. If the guidance offered is followed, then it also assists this Court to follow the judge’s sentencing process.
[19] R v Taueki [2005] 3 NZLR 372.
[20] R v Columbus [2008] NZCA 192.
We have already held that the end sentence of six years imprisonment under appeal was not manifestly excessive. So this second ground must also fail. Implicit in that is that we consider the allowance Judge Adeane made to avoid a sentence “which would otherwise be excessive in totality” was appropriate.
Disparity with Ms Edmonds’ sentence
This is the way in which Judge Adeane fixed the sentence he imposed on Ms Edmonds:
[34] Making every possible allowance for your lesser degree of participation, in my view the starting point for your part in the conspiracy cannot be less than half of Andrews’ sentence, that is to say, two years and six months’ imprisonment. Factoring in a 10 percent allowance for your guilty plea on the morning of trial, a net sentence of 27 months’ imprisonment is reached. …
That sentence did not, of course, allow the Judge to consider home detention.[21]
[21] Sentencing Act 2002, s 15A.
Allowing Ms Edmonds’ appeal, this Court quashed that sentence and substituted a sentence of six months home detention.[22] When this Court delivered its judgment, Ms Edmonds had been in prison for two months. Ms Edmonds was to be detained in her parents’ home, not in the home in which she had stored the received stolen goods.
[22] Edmonds v R [2011] NZCA 415.
This Court was satisfied that it was the detailed information Ms Edmonds had provided to the police about Mr Andrews’ criminal activities that enabled the police to apprehend Mr Andrews. The Court was thus satisfied that the Judge had erred in failing to give Ms Edmonds any discount for her assistance to the police when sentencing her. The Court considered that a discount of 33 per cent appropriately reflected that assistance plus Ms Edmonds’ pleas of guilty (for which the Judge had allowed her a 10 per cent discount).
Although this Court substituted a sentence of home detention, the true comparison between the sentences imposed on Mr Andrews and Ms Edmonds is between the five years sentencing starting Judge Adeane took for Mr Andrews on the receiving charges and the two and a half years starting point he took for Ms Edmonds. That is because the starting point for Mr Andrews must exclude the burglary (in which Ms Edmonds was not involved) and the starting point for Ms Edmonds was not challenged on appeal.
A comparison between those two starting points requires consideration of two factors. The first is that Mr Andrews’ role in the receiving was an active one, whereas Ms Edmonds’ role was passive. In saying that we do not overlook Judge Adeane’s observation when sentencing Ms Edmonds:
[30] … While much of the property found had its origins in Andrews dishonest activities, the police allege that they also found property traceable to other criminal offenders.
The second factor is that the Judge was sentencing Mr Andrews on four counts of receiving, but Ms Edmonds on only two counts.
When these two factors are taken into consideration, we see no disparity in terms of the well established test.[23] The significantly different personal circumstances of Mr Andrews on the one hand, and Ms Edmonds on the other hand, are irrelevant when considering whether their sentencing starting points were disparate. We also dismiss this ground of appeal.
Minimum period of imprisonment
[23] R v Lawson [1982] 2 NZLR 219 (CA) at 223.
Mr Forster’s primary submission under this head was that the non-parole period of two years implicit in the six years sentence imposed on Mr Andrews provided sufficient protection for the public, and that an MPI was unnecessary. Alternatively, Mr Forster contended that the Judge erred in that “there was no consideration of whether a lesser minimum non-parole period would suffice”.
The second of those submissions is unworthy of consideration and we reject it.
This was Judge Adeane’s reasoning in imposing an MPI of three years:
[26] The Crown submit that a non-parole period should be imposed. The relevant features of the totality of your offending Andrews, include its brazen and commercial nature, your previous convictions and imprisonment for similar matters, your present failure to acknowledge the gravity of your offending and your assessed “very high risk of re-offending”. That forecast assumes high importance in my assessment of these matters – rather more than any categorisation or assessment of you as a recidivist. If the term is taken to mean that you have done this before, it is literally so. I acknowledge that you have not quite so many prior convictions as other people in your position. But all these matters lead, in my view, to the unavoidable conclusion that a minimum non-parole period is required to hold you accountable for the harm you have done, to denounce your conduct, to deter others from embarking on professional involvement in burglaries and/or receiving, which is notoriously difficult to detect, and out of which a few professional criminals make easy livings off the back of the honest, law abiding community.
We detect no error in any of this. The probation officer’s assessment of Mr Andrews as presenting “a very high risk of further offending” was obviously a critical consideration.
In terms of the length of the MPI imposed by the Judge – 50 per cent of the end sentence – it is sufficient to refer to the following part of this Court’s judgment in R v Clayton:
[32] … There are, however a number of appellate authorities dealing with sentencing for serious dishonesty offending, and these show that minimum periods of imprisonment in the 60% to 66% range have often been imposed. In R v Rohloff CA193/03 24 September 2003, a minimum period of imprisonment of two-thirds (three years) was imposed in respect of nine counts of burglary where the value of the property stolen was $52,653. In R v Orchard CA123/03 24 October 2003, a minimum period of imprisonment of two-thirds (four years six months) was imposed in respect of 597 counts of using a document where the value involved was some $1.5m. In R v Frost CA344/05 6 September 2006, a minimum period of imprisonment of 60% (three years six months) was imposed in respect of eight counts of burglary.
There is nothing in this final appeal point.
Result
None of the four grounds of appeal has succeeded. The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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