Bolt v The Queen

[2004] NZCA 248

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/04

THE QUEEN

v

BRIAN ALLAN BOLT

Hearing:21 September 2004

Coram:McGrath J
Goddard J
Salmon J

Appearances:  P J Doody for Appellant

A Markham for Crown

Judgment:4 October 2004 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1]       This is an appeal against the sentence imposed on Mr Bolt in the District Court by Judge Doherty, following guilty pleas to charges of burglary, theft, unlawful taking of a motor vehicle (two charges), use of a document and receiving.  The appellant was sentenced to an effective term of six years imprisonment with a minimum period of imprisonment of three years in respect of each of two of the charges.  The Judge directed that the sentence be cumulative on a sentence currently being served. 

[2]       The offending covered a six week period.  On 15 August 2003 the appellant stole a van advertised for sale in a newspaper by a Canadian who was resident in New Zealand.  The appellant arrived at where the complainant lived, persuaded her to allow him to take her vehicle for a test drive and then drove off in it.  On 5 September he used the stolen van to take 60 trays of beer, having a total value of $3600, which he stole from the back of a truck parked in a local freight yard. The stolen van, with the beer in it, was recovered by the police the next day although in the meantime the appellant had arranged to sell the beer for $700.  This offending gives rise to a theft charge. 

[3]       On 20 September 2003 the appellant stole another vehicle, this time from a long term car park at Christchurch Airport.  He had observed the owners a couple park their Mazda car and then enter the airport terminal with their bags.  The appellant then secured the services of a locksmith to help him get into the car telling him he had lost the keys.  The appellant then drove off in the vehicle. This gave rise to the second unlawful taking charge. 

[4]       Unfortunately the owners of the vehicle taken from the airport had left a set of keys in the car labelled with their home address.  As a result the appellant obtained access to their home.  He entered and stayed the night in their house, eating articles from the fridge.  The next day he took property to a value of $25,500, including personal computers, cameras, joinery and a child’s piggybank.  All these items were loaded into the stolen Mazda car and taken away.

[5]       Several days later the appellant endeavoured to use cards giving internet access, and bank cards that he had acquired from the house, to log on to the Bank’s internet site and attempt to transfer $6000 from the related accounts into his own bank account.  He was arrested by the police during the course of this attempted theft.  The police found inside the stolen Mazda car other property, to a value of $1256, that had been taken in the course of a separate burglary on 20 September at the same freight yard from which the appellant had taken the beer. The property found in the appellant’s possession was the subject of the receiving charge. At the time of his sentencing a considerable amount of property was still outstanding.

[6]       The Victim Impact Statements reflect the high degree of upset and disgust of those most directly affected by the appellant’s offending.  The loss of property and invasion of their privacy were compounded, in the case of the owner of the stolen van, by the fact that she had planned to use the proceeds of her intended sale to pay for food and rent until she started a new job.  She was put under considerable financial stress by his actions.  As her house keys had also been taken with the car she feared the possible return of the appellant to her home.  A flatmate paid $200 to change the locks.  When the van was returned it was in a filthy state because the appellant had been living in it. 

[7]       The female victim of the theft of the vehicle from the airport, and the associated burglary, was similarly distressed by the knowledge that he had occupied her house.  She and her husband had lost items of irreplaceable sentimental value from the theft and incurred substantial costs through an insurance excess.  Their six year old son also was affected through theft of the piggy bank and its contents.

[8]       The appellant is a long term intravenous drug addict and recidivist burglar.  At the age of 49 years he has 665 convictions most of which are for dishonesty and property offending.  He is described by his probation officer as institutionalised, having spent much of his life since the late 1970s in prison.  Rehabilitative programmes have had no effect on him and he clearly poses a high risk of re-offending.  The present offences were committed whilst he was on parole.  The aggravating factors identified by the Judge were, first, that the building was a private home and the manner in which he used the home overnight had compounded the victims’ sense of violation.  The second feature was the number of offences that the appellant committed during the period concerned and the total value of property taken (which was in excess of $30,000 with $25,000 remaining unrecovered).  As well, a number of the items taken had a high sentimental value, causing the victims particular distress.  The premeditation and sophisticated way he acquired the vehicle at the airport was a further aggravating factor. The appellant of course had also committed the offences at a time when he was on parole.

[9]       Judge Doherty told the defendant that the community needed to be protected from his predatory behaviour and that it was his duty to pronounce a sentence which both denounced his conduct and deterred him insofar as that was possible.  He referred to the decisions of the High Court in Police v Senior (2000) 18 CRNZ 340 and of this Court in R v Southon (2003) 20 CRNZ 104. The latter judgment had noted that the most significant sentencing purpose for the habitual burglar was deterrence and community protection.  The appellant had no inclination to reform and the Judge said that he could not be left in the community nor given any leniency. 

[10]     The appellant had been recalled to prison and would serve the remainder of his current sentence, from which he would be released in December 2006.  The Judge chose the burglary offence for the lead sentence and took a starting point of eight years. He gave credit for the guilty plea of two years and sentenced him to six years imprisonment.  In relation to the carpark offending at Christchurch Airport he imposed a sentence of five years imprisonment having allowed a credit of one year for the guilty plea.  The other charges warranted sentences of three years imprisonment which he also imposed.  Considering the sentences in totality he concluded that the six year sentence for burglary should be cumulative on his current sentence with the others concurrent, which we take to mean concurrent with the lead sentence he was imposing.  He went on to consider the requirements of s86 of the Sentencing Act and imposed a second minimum term of imprisonment of three years in relation to the burglary and as well a minimum term of imprisonment of three years in relation to the unlawful taking.  In passing we observe that it is not clear to us why the Judge imposed separate minimum periods of imprisonment which, so far as we can see, served no useful purpose.

[11]     The written submissions of Mr Doody in this Court indicated that there had been some administrative uncertainty as to the effect on the appellant of the way in which the Judge had structured the sentence.  At the time the appellant was sentenced by Judge Doherty on 21 May 2004 he was serving a total term of nine and a half years imprisonment.  This was made up of a six year sentence imposed on 16 January 1997 which the appellant has been recalled to complete, and a three and a half year sentence imposed on 9 May 2000.  Being cumulative sentences under s75 of the Parole Act 2002 they formed a notional single sentence of nine and a half years imprisonment.

[12]     The effect of the six year cumulative term imposed on 21 May 2004 is that his notional single sentence of imprisonment has become 15½ years imprisonment.  The additional sentence of five years imprisonment, with a minimum non-parole period of three years, for taking a motor vehicle was not directed to be served cumulatively and accordingly runs from the date that it was imposed (s76(1) of the Parole Act).  Likewise the sentence of three years imprisonment for each of the other four offences runs from the date of its imposition.

[13]     The minimum periods of imprisonment of three years run from the date of sentence and have the effect that the appellant’s parole eligibility date will be 21 May 2007 (ss20(3) and 84(2) Parole Act 2002).  The minimum parole period of three years on the six year cumulative sentence does not impact on his parole eligibility date because of the way parole eligibility on notional single sentences is calculated.  It is unnecessary for us to consider concerns originally raised by Mr Doody for the appellant to the effect that the appellant would be facing cumulative minimum terms of imprisonment as a result of the way the Judge structured the sentence. That is not the case.

[14]     On that basis we can turn to consider the particular issues advanced by Mr Doody in the appeal.  Mr Doody was critical with the length of the sentence for this offending.  He argued that a starting point of eight years was too high and that it should be reduced to six years.

[15]     In R v Southon this Court, in a judgment delivered by Anderson J, said at p108:

[12]     The seriousness of burglary is not to be underrated.  Although the nature and risks of intrusion into private dwellings are obvious, with their sinister implications for privacy and their potential for grave offences against the person, such risks are not entirely absent in the case of the burglary of commercial premises.  There is always the possibility of an encounter with someone lawfully on commercial premises.  The potential for property loss goes without saying.

[13]     Nor should Senior be regarded as more than a very helpful analysis of historic sentencing patterns in this area, being thereby conducive to consistency in respect of similar offenders committing similar offences in similar circumstances, as mandated by s8(e) of the Sentencing Act 2002.  As recent decisions of this Court demonstrate, recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment.

[14]     In our view, the most significant sentencing purposes in relation to this habitual burglar are deterrence and community protection.  We need not repeat his regrettable record, but we place particular emphasis on the inadequate deterrence of previous terms of imprisonment and the severely aggravating feature of offending whilst on bail for a like crime.  The circumstances called for a firm sentence and that is what the appellant received.

[16]     The appellant’s past pattern of offending puts him at the top end of the range of recidivist burglars.  He appears to reoffend invariably, and it seems compulsively, soon after release from prison.  The offending presently being considered is of a wide-ranging nature which is also typical.

[17]     The sentencing judge was required to address offending that was serious in its impact on the victims and had aggravating features in the breach of parole involved and its recidivist nature.  The failure of previous sentences of imprisonment to deter the appellant, coupled with the need for the public to be protected from him for an appropriate period, were properly treated as highly relevant. 

[18]     Taking these factors into account, along with the totality principle, we do not regard a starting point of eight years imprisonment for the lead sentence to be at all excessive.  An appropriate deduction having been made for his guilty plea, it is accordingly impossible to characterise the lead sentence of six years imprisonment as excessive. 

[19]     The imposition of a minimum term of three years was also appropriate because the aggravating features of the offending, including its sophistication, made it of a particularly serious nature.  There is also the fact that it was committed while on parole (R v Rohloff CA193/03, 24 September 2003).  It is a much worse case than Southon in which a starting point of 6 years was upheld, the range of offending being closer to that in R v Andriaan (1996) 13 CRNZ 449 (12 year starting point for multiple burglaries of residential properties.  That is because of the bad history of offending and the particular impact on the victims of the manner in which it was perpetrated.  Overall we are satisfied that the offending was sufficiently serious to impose a minimum period of imprisonment of three years which is the effective outcome of the District Court’s sentence.

[20]     Accordingly the appeal against sentence is dismissed.

Solicitors:
P J Doody, Christchurch for Appellant
Crown Law Office, Wellington