BROOKING v The Queen

[2005] NZCA 32

IN THE COURT OF APPEAL OF NEW ZEALAND

CA419/04

THE QUEEN

v

BENJAMIN TURREI BROOKING

Hearing:23 February 2005

Court:O'Regan, Robertson and Panckhurst JJ

Counsel:A Markham for Appellant

V C Nisbet for Respondent

Judgment:7 March 2005 

JUDGMENT OF THE COURT

A        Leave to appeal is granted.     

B        The appeal is allowed.

CThe effective sentence of six years imprisonment is quashed and a sentence of eight years nine months imprisonment is substituted.

REASONS

(Given by Panckhurst J)

Introduction

[1]       This is a Solicitor-General’s appeal against a sentence of six years imprisonment imposed in relation to offences of burglary (38), unlawful taking of motor vehicles (3), driving while disqualified (2), aggravated assault, and assault on a female.  A lead sentence of six years imprisonment was imposed in relation to the burglaries and lesser concurrent terms in relation to the other offences.

[2]       The Solicitor-General contends that the effective sentence of six years imprisonment is manifestly inadequate.  In particular Ms Markham challenged the starting-point adopted in relation to the multiple offences of burglary, eight years imprisonment, and the decision of the sentencing Judge to make all other sentences concurrent when certain of the offences were clearly different in kind so as to warrant cumulative terms.

The facts

[3]       Between August 2003 and May 2004 the respondent committed a spree of residential burglaries in Wellington.  He targeted specific suburbs.  Typically the burglaries were committed at about dusk, with the respondent relying on the absence of lighting as indicating that the intended property was unoccupied.  Entry was gained by forcing windows and on a number of occasions substantial damage was caused to the victims’ homes through ransacking of them.

[4]       The respondent systematically stole cash and jewellery, but on occasions he also took valuable electrical items.  The summary of facts recorded that property valued at well over $100,000 was stolen.  However, items to a value of $33,000 were recovered at the time of the respondent’s apprehension in May 2004.  The summary also included a schedule which itemised with reference to each burglary a reparation figure which was sought.  The total reparation figure was about $195,000, which was not broken down as between property stolen and property damage caused by the respondent.

[5]       Throughout the relevant period the respondent was a disqualified driver.  In April 2004 he was observed driving a vehicle which he had unlawfully taken and also driving a vehicle owned by a family member.  When a police patrol endeavoured to stop the respondent he drove off at speed, abandoned the vehicle and escaped on foot.  Likewise in early May 2004, on the day of his eventual apprehension, the appellant was observed driving another vehicle which had been unlawfully taken.  Again he failed to stop when required to do so, drove off at speed, abandoned the vehicle and decamped.  However, on this occasion his whereabouts was observed by a member of the public and a constable located the respondent hiding on the roof of a nearby building.

[6]       The constable’s pursuit of the respondent gave rise to the aggravated assault charge.  Upon locating the respondent the constable endeavoured to place him under arrest.  The respondent resisted and a chase over several roof tops followed.  After the respondent was cornered and sprayed with a pepper spray, the constable approached him in order to apply handcuffs.  Again the respondent resisted by pushing the constable who fell through a roof as a consequence.  The officer sustained lacerations and graze injuries, which required suturing and necessitated several days off duty.

[7]       On the occasion of three of the burglaries the respondent unlawfully took vehicles belonging to his victims which were then, and subsequently, used to transport stolen property taken in the burglaries.

[8]       The charge of assaulting a female occurred in mid 2003.  The respondent assaulted his then partner at their home address.  The victim’s head was struck against a wooden coffee table and she was punched repeatedly in the lounge of the house and in the presence of visitors and the respondent’s young son.  The victim was then dragged by her hair to a bedroom where she was again punched repeatedly to the head and upper body.  She required medical attention on account of extensive bruising, small lacerations and a chipped front tooth.  The respondent pleaded guilty to this charge on arraignment shortly before his sentencing upon the balance of the offences.

[9]       To the bulk of these he entered pleas of guilty on request on 19 August 2004, before a preliminary hearing.  Guilty pleas were in due course entered to the few remaining charges, in the case of the aggravated assault charge after it was amended to a lesser offence.

The sentencing in the District Court

[10]     The respondent was sentenced by Judge Davidson in the District Court on 17 September 2004.  As to the respondent’s past and the impact of the burglaries upon the householders the Judge said:

[11]     You have a long list of convictions over a 27-year period from 1976 until last year.  You have around 83 previous convictions for burglary.  You have a large number of other convictions for receiving suggesting that as well as stealing other people’s property you are prepared to deal with it as well.  You have been imprisoned on 10 occasions for burglary since 1981.  The last occasion was in 2000.  You have been sentenced to periodic detention for burglary on eight occasions.

[12]     I have read all of the victim impact statements that have been submitted.  On an overall basis these show that all of the victims have been violated.  They are devastated, they are angry and they are distraught.  Many lost valuable items.  Many lost items that were precious, dear and sentimental to them.

The spree of burglaries were characterised as “a sustained premeditated period of offending over 9 to 10 months” which had an incalculable effect on the victims.  The aggravated assault on a police officer was described by the Judge as “a mindless and foolish reaction in an attempt to escape and evade justice”, while the 2003 assault on the respondent’s partner was characterised as “nasty in the extreme”.

[11]     The Judge identified as the only mitigating factors the pleas of guilty, some early indications of remorse and insight displayed in a letter written by the respondent and the circumstance that the offending was committed “to fuel an addiction from which you suffer”.  With reference to this final point we accept Ms Markham’s submission that a self-induced addiction (to alcohol, cannabis and gambling) is not an available mitigating feature in a case of this kind.

[12]     In light of all matters the Judge adopted a starting-point of eight years imprisonment.  He then made a reduction of two years (or 25%) for the pleas of guilty and for the early signs of remorse and insight shown in the respondent’s letter written to the Judge.  The lead sentence, six years imprisonment, was imposed in relation to the 36 offences of burglary.  The three charges of unlawfully taking vehicles attracted two years imprisonment, the two charges of driving while disqualified nine months imprisonment, the aggravated assault on a police constable two years imprisonment, and the assault on a female nine months imprisonment, all of which terms were made concurrent with the lead sentence.  As was required, the respondent was also further disqualified from driving.

The respective arguments

[13]     Ms Markham in seeking leave to appeal against the sentence submitted that it was both manifestly inadequate and wrong in principle.  While the discount of 25% was unobjectionable, the Judge’s starting-point of eight years imprisonment was challenged as insufficient to reflect the totality of the offending, both in terms of the sheer volume of offences and the range of criminality involved.  In the context of a Solicitor-General appeal counsel argued that a starting-point of 12 years imprisonment was justified for the total offending which, after a reduction of 25% for the guilty pleas, would produce an effective sentence of nine years imprisonment.

[14]     With reference to the burglaries Ms Markham argued that not only was the respondent an incorrigible recidivist, but that his offending disclosed a cluster of aggravating features.  These included the number of offences committed over a ten month period, the sophistication of the offending (including the ability to evade apprehension and dispose of the stolen property), the loss occasioned to the victims as indicated by the reparation figure of $195,000, the collateral damage caused within the homes, the targeting of private residences and the targeting of items having intrinsic sentimental value.  In addition there were a number of aggravating features pertaining to the respondent himself, including that he was on parole for similar offending and that he had over 80 previous convictions for burglary upon which he had been sentenced to imprisonment on 15 separate occasions.  The failure of previous sentences to deter the respondent indicated that it was a case where protection of the public was the paramount sentencing consideration and, moreover, where a sentence at the upper available limit was indicated in terms of R v Ward [1976] 1 NZLR 588 (CA).

[15]     Attention was drawn to the decision of this Court in R v Andrian (1996) CRNZ 449 where, from a starting point of 12 years, a sentence of nine years imprisonment was upheld for 12 counts of burglary and a receiving (relating to a further nine burglaries) committed by a professional burglar with multiple previous convictions for that offence.  The present case was characterised as worse, if anything.

[16]     In support of a submission that Andrian no longer represented the high-water mark for recidivist burglars Ms Markham referred to R v Southon (2003) 20 CRNZ 104 (CA), R v Harding (CA289/04, 26 October 2004) and R v Bolt CA236/04, 4 October 2004 in which sentences of four and a half years imprisonment, six years and six years, respectively, were upheld in cases where only a handful of burglaries were committed, rather than the number involved in the present appeal.  Hence, counsel submitted, the present sentence conveyed the message to professional burglars that prolific offending would attract no sterner response than the sentence for say 2-6 burglaries.  This could give rise to an incentive to offend or to the notion that there was a discount made for bulk offending.

[17]     In substance Mr Nisbet supported the approach of the sentencing Judge.  He submitted that Andrian, which was termed by the Court an exceptional case, was not less serious than the present one.  To the contrary Mr Andrian was a professional burglar.  He used more sophisticated methods and stole property to a value of $250,000 in 1996 terms.  By contrast, counsel characterised the respondent as an addictive burglar, who offended to provide for his habits and who used less sophisticated methods than those of a true professional.  Counsel stressed that the Crown had advocated a starting-point of nine years imprisonment in the District Court, which rendered it inappropriate to advocate a much higher starting-point in this Court.  In the end result we were invited to conclude that the approach of the Judge in fixing eight years as the starting-point, slightly below that then sought by the Crown, was appropriate and that since the allowance for mitigating factors was not challenged, the effective sentence of six years imprisonment should be upheld.

Discussion

[18]     We are persuaded that a starting-point of eight years imprisonment was plainly inadequate to reflect the totality of the offending in this case.  Moreover, we do not consider that the approach of the Judge was in accordance with the principle contained in s 84(1) of the Sentencing Act 2002 that offending which is different in kind should ordinarily attract a cumulative sentencing response.

[19]     We also accept Ms Markham’s submission that a starting-point of twelve years imprisonment, perhaps more, was justified for the totality of the present offending.  The seriousness of the burglaries is self-evident.  For this offender, aged 42 years and with a past record of such proportions, a sentence of six years imprisonment would hardly have been adequate for a modest number of burglaries, let alone 38 such offences.  As the Judge in the District Court rightly observed burglary is a serious crime because of the impact upon its victims.  Here, 38 families were violated.  We doubt that the sophistication of the methods used to gain entry are greatly material, at least to the complainants.  The sense of violation is the same whether the burglar is a true professional or less so.  For these reasons there is a substantial basis to review the lead sentence of six years imprisonment.  In addition, particularly the concurrent terms imposed in relation to the assault offences require reconsideration because that offending was serious in itself and discrete.

[20]     On the other hand there are two difficulties in relation to final disposition of the appeal.  First is the circumstance that the Crown advocated a starting-point of only nine years imprisonment (and no minimum term) in the District Court.  Now, an increase of one-third to that term is sought.  Ms Markham did not shrink from this difficulty.

[21]     She referred to R v Edmonds & Tipene CA309-310/00, 30 November 2000, also a Solicitor-General’s appeal where the Court said at para [11] of the judgment:

… the Crown is not debarred, on appeal, from taking a stance different from that taken at first instance.  However the fact that the Crown has taken a particular stance, with which the sentence imposed is not inconsistent, is relevant to the appearance of justice when the appropriateness of the sentence is considered on appeal.  There may be occasions when, notwithstanding a perception of injustice on the part of the Crown in changing its stance, an appellate Court may be unable to avoid the conclusion that there is an even greater perception that justice has gone wrong because the sentence imposed is so manifestly inadequate.

Is this case one where the perception of justice gone wrong is such as to require us to increase the starting-point beyond that initially advocated by the Crown?

[22]     The second complication is that the case is not one which simply concerns the appropriate starting point for a recidivist burglar who has committed multiple offences while on parole.  We must also assess the contention that the Judge erred in principle in imposing concurrent sentences particularly in relation to the aggravated assault and assault on a female charges.  These were serious offences in themselves.  We do not accept Mr Nisbet’s submission that the aggravated assault was not of particular moment.  The summary indicates that the respondent determinedly resisted arrest and in so doing assaulted the constable, causing him to fall through a roof.  Any assault committed on a roof, in circumstances such as these, against a law enforcement officer must be viewed seriously.  Likewise, we view the assault upon Mr Brooking’s partner as a brutal example of that offence.  The attack was prolonged and aggravated by the circumstance of its commission in the presence of a child and others.  These two offences had to be marked by cumulative sentences.

[23]     We are satisfied that this is an instance where despite the stance of the Crown in the District Court justice requires this Court to adopt a starting-point significantly above that sought by the Crown at first instance.  As noted above we are well-satisfied that the totality of the present offending does justify a starting-point of at least 12 years imprisonment.  With that conclusion in mind we consider that the most workable approach is to reconfigure the sentences which were imposed in the District Court. 

[24]     We do so by retaining six years imprisonment upon the burglary offences as the lead sentence.  To that term we add the terms of two years for aggravated assault and nine months for assault on a female to reach a cumulative term of eight years nine months imprisonment.  The remaining concurrent sentences remain undisturbed.  We think the increased term of eight years and nine months imprisonment is appropriate to mark the totality of the offending and consistent with the approach this Court takes to increased sentences in appeals by the Solicitor-General.  At the same time this approach preserves much the same level of discount as was fixed by the Judge and brings to proper account the sentences he imposed (albeit concurrently) on the assault offences.  It follows, however, that the six year term in itself is of no precedent value.

[25]     Accordingly, leave to appeal is granted and the sentence is varied as indicated.

Solicitors:
Crown Law Office, Wellington Appellant
Val C Nisbet, Wellington for Respondent