Cecil v The Queen - [2013] NZCA 541

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/2013
[2013] NZCA 541

BETWEEN	JUNIOR CECIL Appellant
AND	THE QUEEN Respondent

Hearing:	23 September 2013
Court:	French, Winkelmann and Panckhurst JJ
Counsel:	T J Darby for Appellant B D Tantrum for Respondent
Judgment:	5 November 2013 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Panckhurst J)

An organised criminal group

On 11 June 2013 the appellant, and others, were sentenced for their participation in an organised criminal group involved in burglaries of commercial premises using vehicles unlawfully taken for this purpose.[1] The appellant was sentenced on the participation charge, seven charges of burglary, two charges of converting motor vehicles and one charge of obstructing the course of justice. An end sentence of eight years seven months’ imprisonment was imposed, with a minimum period of imprisonment of three years and nine months.
[1]R v Cecil [2013] NZHC 1384.
Virtually every step in the sentencing decision is the subject of challenge. The grounds of appeal are that the starting point adopted by Lang J was excessive, personal mitigating factors were not recognised, the discount for the guilty pleas was inadequate, the minimum period of imprisonment (MPI) was wrongly imposed, the cumulative term for obstructing the course of justice was wrong in principle and the sentence was disparate by comparison to those imposed in the District Court on two other members of the group.

The offending

In the period from June 2011 to early January 2012 at least five men comprised the organised criminal group.
On 21 June 2011 entry was gained to credit union premises at Papatoetoe and an Automatic Teller Machine (ATM) was forcibly removed. A converted truck was used to transport the ATM to Wiri, where $21,000 was obtained from the ATM.
On 29 September 2011 further credit union premises at Otahuhu were targeted. A vehicle converted 12 days earlier was twice reversed into the front of the premises to dislodge an ATM from its mountings. Extensive damage was caused to the premises and the vehicle, which was abandoned. A converted van was used to remove the ATM to Onehunga, where gas cutting equipment and a grinder were used to open the ATM and $81,000 was obtained.
On 4 December 2011 members of the group entered the secure yard of a company at Wiri, and selected two trucks from the yard for use in another burglary. One of the vehicles was driven through the perimeter fence, and both were taken to credit union premises at Mangere. In the early hours of 5 December 2011 the truck that had been driven through the perimeter fence was reversed repeatedly into a wall to gain entry into the building. Attempts to dislodge an ATM from its mountings were unsuccessful, in part because of the structural damage caused to the building in gaining entry. After a time the offenders desisted, abandoned the damaged vehicle and drove off in the remaining one.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cecil v The Queen

Details

AGLC: Cecil v The Queen [2013] NZCA 541
Case: [2013] NZCA 541
Decision Date: 5 November 2013 at 2.00 pm

CaseChat Overview and Summary

Junior Cecil appealed against his sentence in the Court of Appeal of New Zealand. Cecil and several others were sentenced for their involvement in an organised criminal group that committed burglaries at commercial premises using unlawfully taken vehicles. Cecil was convicted on charges including participation in a criminal group, multiple burglaries, converting motor vehicles, and obstructing the course of justice. The Court was required to determine whether the starting point for sentencing was excessive, if personal mitigating factors were appropriately considered, if the discount for guilty pleas was adequate, if the minimum period of imprisonment was correctly imposed, if the cumulative term for obstructing the course of justice was appropriate, and if the sentence was disparate when compared to sentences imposed on other group members.

The Court found that the starting point of eight years six months was not excessive, considering the method of the group's offending, the significant damage caused, and the total value of stolen property. The Court also found that personal mitigating factors such as remorse, family circumstances, and an offer to make amends were not sufficient to warrant a deduction from the starting point. The Court accepted that the discount for guilty pleas was appropriate, given the delay in entering the pleas and the late stage in the trial process. The imposition of a minimum period of imprisonment was deemed necessary to recognise the seriousness of the offending and to promote accountability, denunciation, deterrence, and protection of the community. The Court found that a cumulative term for the charge of obstructing the course of justice was appropriate, as it was different in kind to the dishonesty charges. Finally, the Court concluded that the disparity between Cecil's sentence and those of his co-offenders was not such as to require appellate intervention, as the disparity arose from an unduly lenient sentence imposed on one of the co-offenders.

The appeal against sentence was dismissed.

Orders