Craigie v R
[2012] NZCA 67
•6 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA735/2011 [2012] NZCA 67 |
| BETWEEN JOSHUA WILLIAM CRAIGIE |
| AND THE QUEEN |
| Hearing: 15 February 2012 |
| Court: Arnold, Potter and Simon France JJ |
| Counsel: J C Hannam for Appellant |
| Judgment: 6 March 2012 at 11 a.m. |
JUDGMENT OF THE COURT
AThe appeal is allowed and the sentence of 16 months imprisonment is quashed.
BA sentence of 14 months and 2 weeks imprisonment is substituted, to be served concurrently with the sentence of one month imprisonment imposed on the theft charge.
COutstanding fines amounting to $11,604.41 are reinstated.
____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
The appellant was sentenced by Judge Andrée Wiltens to 16 months imprisonment after he was convicted at trial on one charge of burglary and one charge of theft.[1]
[1] R v Craigie DC New Plymouth CRI-2011-045-1169, 19 October 2011.
He appeals the sentence on the ground that it is manifestly excessive. He submits:
(a)The starting point of 12 months imprisonment was too high; and
(b)The four month uplift for previous convictions was excessive.
The Crown contends that:
(a)The starting point of 12 months imprisonment was well within the range available to the sentencing Judge;
(b)The uplift was “unremarkable”; and
(c)Neither rendered the end sentence of 16 months imprisonment manifestly excessive.
Factual background
A burglary of Van Veen Machinery Ltd (Van Veen Machinery) in Midhurst was brought to the notice of police on 5 January 2011. The appellant’s ex-partner advised police that on 22 December 2010 she had witnessed the appellant and an associate break into Van Veen Machinery and emerge with various items of property.
An employee of Van Veen Machinery told police that on the morning of 23 February 2011 he arrived at work to find that the premises had been broken into and items of property were missing.
The appellant and a co-accused, Mr Poa, were charged with one count of burglary and one count of theft. They pleaded not guilty to both counts.
The Crown case at trial was that the appellant and Mr Poa had burgled Van Veen Machinery while the appellant’s ex-partner acted as a lookout and had stolen two copper radiators, one aluminium radiator, some scrap metal and a small welder. The day after the burglary, the appellant sold the welder to an associate. The welder, which was subsequently recovered by police, was the subject of the theft charge. The value attributable to the welder was about $500. The total value of the items stolen was about $600.
The appellant was convicted on both charges. Mr Poa was acquitted.
Personal background
The appellant is 22 years old. He has 23 notations in the Youth Court including 14 notations for burglary offences, of which all except two arise from an apparent burglary “spree” in August 2005. He also has eight notations for dishonesty offences in the Youth Court. He has only one conviction for burglary in the District Court in 2006, for which he received a sentence of four months imprisonment. In March 2010 he was convicted of threatening to kill or do grievous bodily harm, unlawful possession of a firearm and presenting a firearm. He was sentenced to eight months imprisonment. The appellant has 11 breaches of community work. At the date of sentencing he had $11,604.41 in outstanding fines, which Judge Andrée Wiltens remitted on sentencing.
The probation report assesses Mr Craigie as presenting a high risk of reoffending, although notes that he has been offence-free for the last ten months. The report records that because the appellant continues to deny his offending there are no offers of remorse.
Sentencing decision
In sentencing the appellant, Judge Andrée Wiltens said:[2]
[2] The burglary that occurred, occurred at night and it was, as the prosecution have submitted, a pre-mediated (sic) act on your part. The evidence which the jury must have accepted is that you arranged for a look out to be present, that person giving evidence for the prosecution at the end of the day. She gave evidence that earlier that evening you had announced that this was going to occur, you went off to Waitara to pick up a person to participate in the activity with you, you then went to her house which was directly across the road from the victim premises and she acted as the look out while you and another, on her version, broke into the premises and took away a variety of items.
[3] It seems to me that the jury’s conviction was inevitable given that one of the items that was taken away from the burglary was “fenced” by you the next day and that is the subject of the theft charge which the jury accepted.
[2] At [2] and [3].
The Judge considered the premeditation involved in the offending was an aggravating factor, as was the complete lack of remorse expressed by the appellant.
He took a starting point of 12 months on a “totality” basis, taking the burglary as the lead offence with a slight uplift for the theft conviction.[3]
[3] At [5].
The Judge referred to the appellant’s previous notations in the Youth Court and the convictions for burglary, dishonesty and other offending in the District Court which he said “do not make happy reading”.[4] He noted the appellant had been out of trouble since serving his most recent prison sentence. To the starting point of 12 months imprisonment he applied an uplift of four months imprisonment on account of the appellant’s offending history to reach an end sentence of 16 months for the burglary conviction. He imposed a concurrent sentence of one month for the theft charge.
[4] At [6].
The Judge referred to the appellant being on restrictive bail terms for some time and to the outstanding fines of $11,604.41. He said those factors cancelled each other out. He remitted the fines.
Appellant’s submissions
Mr Hannam submitted for the appellant that this was a low-end offence, being a burglary of commercial premises with the items taken having a value of only about $600 and there being no-one at the premises.
He submitted that none of the aggravating factors identified in R v Senior[5] were present: actual, or risk of, danger to or confrontation with occupiers; behaviour that makes a victim feel targeted; wanton destruction of property; theft of items of high monetary or sentimental value; sophisticated planning; and offending while on bail or in proximity to other court appearances.
[5] R v Senior (2000) 18 CRNZ 340 (HC) at [19].
He said that any risk of danger to or confrontation with occupiers had in this case been removed because of the role the appellant’s partner played. She was residing opposite the burgled premises and the appellant was able to confirm by observation that no-one was present in the premises.
Referring to the three categories of burglars identified in Senior, counsel submitted that while the appellant was not a first-time burglar because of the burglary offence in the District Court, he was not a recidivist burglar. He accepted that the appellant falls between these two categories.
Counsel submitted that of the authorities relied on by the Crown, R v Columbus[6], R v Stevens[7] and R v Brown[8] (to which we refer below), all involved offending more serious than in this case. He submitted those authorities do not support a starting point of 12 months imprisonment in this case. He further submitted that the uplift of one-third of the starting point on account of previous convictions was excessive. Accordingly, the end sentence of 16 months was also excessive.
Crown’s submissions
[6] R v Columbus [2008] NZCA 192.
[7] R v Stevens [2009] NZCA 190.
[8] R v Brown [2009] NZCA 288.
The Crown submitted that a survey of sentences endorsed by this court in comparable burglary cases shows that the starting point of 12 months imprisonment is within range. It was submitted that while the four month uplift was stern, the end sentence of 16 months is not excessive.
The Crown referred to three authorities. The first is R v Columbus, in which the appellant forced open the door to a residential garage causing damage that cost $672 to repair. He stole a mountain bike, a tool box and gardening tools. The bike was pawned and quickly recovered by police. This Court considered the burglary was at the “minor end of the scale”, was opportunistic, involved limited financial loss and justified a starting point of not more than 12 months imprisonment. In that case further unrelated property offending attracted an additional sentence of six months imprisonment and an uplift of one year was applied on account of the appellant’s extensive criminal history. After a discount for mitigating factors, the end sentence was 22 months imprisonment. The appellant’s counsel sought to distinguish this case on the basis that the premises burgled were a garage close to a residential house.
In R v Stevens, the appellant pleaded guilty to burglary of commercial premises where he was formerly the cleaner. He had keys to the building and was able to deactivate the security system. He stole several metres of copper piping worth approximately $350. The piping was almost immediately recovered by police. Taking into account as aggravating features, premeditation, breach of trust and the inconvenience inherent in the theft of piping from the walls inside the building, this Court considered a starting point for the burglary no higher than 18 months imprisonment was warranted. An uplift of 12 months was then applied to reflect the appellant’s history of dishonesty offending (60 previous dishonesty offences but only three previous burglary convictions, the most recent being ten years previous), and that he was subject to a sentence of intensive supervision at the time of offending. The appellant’s counsel sought to distinguish this case on the basis of the breach of trust involved.
Lastly, in R v Brown the appellant pleaded guilty to the burglary of a school from which he stole a computer and to receiving jewellery and coins stolen by an associate from a Taupo residence. He also pleaded guilty to charges of assaulting a child and wounding an infant with reckless disregard. This Court considered that the burglary, aggravated by the receiving charge and considered in relation to the totality of the offending as a whole, justified a starting point of 18 months imprisonment. The Court observed that a burglary of a school lacked the intrusive element of a burglary of residential premises. On account of his previous convictions the Court considered the appellant “towards the lower end of the recidivist burglary category”. The appellant’s counsel submitted that this was the most comparable case but argued that the offending was more serious than that committed by the appellant.
The Crown submitted that on the basis of these authorities the starting point adopted by the Judge of 12 months imprisonment was well within range and that the uplift of one-third did not render the end sentence manifestly excessive.
Evaluation
We agree that each of the authorities referred to by the Crown has a distinguishing feature or features, but they still provide helpful guidance as to the appropriate starting point. The burglary in this case was premeditated and planned offending, in which the appellant took advantage of the opportunity provided by his ex-partner living opposite the burgled premises to identify the target and then use his ex-partner as a lookout. The Judge rightly treated the premeditation involved as an aggravating factor.
The appellant’s lack of remorse was the absence of a mitigating factor rather than an aggravating factor as categorised by the Judge. Nevertheless we consider the starting point of 12 months imprisonment was well available to the sentencing Judge.
The uplift of four months on account of the appellant’s history of offending was one-third of the starting point and the equivalent of the sentence imposed for his only burglary conviction in the District Court. We agree with the Judge that at the age of 22 years the appellant’s history of offending is concerning, particularly in relation to this sentencing, his burglary and dishonesty offending. But as this Court said in R v Piper,[9] where the sentencing of a recidivist drug offender was in issue:
… a balance must always be struck. An increase to the penalty otherwise appropriate [on account of past offending] is permissible, but not to the point where the end sentence is out of balance with the gravity of the offending.
[9] R v Piper CA345/05, 12 September 2006 at [9].
In Piper, the Court quoted from its earlier judgment in R v Ward:[10]
It cannot be denied that it has long been considered proper for a court when dealing with [a recidivist offender] to enlarge the period of confinement beyond that which it would give the offender had he not had a history of persistent offending and were it not thought necessary to protect the public from his depredations. But at the same time the courts have struggled to ensure, in the words of Sir Michael Myers CJ, that the sentence imposed bears “some relation to the intrinsic nature of the offence and the gravity of the crime”.
[10] R v Ward [1976] 1 NZLR 588 (CA) at 591.
Given that the notations for burglary offences in the Youth Court followed an offending “spree” in 2005 and that the appellant has a single burglary conviction in the District Court, he does not warrant categorisation as a recidivist burglar. The uplift of four months in his sentence was accordingly stern. However, the 12 months starting point was well within range and the end sentence of 16 months imprisonment was not manifestly excessive.
Remission of fines
The Judge purported to remit the appellant’s outstanding fines. However, the procedure required by s 88(3)(h) of the Summary Proceedings Act 1957, or alternatively s 19D of the Crimes Act 1961, was not followed. The fines were therefore remitted without jurisdiction and must be reinstated.
Judge Andrée Wiltens considered that the remission of fines he purported to effect balanced out the period the appellant had spent on restrictive bail conditions. It seems appropriate therefore that with the reinstatement of the fines, this Court should consider a limited reduction in the end sentence to reflect that factor.
We are advised by the Crown that prior to trial the appellant was subject to bail with a 24 hour curfew on the burglary charge between 17 February 2011 (when he first appeared on the charge) and 19 April 2011. Before that he had been subject for two weeks to a 24 hour curfew on another charge, which was subsequently dropped. Between 19 April 2011 and 15 June 2011 the curfew condition was relaxed to permit the appellant to be away from his bail address between 9 a.m. and 12 p.m. provided he informed the New Plymouth police station of his intended absence. He became subject to a reporting condition.
In all the circumstances we consider it appropriate to reduce the sentence by six weeks to reflect the period spent on restrictive bail conditions.
Result
The appeal is allowed. The sentence of 16 months imprisonment is quashed. In its place a sentence of 14 months and 2 weeks imprisonment is substituted.
Outstanding fines amounting to $11,604.41 are reinstated.
Solicitors:
Crown Law Office, Wellington for Respondent
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