Ewart v Police HC Tim CRI 2008-476-000011

[2008] NZHC 2461

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2008-476-000011

RORY THOMAS EWART

Appellant

v

POLICE

Respondent

Hearing:         31 July 2008

Counsel:         S A Saunderson-Warner for Appellant

C A O'Connor for Respondent

Judgment:      31 July 2008

JUDGMENT OF FOGARTY J

[1]      On 30 April 2008 the appellant was sentenced in the District Court at Timaru to 15 months imprisonment on a charge of burglary and being disguised  while committing the burglary.  He now appeals that sentence.

[2]      The  facts  were  that  on  18  September  2007  at  2.30  pm  he  and  a co-offender, Rasmussen, went  to  the  Redwood  Tavern  in  Blenheim,  which  was closed.  They observed the tavern for a short time and then, both wearing t-shirts tied over their necks and pulled up to cover their faces like a bandanna, the co-offender wearing gloves, they climbed over a large brick wall.   Rasmussen used a stick to

smash a window in a door which gave him access to the interior of the building.

EWART V POLICE  HC TIM CRI 2008-476-000011  31 July 2008

While  in  the  building  they  picked  up  cash  of  $5.70  and  cigarettes  valued  at

$1,103.80.  They were apprehended by the police as they were preparing to leave the premises through a side door.  They were still wearing their disguises.

[3]      Rasmussen was sentenced first.  He was sentenced on this burglary and on burglary of a number of residential premises in Timaru on 2 November 2006.  These were more serious burglaries than the Blenheim burglary.  In respect of the Blenheim burglary Judge Holderness took as a proper starting point 12 months imprisonment but noting that it could be higher given that it was an offence committed on bail.

[4]      This appellant came for sentencing before Judge Crosbie.  He noted that in his view Judge Holderness took a merciful approach to Mr Rasmussen and that Judge Holderness would have been justified in imposing a longer sentence when he selected a starting point of two years imprisonment.   But I should note that that starting  point  included  building  in  the  appellant’s  previous  convictions  and sentences.  He then reduced the sentence to 15 months imprisonment, giving credit for the guilty pleas.

[5]      The appeal to this Court is on the grounds that:  the sentence of 15 months imprisonment for the burglary is manifestly excessive; that the Judge had adopted a starting point that was too high; and, that there was a disparity with the sentence imposed on Mr Rasmussen.

[6]      Mr McRae justified the starting point by referring to the judgments: Senior v Police  (2000) 18 CRNZ 340 and R v Southon (2003) CRNZ 104 identifying that the appellant is a recidivist burglar, that his previous sentencing on four burglaries had begun with a starting point of 12 months imprisonment, that Judge Crosbie was entitled to impose a starting point greater than that previously imposed, that he had a principal basis for distinguishing from Mr Rasmussen as Mr Rasmussen had not been convicted of a burglary since April 2001 and the appellant had offended within six weeks of being released from a term of imprisonment for burglary.

[7]      Ms Saunderson-Warner emphasised in her argument that a starting point of two  years  was  simply  too  high,  that  Mr  Rasmussen  was  being  sentenced  on

burglaries in 2006 as well as on the burglary in 2007 and that Mr Rasmussen had committed burglary while on bail on the 2006 charges.

[8]      I am of the view that a starting point of two years was too high but I agree with Mr McRae that it was appropriate for there to be an uplift in the starting point. I am here following the method of taking a starting point taking into account the aggravating and mitigating features of the offending and not looking at the aggravating and mitigating features of the offender.

[9]      I think a starting point should be 12 months on the offending per se and then adjusting that by reference to the aggravating features I will add three months taking it up to 15 months.   Originally the appellant pleaded not guilty.   Ms Saunderson- Warner thinks (she was not counsel at the time) that this may be because there was some  issue  as  to  party  liability  treating  Mr  Rasmussen  as  the  more  dominant co-offender, though I struggled to grasp how any counsel could have expected this man to be charged simply as an accessory, being disguised and coming out of the premises at the same time as the other offender.

[10]     I do not think that the appellant is entitled to a full discount for entering a not guilty plea but I note he appears to have been given that by Judge Crosbie.   But having taken the view that Judge Crosbie took a starting point that was too high I feel entitled to adopt my own view as the appropriate discount for the guilty plea and I will allow three months reaching a sentence of 12 months.

[11]     In summary I think the starting point used by the Judge which took into account previous convictions and sentences of two years imprisonment was too high. I have substituted 15 months but I have reduced the discount available for guilty plea and arrived at a sentence of 12 months.  I have also, to a degree, borne in mind in this analysis that it is appropriate for there to be, so far as possible, parity with the sentence imposed on the co-offender and I am of the view that the approach I have taken stands in comparison with that of Judge Holderness recognising the differences at a personal level between the characteristics of this appellant as an offender and Rasmussen as an offender.

[12]     Accordingly, the appeal is allowed and the sentenced is reduced to 12 months imprisonment.   The release conditions remain.

Solicitors:
Aspinall Joel, Dunedin, for Appellant

Gresson Dorman, Timaru, for Respondent