Glover v The Queen

[2011] NZCA 249

IN THE COURT OF APPEAL OF NEW ZEALAND

CA740/2010
[2011] NZCA 249

BETWEEN  HAYDEN CHRISTIAN GLOVER
Appellant

AND  THE QUEEN
Respondent

Hearing:         26 May 2011

Court:             Glazebrook J, Simon France and French JJ

Counsel:         R D Stone for Appellant
J E Mildenhall for Respondent

Judgment:      3 June 2011

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.  The existing term of imprisonment of three years six months is quashed and in its place there will be a sentence of two years six months’ imprisonment.

BThe existing minimum non‑parole period is quashed and in its place there will be a minimum non-parole period of 15 months’ imprisonment.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. This sentence appeal is based on disparity between the starting points taken for co‑offenders.  Mr Glover’s co‑offender, Shyan Ngaweketuhimata, was sentenced first and Judge Mackintosh took an eighteen month starting point.[1]  Mr Glover went to trial and was convicted of the same offences.  Judge Adeane took a thirty month starting point.[2]  The issue is whether the difference is supportable.

Facts

[1]      Police v Ngaweketuhimata DC Hastings CRI‑2010‑020‑001124, 1 April 2010.

[2]      R v Glover DC Napier CRI‑2010‑020‑001011, 7 October 2010.

1. Mr Glover and Mr Ngaweketuhimata had committed a series of four burglaries in a rural area near Hastings.  Mr Glover was the driver of the car.  What role each performed at each venue was not known.

2. The police had been alerted to suspicious behaviour and turned up just as the pair were leaving the scene of the fourth burglary.  The police activated their flashing lights, but Mr Glover drove off at speed.  There was a prolonged chase, and at one point Mr Glover appeared to play chicken with an approaching police car.  Eventually his car failed him, and the two men were arrested.

3. Both men were charged with four burglaries.  Mr Ngaweketuhimata pleaded guilty, but Mr Glover denied the charges.  In addition, Mr Glover was charged with driving offences to which he pleaded guilty.  The sequence that then followed was:

   (a)on 30 March 2010, Judge Mackintosh sentenced Mr Glover to two months’ imprisonment for reckless driving.  He was convicted and discharged on a charge of failing to stop;

   (b)on 1 April 2010, Judge Mackintosh sentenced Mr Ngaweketuhimata on the burglaries.  The Judge took an eighteen month starting point, and imposed a twelve month uplift for previous offending.  The final sentence, after allowing for mitigating factors, was sixteen months’ imprisonment;

   (c)on 7 October 2010, having been convicted of the four burglaries at trial, Judge Adeane sentenced Mr Glover.  The Judge took a thirty month starting point and added a twelve month uplift for previous offending.  There was no mitigation and the end sentence was forty‑two months, being two years two months more than his co‑offender.

4. Judge Adeane noted the lower starting point taken for Mr Ngaweketuhimata.  He considered the proper starting point was thirty months and assumed Mr Ngaweketuhimata must have been credited with a lesser role.  Matters that informed the starting point were that Mr Glover, by his role as provider of transport and as a driver, was the instigator and facilitator of “a dangerous crime spree on wheels”.  Further, although already sentenced for the driving offences, the reckless driving was an aggravating feature of the burglary offending, since it caused danger to his passenger, members of the public and the police.

Decision

1. Ms Mildenhall accepted that Judge Mackintosh’s starting point was within range.  However, she submitted that Judge Adeane’s also was and, therefore, the disparity was justified.  This is incorrect.  Unless there be a difference in culpability, or the initial sentence is plainly out of range, then the subsequent Judge is not free just to take a different starting point.

2. Ms Mildenhall next submitted the difference was supportable by the different factors applicable.  Again, we do not agree.  Before looking at the reasons given by the Judge, we first address an extra point of difference proffered by the Crown.  It was that Mr Glover was a recidivist burglar.  However, there was a twelve month uplift imposed for this, so it is not a matter that can also be factored into the starting point.  As pointed out in R v Columbus, that would be double counting.[3]  Further, although not a recidivist burglar, Mr Ngaweketuhimata had an equally unimpressive history of serious offending that merited the twelve month uplift he received.

   [3]      R v Columbus CA608/07, 27 June 2008.

3. We turn to the factors Judge Adeane identified.  It was incorrect to treat the driving as an aggravating feature of the burglaries.  Mr Glover had been sentenced for his dangerous driving.  Further, the description of a crime spree on wheels is simply inaccurate.  There is no suggestion there was anything “disorderly” about the commission of the burglaries.  The driving offences were committed afterwards, albeit in an endeavour to get away.  But, as noted, Mr Glover had been sentenced for this.  Further, in terms of how much it might distinguish between the two, we note that Mr Ngaweketuhimata was in the car when the driving offences occurred.  There is no basis to assume he was not complicit in this offending as well.

4. Second, there is no evidential basis to infer Mr Glover was the instigator.  That is not an available inference from the mere fact of providing the car.

5. The reality is that the culpability for the burglary offending was the same.  It was not open to the Judge to take a higher starting point.  For the reasons concisely advanced by Mr Stone, the appeal will be allowed with the sentence adjusted to reflect the correct starting point.  No challenge is advanced to any other aspect of the sentence, other than a proportionate adjustment to the minimum term of imprisonment.

Result

1. The appeal is allowed.  Mr Glover’s sentence of three years six months’ imprisonment is quashed and in its place we impose a sentence of two years six months’ imprisonment.  The existing non‑parole term is quashed and instead we impose a minimum term of 15 months’ imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent