Harrison v R
[2011] NZCA 80
•18 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA439/2010 [2011] NZCA 80 |
| BETWEEN QUINTEN TIPENE HARRISON |
| AND THE QUEEN |
| Hearing: 9 March 2011 |
| Court: Chambers, Courtney and Clifford JJ |
| Counsel: S Jefferson for the Appellant |
| Judgment: 18 March 2011 at 3.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Clifford J)
Introduction
Mr Harrison pleaded guilty to four charges of burglary and was sentenced by Judge Rea in the District Court at Napier on 18 June 2010 to three years and eight months’ imprisonment. Mr Harrison appeals against that sentence as being manifestly excessive.
Facts
Between 30 August 2009 and 29 September 2009 Mr Harrison burgled four different homes in Napier. The total amount of property stolen was valued at $66,000. The stolen property included TVs, cell phones, jewellery, sports equipment and other household items, as well as sentimental items. Very little property was recovered. The insurance excess paid by three of the owners was $250, by the fourth, $500.
The stolen property was found at Mr Harrison’s house. When spoken to by the Police, Mr Harrison admitted receiving that property but denied burglary. Once the victims of his offending identified their property in the house, he entered his pleas. Mr Harrison has a number of previous convictions for dishonesty offences, including two previous convictions for burglary in 2006 for which he received cumulative terms of imprisonment of eight and nine months respectively.
The sentencing decision
In a clear and well structured sentencing decision, the Judge set a starting point of four years’ imprisonment. He uplifted that starting point by six months to reflect Mr Harrison’s previous offending. He allowed Mr Harrison a 20 per cent discount for his guilty plea, thus arriving at a final concurrent sentence for each of the four burglaries of three years and eight months’ imprisonment.
Case on appeal
In his appeal Mr Harrison challenges the starting point adopted by the Judge. He accepts the uplift for his previous offending and the guilty plea discount. That discount had been earlier indicated by the Judge. Mr Harrison says that the starting point of four years was manifestly excessive as he had effectively been treated as a recidivist burglar, which he was not.
For Mr Harrison, Mr Jefferson submits that a starting point of three years’ imprisonment would have been appropriate, relying in particular on the High Court decision Tukaki v Police.[1] In Tukaki Potter J upheld an appeal on the basis that a starting point of four years was too high for a single offence of burglary involving property with a total value of approximately $20,000. The Judge was of the view that a starting point of two years’ imprisonment was called for. At the same time, she observed that it was relevant:[2]
... that in approaching sentencing in accordance with the decision in Senior v Police,[3] recidivist professional burglars (described as those with twenty to thirty previous convictions, who steal for a living) will usually attract a maximum final sentence of three years’ imprisonment with a maximum starting point of not greater than four years’ imprisonment, as was noted by Ellis J in Tuwhangai v New Zealand Police.[4]
[1] Tukaki v Police HC Hamilton CRI-2010-419-71, 24 November 2010.
[2] Ibid, at [9].
[3] Senior v Police (2000) 18 CRNZ 340 (HC).
[4] Tuwhangai v Police HC Hamilton CRI-2010-419-9, 5 May 2010 at [24].
Mr Jefferson therefore accepted that Mr Harrison’s offending was more serious than that involved in the Tukaki decision, on which basis no doubt he proposed the starting point of three years.
Taken overall, allowing for a six month uplift for his previous offending and a 20 percent discount for his guilty plea, Mr Jefferson submitted that an end sentence of two years ten months’ should be substituted for the three year eight month term imposed by the Judge.
Discussion
The general principles applicable to all burglary sentencing are summarised in R v Columbus:[5]
As a Full Court of this Court has emphasised, the starting point identifies the culpability inherent in the offending by reference to its circumstances: R v Taueki [2005] 3 NZLR 372 at [42] – [44] (CA). The same principle applies in burglary sentencing, where “the intrinsic nature and gravity of the offence charged” is the primary consideration: R v Power [1973] 2 NZLR 617 at 618 (CA). The dual purposes of transparency and of providing a basis for assessing consistency between cases are served by this approach.
[5] R v Columbus [2008] NZCA 192 at [13].
This Court has also frequently noted that there is little to be gained by citing High Court decisions on sentence appeals, except where there is little or no appellate authority.[6] As the Crown submitted, there is such authority here that indicates that both the starting point and the end sentence imposed by the Judge fell within the appropriate range for multiple burglary offending:
(a)In Swinburne v R,[7] the appellant committed four daytime burglaries of residential premises within the space of a few weeks, involving theft of property to the value of $13,500. As here, there was no prospect of reparation. In upholding a final sentence of two years eight months, the Court found that the starting point fixed by the sentencing Judge of three years six months’ imprisonment was justified.[8]
(b)In Marsh v R,[9] this Court dismissed an appeal against a sentence of three years and nine months for three residential burglaries, and one attempted burglary, over a period of four months. Property stolen was valued at over $90,000. The appellant had also breached release conditions. The Court found that the starting point of five years’ imprisonment fixed by the Judge was “well within the range available”.[10]
(c)R v Sherlock involved three burglaries of residential properties.[11] The total value stolen was more than $45,000. The appellant had begun offending two months after being released from prison. The Court rejected a submission that a starting point of four years was too high, noting that they were very serious burglaries committed immediately after a period of imprisonment.[12]
(d)In R v McAllister,[13] this Court upheld an end sentence of three years imposed based on a starting point of four years six months. The offending involved four counts of burglary of commercial premises, twelve unlawfully taking a motor vehicle and two other minor charges. The property stolen was valued at $75,000. There were serious aggravating features, including one previous conviction for burglary, offending whilst on parole and the relatively high value of the goods stolen (possibly to order). A final sentence of three years was said to be “well within the range” open to the sentencing Judge, reflecting a twelve month discount on account of youth and a further six month discount for pleading guilty on the first day of the trial.[14]
[6] R v Mosley [2008] NZCA 336 at [14].
[7] Swinburne v R [2010] NZCA 568.
[8] At [15].
[9] Marsh v R [2010] NZCA 445.
[10] At [13].
[11] R v Sherlock [2008] NZCA 555.
[12] At [21].
[13] R v McAllister (2001) 18 CRNZ 606.
[14] At [10].
All those cases featured approximately the same level of seriousness and culpability as the present offending. Mr Harrison’s offending involved four separate burglaries of residential dwelling houses, committed within a short space of time. The burglaries had a serious impact on Mr Harrison’s victims, the value of the property taken was high ($66,000) and also – in one case in particular – of considerable sentimental value. Moreover, Mr Harrison committed this offending only a short time after being released from a sentence of imprisonment for dishonesty offending.
When all those factors are considered, the cases referred to above provide ample support for the starting point identified by the Judge.
This appeal is dismissed accordingly.
Solicitors:
Crown Law Office, Wellington, for Respondent
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