Holden v The Queen

[2004] NZCA 309

IN THE COURT OF APPEAL OF NEW ZEALAND

CA329/04

THE QUEEN

v

BRIAN RAYMOND HOLDEN

Hearing:9 December 2004

Court:O’Regan, Goddard and Wild JJ

Counsel:M I Sewell for Appellant

F E Guy and A J Mills for Crown

Judgment:14 December 2004 

JUDGMENT OF THE COURT

THE APPEAL, WHICH IS AGAINST SENTENCE, IS DISMISSED.

____________________________________________________________________

REASONS
(Given by Wild J)

Introduction

[1]       This is an appeal against an effective sentence of 21 months imprisonment imposed on the appellant in the District Court at Christchurch by Judge Doherty on 18 June.

[2]       The ground in the notice of appeal was that the sentence is manifestly excessive, in particular because leave to apply for home detention was denied.

[3]       Disparity was advanced as a subsidiary ground in the appellant’s written and oral submissions.

Factual background

[4]       On 12 May 2004, the day before his trial was scheduled to begin, the appellant pleaded guilty to six charges of receiving.  Five of those counts were laid after the Police executed a search warrant at the appellant’s home on 5 August 2003.  A variety of property, stolen in five separate burglaries, was found in the appellant’s home.  The appellant was charged with receiving.  He appeared in the District Court the following day, 6 August, and was granted bail.

[5]       On 16 October 2003, the Police executed a second search warrant at the appellant’s home.  They found a stolen laptop computer there.  The appellant was again charged with receiving (Count 6 in the indictment).  He appeared in the District Court and was again granted bail, this time on 21 October 2003.

[6]       The appellant was indicted on those six receiving charges.  His trial was scheduled for hearing in the week beginning 10 May 2004.

[7]       On 7 May 2004, the Police again visited the appellant’s home, along with the addresses of four people they believed were associated with the appellant.  The Police found further stolen property at these addresses.  The four associates stated they were storing the property found at their addresses for the appellant.  Four further charges of receiving by the appellant, this time laid indictably, were the result.

[8]       The value of all the property recovered from the appellant and those storing property for him was $33,773. 

[9]       Having pleaded guilty to the six charges in the first indictment on 12 May 2004, the appellant was remanded for sentence on 18 June.  On that morning, he entered guilty pleas to the four additional charges.

The sentence under appeal

[10]     Judge Doherty noted the appellant’s four dishonesty convictions, but observed that the last had been entered in 1993, so that the appellant had not been before the Court for dishonesty for over 10 years.

[11]     He referred to the appellant’s personal difficulties, which included depression and some other physical disabilities.  He outlined the appellant’s “somewhat troubled” family situation:  the appellant and his partner have seven children, including a disabled child.  Three of those children live with them, the others are apparently in the care of CYFS, although the Judge noted that it had been helping the appellant and his partner in their efforts to regain custody of all their children.  The Judge also noted the appellant’s apology to his family for putting them at risk, which the Judge said was certainly the case.  The Judge stated “Unfortunately, that is something that you will have to bear and unfortunately something that they will have to bear”.

[12]     The Judge rejected counsel’s suggestions that the appellant was incapable, intellectually, of grasping the seriousness of his offending, and the submission that the offending was opportunist in nature.  In terms of those receiving offences, the Judge described the appellant as “a professional and a sophisticate”.

[13]     Aggravating features identified by the Judge included the extent of the appellant’s offending, the value and nature of the property he had received, and the sophistication of his operation.  The Judge identified, as one of the major aggravating features, that the appellant had offended time and time again whilst on bail.  The Judge said:

You had been apprehended for the first lot.  Within a matter of days or perhaps weeks you were back at it again.

[14]     The one mitigating feature identified was the appellant’s guilty pleas. 

[15]     The sentencing principles or purposes identified by the Judge were the need to hold the appellant accountable, to denounce his conduct and hopefully to deter him and others from similar offending.  The Judge observed that there may be “some rehabilitative aspect to your sentence”.

[16]     Judge Doherty then imposed the sentence under appeal, and turned to home detention.  He said:

[17]     …  In your circumstances, I have reluctantly come to the view that you should not be granted leave to apply.  Your offending all occurred in the sense that the receivings were completed and maintained in your own home premises.  You continued to do that even whilst you were on bail and, given those factors, I think that your sentence of imprisonment should be a real one.  It may well be that you get a degree of back-end home detention prior to your release and if that is a factor then the special conditions can apply.

[17]     It is common ground that the appellant is not eligible for back-end home detention.

Appellant’s submissions and our decision on them

[18]     As we have said, there were two.  The first, or as counsel termed it “compassionate”, ground essentially relied on the appellant’s family situation.  Counsel referred to the fact that the appellant and his partner have seven children between them, with an eighth due to be born on or about 12 February 2005.  Ms Sewell accepted that a letter made available by the Crown indicated that the appellant’s partner would receive 15 hours per week nanny assistance after the birth of the eighth child next February.  However, Ms Sewell submitted that it was really emotional support from the appellant that his partner needed. 

[19]     We regret that this submission makes no more impact on us than it did upon the sentencing Judge.  It is indeed most unfortunate that the appellant faces a prison sentence, when he has such pressing family obligations.  However, as the Judge pointed out, the appellant ought to have spared a thought for his family commitments before repeatedly receiving stolen goods, rather than considering them for the first time when he appeared for sentence.  Judge Doherty, when imposing sentence on 18 June, was obviously unaware of the eighth child due to be born on about 12 February next year.  We observe that that child must have been conceived very close to 12 May 2004.  It was on that day that the appellant pleaded guilty to the six charges in the first indictment and was remanded for sentence on 18 June.  If expanding the family still further was deliberate, then it was hardly responsible in those circumstances, and we do not regard it as a factor carrying any weight in dealing with this appeal.

[20]     The Judge considered the possibility of a non-custodial sentence, but in our view quite properly rejected it as an inadequate response to the appellant’s persistent, serious offending.

[21]     Nor can we see any error in the Judge’s approach to home detention.  The Judge identified, as factors counting against the granting of leave, the facts that the appellant received many of the stolen goods into his own home, and that he continued doing that whilst he was on bail.  In those circumstances, home detention would undermine the necessary deterrent purpose of a sentence, and leave was rightly refused.  This Court has upheld refusal of leave in comparable circumstances in R v Papuni CA124/03 11 August 2003; R v Marino CA425/01 12 March 2002 and R v Raymond Papuni CA124/03 11 August 2003.

[22]     There is nothing in the disparity ground of appeal.  Ms Sewell advanced it merely by way of referring to the sentence imposed by Judge Saunders in the Christchurch District Court on 8 October 2004 in R v Blackmun and McDonald T1774 and T0284.  For a raft of offences including burglary, receiving, theft, threatening to kill and possession of a knife, Mr McDonald was sentenced to an effective term of two years imprisonment.  He was granted leave to apply for home detention.  Reference to another sentence like that, without a great deal more information establishing some true comparability, comes nowhere near establishing disparity.  It does not even enable a consideration of possible disparity.  For example, Ms Sewell conceded that it did not appear that Mr McDonald had offended whilst on bail, as had the appellant, repeatedly.

Result

[23]     Neither ground of appeal against sentence is made out.

[24]     The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington