Jones v R
[2012] NZCA 273
•26 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA79/2012 [2012] NZCA 273 |
| BETWEEN CRAIG KENNETH JONES |
| AND THE QUEEN |
| Hearing: 11 June 2012 |
| Court: Ellen France, Lang and Clifford JJ |
| Counsel: S A Saunderson-Warner for Appellant |
| Judgment: 26 June 2012 at 11 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
B The appeal against sentence is allowed.
CThe sentence of four years and seven months imprisonment is quashed. A sentence of four years and two months imprisonment is substituted on count 1 (CRN 9009021242, burglary). Sentences of two years and six months imprisonment are substituted on the other two counts, each to be served concurrently.
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REASONS OF THE COURT
(Given by Ellen France J)
Introduction
Craig Jones, the appellant, was found guilty after trial of two charges of burglary of two homes in Christchurch. He pleaded guilty to another charge of burglary, involving a third home, at a status hearing before the trial. The appellant was sentenced on 2 September 2010 by the trial judge, Judge Farish, to a term of four years and seven months imprisonment.[1] He appeals against his sentence on the basis it is manifestly excessive. The focus of the appeal is on the starting point of five years imprisonment adopted by the Judge.
[1] R v Jones DC Christchurch CRI-2009-009-18524, 2 September 2010.
The appellant also seeks an extension of time to appeal as the appeal was not filed until February 2012, about seventeen months after sentence.
Background
The first of the three burglaries took place in early July 2009. The appellant entered a flat in central Christchurch. He took alcohol, medicine and electronic devices valued at more than $2,000 from the property. The appellant pleaded guilty to this charge.
The second of the burglaries took place about three months later, on 17 October 2009.[2] The appellant broke into a house and took a large amount of jewellery. The jewellery had an estimated value of $34,000.
[2] This is count 1 on the indictment. The charge on the first of the burglaries was laid summarily.
Finally, on 23 November 2009, the appellant broke into another house. On this occasion, little was taken but the appellant broke a large amount of glass to obtain access.
The appellant was convicted after trial in relation to the latter two burglaries.
The sentencing remarks
In sentencing the appellant, Judge Farish placed weight on the impact of the latter two burglaries on the victims. Although acknowledging the need for rehabilitation, the Judge considered that the appellant’s recidivism was such that the principal purpose of sentencing was the safety of the community. Judge Farish also saw a long term of imprisonment as giving the appellant time to get on top of his drug addiction.
With those factors in mind, the Judge approached the starting point. She began with a starting point of two years imprisonment for the burglary involving the jewellery theft in October, which was count 1. To reflect the totality of offending, a further 12 months imprisonment was added to the starting point. Because the appellant offended whilst subject to release conditions, a further uplift to the starting point of six months imprisonment was adopted. From that point, a further 18 months imprisonment was added to reflect the appellant’s prior offending and persistent failure to meet special conditions concerning his drug addiction. This approach led to an extended starting point of five years imprisonment. From this point, the Judge gave the appellant a discount for his guilty plea on the July burglary, which she described as seven per cent of the overall total sentence. This led to a sentence of four years and seven months imprisonment.
The sentence of four years and seven months imprisonment was imposed on count 1 with concurrent terms of three years imprisonment imposed on each of the other two burglary charges.
The application to extend time for appealing
The delay is explained by a combination of difficulties in instructing counsel and disruption caused by the Christchurch earthquakes. Given this explanation and the merits of the appeal, it is appropriate to extend the time for appealing.[3] We accordingly grant the application for an extension of time to appeal.
The sentence appeal
For the appellant, Ms Saunderson-Warner submits that the five-year starting point is manifestly excessive when considered against other comparable cases. On her analysis, the authorities suggest a recidivist burglar who is found guilty after trial should not, generally, receive a sentence in excess of four years imprisonment. The submission is that, here, too much weight has been placed on the appellant’s criminal history.
In supporting the approach taken by the Judge, Ms Mildenhall for the Crown submits the starting point adopted, while at the upper end, was within range. Given the appellant’s lengthy offending history, his failure to observe conditions and offending while subject to release conditions, she submits that the end sentence was not manifestly excessive.
Our evaluation
We agree that a stern sentence was appropriate. The appellant, now aged 43, has 27 previous convictions as an adult for burglary and various dishonesty offending. He has had opportunities to address his drug addiction. For example, the pre-sentence report records that a previous breach of parole was for absconding from Odyssey House (an addiction treatment centre). In recent years, the report writer notes, there have been breaches of release conditions and parole. The offending now in issue took place about four months after release from prison. This offending has, not surprisingly, had a considerable impact on the victims. This Court in R vAldridge accepted that the protection of the community was a legitimate factor to weigh in a case involving a recidivist burglar.[4]
[4] R v Aldridge [2009] NZCA 550 at [19].
That said, for the reasons we now set out, we have concluded that the end sentence imposed was manifestly excessive.
No issue can be taken with the assessment that a three year starting point for the totality of the offending was appropriate. The count relating to the theft of the jewellery was serious offending. The balance of the sentence prior to the discount for the guilty plea reflects an uplift of two years for personal aggravating features. This is very high. It is helpful here to refer to Skipper v R.[5] In that case, this Court upheld a sentence of four years imprisonment. Mr Skipper pleaded guilty at the end of the Crown case to two counts of burglary. The sentencing judge had taken a starting point of four years and six months imprisonment to reflect the gravity of the offending. A further six months was added to that starting point for personal aggravating circumstances, namely, the appellant had previous convictions and was on bail at the time of offending. This Court said an uplift of 18 months would have been justified for the latter features.[6] However, while Mr Skipper had fewer previous burglary convictions than the present appellant, the fact Mr Skipper’s offending took place while on bail for other dishonesty-related offending distinguishes that case.
[5] Skipper v R [2011] NZCA 250.
[6] At [27].
Further, a comparison with the other cases relied on by the Crown shows that the sentence imposed is outside of the range. In Aldridge, this Court did not interfere with a five year starting point adopted for a recidivist burglar. The appellant in that case had offended whilst on home detention. In Marsh v R a starting point of five years was also adopted.[7] The appellant was being sentenced for two sets of offending. One set of charges included a burglary which involved $90,000 worth of property. The appellant in Marsh was on bail at the time of two of the burglaries and in breach of release conditions. His previous offending essentially involved stealing to order. This Court said that the five year starting point was “well within” the available range.[8]
[7] Marsh v R [2010] NZCA 445.
[8] At [13].
When these matters are considered, we have concluded the sentence imposed was manifestly excessive. For consistency with other comparable cases, an uplift on the three year starting point of 18 months for personal aggravating features would be appropriate. That would lead to an extended starting point of four years and six months. From that point we apply a discount approximately the same as that applied by the Judge for the guilty plea on the summary charge. That leaves an end sentence of four years and two months imprisonment.
Result
The appeal against sentence is allowed. The sentence of four years and seven months imprisonment is quashed. A sentence of four years and two months imprisonment is substituted on count 1 (CRN 9009021242, burglary). Sentences of two years and six months imprisonment are substituted on the other two counts, each to be served concurrently.
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Law Office, Wellington for Respondent
[106]–[107].
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