Lawson v The Queen

[2013] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND

CA58/2013
[2013] NZCA 369

BETWEEN	HENRY VINCENT LAWSON Appellant
AND	THE QUEEN Respondent

Hearing:	12 August 2013
Court:	Harrison, Venning and Courtney JJ
Counsel:	R M Mansfield for Appellant B D Tantrum and E C Rutherford for Respondent
Judgment:	14 August 2013 at 10.45 am

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe sentence of four years, seven months’ imprisonment is set aside.  It is replaced by a sentence of four years’ imprisonment.

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REASONS OF THE COURT

(Given by Venning J)

Introduction

1. Mr Henry Lawson appeals against a sentence of four years, seven months’ imprisonment imposed upon him in the District Court at Auckland following his pleas of guilty to six counts of burglary.[1]

Background

[1]R v Lawson DC Auckland CRI-2012-090-2969, 18 January 2013.

1. Between 19 March 2012 and 10 April 2012 Mr Lawson committed six burglaries of residential addresses in the Henderson area.  All of the burglaries were committed during the day.  In all but one of the burglaries Mr Lawson took jewellery and other items of value.  The property he took was valued at approximately $40,200.  In one burglary Mr Lawson took two irreplaceable World War New Zealand Air Force medals.  None of the property has been recovered.  A fuller summary of the facts is available in the sentencing notes.[2]

The District Court sentencing

[2]At [1]–[2].

1. Judge Behrens QC took a starting point of five years’ imprisonment for the offending, then applied an uplift of 12 months to reflect the fact the burglaries were committed while Mr Lawson was serving a sentence of intensive supervision and that he had, on the Judge’s calculation, 11 previous burglary offences. 

2. From the resultant six years the Judge applied a 20 per cent credit for the guilty plea.  He declined to make any reduction for remorse but made an allowance of two months for the time spent on electronically monitored bail while attending a programme at Odyssey House on remand.  That led to the end sentence of four years, seven months’ imprisonment.

The appeal

1. Mr Mansfield argued that, having regard to sentences discussed in this Court for burglary the starting point of five years’ imprisonment was excessive and outside the available range for the offending: Jones v R, Swinburne v R, Makene v R, Marsh v R, R v Sherlock, Harrison v R and R v McAllister.[3]  He also submitted the uplift of 12 months’ imprisonment for the personal aggravating factors was excessive.  Finally Mr Mansfield submitted the Judge was wrong not to have applied a further reduction for the appellant’s genuine remorse and the steps he had taken towards reform.  He argued for a sentence in the region of two years, 10 months’ imprisonment. 

   [3]Jones v R [2012] NZCA 273; Swinburne v R [2010] NZCA 568; Makene v R [2013] NZCA 178; Marsh v R [2010] NZCA 445; R v Sherlock [2008] NZCA 555; Harrison v R [2011] NZCA 80; and R v McAllister (2001) 18 CRNZ 606 (CA). 

2. While conceding the Crown could not support a start point of more than four and a half years, Mr Tantrum submitted by reference to Skipper v R[4] that an uplift of 18 months was available to the Judge to support the overall starting point of six years.  He submitted the Judge had correctly identified the relevant mitigating factors and was right to have rejected any further allowance for remorse. 

Decision

[4]Skipper v R [2011] NZCA 250.

1. The offending in this case was serious.  However, having regard to the authorities cited Mr Tantrum’s concession as to the starting point was realistic.  The appropriate starting point for the offending itself was four and a half years.

2. We consider the uplift of 12 months imposed for Mr Lawson’s previous offending (which included five burglary convictions) and for the fact this offending occurred whilst subject to a sentence of intensive supervision to be appropriate in this case.  That leads to an adjusted starting point of five years, six months.

3. We turn to personal mitigating factors.  The Crown does not challenge the reduction of two months to take account of the time Mr Lawson had spent on electronically monitored bail while at Odyssey House.  We agree with the Judge that an allowance for remorse was not appropriate in this case.  However, we agree with Mr Mansfield’s submission that Mr Lawson is entitled to a credit for the steps he has taken, with the assistance of Odyssey House, in relation to his drug addiction.  It is that addiction which underlies his offending.  It is to his credit he has recognised that fact and has taken positive steps to address it.  We allow a further credit of four months for that. 

4. The last credit available to Mr Lawson is for his guilty pleas.  They were not entered at the first available opportunity.  The Crown case against Mr Lawson was strong given that forensic fingerprint and DNA evidence placed him at the scene of the burglaries.  The credit of 20 per cent for the guilty plea was all that was required. 

Result

1. The appeal is allowed. 

2. The sentence of four years, seven months’ imprisonment is set aside.  It is replaced by a sentence of four years’ imprisonment.

Solicitors:
Crown Solicitor, Auckland for Respondent