Lowe v The Queen

[2005] NZCA 178

IN THE COURT OF APPEAL OF NEW ZEALAND

CA62/05

THE QUEEN

v

ZEKE JAMES LOWE

Hearing:22 June 2005

Court:Chambers, Potter and Doogue JJ

Counsel:D S Niven for Appellant

J M Jelas for Crown

Judgment:4 July 2005 

JUDGMENT OF THE COURT

AThe appeal against the sentences imposed on the burglary counts is allowed.

B        The sentences on the burglary counts are quashed.

C        The following sentences are passed in substitution therefor:

CRN  Length of imprisonment

(Last 4 digits)

34646 years

3456, 3458 and 3475  2½ years each
5600, 6769, 6770, 3455  2 years each
5604, 6762, 6765, 6767, 4203, 3466
and 3474  1 year each

D        THE FINES, WHICH WERE REMITTED WITHOUT JURISDICTION, ARE REINSTATED.

____________________________________________________________________

REASONS

(Given by Potter J)

Table of Contents

Para No

Introduction  [1]
Factual background  [4]
Personal background  [7]
Sentencing  [9]
Submissions  [19]
Discussion  [30]

Introduction

[1]      Zeke James Lowe appeals against a sentence totalling seven years imprisonment imposed on him by Judge Thorburn in the District Court at Auckland on 25 January 2005.

[2]      The sentence was imposed following guilty pleas being entered on fifteen charges of burglary, five of theft, five of receiving, fourteen of obtaining a document, nine of using a document fraudulently, four of unlawfully taking a motor vehicle, one of unlawfully getting into a motor vehicle, and four charges under the Land Transport Act.

[3]      The appeal is on the basis that the sentence of seven years imprisonment is manifestly excessive and in particular that the discount allowed by the Judge of one year from a starting point of eight years, gave insufficient credit for mitigating factors, including guilty pleas entered at a very early stage.

Factual background

[4]      The offending covers a period of approximately three months from February to May 2004.  A crime spree in Auckland during February and March was followed by a crime spree in Wellington during April and the early part of May.  The modus operandi of the appellant in this offending is described in the sentencing notes of the District Court Judge from which this summary is taken.  The appellant would convert a car, organise a change of number plates, travel, and steal credit cards and other property.  He would unlawfully enter, usually during business hours, publicly accessible institutions such as hospitals, schools and public offices, ensuring that he presented with a tidy and groomed appearance.  He would pose as a bona fide member of the public, and take the opportunity to case out the premises.  When he found opportunities to steal the items that he had in mind, he would do so, stealing items from handbags, offices and elsewhere, as the opportunity presented itself.  If he was disturbed in his criminal activities, he would flee.  He would then turn the items purchased to his own pecuniary advantage, selling items such as stereo systems, lap top computers and digital projectors, and accessing the credit cards for credit, cash or other pecuniary advantage.

[5]      Property totalling in value approximately $80,000 was acquired by the appellant pursuant to this offending.  The Police recovered very little of the stolen property.  Just about everything stolen was converted into money which was spent.  Judge Thorburn concluded that the appellant was not in a position to pay anything by way of reparation.

[6]      The transport offences involved an incident of reckless driving on 26 March and dangerous driving on 7 May.  There was also a charge of failing to stop at the request of an enforcement officer and failing to stop for red and blue flashing lights.

Personal background

[7]      The appellant is aged 27.  In April 2001 he was sentenced to five years imprisonment for a raft of offences which included 39 burglaries.  He committed the offending to which this sentence appeal relates, shortly after he was released from prison on parole from the sentence imposed in April 2001.  Prior to that, he has recorded a lengthy list of offending dating back to 1994, many of these being dishonesty offences.  In the early years of offending he was subject to a range of non-custodial sentences and suspended sentences, and from 1997 has been sentenced to a number of terms of imprisonment, the longest of which is the previous sentence of five years.

[8]      The probation report notes that many of the offences which occurred during the offending spree in Wellington and Auckland in 2004 were committed while the appellant was under the influence of drugs, in particular pure methamphetamine.  The report records that the appellant is on the Offender Warning Register of the Probation Service as the result of the sheer magnitude of his offending, rather than the seriousness of any one conviction.  He is assessed at high risk of re-offending.  The report notes that the most serious barrier to the appellant’s compliance with any sentence is his propensity to become involved with drugs, but that the appellant has stayed free of drugs in prison.  This was confirmed by Mr Niven in submissions.

Sentencing

[9]      The sentencing Judge observed that the April 2001 sentence of five years reflected concern about the increasing seriousness of the scale of the appellant’s offending, and that while he was released on parole from that sentence he wasted no time in returning to the same pattern of criminal offending for which he was sentenced in 2001, following which he was recalled to prison to serve the balance of that sentence.

[10]    The Judge determined the aggravating factors to be:

(a)The offending was committed while the appellant was subject to a sentence;

(b)Premeditation – the Judge considered there was a high level of premeditation indicated in the burglaries;

(c)The number and seriousness of the offences.

(d)The history of previous offending.

[11]    As to mitigating factors, the Judge noted that the most powerful and probably the only really relevant factor, was the early pleas of guilty.

[12]    The Judge referred to the requirements of the Sentencing Act to hold the offender accountable for the harm done to the community, to denunciate the conduct, to deter, and to protect the community, the last of which he regarded as a dominant factor in respect of this offending.  He also referred for guidance to the authorities of Senior v Police (2000) 18 CRNZ 340 and R v Andrian (1996) 13 CRNZ 449. 

[13]    The Crown had submitted to the Judge that this was a case falling within s 8(c) of the Sentencing Act, which reads:

[The Court] must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.

[14]    Since the maximum penalty for a burglary is ten years imprisonment, the Crown argued for a ten year starting point.  The Judge accepted that submission as “abundantly arguable”, although in the end he departed “a little from the intensity of the Crown view” by fixing a starting point, not of the ten years maximum, but rather of eight years.  We observe in passing that both the Crown’s submission to the Judge and the Judge’s reaction to it, were wrong and showed a misunderstanding of s 8(c) and (d).  The theoretical maximum penalty in this case was not ten years imprisonment or anything remotely similar to it.  The maximum penalty, when the offences are aggregated, was well over a hundred years imprisonment!  Section 8(c) and (d) were not engaged by the sentencing exercise in this case.  The Crown submission, far from being “abundantly arguable”, was wrong.

[15]    The Judge adopted a starting point of eight years, acknowledging the distinction, in terms of seriousness, between the appellant’s offending and cases where the burglary or unlawful entry relates to dwelling houses. 

[16]    In respect of the early guilty pleas and “in a token way acknowledging the possibility of remorse”, he allowed a discount of one year.  In reflecting on the appropriate discount the Judge rejected a submission that a 25 per cent discount was appropriate to reflect the early guilty plea.  He said that while it was evident that the appellant had facilitated the resolution of these matters by pleading there had also been:

… massive withdrawal on the part of the police of dozens of charges.

[17]    The Judge imposed lead sentences of seven years on the burglary charges.  He imposed sentences of three and two years imprisonment on some of the lesser charges, to be served concurrently with the lead sentences on the burglary charges, and on others he convicted and discharged the appellant. 

[18]    The Judge ordered that unpaid fines be remitted.  We raised with Mr Niven that in fact the Judge was without jurisdiction to remit fines unless pursuant to proper process.  Mr Niven accepted that this was so.  The only jurisdiction to remit fines comes under s 88 of the Summary Proceedings Act 1957 and s 19D of the Crimes Act 1961; R v King CA23/01 21 June 2001 at [4]; R v Gebbie CA452/04 2 March 2005 at [7].  The statutory process leading to a remission of fines was not followed in this case.  The fines, which were accordingly remitted without jurisdiction, must be reinstated.

Submissions

[19]    It is submitted for the appellant that:

(a)     The starting point of eight years imprisonment is too high; and

(b)Insufficient credit has been given for mitigating factors, in particular the early pleas of guilty.

[20]    As to the starting point, counsel referred to the decisions in Senior v Police, R v Andrian and R v Nguyen CA110/01 2 July 2001 in support of his submission.  It is submitted that the appellant’s offending did not exhibit the degree of sophistication and planning, nor reach near the value of goods stolen in either Andrian (which involved serious domestic burglaries) or Nguyen (serious commercial burglaries).  Mr Niven noted that in Andrian the Judge took a starting point of twelve years imprisonment for multiple offending including burglaries and observed that eight years imprisonment could be attributed to the burglary offences.  A discount of three years was allowed to reach a final sentence of nine years.  In Nguyen which concerned commercial burglaries executed with a high degree of sophistication and a well organised network in which the appellant played a leading role, a starting point of eight years was indicated by this Court to be justified rather than the nine years adopted by the sentencing Judge for the lead offences of fifteen counts of burglary. 

[21]    Counsel referred to Senior for the observation at [49] that:

… assuming a case where multiple residential burglaries were proved following a trial and where the defendant had previously appeared, a sentence of six or seven years might be within range.

Mr Niven emphasised that in this case the burglaries and other offending were committed in respect of commercial premises. 

[22]    Mr Niven placed reliance on the case of R v Rohloff CA193/03 24 September 2003, cited by Ms Jelas, as being on a par with the circumstances of this case, where a starting point of six years was adopted by this Court.  He referred to R v Harding CA289/04 26 October 2004, also cited by the Crown, where a starting point of six years was upheld on appeal.

[23]    In relation to the discount for mitigating factors, Mr Niven submits that the approach of the sentencing Judge was wrong in principle in assuming that the appellant was guilty of charges which have not been proved and speculating about a motive on the part of the Police.  It is submitted that the appellant saved the Police thousands of hours of preparation by pleading guilty prior to depositions, that there is a strong public interest in allowing a significant credit where such a degree of co‑operation has been shown, and that a discount in the region of 25 per cent to 30 per cent is warranted. 

[24]    In summary, Mr Niven submits that a sentence in the range of five to six years would be appropriate.

[25]    Ms Jelas submits for the Crown that the Judge was correct to adopt the starting point for the lead sentence that reflected not only the totality and aggravating features of the offending, but also the need to deter, and protect the public.  The combination of these factors warranted a higher starting point than otherwise might have been the case.  The Crown points particularly to the five years sentence of imprisonment imposed in April 2001 for a raft of charges including over thirty offences for burglary, and that the present offending occurred while the appellant was still on parole for this 2001 sentence.  In addition there were the aggravating features of premeditation in some of the offending, the number of offences and the seriousness of the offending together with the appellant’s “appalling history” of criminal convictions.

[26]    The Crown noted that the entire 57 offences for which the appellant was sentenced were inter-related, all for the ultimate purpose of obtaining property.  Much of the offending was audacious with the appellant entering public places and taking whatever computer equipment or credit cards he would come across.  Due to the frequency of the offending, it could not be suggested that the offending was spontaneous; there was a degree of planning involved in identifying suitable premises at which the appellant would appear appropriately dressed.

[27]    Ms Jelas also referred to the 40 burglary convictions and 139 convictions for other dishonesty type offending, 21 convictions for theft, 5 convictions for receiving and 8 charges of unlawfully taking or getting into motor vehicles included in the appellant’s history of offending, which mark him clearly as a recidivist burglar.  There are also 13 convictions for breaching the conditions of his parole, sentence or bail, and more recently 8 drug related offences, including possession of methamphetamine and conspiring to introduce cannabis into prison.  In addition, the appellant has been convicted of an array of driving offences.  The Crown noted only one conviction involving direct violence, being a conviction for common assault in 2001.

[28]    It is submitted that having regard to all these factors and in light of relevant sentencing authorities, a starting point of eight years was open to the sentencing Judge.

[29]    Counsel accepted that a discount of one year from a starting point of eight years was in the circumstances “not generous”, although it is submitted that it was within permissible range.  Overall, it is submitted that the sentence of seven years imprisonment cannot be considered manifestly excessive.

Discussion

[30]    The Judge concluded that this was a case calling for concurrent sentences, a view with which neither Mr Niven nor Ms Jelas disagreed.  Nor do we.  What the Judge therefore had to do was ascertain a starting point appropriate for the totality of the offending: see s 85 of the Sentencing Act.  The Judge correctly recognised that this was best done by comparing the overall offending before him with appellate authorities involving like offending.

[31]    We would observe in passing that “starting point” in cases involving recidivist burglars appears to be used in a slightly different sense from normal.  The normal meaning of “starting point” is the sentence appropriate for the offending, prior to considering aggravating and mitigating factors relevant to the offender.  Relevant prior convictions are, if taken into account at all, taken into account by way of uplift on the starting point.  In the case of recidivist burglars, however, this Court appears frequently to have taken the appellant’s prior history into account when fixing the actual “starting point”.  This is not the occasion to try to sort out this inconsistent use of language.  In discussing whether the Judge adopted an appropriate starting point, we shall take into account the appellant’s prior convictions, as the other appellate authorities which were cited to us appear to have done.

[32]    In Andrian the prisoner was convicted of 12 counts of burglary of residential properties together with a number of other dishonesty charges which included a representative charge of receiving.  A sentence of nine years was imposed from a starting point of twelve years.  Andrian was described as a professional burglar whose burglaries were committed with skill and careful planning.  He targeted residential properties in selected suburbs.  He had 78 previous convictions for burglary and had been sentenced to seven years imprisonment for burglary on a previous occasion.  The value of the property stolen was estimated at $250,000.  The offending for which he was sentenced was committed only two months after his release from an earlier sentence.

[33]    In Nguyen the prisoner was convicted following trial of 15 counts of burglary together with other dishonesty offences including one count of conspiracy and one count of attempting to pervert the course of justice.  Property stolen had a value in excess of $400,000.  Nguyen was regarded as the leader of a major burglary ring which targeted commercial premises.  This Court stated that it would not put the offending of the prisoner and his co-offenders in the highly professional range.  The sentencing Judge had taken a starting point of nine years but had reduced the sentence to six and a half years on account of good character references and a realistic prospect of rehabilitation of the prisoner upon release.  This Court said that it regarded eight years as the highest starting point, but the ultimate sentence was upheld.

[34]    In Nguyen, this Court referred to the necessity in every case to assess the criminality of the particular offending, and noted that the range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed.  However, entry into private homes would generally have an emotional impact and give rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises; but the value of goods stolen from commercial premises may be higher.

[35]    Rohloff was a recidivist burglar aged 22 years who had been offending since the age of 15 and had amassed a lengthy list of criminal convictions for burglary, dishonesty offending, motor vehicle offending and some cannabis offending.  He had spent a large proportion of the last five years in prison.  He had developed a pattern of offending which he followed immediately on his release from a sentence of imprisonment.  The offending appears to have been directed principally to residential premises.  Property to a value of approximately $52,000 was involved.  He was sentenced on nine charges of burglary and two charges of theft.  This Court stated that a starting point of as high as six years imprisonment was appropriate with the focus then being on the length of the discount to be given for the mitigating factors.  An appropriate deduction for mitigating factors including guilty pleas was eighteen months.  A sentence of four and a half years imprisonment with a minimum non‑parole period of three years imprisonment was imposed on appeal in substitution for the sentence of six years imposed by the sentencing Judge.

[36]    In Harding the burglaries were of a residential property (foiled by the alarm system) and three pharmacies where pseudoephedrine used in the manufacture of methamphetamine was the target.  The burglaries together with a raft of other dishonesty and driving offences were committed over a three month period while the appellant was on parole or bail.  He had an extensive criminal history and had previously been sentenced to eight terms of imprisonment of up to three years.  A six years starting point was upheld on appeal.

[37]    Looked at overall, we consider the offending worse here than in Rohloff and Harding, although not by much.  We regard the offending as no worse than the offending in Nguyen.  This comparative analysis leads us to the view that Judge Thorburn’s starting point of eight years imprisonment was correct.

[38]    We note that this Court in Andrian clearly considered the starting point in that case of 12 years imprisonment to be right at the top end of the range.  Indeed, this Court described the case as “exceptional”: 13 CRNZ 449 at 454.  It clearly was.  We do not, therefore, give it the same weight.

[39]    The circumstances of the offending and the offender in the particular case must ultimately govern the sentence imposed.  In this case, there are seriously aggravating features of the offending: the totality of the offending (57 offences over a period of approximately three months); the appellant’s previous criminal history including particularly the offending which resulted in a sentence of five years in 2001; the offending was committed while he was on parole from that sentence; there was an element of planning and premeditation in this offending   Coupled with the need for deterrence and protection of the community from the activities of recidivist burglars, the starting point of eight years was appropriate.

[40]    However, we consider that the Judge erred in principle in the way he approached the discount for the mitigating features, in particular the early guilty pleas entered prior to depositions.  The Judge properly recognised the early guilty pleas as the main (if not the only) factor in mitigation and that the appellant had facilitated the resolution of the matters by pleading.  But he considered a 25 per cent discount from the starting point “too much” because of the part the police had played by withdrawing charges.

[41]    There can be no doubt that the very early pleas, coupled with the appellant’s assistance to the police, would normally have justified a 25 per cent discount, as Mr Niven submitted.  The Judge thought a smaller than normal discount was appropriate because of the “massive withdrawal on the part of the police of dozens of charges”.  That was an irrelevant consideration.  It was not appropriate for the Judge to speculate as to why such a “massive withdrawal … of charges” had occurred.  Still less was he entitled to speculate, as his comment and reasoning clearly indicate he did, that the appellant was in fact guilty of greater offending than that which was before the Court and that he was therefore justified in reducing the discount which would otherwise have been appropriate.  What the Judge effectively did was increase the sentence by a year for presumed offending which was not the subject of charges before the Court at sentencing.

[42]    The appropriate discount in this case was 25 per cent.  If that discount is applied to the Judge’s starting point of eight years (which we have approved), a lead sentence of six years imprisonment, is reached.

[43]    There is one final matter we should mention.  The Judge sentenced the appellant to seven years imprisonment on each of the 15 burglaries.  Technically, that was not in compliance with s 85(4) of the Sentencing Act.  He should have chosen the worst of the burglaries to receive the penalty that was appropriate for the totality of the offending.  All of the other burglaries, like all of the other offences, should then have received the penalty appropriate for them.  It is quite clear in this case which the most serious offence was.  It was the occasion on 3 May last year when the appellant kicked a hole in the exterior wall of commercial premises in Mount Victoria in Wellington.  He thereby gained access to a warehouse area.  He then loaded a number of plasma televisions into a company vehicle that was parked inside the warehouse.  Those televisions had a combined value of $30,000.  He then got into the company vehicle and smashed his way through the premises’ garage doors and drove off from the scene.  It is that burglary which should receive the sentence of six years imprisonment.

[44]    We have looked at all the other burglaries and categorised them into three groups depending on their seriousness.  Three warranted sentences of two and a half years imprisonment, four, sentences of two years imprisonment, and the remainder sentences of one year’s imprisonment.  There is no need to go into the details, but we think it necessary to mention this matter, so as to explain the formal orders made in this case.

Solicitors:
Crown Law Office, Wellington