McCreath v R
[2014] NZCA 142
•15 April 2014 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA279/2013 [2014] NZCA 142 |
| BETWEEN | MARK ANTHONY McCREATH |
| AND | THE QUEEN |
| Hearing: | 3 March 2014 |
Court: | French, Ronald Young and Clifford JJ |
Counsel: | G P Tyrrell for Appellant |
Judgment: | 15 April 2014 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
The appellant, Mark McCreath, pleaded guilty in the District Court at Christchurch to charges of theft, burglary, possession of instruments for burglary, breach of a protection order and breaches of a sentence of intensive supervision. On 14 June 2012 Mr McCreath was sentenced by Judge Garland to a term of six years and three months’ imprisonment, and ordered to serve a minimum term of three years’ imprisonment.[1]
[1]R v McCreath DC Christchurch CRI-2011-009-2519, 14 June 2012.
Mr McCreath now seeks to appeal against his sentence as being manifestly excessive.
Mr McCreath originally also sought to appeal against his minimum term of imprisonment. Given the time Mr McCreath spent on remand prior to sentence, that appeal is moot and was not pursued before us.
Facts
Between September and October 2009 Mr McCreath opened an account at Bunnings Warehouse and charged goods worth more than $70,000 to it. He never made a payment on that account. He on-sold some of those goods a short time after purchasing them. Goods to the value of $22,000 were recovered by the police when Mr McCreath was apprehended. Mr McCreath faced a representative charge of theft with respect to that offending.
Mr McCreath later burgled one property on Sunday 26 September 2010, forcing entry through a rear window but stealing nothing. He burgled a further 12 residential properties in late December 2010, principally on Christmas and Boxing Days. On a number of occasions, Mr McCreath disturbed or was disturbed by the owners of the property and left empty-handed. From other properties he stole a variety of items, including laptop computers, gift vouchers, a chequebook, electronic items, a camera and cash. Based on the statements of fact to which Mr McCreath pleaded guilty, the Judge estimated the amount of stolen property as between $10,000 and $15,000. Mr McCreath was located by police in a van that contained a large amount of stolen property, and instruments (gloves and a screwdriver) for burglary. That offending gave rise to 13 summarily laid burglary charges, and one charge of possession of instruments for burglary.
On five occasions in December 2010 Mr McCreath failed to report in terms of a sentence of intensive supervision. Whilst in custody awaiting resolution of the theft and burglary charges, Mr McCreath sent mail and made phone calls to an ex‑partner and her children in contravention of protection orders. That offending gave rise to the balance of the charges Mr McCreath pleaded guilty to.
Extension of time
Mr McCreath’s appeal was filed out of time and an extension of time is therefore required. In Mr McCreath’s circumstances, the respondent has no objection to an extension being granted. We consider that those circumstances mean that an extension of time is appropriate, and grant one accordingly.
The challenged sentencing decision
The Judge identified an overall starting point sentence of seven years and nine months’ imprisonment. In doing so he adopted a cumulative approach:
(a)on the theft charge, a starting point of three years;
(b)on the burglary charges, a starting point of four and a half years; and
(c)on the breach offending, a starting point of three months.
The Judge added a 12 month uplift to take account of extensive previous burglary, dishonesty (burglary x 14; dishonesty x 68) and breach offending, of the fact that the burglary offending here was committed whilst Mr McCreath was subject to intensive supervision and of the fact that the breaches of protection orders were committed when Mr McCreath was in custody awaiting sentence on these matters.
So Mr McCreath’s sentence at that point was eight years and nine months.
The Judge then dealt with personal mitigating factors. The only relevant personal mitigating factors were Mr McCreath’s guilty plea to the theft charge, entered one year after the charge was laid but before trial, and his guilty pleas to the remaining charges, entered at a relatively early point. The Judge considered a reduction of approximately 15 per cent to be appropriate with respect to the theft plea, and approximately 25 per cent for the other pleas. That resulted in the Judge allowing an overall reduction of 20 months, giving a sentence at that point of seven years and one month.
Having regard to the totality principle, the Judge finally reduced Mr McCreath’s sentence (by 10 months) to six years and three months.
This appeal
In Mr McCreath’s notice of appeal, and in Mr Tyrrell’s written submissions, a range of errors were identified in the Judge’s sentencing exercise. Several of these were not pursued by Mr Tyrrell before us, and are therefore not discussed here. In essence, and as argued by Mr Tyrrell, three aspects of the sentencing decision are challenged:
(a)First, the guilty plea discount of 20 months was less than the discount the Judge should have allowed because the Judge applied the discount at the wrong point in the sentencing process.
(b)Secondly, the Judge should have made his totality assessment as soon as he had identified the appropriate starting point sentence, before taking account of aggravating and mitigating factors personal to Mr McCreath.
(c)Thirdly, the discount for totality was inadequate.
Those errors resulted in Mr McCreath’s end sentence being manifestly excessive. For Mr McCreath, Mr Tyrrell argued for an end sentence in the vicinity of five years. In making that argument, Mr Tyrrell submitted that one way of checking the appropriateness of the totality discount would be to consider what the starting point sentence would have been if Mr McCreath had burgled Bunnings and the sentencing had been approached as 14 burglaries rather than cumulative burglary and theft sentencings.
Analysis
Mr Tyrrell argued that the 20 month guilty plea discount allowed by the Judge was less than it should have been because the Judge incorrectly deducted the guilty plea discount from the sentences before applying the 12 month uplift for aggravating factors.
The Crown argued that the Judge correctly deducted a 19 per cent (20 month) overall discount for the guilty pleas (the combined effect of approximately 15 per cent on the theft charge and approximately 25 per cent on the burglary and breach charges) from the uplifted starting point of eight years and nine months.
The Supreme Court in Hessell v R approved this Court’s approach of applying the guilty plea discount after first setting the starting point and then adjusting for personal mitigating and aggravating factors.[2] It did so in the following terms:
[73] There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on. Indeed there are advantages in addressing the guilty plea at this stage of the process (along with any special assistance given by the defendant to the authorities). It will be clear that the defendant is getting credit for the plea and what that credit is. This transparency validates the honesty of the system and provides a degree of predictability which will assist counsel in advising persons charged who have in mind pleading guilty.
[2]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
We note first, as regards the Judge’s alleged error of law, that the Supreme Court did not say that approach was mandatory. It is one, however, that this Court has encouraged to provide transparency and consistency in sentencing.
We note secondly that Mr Tyrrell’s argument would appear to rely on a coincidence of arithmetic. The Judge, having spoken of approximately 15 and 25 per cent discounts for the guilty pleas, allowed a 20 month discount overall. The Judge did not, as is preferable, express that discount as a percentage and then apply that percentage to the uplifted starting point. The 20 month discount is, in fact, approximately 19 per cent of the eight year and nine month (105 month) starting point.
In our view, considered arithmetically, a 19 per cent discount – expressed as the round 20 month figure, is properly seen as a combination of “approximately” 15 and 25 per cent respectively.
The arithmetical coincidence on which Mr Tyrrell’s argument relies is that if a 15 per cent discount is applied to the three year pre-uplift theft sentence, and a 25 per cent discount to the four year and nine month pre-uplift burglary and breach sentence, a 19.65 month discount – which could be rounded to 20 months – is reached. This, Mr Tyrrell argued, is what the Judge did. Mr Tyrrell then argued that if instead the Judge had apportioned the one year uplift between the theft and burglary charges (say four months to the former and eight months to the latter), and applied the discrete discounts (15 per cent to the three year four month theft sentence and 25 per cent to the five year five month burglary and breach sentence), a further reduction of at least two and a half months would have resulted.
We think it is artificial to suggest the Judge should have apportioned the uplift in that way. There is no legal reason why he should have done so.
Further, we are not persuaded that the Judge did in fact apply the guilty plea discount before applying the uplift for aggravating factors.
In his sentencing notes Judge Garland first identified an overall starting point for the offending,[3] secondly considered aggravating personal factors and uplifted the sentence,[4] and thirdly considered mitigating factors and reduced Mr McCreath’s sentence for the only mitigating factor present, the early guilty pleas.[5]
[3]At [34].
[4]At [35].
[5]At [36].
The uplift for aggravating factors was therefore, on the face of things, applied to the overall starting point that resulted from the three cumulative sentences. The guilty plea discount was then applied to the uplifted starting point. We think it reads too much into the coincidence of arithmetic that Mr Tyrrell identified to argue that the Judge calculated his 20 months figure by reference to the pre-uplift starting points.
Moreover, Mr Tyrrell himself argued, at the end of the day, for a 20 per cent credit for Mr McCreath’s guilty plea – albeit from a six year and three month cumulative sentence. Allowing a 20 per cent discount would have resulted in a deduction of 21 months from the 105 month starting point, not enough by itself to render a sentence based on a 20 month reduction manifestly excessive.
On the question of the timing of the totality assessment, we accept that the approach argued for by Mr McCreath has been endorsed by this Court on occasion,[6] but so too has the approach of considering totality last.[7]
[6]R v Levett CA437/05, 20 March 2006 at [17]; R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [57]; and R v Tamatea [2012] NZCA 443 at [19].
[7]R v Taylor [2007] NZCA 258 at [61]; R v Wu CA65/02, 18 June 2002 at [10]; and Webber v R [2012] NZCA 594 at [25].
In Wairea v R this Court observed that: “It is immaterial whether the totality adjustment is carried out before or after personal circumstances are taken into account”.[8] It is the appropriateness of the final, totality adjusted, sentence that matters, not the particular way in which that sentence was arrived at.
[8]Wairea v R [2012] NZCA 423 at [16].
We acknowledge, as we indicated during the hearing of this appeal, that a starting point sentence of seven years and nine months, before uplift or reduction, raises concerns regarding totality. We consider, however, that the individual cumulative sentences are within range and the uplift for previous offending was, if anything, light.
Moreover, and most importantly, by our assessment the end sentence of six years and three months is an appropriate response to Mr McCreath’s criminality overall. We do not find Mr Tyrrell’s suggestion that we test the appropriateness of the sentence by considering what starting point would have been adopted if Mr McCreath had burgled Bunnings to be helpful. The theft offending is different in time and in kind and should be treated as such.
Mr McCreath’s theft offending, over $70,000 worth of goods taken without payment, and a significant proportion on-sold immediately, is serious dishonesty offending. This was also serious burglary offending involving a large number of occupied and empty properties during the holiday period. Additionally, a breach of a protection order is not to be viewed lightly. Nor are breaches of intensive supervision orders. Furthermore, Mr McCreath has an extensive history of burglary and dishonesty offending. In those circumstances the end sentence was, in our view, clearly within range.
Result
Mr McCreath is granted an extension of time to appeal and his appeal is dismissed.
Solicitors:
Weston Ward & Lascelles, Christchurch for Appellant
Crown Law Office, Wellington for Respondent
6
6
0