McKernan v Police
[2012] NZHC 104
•10 February 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2011-404-000435 [2012] NZHC 104
NICHOLAS CHARLES MCKERNAN
v
NEW ZEALAND POLICE
Hearing: 3 February 2012
Counsel: N McDonald for the Appellant
Y Clarisse for the Respondent
Judgment: 10 February 2012 at 3:30 PM
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 10 February 2012 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Distribution:
Y Clarisse – respondent – [email protected]
N McDonald – appellant – fax: 09 579 6087
MCKERNAN V POLICE HC AK CRI 2011-404-000435 10 February 2012
[1] On 27 June 2011, the appellant, Mr McKernan, burgled the Cockle Bay School, contrary to s 231(1)(a) of the Crimes Act 1961. He was charged along with a Mr Carl Unvericht on a count of burglary. Mr McKernan was also charged with being unlawfully on premises.
[2] Mr Unvericht entered a plea of guilty to the charge of burglary on 13 June
2011. He was sentenced by Judge AJ Johns to a sentence of 100 hours’ community
work.
[3] Mr McKernan entered a plea of guilty to the burglary charge on 16 August
2011, and to the charge of being unlawfully on premises. He was convicted on both counts and on 22 November 2011, he was sentenced by Judge Cooper to 14 months’ imprisonment in relation to the burglary. He was discharged on the other count.
[4] Mr McKernan now appeals against his sentence on the burglary conviction.
Factual Background
[5] At about 4.45 am on 27 June 2011, Messrs McKernan and Unvericht were at an associate’s house in Howick. Mr Unvericht agreed to drive Mr McKernan to the Cockle Bay area so that Mr McKernan could burgle the Cockle Bay School.
[6] Mr Unvericht drove the vehicle to Sandspit Road. He then parked. Mr McKernan got out of the vehicle. Mr Unvericht waited in the car.
[7] Mr McKernan went to the door of a classroom at the school, and used a screwdriver to jimmy it open. He then entered the classroom. He was rummaging through the classroom cupboards and table drawers when he was seen by a security guard. He then ran from the scene. He was located by the police in bushes at the rear of the premises a short time later and arrested.
[8] After seeing police in the area, Mr Unvericht left the area and returned to his home address. He was later located and arrested by the police.
[9] When the police spoke to him, Mr McKernan admitted to burgling the school. In explanation, he stated that he was looking for anything electronic to steal. He said that he intended to sell the items to pay for drugs. Mr Unverricht for his part admitted that he knew Mr McKernan was going to burgle and steal from the school, and that he agreed to drive him there and wait for him.
[10] Nine laptop computers and two digital cameras were stolen from the school, but there was no proof that Mr McKernan was the person who stole those items. The summary of facts to which Mr McKernan pleaded was amended to remove an assertion that Mr McKernan stole those items.
[11] Both Mr McKernan and Mr Unvericht have lengthy criminal records.
The Sentence Imposed in the District Court
[12] Judge Cooper started by setting out the relevant facts as noted above. He recorded the concession by the police, and the amendment to the summary of facts, to reflect the fact that there was no proof that Mr McKernan was the person who stole the laptops and the digital cameras that went missing from the school on
27 June 2011. He acknowledged that he had to sentence Mr McKernan on the basis that it could not be proved that he took the items that were originally detailed in the summary of facts.
[13] The Judge then referred to Mr McKernan’s criminal history. He noted that Mr McKernan had convictions for 11 dishonesty offences, including two burglaries between 2005 and 2006. In 2010 he accrued a further three convictions for burglary. He was last before the Court on 18 May 2010 when he was sentenced to one year’s home detention for burglary.
[14] Judge Cooper then referred to the pre-sentence report. He noted that the pre-sentence report recommended a sentence of home detention.
[15] The Judge then considered the aggravating factors, including Mr McKernan’s
previous history, the fact that he reoffended only a month or so after a sentence of
home detention for an earlier burglary had ended, and while he was subject to post-detention conditions designed to deal with his acknowledged involvement with addictive drugs. He noted that Mr McKernan had targeted a school. He then referred to the mitigating factors, and in particular, his guilty plea, and his acceptance of responsibility for his actions.
[16] Judge Cooper did not consider that home detention would be a suitable response, referring to the fact that Mr McKernan had only just finished a sentence of home detention for burglary. He did not consider that Mr McKernan should be re-sentenced to home detention for committing a further burglary only a month later.
[17] The Judge took as a starting point a term of imprisonment of 12 months. He increased that starting point to allow for Mr McKernan’s previous criminal history to
18 months. He then allowed a deduction of four months for his guilty plea. As a result, Mr McKernan was sentenced to 14 months’ imprisonment for the charge of burglary. The Judge also imposed special release conditions requiring Mr McKernan to undertake assessment, counselling, and a treatment programme for drug abuse following his release from custody.
The Submissions
[18] Ms McDonald for Mr McKernan submitted that there was a manifest disparity in the sentences imposed on Messrs McKernan and Unvericht. She argued that the disparity was such that an objective bystander, appraised of all relevant facts, and conversant with the general principles of sentencing, could only conclude that the administration of justice had miscarried. She submitted that the Court should intervene in the circumstances. She expressly resiled from any suggestion that the sentence imposed of itself was manifestly excessive, inappropriate, or too long. Rather, she focussed on the disparity and submitted that the disparity alone compelled the conclusion that the appeal should be allowed.
[19] Ms Clarisse for the respondent submitted that the sentence imposed on Mr McKernan could not be said to be disparate with the sentence imposed on Mr Unvericht. She submitted that there were different levels of culpability for both
offenders. In addition, she argued that disparity can only come into issue if the appellant had received too long a sentence, and that here, the sentence imposed on Mr McKernan was within range and not manifestly excessive.
Analysis
[20] This is an appeal against sentence under s 115 of the Summary Proceedings Act 1957. Section 121 of that Act confers power on the Court to determine such appeals. Relevantly, it provides as follows:
121 High Court to hear and determine appeal
(1) The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.
…
(3) In the case of an appeal against sentence, the High Court may—
(a) confirm the sentence; or
(b) if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) quash any invalid part of the sentence that is severable from the residue; or
(iii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
…
(6) In any case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.
(7) Subject to the provisions of section 144, the decision of the High
Court on any general appeal shall be final.
(Emphasis added)
[21] It is trite law that this Court should not interfere with a sentence imposed by a District Court Judge unless the sentence is manifestly excessive or wrong in principle.1 In particular, the Court should not substitute its own opinion for that of
the sentencing judge.2 It can interfere if the sentence imposed was manifestly
excessive. Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed, rather than the process by which the sentence was reached.3 As the Court of Appeal observed in R v Shipton:4
The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.
[22] Against this background, I now turn to consider this appeal.
[23] Here, there is no suggestion that Judge Cooper lacked jurisdiction, or that substantial facts relating to the offending or the appellant’s character or personal history were not before the Court, or that the facts were not substantially as placed before or found by the Court. It follows that the appeal should only be allowed if the sentence imposed was manifestly excessive, inadequate or inappropriate.
[24] Ms McDonald submitted, in effect, that Mr McKernan’s sentence was
inappropriate. She argued that there was a clear disparity between the sentence imposed on him and the sentence imposed on his co-offender, Mr Unvericht.
1 See R v Brooks [1950] NZLR 658 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.
2 Wells v Police [1987] 2 NZLR 560 (HC) at 565.
3 R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].
4 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
[25] Consistency in sentencing is one of the principles of the Sentencing Act5 which a Court must take into account. If it fails to do so, very real problems can arise.
[26] One of the leading authorities in the area of disparity is the decision of the Court of Appeal in R v Rameka.6 In that case, McCarthy J, writing for the Court, said as follows:
We take this opportunity to say something concerning disparity of sentence as a ground of appeal, because it has been raised in several appeals recently. It has long been the view of this Court that little help is gained by considering other sentences in respect of the same offence (R v Radich [1954] NZLR 86) or, indeed, other sentences imposed by other Judges or Courts on other offenders whose offences are in some way linked with those of the appellant. The fact that one of two prisoners jointly indicted has received too short a sentence is not a ground for necessarily interfering with a longer sentence passed on the other. What has to be shown is that the appellant has received too long a sentence (R v Richards (1955) 39 Cr App R 191). In each case the whole of the surrounding circumstances and the situation of the offender have to be taken into account and, as this Court has said previously, these factors vary infinitely. But it is true that there has been, of recent years, both in this country and in England, an increased willingness to take disparity of sentence into account when the disparity cannot be justified and is gross…
(Emphasis added)
[27] The Court of Appeal revisited the matter in R v Lawson,7 where McMullen J
for the Court observed as follows:
The disparity argument is not infrequently raised in this Court. For that reason we reiterate that differences in the length, and sometimes the type of sentence imposed on co-offenders, unfair although they may sometimes appear to be in the view of co-offenders who think they suffer by comparison, are not of themselves enough to found an appeal against sentence on a disparity argument. Sentencing is not an exact science and the circumstances of one offender can rarely be closely compared with those of another. The sentencing Judge must not only consider the relative involvement of the individuals in the offence but also the mitigating factors affecting each. But a marked difference in the sentences imposed on co- offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears
5 Section 8(e).
6 R v Rameka [1973] 2 NZLR 592 (CA) at 593.
7 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
to be administered evenhandedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate. But the test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice. A number of expressions have been used to capture this concept, namely "the disparity is so gross that a justifiable sense of injustice would persist", that right-thinking members of the public are likely to say "there is something wrong here" - R v Potter [1977] Crim LR 112. But the test is objective [,] not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
(Emphasis added)
[28] While some commentators suggest that there is no material difference between the two formulations,8 I am not persuaded that is the case in all respects. In Rameka, the Court observed that where disparity is raised and one of the prisoners has received too short a sentence, it also has to be shown that the appellant has received too long a sentence before the Court should intervene. In Lawson, the emphasis was on the disparity in the sentences imposed on co-offenders itself, and
whether an objective observer would consider that the administration of justice had miscarried. Lawson did not expressly deal with the disparity that arises if the sentence imposed on one of two or more offenders is inadequate. It must however extend to this situation. Appeals based on disparity are most likely to arise in this context.
[29] The Lawson approach has been affirmed in a number of subsequent cases. So has the formula discussed by the Court in Rameka. There is a helpful discussion of the authorities in Jacobs v Police.9
[30] Recently, Allan J in this Court has observed that disparity arguments can give rise to difficult problems in some cases, and that the thread running through the cases is that an argument for a reduction in sentence based on disparity cannot succeed
where all that can be shown is that a co-offender received a particularly lenient
8 Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [SAB21.02].
9 Jacobs v Police HC Rotorua AP 11/90, 21 May 1990; See also Folau v Police HC Auckland
CRI 2010-404-000175, 11 August 2010.
sentence. Allan J considered that the question in every case must be whether the appellant has received too long a sentence, and that the whole of the surrounding circumstances must be taken into account.10
[31] Recent cases in the Court of Appeal assist:
(a) In Eketone-Mahara v R,11 the Court cited Lawson, and held that the disparity there in issue was sufficiently unjustified and gross that the appellant’s sentence should be reduced. In this case, the sentencing Judge adopted different starting points for each offender. The Court of Appeal held that there was no basis for this. The case did not expressly involve a sentence imposed on a co-offender which was too lenient and there was no discussion as to whether the appellant’s sentence was too long.
(b)In Williams v R,12 the Court cited Lawson for the proposition that the level of disparity required was one that would cause a reasonably- minded independent observer to think that there was something wrong with the sentence imposed on the appellant. The disparity element was not sufficiently severe, and the Court noted the proposition in Rameka, namely that one offender being sentenced too leniently is not necessarily a ground for interfering with the longer sentence imposed on the other offender.
(c) In Mau’u v R,13 the Court cited Lawson. It also addressed the “two wrongs don’t make a right” argument, and noted that reducing a proper sentence imposed on one offender to bring it into line with a lenient sentence imposed on a co-offender, can also cause public
concern regarding the administration of justice.
10 Bennett v R HC Hamilton CRI-2011-419-78, 3 November 2011 at [41].
11 Eketone-Mahara v R [2011] NZCA 71.
12 Williams v R [2000] NZCA 384.
13 Mau’u v R [2000] NZCA 385.
(d)In McNeilly v R,14 the Court took the Lawson approach. It held that the starting point for one co-offender was at the top of the available range. The starting point for the other was near the bottom, and as a result, the Court concluded that there was an unjustified disparity.
[32] In the present case, there is an obvious and significant disparity in the sentences imposed upon Mr McKernan and Mr Unvericht. Mr McKernan received
14 months’ imprisonment. Mr Unvericht received a sentence of 100 hours’ community work. Pursuant to s 10(1) of the Sentencing Act 2002, the sentence of imprisonment imposed on Mr McKernan was four levels higher than the sentence of community work imposed on Mr Unvericht. Moreover, Mr Unvericht received only
100 hours of community work, when 400 hours was available to the sentencing
Judge.
[33] Ms McDonald submitted that the disparity would offend the reasonably minded independent observer, and that it is such that it compels the conclusion that the administration of justice has miscarried. She did not address the issue of whether or not Mr McKernan’s sentence was too long. She submitted that she did not have to do so, relying primarily on Lawson.
[34] First, I ask myself whether the disparity is justified on the facts of this case. There were obvious differences in the involvement of Messrs McKernan and Unvericht in the offending which occurred. First, Mr Unvericht stayed in the car. He did not go onto the school grounds or enter the classroom. Mr McKernan did do so. There was a difference in their respective levels of culpability. Secondly, Mr Unvericht had no previous convictions for burglary, although he did have eight dishonesty offences on his criminal record. The most recent dishonesty offence occurred in May 2007. Mr McKernan had 14 dishonesty offences out of his total number of 18 convictions. There were five previous burglaries. The last burglary was committed in April 2010. He received one years’ home detention for that offending. The finish date was 18 May 2011. The burglary the subject of the present appeal was committed on 27 June 2011, when Mr McKernan was still subject to
post-release conditions.
14 McNeilly v R [2011] NZCA 481.
[35] These differences go some way towards explaining the difference in the sentences imposed on each offender. Nevertheless, even allowing for this, the disparity between the two sentences is marked. In my judgment, a reasonably minded independent observer, aware of all the circumstances of the offence and of the offenders, would query whether something had gone wrong with the administration of justice. I am not however persuaded that this is the end of the enquiry. In my view, the independent observer would be likely to ask whether or not Mr McKernan’s sentence was too long, or Mr Unvericht’s sentence was too lenient.
[36] Here, it seems to me that there can be no argument but that Mr Unvericht’s sentence was too lenient. The authorities are clear that a disparity argument cannot be built on an unjustifiable sentence.15
[37] The question then becomes whether or not Mr McKernan has received too long a sentence.
[38] The offence here in issue is burglary. Burglary is rightly regarded as a serious offence.16 While there is no tariff decision for the offence, the decisions of the Court of Appeal in R v Columbus,17 and of a full High Court in Senior v Police,18 are often referred to in this context. There are passages in Senior, for example, at [17] and [23] that suggest that it is a tariff decision. The case however does not
provide sentencing bands, and the Court of Appeal in Southon has made it clear that Senior is not a tariff case, but rather, a useful discussion of historical sentencing patterns.19
[39] A sentencing judge dealing with the offence of burglary is required to fix a starting point identifying the culpability inherent in the offending by reference to its circumstances. It is the intrinsic nature and gravity of the offence charged that are the primary considerations. The circumstances of the offending predominate in
fixing the starting point.20
15 See for example R v Feterika [2008] NZCA 127 at [47].
16 R v Southon (2003) 20 CRNZ 104 (CA) at [12].
17 R v Columbus [2008] NZCA 192.
18 Senior v Police (2000)18 CRNZ 340 (HC).
19 R v Southon, above n 14, at [13].
20 R v Columbus, above n 15, at [13].
[40] Here, the following circumstances are relevant:
(a) The property burgled by Mr McKernan was a school building;
(b)The burglary occurred at night. There was little or no risk of confrontation with the occupiers;
(c) The offending was not an impulsive exercise. While it was not sophisticated offending, Mr McKernan clearly set out to burgle the school; and
(d) Mr McKernan had only recently served a sentence of home detention.
He also breached court-imposed conditions at the time of the offending. His response to a community-based sentence was clearly inappropriate.
[41] I have considered the authorities referred to me by the Ms Clarisse, and in particular Tui v Police.21 I have also considered Tipiwai v Police.22 On balance, I do not consider that the starting point adopted by Judge Cooper was too high. Nor can there be any issue with the aggravating and mitigating factors taken into account. I do not consider that the end sentence imposed of 14 months’ imprisonment was manifestly excessive, or to use the wording in Rameka, “too long”.
[42] The question then becomes whether or not the reasonably minded independent observer would have his or her confidence in the justice system restored if Mr McKernan’s sentence was reduced.
[43] I do not consider that his or her confidence would be restored if that were to happen. Given Mr McKernan’s attitude to his prior community-based sentence, it seems to me that a sentence of imprisonment was inevitable. Notwithstanding the disparity in the sentences received by Messrs McKernan and Unvericht, it seems to
me that a right-thinking, reasonably minded, independent member of the community
21 Tui v Police HC New Plymouth CRI-2011-443-43, 31 October 2011; Daw v R [2011] NZCA
581.
22 Tipiwai v Police HC Whanganui CRI 2007-483-14, 17 October 2007.
would dismiss out of hand the notion that the sentence imposed on Mr McKernan, which of itself was a proper sentence, not unduly long or manifestly excessive, ought to be reduced to take account of the aberrant sentence imposed on Mr Unvericht. Reducing the appropriate sentence imposed on Mr McKernan in order to bring his sentence into line with the inappropriate sentence imposed on Mr Unvericht would
itself cause public concern at the administration of justice.23 Two wrongs do not
make a right.
[44] Accordingly, and notwithstanding the fact that disparate sentences were imposed on Messrs McKernan and Unvericht, the appeal is dismissed.
Wylie J
23 R v Ryder CA116/98, 23 June 1998 at 6; R v Thompson CA245/98; CA267/98, 22 December
1998 at 13-14; R v Zhou [2009] NZCA 365 at [27] and [28]; Mau’u v R [2011] NZCA 385 at
[28], [31], and [32].
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