Muirson v The Queen
[2013] NZHC 1999
•7 August 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-470-21 [2013] NZHC 1999
ASTIN MUIRSON Appellant
v
THE QUEEN Respondent
Hearing: 7 August 2013
Counsel: W T Nabney for Appellant
H J Sheridan and J Heerdegen for Respondent
Judgment: 7 August 2013
ORAL JUDGMENT OF KATZ J
Solicitors:
H J Sheridan, G C Hollister-Jones, Crown Solicitor, Tauranga
Counsel:
W T Nabney, Tauranga Chambers, Tauranga
MUIRSON v THE QUEEN [2013] NZHC 1999 [7 August 2013]
Background
[1] The appellant, Mr Muirson, pleaded guilty in the District Court at Tauranga to two charges of burglary and one charge of theft. The burglary charges are punishable by up to ten years’ imprisonment.1 The charge of theft (under $500) is punishable by up to three months imprisonment.2
[2] On 28 June 2013, Judge Geoghegan sentenced Mr Muirson to two years, two months, and one week imprisonment in respect of the two burglary charges. A concurrent sentence of four months’ imprisonment was imposed in respect of the theft charge.
[3] There are three key issues on appeal:
(a) Was the starting point adopted by the Judge for the burglary offending too high?
(b) Was the uplift of nine months applied in respect of Mr Muirson’s
previous offending excessive?
(c) Should a discount have been given for remorse?
Approach on appeal
[4] An appeal against sentence is a general appeal which is by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that if the High Court determines that a sentence imposed was “clearly excessive or inadequate or inappropriate” or if the 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” then the Court may quash or vary the sentence.
[5] Yorston v Police3 sets out the approach to be taken to appeals under s 121(3):4
(a) There must be an error vitiating the lower Court’s original sentencing
discretion: the appeal must proceed on an “error principle”.
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[6] If the sentence is within the appropriate range, the appeal Court will not intervene.
Was the starting point for the burglary offending too high?
[7] The first key issue is whether the starting point adopted by the Judge for the burglary offending was outside of the permissible range.
Factual background
[8] The victims in this matter were the occupants of three properties in Mr Muirson’s neighbourhood. The occupants of the three properties were all away on holiday when the offending took place.
[9] Between 26 and 28 April 2013, at night, Mr Muirson entered the first address by forcing open a window. He then proceeded to ransack all the rooms in the house, taking anything he located of value. This included a television, bicycles, a laptop, jewellery and other items. Mr Muirson then broke into a vehicle in the garage and damaged the steering column in an attempt to start the vehicle. Significant damage was caused, resulting in losses of over $21,000.
[10] On 29 April 2013, Mr Muirson entered another neighbouring property. He was unsuccessful in attempting to force open a passenger car and resorted to smashing the window to open the door. He then removed the car battery from under the hood and returned to the first address in an attempt to use the car battery to start the vehicle he had earlier unsuccessfully attempted to start. The theft charge relates to this incident.
[11] In the early hours of 3 May 2013, Mr Muirson entered the address of the third victim. He went to the rear of the house and removed two lengths of power cable attached to the victim’s campervan. He then forcibly removed the front grill of the campervan and removed part of the campervan’s engine. Mr Muirson escaped on foot but located later at his home address. A search of his room revealed several items that had been stolen in the course of his offending.
[12] The occupants of the ransacked property had to cut short their holiday (their first in two years) and return at their own expense to deal with the aftermath. Another victim was profoundly deaf and now reports being afraid of being home alone. The third victims were elderly. They report now being fearful regarding their personal security.
The Judge’s starting point
[13] The Judge took the burglaries as the lead offences, noting the aggravating feature of the burglaries having occurred at residential properties, the ransacking of the home at the first address with a very significant amount of property taken, and the level of planning and pre-meditation. A global starting point of two years’ imprisonment was taken.
The appellant’s submissions
[14] Counsel for Mr Muirson submitted that the starting point the Judge adopted was too high. In particular, it was submitted that the burglaries lacked the aggravating feature of danger to the occupiers, given they were all away at the time of the offending. The appropriate starting point was submitted to be 18 months’ imprisonment.
[15] The decision of Fogarty J in Rangi v Police5 was relied on. In that case a starting point of 18 months was adopted. That case cites two decisions of the Court of Appeal, R v Stevens6 and R v Brown,7 both decisions where 18 month starting points were taken. While both of those decisions involved commercial buildings, they were said to nevertheless be comparable because Mr Muirson would have likely been aware that the occupants were away. Therefore no risk of harm would have resulted.
Discussion
[16] The key aggravating features of Mr Muirson’s offending are:
(a) multiple properties targeted;
(b)wanton destruction of property, in particular the ransacking of the first property;
(c) the targeting of residential properties and subsequent effect on the victims; and
(d) the extent of damage, over $20,000.
[17] I do not accept that the cases relied on by the appellant are analogous. Commercial premises are not analogous to a person’s home when they are away on holiday or absent for other reasons. It was submitted that Mr Muirson would likely have known that no one was occupying the properties and so no risk of harm was present. Firstly, a burglar can rarely be absolutely certain that a family member is not home. They may have returned early from holiday. One family member may have stayed behind. There is often at least some risk of someone being present, although burglars will usually target houses they believe to be empty, for obvious
reasons. Mr Muirson is perhaps no different from most burglars in that respect.
5 Rangi v Police [2013] NZHC 465.
6 R v Stevens [2009] NZCA 190.
7 R v Brown [2009] NZCA 288.
[18] However, of more significance, the policy reasons for treating burglary of a residential property differently to a commercial property are not simply due to the likelihood of someone being present during the burglary. The rationale for the distinction was discussed in the English Court of Appeal decision of R v Brewster
& Ors8 which was cited in the full High Court decision of Senior v Police9 as
follows:
The loss of material possession is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglary. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.
[19] Those observations are clearly relevant in this case, particularly given the content of the victim impact statements that I have already referred to.
[20] An extensive amount of property was taken in the first burglary and significant damage caused (resulting in losses of over $21,000). The evidence is that the entire house was ransacked. In addition, Mr Muirson committed a second night time burglary within a few days of the first. Residential premises were targeted on both occasions. Significant emotional harm was caused to the victims. The cases relied on by the appellant, involving commercial premises, are accordingly not analogous.
[21] I note that burglary carries a maximum term of imprisonment of ten years. Whilst this offending falls far short of the upper end of the spectrum, it was still fairly serious offending which justified the starting point adopted by the Judge in this case. Indeed it could even be argued that a two year starting point is slightly on the
light side.
8 R v Brewster & Ors [1998] 1 Cr App R 220 at 225.
9 Senior v Police (2000) 18 CRNZ 340 (HC).
Uplift for previous convictions
[22] The Judge noted Mr Muirson’s criminal history. His prior convictions included five convictions for possession of instruments for conversion, three convictions for burglary, unlawfully interfering with motor vehicles in various ways, five of theft “ex car” and three of theft of property. These sit alongside numerous other convictions. The Judge applied a nine month uplift for previous offending.
[23] Counsel for Mr Muirson submitted that the nine month uplift for previous convictions was excessive. He noted that Mr Muirson does not have a significant history of burglary offences. Mr Muirson has two burglary convictions in 2006 and another in 2001. Counsel for Mr Muirson compared this to the 12 month uplift in Rangi for 27 previous burglary convictions. Further, the Court of Appeal in R v Columbus10 thought one year uplift for 13 previous burglary charges was appropriate. In this case, it was submitted, a much smaller uplift should have been applied.
[24] The submission for Mr Muirson that the uplift for previous convictions of
9 months was excessive focuses largely on Mr Muirson’s previous burglary convictions, the last two in 2006. However, this overlooks the numerous theft convictions and convictions for interference with motor vehicles in one manner or another. The Court is entitled to take account other property offending as an aggravating feature. The case of R v Stevens,11 which was cited by the appellant,
includes the following passage:12
Some uplift is appropriate to recognise the appellant’s previous dishonesty offending. He was 34 years of age when he committed these offences and, as the Judge noted, had some 60 previous dishonesty offences. The appellant was subject to a sentence of intensive supervision at the time of the burglary offending. The appellant, however, was not in the recidivist burglar category. He has three previous convictions for burglary and the last of these was in 1997. These components make the addition by the Judge of
12 months imprisonment to the starting point within range.
10 R v Columbus [2008] NZCA 192.
11 R v Stevens [2009] NZCA 190.
12 At [15].
[25] In this case Mr Muirson has 31 previous convictions relating to various forms of property offending, much of it motor vehicle related. Since September 2012 Mr Muirson has committed four (relatively minor) property offences. However, the present offending is far more serious. I also note that Mr Muirson’s dishonesty offending appears to be have been dormant from 2007-2012. His counsel submitted that recent events in his life have triggered a recurrence of offending behaviour.
[26] Taking all of these matters into account it is my view that the nine month uplift for previous convictions was probably on the steep side. It was nevertheless within the permissible range.
Discount for remorse
[27] It is submitted for Mr Muirson that a discount for remorse should have been afforded.
[28] The Judge did expressly refer to Mr Muirson’s letters of apology but was “not sure” that they indicated genuine remorse. He did however afford a full 25% discount for the guilty plea. In my view the Judge was the person best placed to assess the genuineness of any remorse. He clearly considered the issue, but had some doubts on that front. Accordingly, I do not propose to interfere with his judgment on that issue. There is no apparent error in his approach.
Conclusion
[29] As has often been observed, sentencing is not an exact science. Given this is a general appeal, it is the end result and not the process that matters, although sometimes deficiencies in the process can lead to an end result with is clearly excessive.
[30] I have concluded that the District Court Judge’s starting point was available to him. A small discount for remorse could possibly have been justified. However, I defer to the Judge’s assessment of the genuineness of that remorse, which resulted in his conclusion that a discount was not appropriate on the facts of this case.
[31] The end sentence reached by the Judge was two years, two months and one week. In my view it cannot be said that that end sentence was clearly excessive in all the circumstances of this case. This was serious offending that warranted the prison term that the Judge imposed.
[32] I do note, however, that the concurrent sentence of four months’ imprisonment on the theft charge exceeds the statutory maximum of three months. I therefore allow the appeal in respect of that sentence and substitute a sentence of two months’ imprisonment, to be served concurrently.
Result
[33] The appeal in respect of the sentence imposed on the theft charge is allowed. The sentence of four months’ imprisonment (concurrent) imposed in the District Court is quashed and a sentence of two months’ imprisonment (concurrent) is substituted.
[34] The appeal against the sentence imposed in respect of the burglary charges is dismissed.
Katz J
5
0