R v Aldridge

[2009] NZCA 550

IN THE COURT OF APPEAL OF NEW ZEALAND

CA496/2009
[2009] NZCA 550

THE QUEEN

v

PATRICIA ANN ALDRIDGE

Hearing:3 November 2009

Court:William Young  P, Chisholm and Priestley JJ

Counsel:A F Rickard-Simms for Appellant

K A L Bicknell for Crown

Judgment:24 November 2009 at 10.30 am

JUDGMENT OF THE COURT

A           Application for an extension of time to appeal granted.

B           The appeal is allowed.

C           The sentences of four years imprisonment are quashed.

D           Sentences of three years four months imprisonment are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Application for leave for extension of time

[1]        The appellant filed an affidavit detailing the obstacles she had encountered obtaining legal advice and assistance in the wake of her being sentenced to imprisonment and being returned to a penal institution in June 2008.

[2]        Were the substantive appeal to be successful the Crown indicated it would not oppose an extension application.  There was no prejudice caused by the delay, in this case, of approximately 13 months.  The necessary extension is accordingly granted.

The appeal

[3]        Judge M R Radford sentenced the appellant to two concurrent terms of four years imprisonment on burglary charges in the Wanganui District Court on 18 June 2008.  The appellant had entered early guilty pleas.

[4]        This appeal challenges the sentences on the grounds of being manifestly excessive.

Background

[5]        The appellant can fairly be described as a recidivist burglar.  Now aged 44, she has an appalling criminal record and has been imprisoned on many occasions.  The Judge noted 110 previous dishonesty convictions. 

[6]        In February 2005 the appellant had been sentenced to an effective four year sentence.  That sentence flowed from six convictions for burglary and two for theft.  Four months later a cumulative six month sentence was imposed for escaping from custody.

[7]        Although the combined sentences would not have expired until August 2009 the appellant was released on home detention in October 2007.  The home detention regime was to operate until the end of April 2008.

[8]        Three days before her home detention obligation expired, whilst on approved leave, the appellant went into the designated staff area of a bar in Wanganui.  She took two bags from a staff room and left the bar with them.  The bags contained cash and contents valued at approximately $1,550. 

[9]        It was subsequently discovered that approximately three weeks prior to the bar burglary, again whilst on leave from home detention, the appellant had forced entry through a bedroom window into a residence in Wanganui.  She had rummaged through bedrooms in the house and had left with cash, watches, miscellaneous jewellery items, and a cell phone.

[10]      The burglary charge relating to the bar was laid in May.  The appellant pleaded guilty just over a fortnight later on the fourth call.  The house burglary charge was laid on 18^th June 2008, the date to which the appellant had been remanded for sentence.  She pleaded guilty immediately.

Sentence

[11]      The judge was thus faced with sentencing the appellant on two burglary charges and one charge of breach of home detention terms.

[12]      He noted the appellant’s lengthy history of offending.  He referred to 20 previous burglaries over the past nine years.  He noted that both burglaries had been committed within a short time period, during which the appellant had been granted indulgences so far as her home detention obligations were concerned.

[13]      The Judge referred to the victim impact statement relating to the home burglary.  The victim now felt unsafe in her own home and had returned to live with her mother, being fearful of living alone.  The Judge commented that the appellant “like a lot of other burglars, really [did not] give a hoot about what other people think”.  The Judge identified the sentencing purposes of denunciation and deterrence, but considered the protection of the public was the most important.

[14]      The Judge considered that, having regard to all the aggravating features and the appellant’s recidivism, a start point of five years for the burglaries was appropriate.  He stated that the public was entitled “to a rest from your activities”.

[15]      He allowed a one year reduction for the appellant’s guilty pleas.  He turned his mind to whether the sentence should be cumulative on the term the appellant was still serving but decided against that in the circumstances.  The breach of home detention was visited with a concurrent sentence of three months imprisonment.  Given the appellant’s financial circumstances the Judge declined to order reparation.

Discussion

[16]      Mr Rickard-Simms submitted the Judge’s start point was too high.  The burglary from the bar staff room was an opportunistic crime and did not warrant a five year start point.  Importantly, submitted counsel, the one year reduction the Judge allowed for the appellant’s guilty pleas (being a 20% reduction from the five year start point) was too low, resulting in a sentence which was manifestly excessive.

[17]      Ms Bicknell, for the Crown, responsibly conceded that the mitigating credit given for the guilty pleas was too low.   The guilty plea to the more serious burglary had been entered at the first call.  The other guilty plea had been entered (in respect of an indictably laid charge) 18 days after the first appearance. 

[18]      So far as the start point is concerned, we do not consider it is necessary to discuss or review the appropriate range of sentences relevant to recidivist burglars.  The appellant was correctly classified by the Judge as such a recidivist burglar who, alarmingly, had chosen to offend yet again whilst on home detention in respect of previous burglary sentences.

[19]      Although Mr Rickard-Simms endeavoured to describe the offending as opportunistic we agree with the Judge that such repeat offending is alarming.  The protection of the community was a legitimate factor to weigh.  We see no justification in these circumstances to interfere with the five year start point. 

[20]      However, the application of a 20 per cent reduction for what were extremely prompt guilty pleas has resulted in the end sentence being manifestly excessive.  This Court’s judgment R v Hessell [2009] NZCA 450 at [15] and [17] would mandate (particularly in respect of the immediate guilty plea to the more serious burglary charge) the full early plea discount of 33 per cent.

[21]      Although Hessell at [76] observes that appeals relating to sentences imposed before that judgment will be subject to the law set out in previous appellate authorities, we are of the view that, in the circumstances of this case, it would have been appropriate to allow a one third discount in respect of both guilty pleas.

[22]      Had the one third discount been applied to the five year start point, an end sentence of three years and four months imprisonment would have resulted.  We thus conclude that the four year end sentence imposed by the Judge on the appellant was manifestly excessive to the extent of eight months.

Result

[23]      For these reasons the two sentences imposed in the Wanganui District Court on 18 June 2008 for burglary of four years imprisonment are quashed.  Sentences of three years and four months imprisonment are substituted.

Solicitors:

Crown Law Office, Wellington