R v Anglem

[2009] NZCA 358

IN THE COURT OF APPEAL OF NEW ZEALAND

CA283/2009
[2009] NZCA 358

THE QUEEN

v

PIERRE REWI ANGLEM

Hearing:13 August 2009

Court:Baragwanath, Randerson and Panckhurst JJ

Counsel:W N Dollimore for Appellant

C R Walker for Crown

Judgment:13 August 2009 

Reasons:20 August 2009

JUDGMENT OF THE COURT

AThe appeal is allowed.  The previous sentences of three and a half years imprisonment upon each of the burglary charges are quashed.

BCumulative terms of two and a half years imprisonment are substituted.

CAs a result the MPI is adjusted from three and a half years to two and a half years imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

INTRODUCTION

[1]       The appellant was sentenced to an effective term of seven years imprisonment, with a three and a half year minimum period of imprisonment (MPI), in relation to offences of burglary, theft, receiving, aggravated assault, dangerous driving, resisting arrest and possession of a methamphetamine pipe.  The offending spree fell into two parts separated by a few months when the appellant was in prison on other matters.  At sentencing, Judge Wolff imposed three and a half year terms on each of two offences of burglary, which were committed before and after the intervening prison term.  The accumulation of these terms produced the end sentence. 

[2]       The appeal was presented by Mr Dollimore with reference to two main grounds:

(a)that the starting point adopted for each of the offences of burglary was too high, and

(b)that no allowance, or at least no discernible allowance, was made for guilty pleas which were entered in relation to all charges.

The offending

[3]       The first offence in time was committed on 20 December 2007.  The appellant broke and entered commercial premises from which he took electronic items (including ipods and laptop computers) to a value of $43,000.  In gaining entry damage was caused to the premises occasioning a further loss of about $1,900.

[4]       Before he was apprehended in relation to the burglary, the appellant was sentenced to four months imprisonment on 3 March 2008 in relation to two drug offences.  Following his release the appellant went on a spree of offending. 

[5]       This can best be summarised in tabulated form:

Date  Offence  Details

26 April 2008            Theft   Food to a value of

$50 from a supermarket

27 April 2008            Theft/aggravated assault     A DVD player valued
  at $150 from a
  supermarket/assault
  upon an employee who
  endeavoured to intervene

30 April 2008            Theft  3 cellphones to a value of
(2.40 pm)  $1,000 from an electrical
  store

30 April 2008            Theft  Car stereo unit valued at
(2.45 pm)  $149 from the same store

30 April 2008            Theft  An ipod valued at $199
(4.40 pm)  from the same store

5 June 2008               Theft  Tools to a value of $29
  from hardware store

5 June 2008               Theft  Laptop computer valued
  at $1,200 from an
  electrical store

24 June 2008             Theft  Petrol to a value of $129
  from a service station

25 June  Theft  Petrol to a value of $55
  from the same service
  station

3 July 2008                Burglary  Property to a value of
  $4,000 taken after entry
  into a rental house

4 July 2008                Theft  Men’s clothing to a
  value of $908 from a
  menswear store

4 July 2008                Dangerous driving/             Accelerated through a
  failing to stop  police check-point and
  drove dangerously in
  making an escape

6 July 2008                Aggravated assault              Assault on a constable
  who was endeavouring
  to arrest the appellant
  pursuant to a court-issued
  warrant

6 July 2008                Possession of a pipe            2 methamphetamine pipes
  located on accused’s
  possession following arrest

6 July 2008                Receiving  A DVD player valued at
  $99 recovered from the
  appellant’s vehicle

[6]       This spree of offending was committed in the greater Waikato area over a period of almost two and a half months.  The appellant was effectively “on the run” over this period.  He stole items at will both to provide necessaries and support his drug habit.

[7]       The house burglary was a serious offence of its kind.  In league with two co-offenders the appellant drove to a rural property in a vehicle from which one number plate had been removed and the other covered.  While the offenders were selecting and removing items from the house, one of its occupants arrived home.  Fortunately, the contact between the householder and the offenders was outside and was limited to verbal exchanges.  The offenders drove off in their vehicle.

[8]       The aggravated assault on 6 July 2008 occurred after police endeavoured to apprehend the appellant at a motel.  He abandoned his vehicle (which he had just driven into the motel yard), entered a neighbouring property, escaped from that property via a back window and repeatedly punched a constable who endeavoured to restrain him following a chase.  The appellant was only overpowered upon the arrival of a police dog and its handler. 

The sentencing

[9]       The appellant was sentenced in the Hamilton District Court on 17 April 2009, hence several months after the date of his final apprehension.  In the interim he had variously pleaded guilty to the charges, both on arraignment and in a summary context.

[10]     Judge Wolff first identified that the offending fell into two separate parts.  He considered that the December 2007 burglary of commercial premises warranted a stand alone sentence.  A starting point of four years imprisonment was adopted for this offence.  The Judge noted that usually a one-third reduction was appropriate for an early plea of guilty, but that the nature of the offending required an uplift.  This adjustment included recognition for the loss of a sum of $43,000, with the result that an end sentence of three and half years imprisonment was reached.

[11]     Turning to the “second set of offending”, the Judge referred to the sentences imposed upon the appellant’s co-offenders, but noted that they were in a different category on account of their lesser offending histories.  After commenting that a lead sentence would be imposed in relation to the domestic burglary and reference to a three year starting point, the Judge had regard to the spree as a whole and fixed an end sentence of three and a half years imprisonment.  This term, imposed in relation to the burglary, was made cumulative upon the earlier three and a half year term.  Each of the remaining offences were met with lesser prison sentences, ranging from one year imprisonment for the aggravated assault upon the constable to two months imprisonment for the offence of receiving.  We need not detail these individual sentences, which are of course concurrent terms.

[12]     Finally, the Judge recorded his acceptance of a Crown submission that a minimum period of imprisonment was required to mark the seriousness and extent of the offending.  This he fixed at 50 per cent of the term, or three and a half years imprisonment.

Personal circumstances

[13]     The appellant was 29 years at the date of sentencing.  He had an extensive record, predominantly for offences of dishonesty, driving matters, some drug convictions and for non-compliance with sanctions or restrictions.  The pre-sentence report made for depressing reading.  The appellant’s early life was disadvantaged.  At interview he displayed a lack of insight into the causes of his offending, an absence of victim empathy and a “sense of entitlement”.  Drug and alcohol use, together with an unstructured lifestyle, were assessed as factors which contributed to the appellant’s offending.  One positive feature of the pre-sentence information was ongoing family support including in particular reference to a grandfather in the lower South Island who wished to provide assistance and guidance to the appellant.

Was the total sentence clearly excessive?

[14]     It was common ground that problems existed in relation to the sentencing process adopted with reference to this difficult sentencing exercise.  The sentence imposed in relation to the first burglary was arrived at from a four year starting point.  However, the Judge accepted the need for a one-third reduction to recognise the early guilty plea, but the credit was largely eroded on account of an “uplift for the nature of the offending itself”.  This process of reasoning does not accord with this Court’s decision in R v Taueki [2005] 3 NZLR 372 (CA). The required three stage sentencing process involves an overall assessment of the offending (from an articulated starting point), adjustment up or down for personal aggravating or mitigating factors, followed by a reduction for a guilty plea. Thereby the plea is given express recognition and the reduction made for it is set out.

[15]     We accept the submission that it is necessary for us to re-evaluate the sentence for this first offence.  Although a three and a half year starting point may not have been available for the offence itself, we think it was an available sentence once personal aggravating features (past record for dishonesty and future risk) were brought to account.  However, a discernible deduction for the guilty plea was required.  On reassessment we consider a sentence of two and a half years was appropriate. 

[16]     By a similar process of reasoning we are satisfied that a two and a half year sentence is justified in relation to the 3 July 2008 burglary.  This was not a connected offence and we therefore agree with the Judge that a cumulative term was required, all the more so because this sentence must also reflect the offending spree of which it was part.  On a totality basis we are satisfied that five years is a proper end sentence.  This was the end sentence for which Mr Dollimore contended.  Mr Walker felt unable to resist the appropriateness of this term of imprisonment.  Further, we note that the appellant had previously received only short terms of imprisonment. 

[17]     As to the MPI we agree with, and endorse, the Judge’s approach.  However, the term must be reduced in line with the new effective end sentence.

Result

[18]     The previous sentences of three and a half years imprisonment upon each of the burglary charges are quashed.  Cumulative terms of two and a half years imprisonment are substituted.  As a result the MPI is adjusted from three and a half years to two and a half years imprisonment.

Solicitors:
Crown Solicitor, Napier