R v Drewett

[2007] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND

CA312/06 [2007] NZCA 48

THE QUEEN

v

GORDON JAMES DREWETT

Hearing:         22 February 2007

Court:            O’Regan, Chisholm and MacKenzie JJ Counsel:         M B Ryan for Appellant

P K Feltham for Crown

Judgment:      6 March 2007         at 3 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe  sentence  and  the  minimum  period  of  imprisonment  for  the aggravated burglary charge are both quashed.  We substitute a sentence on that charge of four years six months imprisonment, with a minimum period of imprisonment of two years three months.

C        All other sentences imposed in the District Court remain unchanged.

R V GORDON JAMES DREWETT CA CA312/06  6 March 2007

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]      The appellant was sentenced by Judge Dawson in the District Court at Palmerston North on charges of aggravated burglary, assault with intent to injure, intentionally damaging a window and attempting to pervert the course of justice.  He was sentenced to terms of imprisonment for that offending as follows:

(a)       Aggravated burglary: five years six months;

(b)       Assault with intent to injure: one year six months (concurrent); (c)    Intentional damage: two weeks (concurrent); and

(d)      Attempting to pervert the course of justice: nine months (cumulative).

[2]      He appeals against the sentence of five years six months imprisonment for the aggravated burglary charge, but not against the other sentences.  He also appeals against the Judge’s imposition of a minimum period of imprisonment of three years three months.

Background and sentence

[3]      The appellant and the complainant had previously been in a relationship.  The appellant learned that the complainant had started a relationship with one of the appellant’s friends.   At 1 am on 29 October 2005 the appellant came to the complainant’s home and smashed a glass windowpane in her front door. He then entered the complainant’s home briefly before leaving.  Prior to this, he had rung the complainant and threatened to kill her and himself.   The complainant phoned the

Police and the appellant was arrested a short time later.  He was taken to the Police station, charged with intentional damage and bailed, conditional on him refraining from going within 100 metres of the complainant’s home or associating with the complainant.

[4]      Around two hours later, the appellant returned to the complainant’s home. He had a large wooden stick wrapped in green insulation tape.  He entered the home by opening the front door handle from the inside, by way of the broken window he had smashed earlier.  Inside the house were the complainant, her four children and a friend of hers.  The appellant trapped the complainant at the back door of the house and punched her in the head and face repeatedly, about ten to 12 times.  She suffered bruising to her arms and lips and small lacerations and bruises all over her head.

[5]      The appellant was committed for trial in February 2006.  In April 2006, prior to his trial, the appellant sent a significant number of text messages to the complainant, attempting to persuade her from giving evidence against him.  That led to the charge of attempting to pervert the course of justice.

[6] The appellant pleaded guilty to all the charges referred to at [1] above.

District Court sentencing

[7]      In   sentencing   the   appellant,   Judge   Dawson   identified   a   number   of aggravating features.   The appellant used violence and brandished a weapon.   He unlawfully entered into a home in which small children were present.  The offending took place while the appellant was on bail for offending at the same address and in breach of bail conditions.   The offending was premeditated – the appellant was undeterred by his arrest for breaking the window earlier in the evening and went back to the complainant’s home with a weapon.   Additionally the appellant had a lengthy list of previous convictions, the most recent (1999) being for a number of offences which the Judge said were of a similar character to the ones for which he stood to be sentenced.

[8]      Judge Dawson listed three mitigating factors which he took into account. The first was that the appellant pleaded guilty to the charges.  The second was that the appellant expressed remorse and a sense of responsibility for what had happened. The third was that, while on parole for earlier offending in 2002, the appellant managed himself well, engaged in a positive fathering role with respect to his daughter and completed anger management and substance abuse counselling.

[9]      The Judge referred to the decision of this Court in R v Mako [2000] 2 NZLR

170, which is a guideline judgment in relation to aggravated robbery, as well as cases involving analogous offending, and imposed the sentences noted above.  He said the sentences were struck after taking account of aggravating and mitigating features.

[10]     The Judge said the minimum period of imprisonment was necessary because of  the  appellant’s  repeated  offending,  the  “overwhelming  need”  to  deter  the appellant, and the need to protect the appellant’s victims and the community.

Issues on the appeal

[11]     The appellant submits the sentence was wrong in principle in a number of respects:

(a)      The Judge erred in referring to R v Mako and the sentence imposed was inconsistent with other authorities;

(b)The Judge erred in his description of the appellant’s earlier offending as being similar to the offending at issue in this case;

(c)      The Judge wrongly relied on a police summary of facts prepared prior to trial and which contained serious allegations in respect of which the appellant was not convicted;

(d)The Judge’s decision to impose a minimum period of imprisonment was based on a Crown submission that the appellant had previously

been involved in a “road rage” incident that in fact was never proved against the appellant; and

(e)      Despite the risk of the appellant’s reoffending being identified as medium in the pre-sentence report, the Judge imposed a minimum period of imprisonment in part to protect the community from the appellant.

[12]     We were also provided with detailed submissions taking issue with various details of the pre-sentence report and the Crown’s submissions to this Court.  These had apparently been prepared by the appellant himself, rather than his counsel.  We have considered them but their focus on minor points of little relevance to the substance of the appeal meant they did not assist us greatly.  We were also provided with a letter from a former partner of the appellant (and mother of his daughter) who was the victim of the 1999 offences, supporting his appeal.  We have taken that into account as well.

Our approach to the appeal

[13]     As this Court noted in R v Taueki [2005] 3 NZLR 372 at [8], the modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender. It is important to identify the starting point before turning to the personal circumstances of the offender, because the starting point will provide the basis for assessing the consistency of one case with another: Taueki at [43]. In this case, it would have been preferable if the Judge had stated the starting point, the uplift from that point to reflect the aggravating factors relating to the appellant, and the discount for the mitigating factors relating to the appellant. His bare statement that the sentence imposed reflects all of the above factors does not permit a realistic scrutiny of the sentencing exercise he undertook.

[14]     Mr  Ryan  for  the  appellant  said  the  failure  of  the  Judge  to  follow  that approach made it difficult to assess whether he had applied the correct principles. We agree.  Because of that, we have found it necessary to deal with this appeal by

effectively undertaking the sentencing exercise again, to establish whether the sentence imposed on the appellant is within range.  In the course of doing so, we will address the points on appeal.

Starting point

[15]     We start by assessing an appropriate starting point.  Mr Ryan criticised the Judge for referring to the decision of this Court in Mako, but there is authority to the effect that, although Mako is concerned with cases of aggravated robbery, the principles expressed in it are equally applicable to aggravated burglary: R v Watson CA224/03 24 October 2003 at [27].

[16]     In Mako itself, this Court said:

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more.  Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[17]     The home invasion legislation was subsequently repealed, but unlawful entry into a dwelling place is an aggravating factor relating to offending under s 9(1)(b) of the Sentencing Act 2002.

[18]     For the Crown, Ms Feltham suggested that a starting point of seven years was called for in this case, in the light of the suggested starting point set out in Mako at [58]. She acknowledged that the example given in Mako did not correspond exactly with the facts of this case, because there was not “a number of offenders”, and the wooden stick which the appellant had with him when he entered the complainant’s home was not “brandished”, and was not a weapon of the same character as a knife or a firearm.

[19]     The differences between this case and the example given in Mako make Mako only of limited value.   Mr Ryan urged us to rely on two decisions of this Court, R v Gore CA414/05 2 March 2006 and R v Panine [2003] 3 NZLR 63. He said that both had similarities to the present case and, if they were applied in this

case, would lead to the imposition of a starting point in the region of three years six months imprisonment.

[20]     In Gore, the offender entered the complainant’s flat through a window, and lay in wait until she arrived home.  When he confronted the complainant, she tried to use her cellphone.  He prevented her from doing so, stomping on it and damaging it. He then kicked and punched the complainant 30 times over a period of three hours. He then obtained a knife and threatened to kill the complainant.

[21]     The sentencing Judge noted a number of aggravating features, particularly the fact that it was a domestic attack on a former partner, involving unlawful entry, the use of a weapon, a threat to kill and an attack which extended for some hours.  The mitigating factor was the offender’s previous good character.  The sentence imposed was five years and six months.

[22]     That sentence was upheld on appeal, though this Court noted at [26] that the sentence was “a very stern one and on the margin where intervention would be justified”.

[23]     The sentencing Judge in Gore, like the sentencing Judge in this case, did not identify a starting point, but the end sentence of five and a half years related to an incident which, on the face of it, appears more serious than in the present case and in circumstances where the offender had gone to trial and therefore did not get the benefit of a guilty plea.  On the other hand the offender’s record was considerably better than that of the appellant in this case.

[24]     In Panine, the offender went to the home of his estranged wife, taking with him  a  knife.    He  knocked  on  the  door  and  when  she  answered  it,  he  entered uninvited.   He grabbed the complainant and told her he intended to kill her.   She escaped briefly, but he caught her, held her down and stabbed her in the chest with the knife a number of times.  Eventually the complainant persuaded the appellant to stop.  She sustained a puncture into her breast and injuries to her breast, legs, arms and mouth.

[25]     Mr Panine was sentenced after conviction at trial to four years imprisonment for wounding with intent to injure and a concurrent three year term for aggravated burglary.  The starting point in that case was five years, but this was reduced to four to reflect the offender’s psychiatric condition, limited English and good record.  An appeal against that sentence was dismissed.

[26]     Mr  Ryan  suggested  that  this  Court  in  Gore  had,  at  [21]  indicated  that aggravated burglary in a domestic situation was less serious than in other situations. We do not read that paragraph as giving any such indication.   Rather, the Court differentiated cases which had been said by the Crown to be analogous on the basis that other aspects made them more serious than the facts of Gore, notwithstanding that Gore involved entry into domestic premises which, on the basis of Mako and s 9(1)(b) of the Sentencing Act, would make offending more serious.

[27]     In light of the differences between the present case and the situation outlined at [58] of Mako and the sentences upheld by this Court in both Gore and Panine, we conclude that the appropriate starting point in this case is four years six months imprisonment.   In our view that reflects the seriousness of the break into the complainant’s property, and also the totality of the offending which includes not only the aggravated burglary, but also the assault on the complainant for which a concurrent sentence was imposed in the District Court.  That starting point reflects the aggravating factors of the offending (but not those which are personal to the appellant), in particular the fact that the burglary involved domestic premises.  It also recognises the comparatively brief period of offending and the fact that the weapon which the appellant had with him was not used.

Aggravating features relating to the appellant

[28]     We now turn to the aggravating features relating to the appellant.  The most notable of these is the fact that the offending occurred while the appellant was on bail.  That is a serious factor, and was made all the more serious in the present case by the fact that the appellant had been bailed a very short time before, in relation to offending at the same location, and subject to an explicit condition that he was not to approach the complainant’s premises.   His flouting of that condition reflects very

badly on him, and indicates a disdain for the law as well as a degree of determination and premeditation in relation to the offending.

[29]     The other aggravating feature relating to the offender is his very poor record. The Judge noted that the offending was similar to the 1999 offending.  This was a matter of contention in the present appeal because the 1999 offending was more serious than the present offending.  While we acknowledge that is true, it does not seem to us to detract from the reality that the present offending involved a burglary followed by a physical attack on a former partner, motivated in the present case by an intense reaction to her commencing a relationship with the appellant’s friend. The 1999 offending had a different motivation, but it still involved an attack on a woman with whom the appellant had a previous relationship.  We also have regard to the other past offending of the appellant.   We have, however, excluded from our consideration the matters mentioned in the summary of facts provided to the sentencing Judge and the Crown submissions at sentencing which were not  the subject of actual convictions.

[30]     We believe that it is appropriate to add an additional one year six months to the starting point to reflect these aggravating features.

Mitigating factors relating to the appellant

[31]     The most important mitigating factor is the guilty plea.  Mr Ryan said that the plea had been entered when the charges were altered to reflect the degree of culpability of the appellant (he had previously been charged with assaulting the complainant with a weapon, but the charge he ultimately faced did not make such an allegation).   We are satisfied that the appellant deserves appropriate credit for the guilty plea in those circumstances.

[32]     It was also suggested to us that the appellant deserved credit for his attempts at rehabilitation after his previous offending, but given the very bad lapse reflected in the present offending that factor has little weight.

[33]     We allow a credit of 25% to reflect the guilty plea, which leads to an end sentence of four years six months imprisonment.

Sentence

[34]     We therefore allow the appeal against sentence, quash the sentence imposed on the aggravated burglary charge in the District Court and substitute a sentence of four years six months imprisonment.   All other sentences imposed in the District Court remain unchanged.

Minimum period of imprisonment

[35]     In the District Court, a minimum period of imprisonment of three years three months was imposed, which was just under 60% of the nominal sentence for the aggravated burglary charge.

[36]     Mr Ryan argued that this was not an appropriate case for the imposition of a minimum period of imprisonment.  He said that the District Court Judge’s decision to impose such a minimum reflected at least in part the fact that the Judge was provided with a summary of facts relating to previous offending which included descriptions of conduct for which the appellant was not ultimately convicted.   He referred in particular to a incident of “road rage” to which reference was made in the summary of facts,  but  in  respect  of  which  the  appellant  was  not  charged.    He suggested that the Judge’s decision that a minimum period of imprisonment was justified to protect “other members of the community” could only be attributable to the Judge’s mistaken impression that the appellant had been involved in offending which endangered the community generally, as opposed to the particular victims of his offending.

[37]     We accept that the Crown submission at sentencing referred to the road rage incident as if it were an actual offence.  We accept there is some risk the Judge may have been misled by this.

[38]     We consider the issue from first principles.  Under s 84(2) of the Sentencing Act, a minimum period of imprisonment may be imposed if the Court is satisfied that the minimum period of one third of the sentence which would otherwise apply under s 84(1) of the Parole Act is insufficient for any of the following purposes:

(a)Holding the offender accountable for the harm done to the victim and the community by the offending;

(b)       Denouncing the conduct in which the offender was involved;

(c)       Deterring the offender or others from committing the same or similar offences;

(d)      Protecting the community from the offender.

[39]     In our view, the factors of greatest relevance in this case are those set out in (a) and (c) above.   We are satisfied that a parole period of 18 months would be insufficient to hold the appellant accountable for the harm he has done to the victim in this case or to deter him from committing similar offences.   In reaching that conclusion,  we  take  into  account  the  previous  record  of  the  appellant  and  his apparent  disregard  for  the  law  as  exhibited  by  his  flouting  of  a  bail  condition imposed on him just prior to the offending.  In our view a minimum period of two years three months, or half of the sentence, is appropriate in the circumstances of this case.  We therefore quash the minimum period of three years three months imposed by the sentencing Judge and substitute a period of two years three months.

Solicitors:

Crown Law Office, Wellington