R v Duncan

[2009] NZCA 408

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/2009
[2009] NZCA 408

THE QUEEN

v

CHASSY MCALLISTER FORD DUNCAN

Hearing:2 September 2009

Court:Glazebrook, Gendall and Asher JJ

Counsel:K E Becker for Appellant

K J Beaton for Crown

Judgment:15 September 2009 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

INTRODUCTION

[1]       Mr Duncan was sentenced to a term of two years six months’ imprisonment, following his conviction for one count of theft.  He appeals that sentence, asserting that it was manifestly excessive.

Background

[2]       On the afternoon of 15 March 2008, Mr Duncan and two others drove to a local beach.  He was 19 at the time.  One of the Mr Duncan’s associates entered a nearby café, which was open for business.  While inside the café, the associate noticed a key to a safe that was on the premises.  Using the key, presumably in a clandestine manner, he opened the safe.  The sum of approximately $16,500 was taken.  The associate placed the cash in a rubbish basket.  Apparently he was not wearing a shirt and did not feel that he was able to smuggle the cash outside.  He then went back out to the car. 

[3]       After a discussion with his associates, Mr Duncan left the car and went into the café.  He sat down and spent some time there, noting the cash in the rubbish basket.  He then took the cash and walked out.  The cash was divided between Mr Duncan and his associates.  Mr Duncan, with his share, purchased two vehicles, a new queen sized bed and mattress, drawers and a television. 

[4]       When spoken to by the police in relation to the matter, Mr Duncan initially denied his involvement.  He elected trial by jury.  A trial commenced on 13 May 2009.  It was aborted after one-and-a-half days of evidence, when the Judge declared a mistrial.  The re-trial was to begin on 27 May 2009.  On that date Mr Duncan requested a sentence indication hearing.  Following this, he changed his plea to guilty.

The sentencing decision

[5]       Judge Garland, in the District Court at Palmerston North, adopted a two-and-a-half year starting point for the offending, which he considered to be “moderately serious”.  He increased that starting point by six months to reflect the Mr Duncan’s previous offending.  He then gave credit for personal mitigating features, which were the very late guilty plea, regret, and an apparent change in attitude. To reflect these factors, the end sentence was reduced by six months, to two-and-a-half years’ imprisonment.

[6]       Mr Becker, for Mr Duncan, submits that the sentencing Judge was wrong to regard premeditation as an aggravating feature of the offending, and that the sentence failed to adequately reflect the appellant’s remorse.  Although the starting point was not specifically attacked, Mr Becker referred to some High Court judgments where different starting points had been reached and, in his submissions, he appeared at times to be asserting that the Judge had taken an unduly serious view of the culpability of the offending. 

Considerations relating to the starting point

[7]       There is no tariff case in relation to theft, and indeed no recent Court of Appeal decisions on sentencing for theft.  The maximum sentence that can be imposed is seven years’ imprisonment.  Indictable theft, which carries this maximum term, can be compared to theft of an item worth between $500 and $1,000, which carries a maximum term of one years imprisonment, or theft of an item worth less than $500, which carries a maximum term of three months imprisonment.  The difference in penalties, turning as it does on the value of the item stolen, indicates the importance of value to sentencing.

[8]       Theft charges sometimes involve, as part of the relevant facts, breaking into a cupboard, safe or other receptacle, (although theft is not to be confused with the more serious offence of burglary, which carries a 10 year maximum term).  It is necessary to consider some factors relevant to culpability.  Indictable theft can range from the spontaneous stealing of an item of modest value, for instance shoplifting a mobile phone, to the planned taking of the property of others to the value of at least hundreds of thousands of dollars.  The variance of value between $1,000 and the theoretically unlimited sums that can be stolen must all be accommodated within the seven year term.  Equally, theft can be spontaneous or can be carefully premeditated.  It can be non-intrusive, such as the removal of an item from a counter, or very intrusive, for instance breaking into a safe or smashing open a glass cabinet.  The effect on victims can vary widely, depending on whether the property is of a private or commercial nature, and its importance to the victim.

The proper starting point

[9]       The Judge noted that the amount of cash taken was moderately large and that the impact of the offending had been significant on the victim.  He was entitled to reach these conclusions.  The sum of $16,500 is, undoubtedly, a moderately large amount of cash, which is considerably greater than that which features in most thefts.  The Judge was also right to note the impact of the offending on the victim.  There was a victim impact report from the victim who was operating a small business.  He was severely affected by the offending in terms of cashflow, and thereafter in the way in which he felt able to run his café.  The Judge also found that there was premeditation.  Mr Becker submitted that this was in error. 

[10]     There is no doubt that there was not long-term premeditation, as there is nothing to indicate that the café was targeted before it was visited by Mr Duncan and his friends.  However, once the safe was opened and the money taken and put into the rubbish basket, an element of planning then developed.  Mr Duncan’s associate who had taken the money returned to the car and the three conferred.  It was decided that Mr Duncan would be the one who would go back into the café.  He spent some time there, having sat down, perhaps to check that he was not being watched.  He then took the money and left the premises.  The parties drove away immediately, and then proceeded to spend the money they had taken.  Thus, Mr Duncan’s entry into the café and taking of the money was premeditated, although the planning was over a short period.  The Judge had recounted these facts earlier in his judgment, and there is no reason to believe that he placed any greater emphasis on the element of premeditation than the facts warranted.

[11]     The Judge referred to the decisions of Ropiha v Police HC ROT CRI-2004-463-074 22 July 2004, and Whakatau v Police HC ROT CRI-2004-463-078 22 July 2004.  In Ropiha v Police, where $2,500 worth of property and cash of $2,500 had been stolen in a single occasion of theft of numerous items from a tourist bus, the starting point was fixed at two-and-a-half years’ imprisonment.  The sentence was increased by six months to take into account previous convictions.  The Judge reduced the end-point sentence from three years’ imprisonment to two years’ imprisonment.  In Whakatau v Police, there were four offences involving smaller amounts of money than in this case.  Again, no starting point was fixed, but an end sentence of 30 months’ imprisonment was imposed. 

[12]     The Crown also referred to Falaoa v Police HC NAP AP54/98 23 September 1998, where, in respect of a single theft of $2,500 in cash and cheques from a bank customer, an end sentence of 21 months’ imprisonment was upheld. 

[13]     These starting points were fixed in relation to offending that was less serious, given the lower value of the items taken.  The significant amount of money taken by Mr Duncan, the element of premeditation and the effect on the victim all make this offending moderately serious in terms of culpability.  We consider that the starting point reached by the Judge of two-and-a-half years’ imprisonment was, in these circumstances, within the appropriate range.  We note that although Mr Becker attacked elements of the calculation of the starting point, he did not, in the end, challenge the figure reached of two-and-a-half years.

Matters relating to Mr Duncan personally

[14]     It was in this area that Mr Becker focused his submissions.  The sentencing Judge was faced with the fact that Mr Duncan had a very bad record.  Although he was only aged 20, he had 29 previous convictions in the District Court, including nine for dishonesty.  He had 37 appearances in the Youth Court between May 2003 and June 2006, including 26 for dishonesty.  In addition, the offence occurred within days of Mr Duncan having been released from imprisonment for previous offending and while he was still subject to release conditions on the earlier sentence, which was for theft. 

[15]     Although the variety of his offending makes it difficult to categorise the appellant as a recidivist thief, and indeed the District Court Judge did not make such a finding, the extraordinary frequency of his offending demanded a considerable uplift to the starting point.  The Judge, in the end, chose six months.  This appears to us to be a modest uplift, and we note that uplifts of a year or more in relation to recidivist burglars are not uncommon: see, for example, R v Columbus [2008] NZCA 192.

[16]     Mr Becker’s submissions focused on the discount that was then given for the guilty plea and remorse. 

[17]     In relation to the guilty plea, it must be noted that this was given after a first trial and at the beginning of the second trial.  In R v Walker [2009] NZCA 56, it was stated at [19] that a discount of approximately ten percent was appropriate for a plea of guilty at the start of the trial. Given the fact that there had already been a trial, and that this guilty plea was at the start of the second trial, the Judge would have been justified in applying a percentage discount that was lower than ten percent.

[18]     The probation officer had referred to the issue of remorse in the pre-sentence report, which was prepared on 9 September 2008 for the earlier offending in respect of which Mr Duncan had been sentenced, prior to this offending.  It was stated in that pre-sentence report that he had shown no remorse for that offending.  He was assessed as at a high risk of re-offending, although it was noted that he had the ability to excel and had the skills, which, if put into legitimate use, could bode well for his future.

[19]     By the time of the sentencing, Mr Duncan appeared to have become remorseful.  He sent a letter of apology to the victim, and a letter to the Judge expressing his regret.  His youth justice supervisor had written a very clear letter to the Court, dated 29 May 2009, speaking of the positive and endearing aspects of Mr Duncan’s character, referring to his charisma, his creativity, sensitivity and intelligence.  Mr Becker submitted that the District Court Judge should not have relied on the pre-sentence reports, as they were out of date and did not reflect the remorse that Mr Duncan was expressing at the time of sentencing.

[20]     The difficulty with this submission is that the District Court Judge quite clearly did take into account the fact that Mr Duncan was now remorseful, although he did not use the word “remorse”.  He noted that Mr Duncan sincerely regretted what he did, and that the time he had spent in custody had given him an opportunity to reflect on the direction of his life.  He noted that Mr Duncan wished to make changes, and stated that he was taking into account his youth and the very positive reports he had read about him.  He noted that he was “giving [Mr Duncan] credit for the apparent change in attitude that [he was] demonstrating”.

[21]     On account of the late guilty plea and this change in attitude, the Judge reduced the sentence by six months.  This is a discount of approximately 20 percent from the two-and-a-half year staring point.  Given the fact that the very maximum that could have been given for the guilty plea was ten percent, the discount for remorse and youth was approximately ten percent.

[22]     The evaluation of remorse is a matter very much within the discretion of the sentencing Judge.  This discount was within the appropriate range for genuine remorse that was expressed at the last minute after a trial and prior to sentencing.  It is quite impossible to criticise the decision that was reached.

The end sentence

[23]     It was suggested that the end sentence was inconsistent with earlier decisions relating to Mr Duncan.  He had been sentenced on 18 September 2008 to 12 months’ imprisonment, where there was theft (again from a safe) of $2,500 in cash.  The sentencing Judge had adopted an 18 month starting point for a theft featuring some similarities of $2,500, and deducted six months for mitigating factors.  Given that starting point of 18 months, a starting point of two-and-a-half years’ imprisonment, one year more, for a theft of $16,500, shows appropriate parity.  The discount is consistent.

Conclusion

[24]     The Judge followed the process of fixing a starting point and making increases and deductions for matters relating to Mr Duncan personally.  His reasoning was clear, and we see no basis for any criticism.  Indeed, although the Crown was prepared to observe that the end sentence was “stern”, we consider it no more than an appropriate sentence in all the circumstances for the reasons that we have already set out.

Result

[25]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington