R v Fenton

[2008] NZCA 379

IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/2008
[2008] NZCA 379

THE QUEEN

v

BUNJI PHILLIP FENTON

Hearing:16 September 2008

Court:Robertson, Wild and Cooper JJ

Counsel:J G Krebs for Appellant

P K Feltham for Crown

Judgment:19 September 2008 at 3 pm

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST CONVICTION, HAVING BEEN ABANDONED, IS DISMISSED.

B        The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Mr Fenton filed appeals against convictions for aggravated burglary, wounding with reckless disregard for the safety of another, aggravated robbery, threatening to kill and two charges of kidnapping.  He also challenged an effective sentence of eight years’ imprisonment, imposed for all offending.

[2]       Mr Fenton pleaded guilty to all counts during the trial.  Having changed counsel he indicated he wanted to appeal against conviction but that has been abandoned.  The appeal is now against sentence only.

Background

[3]       Judge Spear, who presided at the trial and imposed Mr Fenton’s sentence, described matters thus:

[3]       The charges indicate that this is serious offending.  What actually happened, of course, underscores exactly how serious this offending was.  With three or four others (it is not exactly clear how many were involved – there are conflicting accounts) you travelled from South Auckland in a car down to a farm property in Taupiri.  There was obviously a plan to conduct a raid of that property for the purposes of obtaining cash and cannabis.

[4]       When the car arrived at the farm cottage early that morning, at least two of your number got out of the car and brandishing [sic] weapons – namely a softball bat and a machete.

[5]       It is not entirely clear whether you got out of the car at the initial stages.  You say that you did not.  However, the father of the family in the home said that he looked out of the window and saw five people standing outside.  This was at about 7 am on 5 December 2006.  The father of the family was preparing to leave for work.  He opened the door and that is when he realised that he was faced with armed individuals who were demanding to know where his money was kept and where his safe was.

[6]       There was something of a struggle right from the outset with the father of the family obviously attempting to defend his home and his family.  He was initially overpowered but subsequently managed to back his way into the laundry area and then barricade himself inside the bathroom.  He attempted to keep the armed offenders out of the bathroom by holding the door shut.  The door was struck repeatedly with a machete.  At one stage, the door was forced open sufficiently to enable the softball bat to be swung at his head striking him on the forehead causing a gash that started to bleed.

[7]       The mother of the family was in the lavatory next door to the bathroom.  She closed and locked the door when she realised what was happening.  She was told by the intruder to stay in there (the lavatory) and that she would be killed if she came out.  A search of the house was then undertaken.

[8]       The 14 year old daughter was found hiding.  She was taken through to the living room where her hands were bound behind her back using packing tape.  She was then taken to the bedroom where she was made to lie on the bed.  Her legs were then bound using the same tape as used on her arms.

[9]       Some electronic items such as a Playstation, DVD player and such like were taken out to the car.

[10]     The father of the family, meanwhile, determined that for the sake of his family he needed to escape.  He broke through the window of the bathroom and climbed through it but seriously injuring himself on the broken glass in his haste to escape.  He ran across the paddocks to the farm owner’s house that was approximately 150 metres away.  He was, for a very short time, pursued by one of the invaders.

[11]     When the father of the family arrived at his employer’s house, the alarm was sounded and the police were called.

[12]     Clearly, once the father escaped, your group decided that you needed to leave the premises quickly.  You did so in the car in which you had arrived and also the family’s Nissan car.  Both you and that car were found later that day at a Papakura address.

[4]       The Judge noted that only one other person of the group of four had been apprehended, a young person who had been dealt with in the Youth Court.

[5]       The Crown accepted that Mr Fenton was not the instigator of what had occurred, but emphasised that he was aware of the group’s intention to go to the house and steal property, and to use force if necessary.

[6]       Mr Fenton personally was not armed, and he did not directly use violence against any member of the family.  He was involved in removing electronic items from the house and the cannabis plants from the shed, and he went to the car to retrieve thick tape which was used, and which he knew would be used, to bind the 14 year old girl.

The sentence appeal

[7]       At the heart of the appeal is the submission that the starting point of ten years for the lead charge (the aggravated burglary) was too high and, in addition, that insufficient weight was given to the mitigating factors which applied to Mr Fenton.

(i)       The starting point

[8]       The appellant’s contention is that the starting point should have been no more than eight years, and that two to two and a half years should have been deducted from that.

[9]       The approach to sentencing of this sort was discussed by this Court in R v Mako [2000] 2 NZLR 170. Judge Spear deduced from Mako that night-time home invasion should attract a starting point of around ten years’ imprisonment.

[10]     Mr Krebs argued that this was an error.  He submitted that the Judge must have been referring to [58] of the judgment where this Court said:

[58]     … 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.

[11]     Counsel noted that there were now no home invasion provisions as such and therefore there was no basis upon which to increase the starting point from seven to ten years.

[12]     We find this argument quite unpersuasive.  Section 9(1)(b) of the Sentencing Act 2002 lists home invasion as a specific aggravating factor.  There is no reason to assume, nor basis for suggesting, that the Sentencing Act (which repealed the Crimes (Home Invasion Amendment) Act 1999 that was applied in Mako) signalled a Parliamentary intention to reduce penalties for offences involving home invasion. Although the Sentencing Act does not repeat the automatic three-year uplift of the maximum penalties that was enacted in 1999, the clear intent remains that home invasion should be reflected in an increased sentence.

[13]     Equally, we are unpersuaded that the matter is markedly different from the circumstances considered in Mako by reason only that this intrusion took place at 7am and therefore was not technically at night. It was an audacious intrusion into a private dwelling.

[14]     Mako makes clear that the true culpability of particular offending is to be assessed.  In this case we accept the Crown’s submission that the following were serious aggravating factors:

(a)the attack was premeditated, the group having driven down from Auckland for that sole purpose;

(b)the premises entered were the victims’ home.  While the increased maximum penalty for offences involving home invasion has been repealed by the Sentencing Act, the fact that a private dwelling house is unlawfully entered remains a seriously aggravating factor;

(c)the two weapons taken to the house were actively used to strike at the bathroom door in a bid to get to the male victim and to injure him when the door was briefly forced open;

(d)threats were repeatedly made;

(e)significant violence was used, resulting in a head wound to the male victim;

(f)property was stolen during the incident;

(g)the two female victims were separately detained;

(h)the 14 year old girl was bound with tape in the living room and taken to her bedroom where she was bound further; and

(i)the impact on the family has been significant.

[15]     A starting point of ten or even eleven years’ imprisonment must be accepted as necessary to reflect the seriousness of the actual offending and all its circumstances.  It was a lead sentence and needed to factor in the other offending which was dealt with in the concurrent sentences.

[16]     The appellant contended that the Judge placed too much emphasis on the question of deterrence and noted that he had said:

[38]     The dominant feature of this sentence must be one of deterrence. It must deter you and anyone else who hears about this that such offending is simply not worth the risk.  It must indicate that personal circumstances can count for little when assessing the sentence.  There can be little more frightening than to have your home invaded by a group of young men, armed with such fearsome weapons as a machete and a softball bat and who indicate that they are prepared to use serious violence on those inside the house.  The sentence must reflect exactly how serious this offending is and endeavour to promote in you a sense of responsibility for it.

[17]     Mr Krebs argued that, although these were material factors, proper consideration had to be taken of the actual role of the appellant in the offending, and of his youth.

(ii)      The appellant’s involvement

[18]     This was a common criminal enterprise.  The Judge accepted that Mr Fenton, although not a leader of the group, was an active and knowing participant.  The fact that he was only 19 years old was recognised.  His remorse and lack of serious criminal history were acknowledged (although there is little concrete evidence of his remorse).  Generously, the Judge made some allowance for the very late plea of guilty which came only after all evidence had been given and it was apparent that the proposed defence of duress could not succeed.

[19]     For those factors, the discount of two years cannot be impugned.  Mr Fenton’s role in the offending was far from passive.

(iii)     Rehabilitation

[20]     At sentencing, the Crown submitted that there should be a minimum non-parole period.  This was neither acceded to nor addressed by the Judge.

[21]     The effect of the Judge not having imposed a minimum non-parole period is that, at a relatively early stage, Mr Fenton may be able to apply to the Parole Board for early release if he can demonstrate a change of attitude sufficient to make his release back into the community appropriate.  This will enable rehabilitative aspects of sentencing to be considered in a timely manner.

Result

[22]     The actual effective sentence of eight years’ imprisonment, bearing in mind the proper starting point for offending of this kind and Mr Fenton’s individual circumstances, was clearly not outside the properly available sentencing range.

[23]     The appeal against sentence is dismissed.

Solicitors:
Langley Twigg, Napier, for Appellant
Crown Law Office, Wellington