R v Ngarimu CA431/03

[2004] NZCA 393

IN THE COURT OF APPEAL OF NEW ZEALAND

CA431/03

THE QUEEN

v

PATRICK TUMENE NGARIMU

Hearing:         24 May 2004

Coram:Hammond J Laurenson J Doogue J

Appearances: P H Tomlinson for Appellant

B J Horsley for Crown Judgment:  17 June 2004

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

Introduction

[1]                 The appellant, Mr Ngarimu, was convicted following a jury trial in the District Court at Auckland on 10 October 2003 on charges of burglary and driving whilst disqualified. He was sentenced by Judge Clapham on 29 October 2003 to two and a half years imprisonment in respect of the burglary charge and six months imprisonment in respect of the charge of driving whilst disqualified. The sentences

R V PATRICK TUMENE NGARIMU CA CA431/03 [17 June 2004]

were imposed concurrently but were to be served cumulatively upon a sentence of four years imprisonment imposed on the appellant on 9 October 2003 in respect of charges of kidnapping, sexual violation by unlawful sexual connection and indecent assault. He now appeals against the sentence imposed on 29 October 2003 on the ground that it is manifestly excessive in the circumstances of his case.

Background facts

[2]                 On 13 January 2003, sometime near the middle of the day, the appellant drove to an Auckland address with an associate. He paused in the driveway for a short time then drove to a nearby property. Three minutes later the appellant and his associate returned to the address, this time on foot. The appellant helped his associate through a window at the rear of the property, then went to get their car. He parked the car in the driveway and went into the house.

[3]                 A neighbour had been observing the activity at the address and telephoned the Police. The appellant and his associate were located in the lounge of the address with an unplugged video recorder. A chase ensued as a result of which the appellant was apprehended.

[4]                 The present offending occurred whilst the appellant was on bail awaiting trial for the charges in respect of which he was sentenced on 9 October 2003. The appellant has 83 previous convictions. These include 16 for driving whilst disqualified and three previous convictions for burglary (albeit quite old). Also relevant to the second category of offending are five convictions for theft of property, two for being unlawfully in a building, one for being disguised for burglary, one for breaking and entering with a weapon, and one for aggravated robbery (firearm). The appellant’s associate in relation only to the burglary offence, was sentenced after pleading guilty at a very early stage to nine months imprisonment.

The sentencing below

[5]                 The sentencing Judge considered that this was a burglary carried out with some planning. After reviewing a number of cases involving burglary, including Senior v Police (2000) 18 CRNZ 340, the Judge commented that “burglaries of this nature can fall in the sentencing range of 18 months to two years.” The Judge concluded that the appropriate range in this case was between two and a half to three and a half years, it being a professional burglary committed in the middle of the day that put potential householders at risk, and taking into account the charge of driving whilst disqualified, for which the appellant had many convictions. The Judge considered that the driving itself was designed to give effect to the criminal intention associated with the burglary and should be treated in that light.

[6]                 The only mitigating feature was the appellant’s late display of remorse. The Judge did, however, express concern that the penalty should reflect the totality of the offending, given that the present sentence would be cumulative on the sentence passed on 9 October. The Judge concluded that a discount of one year from the term of three and a half years that could be imposed to reflect that was appropriate.

[7]                 As for the driving offence, the Judge accepted that the appellant was not a person who had an indefinite disqualification continuing for a considerable period. He had been disqualified in February 2001 for a period of one year from 13 August 2002 until 12 August 2003. The driving itself was over a short distance and was designed to give effect to the removal of items from the house. A sentence of six months imprisonment for the offence was appropriate, although the Judge commented that this was somewhat on the low side.

Appellant’s submissions

[8]                 Mr Tomlinson first sought to challenge a number of the findings of fact on which the Judge sentenced the appellant. This was not, Mr Tomlinson submitted, a professional burglary or one that involved some planning. Mr Tomlinson submitted that  the  evidence  suggests  that   this   was   in   fact   opportunistic   offending;   Mr Tomlinson referred here to the lack of disguise and tools to assist in gaining

entry, the lack of a lookout and the fact that the vehicle was parked in the driveway for all to see. Mr Tomlinson also submitted that the fact that the burglary occurred during the day should not have been regarded as an aggravating factor; had it occurred at night time it would have been an aggravating factor that the house owner was more likely at home. At best it is a neutral factor.

[9]                 Mr Tomlinson next submitted that the sentencing range adopted by the Judge is outside the range indicated by the authorities. Mr Tomlinson relied, in particular, on Senior v Police (2000) 18 CRNZ 340 (HC). He submitted that the appellant does not fall within the second category identified in that case, the recidivist “professional” burglar who could expect a starting point of around three to four years imprisonment. Mr Tomlinson also relied on the following cases :

•     R v Morgan (CA311/97, 25 September 1997) in which this Court held that a sentence of two years following a plea of guilty was at the “uppermost end of the range available.” The appellant in that case, an experienced burglar, had undertaken a sophisticated burglary netting a substantial sum of money whilst under a suspended term of imprisonment.

•     R v Rapana (CA71/01, 18 June 2001) in which this Court held that a starting point of 12-18 months for a domestic burglary for a recidivist offender was not inappropriate.

•     R v Kingi (HC Rot, AP44/99, 25 August 1999) in which Chambers J adopted a starting point of 18 months for a domestic burglary.

•     Ngarimu v Police (HC Chch,  A223/98,  23  November  1998)  in  which William Young J reduced a sentence to 18 months imprisonment for a serious domestic burglary in which $30,000 worth of goods was stolen and significant damage done to the premises.

[10]              Mr Tomlinson further submitted that the Judge failed to properly consider a number of mitigating factors which he listed but which are more relevant to determining the proper starting point for the offence: the amount of property stolen,

the amount of damage done to property, and the opportunistic nature of the burglary. Mr Tomlinson further referred to unidentified “personal circumstances” which were not, however, pursued on appeal.

[11]              Mr Tomlinson next submitted that, while the Judge was entitled to impose a cumulative sentence on top of the sentence imposed on 9 October, the term imposed needed to be much shorter to reflect the totality of the offending. He submitted that, had the cases been heard together, it would be unlikely that a sentence totalling six and a half years would have been imposed.

[12]              Finally, Mr Tomlinson submitted that there is a disparity between the sentence imposed on the appellant’s co-offender, nine months imprisonment after pleading guilty, and that on the appellant. The sentence imposed on the co-offender strongly suggests, Mr Tomlinson submitted, that a starting point of 18 months would have been appropriate.

Crown’s submissions

[13]              Mr Horsley submitted, first, that the sentencing range of two and a half to three and a half years identified by the Judge included consideration of the charge of driving whilst disqualified. The sentence imposed must be viewed against that background.

[14]              Mr Horsley further submitted that a sentence of two and a half years imprisonment after trial for burglary was entirely consistent with the guidelines set out in Senior v Police. Mr Horsley submits that the appellant fell clearly within the category of recidivist offender. Mr Horsley submitted that, in these circumstances, the sentence was not outside the range contemplated by Senior. Mr Horsley noted that there was a further aggravating factor not mentioned by the Judge in sentencing, namely that this offending took place on bail.

[15]              Mr Horsley also submitted that the sentence of six months imprisonment for driving whilst disqualified was extremely lenient. The appellant has been convicted on some 14 excess breath/blood alcohol or refusing blood offences and has

16 previous convictions of driving whilst disqualified. In the circumstances of this case, where the driving was in furtherance of a criminal purpose, Mr Horsley submitted that a sentence of between 18 months and two years could easily have been  imposed  cumulatively  on  the  sentence  for   burglary:   R   v   Butterfield (CA 100/97, 23 July 1997).

[16]              Turning to the totality argument, Mr Horsley submitted that the Judge in fact did take the totality principle by reducing the sentence by one year from the starting point. He submitted that, in the circumstances, there were a number of factors, such as the offending on bail, that may have entitled the Judge to make all the sentences cumulative. There is no requirement that proper sentences should not be imposed simply because the offender has undertaken a multitude of crimes.

[17]              The Crown made no  submissions  in  respect  to  the  disparity  argument.  Mr Horsley noted that the case on appeal does not include the sentencing notes or sentencing materials for the co-offender; and that it is the responsibility of counsel raising the disparity to ensure that these materials are available: Practice Note – Criminal Appeals [2002] 1 NZLR 788, 790. No further information in this regard was provided at the hearing of this appeal. Accordingly we have not given this ground any consideration.

Discussion

[18]              The essential factor of the burglary which led the Judge to adopt a starting point of three and a half years for this charge was the finding that the appellant was a professional burglar. Impliedly this indicated the Judge found that the appellant  came within the category of a recidivist burglar as referred to in Senior v Police. In relation to this category the full Court said :

Sentence length will depend on the number of previous convictions, the number of offences for which the offender appears for sentence and the presence of aggravating and mitigating factors. A significant factor is the protection of the public. In many cases the starting point for sentence does not exceed four years.

[19]              The categories referred to in Senior do not define precisely the limits of the three categories which were identified. We are satisfied that the Judge was entitled

to consider this appellant as coming within the second category. It is clearly the  case, however, that he did not regard the appellant as coming within the more serious levels within that category. The indication of a term of two and a half years imprisonment for the burglary alone is proof of this.

[20]              We think it is appropriate to note that in recent times this Court has indicated that Senior is no more than a very helpful analysis of historic sentencing patterns in this area, as the sentencing levels referred to in it have required further consideration in the light of the public distress arising from the high incidence of burglaries within the community. We refer in this regard to the comments made in R v Southon (CA314/02, 3 February 2003) :

[12]      The seriousness of burglary is not to be underrated. Although the nature and risks of intrusion into private dwellings are obvious, with their sinister implications for privacy and their potential for grave offences against the person, such risks are not entirely absent in the case of the burglary of commercial premises. There is always the possibility of an encounter with someone lawfully on commercial premises. The potential for property loss goes without saying.

[13]      Nor should Senior be regarded as more than a very helpful analysis of historic sentencing patterns in this area, being thereby conducive to consistency in respect of similar offenders committing similar offences in similar circumstances, as mandated by s8(e) of the Sentencing Act 2002. As recent decisions of this Court demonstrate, recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment.

[21]              Given the nature and extent of the appellant’s previous convictions relating not only to burglaries but also to the related offending noted above, we consider the Judge was entitled to conclude that an appropriate starting point was two and a half to three years, particularly, when he regarded the driving whilst disqualified charge as being primarily an aggravating feature of the burglary charge. In addition  although not mentioned by the Judge, there was the other significant aggravating feature namely, that both offences were committed by the appellant whilst on bail.

[22]              In view of the number of previous convictions for disqualified driving the Judge was in our view entitled to regard this charge as a significant element of the sentencing process. Section 84(1) of the Sentencing Act 2002 provides guidance on

the use of cumulative and concurrent sentences of imprisonment. Subsection (1)  says :

Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

[23]              Given this indication it is arguably the case that the Judge could have imposed a separate cumulative sentence for this charge. Viewed separately a sentence of 18 months would not have been unreasonable.

[24]              The Judge chose, however, to regard the driving whilst disqualified offending as an aggravating element of the burglary. This being the case he considered that it was quite reasonable for him to take this factor into account in this way when determining the total sentence to be imposed for both charges.

[25]              Viewed in this light we do not consider there has been any error in principle, nor can it be said that the assessment of a term of three and a half years before consideration of the sentence previously imposed can be said to be manifestly excessive.

[26]              The final matter to be considered is whether the reduction of one year to take into account the totality of the offending covered by both sentences was appropriate in the circumstances.

[27]              In R v Johannsen [1997] 15 CRNZ 111, this Court referred to the different senses in which the expression “totality” could be used. One instance is where there are successive sentencings for connected events; or (as in this case) successive but proximate sentencings for separate events. In such cases as with sentences being imposed to cover multiple offending, it is necessary for the Court to stand back and look in a broad way at the totality of the criminal behaviour. If the result demonstrates a crushing sentence which would deprive the prisoner of all hope then it could be regarded as manifestly excessive.

[28]              In the present case the appellant was as we have noted on 9 October 2003, sentenced to four years imprisonment on counts of kidnapping, sexual violation by

unlawful sexual connection and indecent assault.  These were completely unrelated to the burglary and driving whilst disqualified charges which occurred as we have noted when he was awaiting trial on the earlier charges.

[29]              The Judge clearly recognised the need to consider the totality of the  offending evidenced in the two separate incidents of offending by reducing his initial assessment of three and a half years imprisonment to two and a half  years.  The latter offending was by itself serious offending. Considering the totality of the offending covered by both sentences we do not consider that the total sentence of six and a half years imprisonment could in any way be considered crushing or otherwise unreasonable.  Accordingly we do not consider the second sentence of two and a  half years imprisonment can be said to be manifestly excessive.

Result

[30]For the above reasons the appeal is dismissed.

Solicitors:

P H Tomlinson, Auckland for Appellant Crown Law Office, Wellington