R v Sherlock

[2008] NZCA 555

IN THE COURT OF APPEAL OF NEW ZEALAND

CA21/2008
[2008] NZCA 555

THE QUEEN

v

KARL JOHN SHERLOCK

Hearing:10 November 2008

Court:William Young  P, Ronald Young and Fogarty JJ

Appearances:  A J Bailey for Appellant

S B Edwards for Crown

Judgment:16 December 2008 at 12 noon

JUDGMENT OF THE COURT

AThe conviction for driving under the influence of drink or drugs in its aggravated form is set aside.  We substitute a conviction for the unaggravated offence and impose a sentence of two months imprisonment.

B        Otherwise the appeal is dismissed.

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REASONS OF THE COURT

(Given by Fogarty J)

[1]       The appellant appeals against a term of four years and three months imprisonment imposed on him in the District Court by Judge Saunders on 19 December 2007.  This followed his entering a plea of guilty on indictment to one count of burglary and pleading guilty to a number of other charges in the summary jurisdiction, including two further charges of burglary, one of receiving and driving offences committed on three separate occasions. 

[2]       The sentence comprised three years (reduced from a starting point of four years) for the dishonesty offences.  The remaining 15 months is made up of a number of short term cumulative sentences imposed for unconnected offences committed on separate dates between March and October 2007.  (Where more than one offence arose from the same incident or at around the same time, the sentences imposed run concurrently with each other.) 

[3]       The appellant submits that errors in the approach taken by Judge Saunders resulted in a final sentence which is manifestly excessive.  He submits that the starting point of four years imprisonment for the dishonesty offending was too high and that, on a totality basis, the Judge should have taken into account the nine months sentence of imprisonment the appellant had received on 2 October 2006 for three other offences of receiving stolen property.  While no issue is taken with the imposition of cumulative sentences for the other offending, the total of the additional 15 months is said to be excessive.

Facts

[4]       On 2 October 2006 the appellant was sentenced to nine months imprisonment for three charges of receiving stolen property.  These offences were committed between 1 May and 21 September 2006 and the stolen property found in the appellant’s possession included two cars worth a total of $26,000.  The appellant was released from prison in January 2007. 

[5]       A factor complicating the sentencing in December 2007 was that it included two offences committed before October 2006.  Around 5 April 2006 a workshop in Maunsell Street, Woolston, used by a self-employed engineer was burgled and industrial tools valued at over $12,000 taken.  The appellant pleaded guilty to an amended charge of receiving stolen property worth $3,000.  Overnight between 8 and 9 September 2006, a garage located on a residential property in Holmwood Road, Merivale was burgled.  The appellant pleaded guilty to entering a building with intent to commit a crime. 

[6]       On 10 March 2007 the police observed the appellant driving erratically in the centre of Christchurch city.  He was convicted of driving under the influence of drugs.  He was also carrying a hunting knife in the car, resulting in the conviction for possessing an offensive weapon. 

[7]       Overnight between 6 and 7 April 2007 he entered again the garage at the Holmwood Road property and burgled goods including a motorcycle and golf and motorcross equipment.  The total value exceeded $21,000. 

[8]       On the night of 9 April 2007 he burgled a barn behind a residential dwelling on a lifestyle block on Marshs Road, Halswell.  There was a gun safe in a self-contained flat inside the barn.  He used tools from a workshop in the barn to break open the gun safe.  Four pistols, four rifles and two shotguns were taken.  Other property taken included motorcross equipment and two motorcycles.  The insured value of the stolen property was $24,000 although the owner estimated it would have cost $35,000 to replace.

[9]       The appellant pleaded guilty to driving while under the influence of drugs or alcohol on 13 April 2007 after he was involved in a minor traffic accident.  On 16 April while involved in an argument with a member of the public at a service station, the appellant produced a knife from his jeans pocket.  He pleaded guilty to possession of a knife without reasonable excuse.

[10]     On 11 July the appellant approached a man who was to be a witness against him in pending depositions hearing and said “when you show up in Court you are a dead man”.  As he left, the appellant said words to the effect of, “you are dead”. 

[11]     He pleaded guilty to a charge of threatening to injure that person with intent to intimidate.

[12]     In the early hours of the morning of 17 October the appellant was seen driving at 140 kilometres per hour in a 60 kilometres per hour zone.  When told he was under arrest for breaching bail he resisted two police officers who attempted to handcuff him.  He was subsequently found to have been driving with excess blood alcohol.  He pleaded guilty to a charge of threatening to injure that person with intent to intimidate.

Analysis

[13]     There are three issues: the starting point for the burglaries, the cumulative sentences for the other offending and the significance of the October 2006 sentencing.

Starting point

[14]     Mr Bailey submitted this case was similar to R v Mosley [2008] NZCA 336. There the appellant appealed a sentence of two years and four months imprisonment for a total of eight charges: one charge of burglary of commercial premises (items taken to the value of $15,000), one charge of unlawfully taking a motor vehicle (value $40,000), three charges of receiving, one charge of theft and one charge of possessing a Class A drug. The appellant’s prior convictions in Mosley, including three for receiving and two for burglary, appear to have been similar to those of this appellant and some of his offending had also occurred while on bail. 

[15]     In Mosley the District Court Judge adopted a starting point of three years.  This Court found that starting point to be consistent with a number of sentences it had previously upheld. 

[16]     When the Court in Mosley reviewed those sentences it included the case of R v McAllister (2001) 18 CRNZ 606 (CA) where the appellant had pleaded guilty on the morning of a trial to four counts of burglary, two of unlawfully taking a motor vehicle and two other minor charges.  The burglaries involved business premises and property valued at $75,000 was stolen.  The sentencing Judge took a starting point of four and a half years and imposed a total sentence of three years imprisonment.  This Court upheld the end sentence of three years but did not expressly address the starting point. 

[17]     There is nothing in Mosley which suggests that the starting point cannot be higher than three years.  The point being confirmed was the legitimacy of the District Court Judge taking a starting point of three years.

[18]     Having reviewed the facts, Judge Saunders first noted that he must take into account the totality of the sentence imposed.  He observed that the sentence should not be so crushing as to cause the appellant loss of hope for the prospect of rehabilitation in the future.  The appellant is now 20 years old.

[19]     The Judge then adopted a starting point of four years for the burglaries, particularly of Marshs Road, where the gun safe was entered, and the Holmwood property, which was targeted on two occasions.  The Marshs Road matter was the one subject to prosecution by way of indictment.  The Judge took into account the importance of holding the appellant accountable for offending so shortly after being released (on conditions) from his sentence of nine months imprisonment imposed in October 2006 (on three charges of receiving). 

[20]     Accordingly, the method the Judge followed was to look to the characteristics of the offending and then to the fact that it followed so shortly after release.  This latter factor appears to have lifted the starting point.

[21]     These were very serious burglaries, following immediately upon a period of imprisonment.  For this reason we reject the first point on appeal that the starting point of four years imprisonment for the burglary offending was too high.

The cumulative sentencing

[22]     Turning to the length of cumulative sentences, we note immediately that the Crown agrees that one of the sentences needs to be adjusted.  The appellant was sentenced to four months imprisonment for driving on 13 April under the influence of drink or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle (s 58(1) of the Land Transport Act 1998).  That offence was laid in the aggravated form (ie it was asserted that the appellant had at least two previous relevant convictions against the Land Transport Act), where the maximum sentence is two years imprisonment.  However, at the time of offending the appellant had only one previous relevant conviction.  We therefore set aside this conviction and substitute a conviction for the offence in its unaggravated form, which carries a maximum penalty of three months imprisonment.  We think that in this case, keeping in mind the totality principle, a sentence of two months imprisonment on this substituted conviction is appropriate.

[23]     There is no substantial argument against the cumulative sentences for the other offending. 

The October sentencing

[24]     The overriding argument in the end focused on the Judge’s application of the principle of totality.  There is no doubt that he did have this principle in mind.  As we have already noted, he referred to it at the start of his sentencing analysis.  It is also embedded in his last paragraph. 

[25]     Mr Bailey argued that when the Judge was sentencing in December 2007 for those charges which occurred before the October 2006 sentencing, he should have assessed what sentence the appellant would have received if he had been sentenced on 2 October 2006 for all offending committed before that date.  If he had done so, the appellant suggested the starting point would properly have been lower.

[26]     The Judge certainly had regard to the sentence the appellant received.  As already noted, he considered the subsequent offending to be aggravated by coming so shortly after his release. 

[27]     In our view the important feature of the judgment is that the Judge conducted the whole sentencing analysis with the totality principle in mind, and he had far from lost sight of the fact he was sentencing a young man back to prison.  The big picture needs to be kept in mind.  This was serious offending.  It was problematic offending as it demonstrated out of control behaviour by a young man.  Some of the offending was while he was on bail.

[28]     The Judge balanced not only the need for accountability, deterrence and denunciation but also the prospects of rehabilitation.  We have not been persuaded that it requires any adjustment beyond the inevitable reduction of two months in respect of the offence on 13 April of driving while under the influence of drink or a drug or both. 

Disposition

[29]     The appeal against driving under the influence of drink or a drug on 13 April 2007 laid as an aggravated offence is allowed, and a conviction for driving under the influence of drink or a drug is substituted.  The sentence for that conviction is two months imprisonment.  Otherwise the appeal is dismissed.  The result is the total sentence is reduced by two months to four years and one month imprisonment.

Solicitors:
Crown Law Office, Wellington