R v Shirley

[2009] NZCA 216

IN THE COURT OF APPEAL OF NEW ZEALAND

CA764/2008
[2009] NZCA 216

THE QUEEN

v

NATHAN WILLIAM SHIRLEY

Hearing:26 May 2009

Court:Hammond, Ronald Young and Clifford JJ

Counsel:R G Glover for Appellant

G H Allan for Crown

Judgment:29 May 2009 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1]       Mr Shirley was sentenced by Judge Doherty in the District Court at Christchurch to three years’ imprisonment on a charge of aggravated burglary.  Mr Shirley appeals against that sentence.  He says that sentence was manifestly excessive, particularly given a successful restorative justice process.

Background

[2]       Just after midnight on 8 April 2007 Mr Shirley went to an address in Linwood, Christchurch where the victim of the offending, a Mr Shane Smith, resided.  Also residing at that address were Mr Smith’s partner (Sharon Holt), Ms Holt’s daughter Kirstie Finnie, Ms Finnie’s partner Kyle Shirley (Mr Shirley’s elder brother) and Kirstie and Kyle’s baby daughter.  Mr Shirley was looking for Kyle.  He was carrying a baseball bat.  He was acting aggressively.  When told by Mr Smith not to come on to the property again, Mr Shirley threatened Mr Smith with violence and swung the bat at him.  Mr Smith was able to grab the bat off Mr Shirley who then left the address.

[3]       Some two hours later, Mr Shirley returned to the Linwood address with his younger brother, Moncello.  He was that time armed with a large kitchen knife with a blade approximately 25cm long.  Moncello was armed with a wooden chair leg that had a large metal screw protruding from it.

[4]       The Crown case at trial, based on the evidence of Ms Finnie, was that Ms Finnie went to the door, found Moncello there, assumed Moncello might have wanted a place to stay the night and so opened the door.  At that juncture Mr Shirley appeared from behind his younger brother and entered the house with the knife.

[5]       Mr Shirley and Moncello were told to go away. Moncello proceeded to strike a nearby patio table with the wooden chair leg he was carrying, causing it to break.  Once inside the house Mr Shirley brandished his knife at Mr Smith and said that he was going to “fucking kill you”. 

[6]       Mr Smith’s evidence at trial was that he really believed Mr Shirley and Moncello were going to kill him.  He repeated those comments in his victim impact statement. 

[7]       Mr Smith ran into his bedroom, where his partner was, and closed the door.  Moncello then repeatedly struck at the bedroom door causing several holes.  Mr Shirley and Moncello left the premises once they understood the Police were being called.

[8]       Mr Shirley pleaded guilty after depositions to charges of threatening to kill and assault with a weapon.  He defended the charge of aggravated burglary, on the basis that his entry into the house was authorised.  He was found guilty at trial.

[9]       Prior to his trial Mr Shirley participated in a restorative justice conference attended by Mr Smith, Ms Holt and Moncello.  At that conference, Mr Smith expressed a wish to avoid a trial process if he could, and his concern that Mr Shirley and Moncello might be sent to jail.  Mr Shirley and Moncello indicated a willingness to pay compensation and reparation – Moncello, $600 for the damage to the door, at $5 per week to be paid into an account for his niece; Mr Shirley, $600 reparation to Mr Smith, again to be paid into the account for his niece.

The Judge’s approach to sentencing

[10]     The Judge noted a number of aggravating features of Mr Shirley’s offending.  He referred to the premeditation involved.  Mr Shirley had been sent away by Mr Smith earlier in the evening, and had then armed himself with a knife and returned to the property, knowing full well that he was not welcome there.  The Judge referred to the ruse used by Mr Shirley to gain entrance to the property. The Judge indicated that he agreed with the Crown submission that (at [19] of the sentencing notes):

… it is no coincidence that [Moncello] was the one who first fronted up to the door and [Mr Shirley] got in effectively through him.

[11]     Finally, he noted the real fear felt by the occupants of the house at the time, and particularly by Mr Smith.  He accepted that Mr Smith believed he was going to be killed.

[12]     In considering the appropriate starting point for Mr Shirley’s offending, the Judge first referred to this Court’s decision in R v Mako [2000] 2 NZLR 170, a tariff judgment relating to aggravated robbery. Mako is capable of providing guidance to sentencing for aggravated burglary: R v Watson CA224/03 24 October 2003. 

[13]     The Judge then referred to a number of decisions which the Crown had cited, namely Hiroti v Police HC NWP AP5-03 2 April 2003 and the decisions of this Court in R v Patrick [2008] NZCA 115 and R v Kaukau [2007] NZCA 66. He concluded, taking the aggravated burglary as the lead offence for Mr Shirley’s offending, that a starting point of three to four years was appropriate. He selected the midpoint of that range. The Judge then noted that he had thought about uplifting the initial starting point in relation to the other offending, but considered that justice would be done by adopting a starting point of three and a half years.

[14]     From that starting point, the Judge allowed a discount of six months for the fact that Mr Shirley  participated in a restorative justice meeting and had made offers of reparation, resulting in an effective end sentence of three years.  The Judge imposed concurrent sentences of one and a half years and one year respectively on the charges of threatening to kill and assault with a weapon.

Discussion

[15]     Mr Shirley originally appealed on the basis that:

a)the starting point adopted by the Judge for the aggravated burglary offending was too high;

b)the Judge did not allow an appropriate discount, particularly by reference to the successful outcome of the restorative justice programme; and

c)notwithstanding the apparent effect of s 15A of the Sentencing Act 2002, the Judge should have considered, and imposed, a sentence of home detention.

[16]     Prior to the hearing of this appeal, Mr Glover, for Mr Shirley, abandoned this appeal as regards the question of home detention.

[17]     At the hearing of this appeal Mr Glover acknowledged, after some discussion with us, that he was not in a position to challenge the starting point adopted by the Judge.  In our view, that was also an appropriate concession. 

[18]     Mr Glover had framed his written submissions on appeal on the basis that the Judge had not adopted the correct equivalent category (for aggravated burglary) from Mako.  It was Mr Glover’s contention that the Judge would appear to have proceeded on the basis of the type of offending described in Mako at [58] as involving:

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 ...

[19]     Mr Glover had suggested that the appropriate category would have been that set out at [59] of Mako, namely involving street robbery without actual violence.

[20]     As we think is clear from his sentencing notes, the Judge referred to Mako in a general way, to reflect the attitude taken by the courts to offending involving violence or the threat of violence, intimidation and unauthorised entry into private premises. The Judge adopted his specific starting point with reference to the cases as mentioned at [13] above. Patrick involved a not dissimilar instance of aggravated burglary. In that case the offender’s victims were, as here, members of his family.  The offender used violence to enter the premises, but had not taken a weapon with him.  Here the unauthorised entry was effected by a ruse, but Mr Shirley took with him, and threatened Mr Smith with, a large knife.  In Patrick a starting point of four years was adopted.  Here the starting point adopted by the Judge, particularly considering that the Judge took into account the assault and threatening to kill offending (see [12] above), is one which in our view was appropriate. 

[21]     Therefore, the only element of the challenge to the sentence left for us to consider is the assertion that insufficient account was taken of the appellant’s participation in, and the outcome of, the restorative justice conference. 

[22]     We do not accept that proposition. 

[23]     The Judge specifically referred to the restorative justice conference, noting that the appellant’s participation in that conference had demonstrated remorse.  The Judge accorded a six month discount on account of the appellant’s remorse and proffered apology.  We think this is appropriate recognition of the restorative justice conference that took place.  Before us Mr Glover emphasised the significance of the offers of restoration made by Mr Shirley and Moncello.  As the Crown commented, however, those offers would appear to have been made in response to initiatives from Mr Smith to resolve the matter, without the need for there to be a trial.  Although Mr Shirley acknowledged at the restorative justice conference that he had been banned by Mr Smith from the premises, he nevertheless continued with his not guilty plea.  Further, there was no evidence that the modest offers of reparation that had been made had been put into effect before sentencing.  The outcome of the restorative justice conference needs to be seen in that light. 

[24]     We therefore conclude that the discount provided by the Judge cannot in any way be seen as being inadequate.  As this Court has previously held, the positive outcome of a restorative justice conference must be balanced against other sentencing principles.  In R v Buttar [2008] NZCA 28 this Court noted:

[27]   While recognising the benefits associated with the restorative justice process, the Sentencing Act requires a firm response from the Court to incidents of serious violence, particularly those involving the use of weapons.  In such circumstances, as the Judge recognised, the Court cannot lose sight of the significance of the statutory purposes of denunciation and deterrence.

[25]     We think that proposition is particularly relevant in cases involving violent offending within families.

[26]     This appeal is therefore dismissed.

Solicitors:
Crown Law Office, Wellington