Riddell v The Queen
[2017] NZHC 2612
•25 October 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-000088 [2017] NZHC 2612
BETWEEN RONALD DAVID RIDDELL
Appellant
AND
THE QUEEN Respondent
Hearing: 3 October 2017 Appearances:
S Teki-Clark for the Appellant
C White for the RespondentJudgment:
25 October 2017
JUDGMENT OF NATION J
[1] Mr Riddell was charged with, and pleaded guilty to, seven counts of burglary, one count of theft under $500, failure to stop for red and blue flashing lights, and possession of a cannabis pipe.
[2] He was sentenced by Judge MacAskill on 21 June 2017 to two years three months’ imprisonment, in respect of the lead burglary charge. Concurrent sentences on the remaining charges were imposed as follows: six months each on the six lesser burglary charges; and one month each on the theft of keys and possession of cannabis utensils charges. Various reparation orders were also made for losses incurred.
[3] Mr Riddell appeals against his sentence on two grounds:
RIDDELL v R [2017] NZHC 2612 [25 October 2017]
(a) that it was manifestly excessive (the starting point was too high, insufficient credit was given to police cooperation and mitigating factors, and co-offender sentence parity); and
(b)that the Judge erred by failing to impose home detention as the least restrictive option.
Jurisdiction and principles on appeal
[4] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.1 I must dismiss the appeal in any other case.2 To allow the appeal, I must be satisfied that the sentence imposed
was manifestly excessive.3 Whether a sentence is manifestly excessive is to be
examined in terms of the sentence given, rather than by the process by which the sentence is reached.4
District Court decision
[5] The Judge began by briefly describing the primary offending, which involved burglaries of numerous properties over a three-day period in January 2017. Of the $26,000 of property stolen or damaged, $20,000 was reflected in a single change, which was accordingly taken as the lead offending. The Judge then referred to the various matters which bear on sentence and starting points. He referred to Mr Riddell’s previous dishonesty convictions in the recent and relatively recent past. The Judge said that, as they had all resulted in community-based sentences of either community work or detention, it would not be appropriate to uplift, on this account, the starting point on the lead offending.
[6] The Judge noted that Mr Riddell’s counsel had suggested a co-offender, with respect to one of the burglaries, was the ringleader or mastermind of this spate of burglaries. He noted this co-offender had not been charged with other burglaries but
the Judge said he was dealing with Mr Riddell on the basis that it might have been
1 Criminal Procedure Act 2011, s 250(2).
2 Section 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
4 Larkin v Ministry of Social Development [2015] NZHC 680, at [26] per Toogood J.
this other person who had the idea of committing the burglaries and it might be that he received the property afterwards. However, he noted that, with regard to these other burglaries, Mr Riddell was 37 and the potential co-offender 15. The Judge said that Mr Riddell should not have been influenced by a 15 year old and could not minimise his responsibility by trying to shift the blame to this other person. He thus held that Mr Riddell was to be held accountable as a principal offender with regard to the offending.
[7] Considering all these factors and the decision in Wardle v R,5 Judge MacAskill adopted a starting point of three years three months’ imprisonment, which he acknowledged was towards, but not at, the upper end of the permissible spectrum. Beyond a 10 month credit for early guilty pleas, there were no further personal mitigating factors justifying a reduction, although the Judge did give one month further credit for time spent by Mr Riddell on curfew while on remand.
[8] The Judge therefore reached a final sentence of two years three months’
imprisonment, which rendered consideration of home detention inapplicable.
The starting point
[9] For Mr Riddell, Mr Teki-Clark submitted the starting point of three years three months was too high, arguing, by reference to certain other High Court judgments, that it should have been three years’ imprisonment.
[10] There is no tariff case for burglary, as the circumstances for each case can vary significantly. However, the following factors are generally considered to be relevant to the question of sentence: degree of planning; nature of premises entered; value of property taken or extent of any damage caused; impact of the offending on the occupants of premises, and the scope of the offending overall where multiple
burglaries have been committed.6 Where the burglaries are of domestic residences,
this is to be treated as an especially aggravating factor.7 Comparable case law has some utility as a barometer for assessing the appropriate starting point in a particular
5 Wardle v R [2015] NZHC 915.
6 R v Nguyen CA110/01, 2 July 2001.
7 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
case. However, because each case turns on its own facts, factors such as the number of charges or extent of property stolen, cannot be applied in a mathematically- quantitative way.
[11] The lead charge here involved the burglary of a domestic residence at Branxholme-Makarewa Road between 30 December 2016 and 3 January 2017 when, I infer, the occupants were away from their home, probably on holiday. A brick had been thrown through a window of the home. The property had been searched extensively, items of significant financial and emotional value, such as a chainsaw, watches, a necklace, cash from children’s rooms and iPads, were stolen. A total value of the items stolen and damage to the property was approximately $20,000.
[12] The seven other burglaries involved thefts from sheds on properties in a rural location between 28 December 2016 and 6 January 2017.
[13] On 7 January 2017, Mr Riddell was arrested at his home address and stolen property was recovered from his vehicle there. When interviewed, he admitted breaking into at least nine properties with a co-offender.
[14] The summary of facts indicate that Mr Riddell had, over several days, driven around rural areas, breaking into a number of farm properties for fuel and other property. In several instances, the summary of facts refers to these burglaries occurring when the owners were away on holiday.
[15] Given the dates on when the burglaries occurred, it is likely Mr Riddell and his co-offenders knew this was likely to be the case. Although there was a reduced risk of a confrontation with the occupiers and the consequences of that being associated with burglaries at such a time, I consider it was an aggravating feature of this offending that it occurred when the premises broken into were vulnerable to this sort of offending and when, with their absence and the location of the properties, the owners had to be able to trust others to respect their property and not take advantage of their absence. It is particularly important to people living in rural areas of New Zealand, where farm buildings, garages or sheds cannot be under constant
surveillance and are some distance from where people actually live, that the sanctity of such property be respected.
[16] This was offending of the same sort that occurred in Wardle, where the burglaries were of holiday homes in the Marlborough area and an unoccupied house in the red zone of Christchurch. It was also similar to the offending in Muirson v R.8
There, the burglaries and a theft were from three properties. The occupants of all three properties were away on holiday when the offending took place. The sentencing Judge adopted a starting point of two years for the offending. This was upheld on appeal but, in the High Court, Katz J noted this could have been “slightly
on the light side”.9 With an uplift for prior offending and a discount for guilty pleas,
the end sentence of two years two months and one week was upheld.
[17] There was here a significant burglary of a domestic residence. In Arahanga v R, the Court of Appeal noted that a starting point of approximately 18 months to two years and six months’ imprisonment would often be adopted for a dwelling house burglary “at the relatively minor end of the scale”.10 Here, there was also a spree of burglaries of the sort the full High Court, in Senior v Police, noted could lead to end sentences of three to four years.11
[18] Having regard to the nature of the burglaries, the number and the spree nature of them, I consider the starting point of three years three months adopted by the Judge was within the range properly available to him.
Assistance given to authorities
[19] In submissions filed before the first scheduled hearing of this appeal on 7
September 2017, Mr Teki-Clark referred to this as a matter which should have impacted on sentence in the District Court but acknowledged it had not been a matter raised in submissions at that time. Counsel referred to the way Mr Riddell had
cooperated with the Police “in identifying burgled properties, identifying his co-
8 Muirson v R [2013] NZHC 1999.
9 At [21].
10 Arahanga v R, above n 7, at [78].
11 Senior v Police (2000) 18 CRNZ 340.
offenders, and locating stolen items”. The hearing of the appeal was adjourned to give the Crown the opportunity to make enquiries as to the basis for this submission.
[20] Following that initial adjournment of the appeal, the Crown filed an affidavit from Senior Constable Colyer who had investigated the burglaries.
[21] Mr Teki-Clark filed a memorandum explaining why the issue of Mr Riddell’s claimed cooperation with the Police had not been addressed before the initial sentencing. With that memorandum was an unsworn affidavit which counsel had prepared for Mr Riddell. The affidavit from Mr Riddell was unsworn but Mr Teki- Clark explained how there had been a delay in obtaining a sworn copy because of Mr Riddell being in custody at Invercargill. He confirmed the affidavit in the form annexed to his memorandum had been approved by Mr Riddell and undertook to provide the sworn copy to the Court. With that assurance, the Crown agreed that the appeal should proceed on the basis the affidavit had been sworn and I do have regard to both it and the affidavit from Constable Colyer.
[22] In his affidavit, Mr Riddell says that, on 7 January 2017, Police went to his mother’s address in Invercargill and indicated they wanted to speak to him in relation to a burglary at the Branxholme-Makarewa Road. He said that he immediately went to his mother’s address and that, although the Police were there to speak to him about one burglary, he immediately admitted he was involved in a number of other burglaries as well. He says he gave names and identifying details about two co- offenders, completed a DVD interview at the Police Station where he admitted to all his offending, and the next day accompanied the Police on a drive around Invercargill to point out the addresses of his co-offenders as well as properties that were burgled. He said he assisted Police in trying to locate the stolen property. He had difficulty in remembering exactly which address on Ness Street they had delivered stolen property to but gave the Police a description of the house and its layout.
[23] Constable Colyer says that, in his main interview, Mr Riddell was evasive and selective on the information he provided and that his main response was that he could not remember and “only provided detail on specific properties entered when
supplied these details by [Constable Colyer]”. Constable Colyer said that, on 8
January 2017, Mr Riddell agreed to be driven around the Makarewa area in an attempt to assist Police to identify properties he had entered but that he was vague on details and descriptions. Constable Colyer said the Police had details of specific properties entered and Mr Riddell said he was only positive about two properties which the Police indicated had been entered.
[24] Constable Colyer says Mr Riddell claimed he could not recall in detail what properties he had been responsible for entering, stating he was stressed because of work and had other things on his mind at the time. Constable Colyer said they had obtained much more detailed information about the burglaries from Mr Riddell’s 15 year old co-offender, including details of a burglary where a motorbike had been taken, a burglary that had not been mentioned by Mr Riddell and to which he admitted only on being re-interviewed on 9 September 2017 and after being told his co-offender had supplied the information.
[25] In response to Mr Riddell’s affidavit, Constable Colyer said that Mr Riddell did not immediately admit to committing other burglaries and that he only supplied details as to two co-offenders after being told by Police they had spoken to one of his co-offenders. He said that Mr Riddell in his interview only admitted to burglaries on Branxholme Road and Kennedy Road when presented with the evidence the Police had and that he agreed that he was most likely the person responsible for other burglaries where fuel was taken. Constable Colyer said that both co-offenders supplied substantially more information to Police, including locations and property taken, including cannabis plants they had stolen from one property, information which was not supplied or mentioned by Mr Riddell.
[26] The summary of facts records that, on 7 January 2017, Police executed search warrants after property taken from 39 Branxholme-Makarewa Road was placed on Facebook for sale. With that information, the Police went to the address from which the items on Facebook were to be collected. The co-offender, Mr Kelly, was then arrested. The summary said that, when interviewed, Mr Kelly admitted entering 39
Branxholme-Makarewa Road with his two co-offenders. The summary said Mr
Riddell was arrested the same day and further stolen property was recovered from
his car. When interviewed, Mr Riddell admitted breaking into at least nine properties with his co-offender, Mr Prior, but stated there were a lot more although he could not recall detail about these properties. Mr Prior was the 15 year old youth who was involved in the burglaries with Mr Riddell.
[27] When the appeal was first to be heard, Mr Riddell’s counsel filed with his submission a copy of the statement made by Constable Colyer on 13 January 2017. In that statement, Constable Colyer describes how the Police learnt of property stolen from 39 Branxholme-Makarewa Road that was advertised for sale on Facebook and how, on 7 January 2017, as a result, he went to an address, executed a search and obtained various items of property stolen from that property. He also said that, as a result of the conversation he had with the occupant at that address (Ms Samson), they went to the address of Mr Riddell’s mother and told her they were there to conduct a search. Mr Riddell came to that address. The Constable said Mr Riddell said he was the driver for at least six rural burglaries along with a 15 year old male and a third male who he named. The third male, who he named as Walter, was Mr Kelly who, by that stage, had already admitted to at least the main burglary.
[28] In his statement, Constable Colyer said that, on 8 January 2017, Mr Riddell had driven them past an address of 119 Ness Street, Invercargill and said that was where the stolen property had gone to, giving a brief description of the property. Later, after the Police had spoken to the occupants of that address (and I infer had found no stolen property), the Police drove Mr Riddell past that address again, and again Mr Riddell indicated that it may be the address. Later that day, “after receiving information”, the Police went to 79 Ness Street and found stolen property at the address.
[29] Counsel also provided with his submissions for the appeal a copy of a statement prepared by Constable Harding of the Invercargill Police on 10 February
2017. In that statement, Constable Harding refers to information he obtained from Ms Samson on 9 January 2017, of his later conducting a search of 79 Ness Street where they found stolen property, and of his later being told by Ms Samson that she had taken some of the stolen property to that address after she had received it from Mr Riddell.
[30] In his statement, Constable Harding provided detailed information as to how he spoke to the 15 year old co-offender, Mr Prior, on 12 January 2017. Mr Prior identified a number of properties that he said he had burgled with Mr Riddell, and accurately named a number of items which had been taken from some of the properties, those items being comparable to those reported missing by the victims of the burglaries.
[31] In his memorandum explaining why an issue was not made of Mr Riddell’s cooperation with the Police as a matter to be taken into account at his initial sentencing, Mr Teki-Clark said that Mr Riddell had first told counsel about his claimed cooperation following sentencing when discussing the possibility of an appeal.
[32] I acknowledge the way in which, in Senior, a full High Court indicated the importance of recognising the value of the spree burglar’s candid admission of a large number of burglaries “which the Police, without such admissions, would not have been able to solve”.12
[33] On reviewing all this information, I have not been persuaded that Mr Riddell assisted the Police with their enquiries in ways that justified him being given credit for that when being sentenced. He did admit to certain offending but that was only after Police had evidence as to his involvement in at least some of the offending and he would have known that, with the enquiries the Police were making and had already made, it was likely they would have evidence which would prove that he had been involved in this other offending. It is clear from the information in the Police statements as to the course of their enquiries that the information provided by Mr Riddell was not on its own regarded as sufficient to support charges against Mr Riddell or others. Accordingly, they continued to make further enquiries, conduct searches and, independently of Mr Riddell’s admissions, obtained evidence which further supported the charges brought against him and his co-offenders.
[34] Although there was a degree of cooperation from Mr Riddell with the Police, I do not consider this was a case where it can be said that, without his admissions,
12 Senior v Police, above n 11, at [38].
these burglaries would not have been solved, property recovered or Mr Riddell held to account for his offending. All this offending was of a similar nature and occurred within a short span of time in similar circumstances. The Police began a detailed investigation soon after the offences were reported and information obtained independently of Mr Riddell’s admissions established his likely involvement in the offending. That was confirmed by further enquiries which the Police made.
[35] In contrast to the situation in Sell v Police, I am not satisfied this is a case where it can be said that it is only because of his admissions that Mr Riddell “was before the Court for significantly more offences than would otherwise have been the case”.13
[36] I thus consider Mr Riddell’s cooperation with the Police was not something that required express recognition on his original sentencing or that it was such that it can be said the end sentence imposed on Mr Riddell was manifestly excessive.
Disparity
[37] Through submissions, Mr Riddell also contended that Mr Riddell’s sentence was manifestly excessive because of the disparity with the sentence imposed on one of his co-offenders, Mr Kelly.
[38] In R v Nathan, the Court of Appeal observed the principles enunciated in R v
Rameka and R v Lawson that:14
To warrant interference by this Court, the disparity must be gross and unjustified and be of a kind that would lead an observer, aware of all the circumstances, to the conclusion that something had gone wrong with the administration of justice.
[39] Mr Kelly was aged 24 when he was sentenced. He had a significant criminal history, including a number of prior convictions for burglary from 2010, 2011, 2015 and 2016. He was charged jointly with Mr Riddell and Mr Prior with the most
serious burglary of the home at Branxholme-Makarewa Road. He was sentenced on
13 Sell v Police HC Invercargill CRI-2008-425-32, 16 December 2008, at [11].
14 R v Nathan CA378/90, 24 April 1991 citing R v Rameka [1973] 2 NZLR 592 (CA); R v Lawson
[1982] 2 NZLR 219 (CA).
the basis he had reached a point in his life where he wanted to end his offending and was ready and willing to be subject to a residential treatment programme that would be challenging and demanding for him. He was sentenced to community detention for six months to be served at a residential rehabilitation programme in Dunedin with a curfew from 9.30 pm to 6.45 am. He was also subject to a sentence of intensive supervision for two years. This required him to undertake and complete the residential rehabilitation programme at the Dunedin address and to abide by the rules of the programme to the satisfaction of his probation officer. He could not move from that address without the prior approval of his probation officer. His participation in that programme was subject to judicial monitoring.
[40] Effectively, Mr Kelly was to be in a strictly supervised residential setting for a period up to two years. Unlike Mr Riddell, he was charged with only the one burglary and could thus not be sentenced on the basis he was a spree burglar, whatever Mr Riddell may have said to the Police about Mr Kelly’s involvement.
[41] In these circumstances, I do not consider that, with Mr Riddell having received an end sentence of two years and three months, and Mr Kelly being sentenced to effectively live in and be subject to the rules of a strictly controlled residential programme for up to two years, there was a disparity in sentencing of the sort that brings the administration of justice into disrepute so as to require a reduction in Mr Riddell’s sentence.
Personal mitigating features
[42] Mr Riddell was sentenced on the basis there were no personal mitigating factors that justified any reduction in the starting point sentence, nor was there any increase for his prior convictions. The Judge did note he had been assessed in the PAC report as being at a low risk of reoffending and at a low risk of harm, and there was a credit of one month recognising that Mr Riddell had been under a curfew on remand for six months.
[43] Through counsel’s submissions, Mr Riddell referred to his being an employee at the Pike River Mine at the time of the November 2010 Pike River Mine disaster and of his going through a difficult divorce shortly after that period. Counsel said:
These significant life events may go some way towards explaining why a 33 year old man with no previous convictions found himself before the Court in
2012 on a total of seven criminal convictions.
[44] He was critical of the fact there was no rehabilitative component to Mr
Riddell’s sentence then, nor with any of his three subsequent sentences.
[45] Mr Riddell’s record of offending included a conviction for burglary from
2012 and other offending associated with family violence, including breaches of a protection order for which, in June 2012, he received a sentence of community detention. In January 2016, Mr Riddell was sentenced to 50 hours’ community work for receiving. Those prior convictions indicate that, faced with whatever difficulties Mr Riddell had in his life, he resorted to dishonest criminal offending. The pre- sentence report referred to the premeditated nature of Mr Riddell’s offending with it having occurred over several days. The report said Mr Riddell acknowledged that at the time he knew what he was doing was wrong.
[46] The report said that Mr Riddell would:
… benefit from attending an Alcohol and Drug programme in order to gain some skills in relapse prevention and to prevent him from relying on Cannabis to cope with stress and learn other ways to relax.
The report did not say he needed assistance to address issues which related to his offending. The report identified his “attitude and friends and associates” as the offending-related factors.
[47] Against that background, the sentence of imprisonment was appropriate to deter Mr Riddell from further offending.
[48] I do not consider there were any personal-related mitigating factors which the
Judge failed to take into account in arriving at the end sentence.
Home detention
[49] Mr Riddell contended that the end sentence imposed should have been less than two years so that a sentence of home detention would then have been available and would have been the appropriate sentence.
[50] Because I am not varying the end sentence imposed in the District Court, home detention remains unavailable. I also agree with the District Court Judge’s opinion that a sentence of home detention was precluded by the seriousness of the offending and the fact Mr Riddell had a prior conviction for burglary.
Conclusion
[51] Against that background, I have not been persuaded that there was any error in the sentencing or that the sentence imposed was manifestly excessive.
[52] Mr Riddell’s appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch.
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