Rowe v Police

[2013] NZHC 617

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000043 [2013] NZHC 617

BETWEEN  MAXWELL EDWARD ROWE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 March 2013

Appearances: H D M Lawry for Appellant

E C Rutherford for Respondent

Judgment:      27 March 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 27 March 2013 at 2:00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – Email: [email protected]

Counsel:             H D M Lawry, P O Box 9123, Newmarket, Auckland 1149

Fax: [phone] – Email: [email protected]

ROWE V NZ POLICE HC AK CRI-2013-404-000043 [27 March 2013]

[1]      On  22  May  2012  the  appellant,  Maxwell  Rowe,  pleaded  guilty to  three charges of burglary and one of assault.  Judge Ingram imposed an end sentence of two years nine months.[1]    Mr Rowe seeks leave to appeal that sentence as being manifestly excessive.

[1] Police v Rowe DC Auckland CRI-2012-0094-004827, 22 May 2012.

[2]      Mr Rowe filed his Notice of Appeal on 30 January 2013, some seven months out of time.  His explanation was that his former counsel had not responded to instructions to appeal the sentence.  His present counsel, Mr Lawry, confirmed that there   had   been   difficulty   obtaining   material   from   the   former   counsel. Ms Rutherford, for the Crown, also acknowledged that the former counsel had not replied to some of Mr Rowe’s communications, though she was not satisfied from Mr Rowe’s affidavit evidence that he had adequately demonstrated efforts to initiate an appeal within the 28 day period.  Nevertheless, I accept that in the circumstances there is sufficient material to explain Mr Rowe’s late appeal and I grant leave for him to advance the appeal.

Sentencing in the District Court

[3]      The burglaries occurred in 2009 and on 23 October and 24 November 2011. The assault occurred during the course of the third burglary.

[4]      In the first burglary Mr Rowe entered a dwelling house during the day and stole property valued at $500.  In the second burglary he broke into a residential property during the day and stole property valued at $5,000.  In the third burglary he entered the external storeroom of a dwelling house; the storeroom was a former wash-house access to which was via an external door rather than via the dwelling house itself.  Mr Rowe was disturbed by the home owner during the third burglary. He ran at the home owner and there was a struggle.  The home owner’s family came

to assist.  By the time Mr Rowe left the property both he and the home owner were

injured.  The home owner had lacerations and bruising to his face.  Mr Rowe had injuries to his face and hand.

[5]      The Judge took the third burglary as the lead charge and imposed a sentence of two years.  He imposed a cumulative sentence of nine months in respect of the assault.  Concurrent sentences of nine months and 12 months respectively were imposed for the first and second burglaries:

[7]       It seems to me that an appropriate starting point for the most serious of the burglaries, which clearly is the last one involving the attack on the home owner, an appropriate starting point for the burglary itself would be two years and six months’ imprisonment.  I would allow you a credit of six months for your guilty plea.  On that charge you will be convicted and sentenced to imprisonment for a period of two years.  I will not impose any release conditions because of what is to follow.

[8]       The assault is not necessarily a part of a burglary.  It seems to me it is appropriate that it be dealt with by way of a cumulative sentence. It is a serious assault with substantial aggravating circumstances being committed in the course of committing a crime.   I take a starting point on that of 12 months and give you three months’ credit for your guilty plea.   On that charge you will be sentenced to imprisonment for nine months, cumulatively on the burglary and CRN 19665.

[9]       On the remaining two charges of burglary I deal with those in this way.  In relation to the 2009 offence, that being the first offence of this kind, it seems to me a starting point of 12 months with three months credit for your plea is appropriate.   You will be convicted and sentenced to imprisonment for a period of nine months.  Leave to apply for substitution of sentence is declined.

[10]     In relation to the remaining burglary, following as it did some few years or so later, on that matter I take a starting point of 18 months’ imprisonment and give you six months’ credit for your guilty plea. On that you will be convicted and sentenced to imprisonment for a period of 12 months.  Leave to apply for substitution of sentence is declined.    There  will  be  no  release  conditions  on  any  of  those because the cumulative effect is a total sentence of two years and nine months.

[11]      When I stand back and look at that from a totality point of view it seems to me that the sentence in total of two years nine months for burglary with in effect a home invasion assault and two separate burglaries is well within the range from a totality point of view.  The net result for you today, Mr Rowe, imprisonment of two years and nine months.

[6]      I  accept  Mr  Lawry’s  submission  that  the  Judge  erred  in  relation  to  the sentencing on the third burglary and assault.   First, the Judge wrongly treated the storeroom as part of the residential property when it was actually akin to a garage. As a result, his characterisation of the third burglary as “in effect a home invasion assault” could not be sustained.

[7]      I also consider that it was an error to treat the third burglary and the assault as separate and as attracting cumulative sentences.  Although the third burglary was properly regarded as the lead offence, it could only be treated as such because of the associated assault.  Treating the burglary as serious because of the assault and then imposing a cumulative sentence for the assault effectively penalised Mr Rowe twice for the assault.  The most appropriate approach was to treat the burglary as having been aggravated by the associated violence and impose a concurrent sentence for the assault.

[8]      Ms Rutherford submitted, however, that, even allowing for these errors, the Judge’s sentence of two years nine months was well within the range available for the totality of the offending.  If that is so, then I would not interfere.  I therefore turn to consider whether the final sentence imposed properly reflected the totality of the offending.

[9]      The focus of Mr Lawry’s argument on this point was the starting point of two years six months taken for the third burglary.  This was a burglary at the lower end of the spectrum which did not involve direct entry to a dwelling house and in which nothing was taken.   Mr Lawry submitted that, viewed alone, this kind of burglary would be unlikely to even attract a term of imprisonment in the District Court. There is, of course, no tariff for burglary offences and Mr Lawry may well be correct in his day-to-day experience of sentencing in the District Court on single burglaries. However, I cannot ignore the guidance provided by the Court of Appeal in R v

Columbus.[2]    That case involved the day time burglary of a garage in which a bike

and  some  tools  were  taken  (the  bike  later  recovered).    The  Court  of  Appeal

considered that the circumstances of that burglary “would not themselves justify a starting point of more than one year’s imprisonment”.  By comparison, the third burglary in this case occurred at night when there were occupants in the adjoining residence, which is more serious but where nothing was taken.  Overall, Columbus seems to me to be a fair comparison.

[2] R v Columbus [2008] NZCA 192.

[10]     On the basis of Columbus I conclude that a burglary of this nature could justify a starting point of up to one year’s imprisonment.  The real question, though, is what the uplift ought to be to reflect the aggravating feature of the associated assault.  The Judge imposed a sentence of 12 months on the assault charge, being the maximum available for the assault.  Given the nature of the assault this was not necessarily an excessive response.  However, as an uplift to reflect the aggravating feature of the burglary I think it is a little high.

[11]     The home owner did sustain injuries that were at the highest end of the spectrum of assaults, including broken skin inside his mouth.  However, Mr Rowe also sustained injuries.  Further, to some extent the seriousness of the assault appears to  have  resulted,  in  part,  from  efforts  by  the  home  owner’s  family  to  detain Mr Rowe.   This is no criticism of the home owner or his family.   Viewed as an aggravating feature of the burglary, however, I consider that an appropriate uplift would have been nine months.

[12]     Approached  in  this  way  a  sentence  of  twenty-one  months  for  the  third burglary would have been appropriate, with a lower concurrent sentence for the assault.  It follows that the Judge’s starting point of two years six months was too high.

[13]     A further uplift is required, however, to reflect the totality of the offending. Mr Rowe had a very long criminal history.  However, he had had more than ten years without offences and the last burglary/receiving offence prior to the current offences dated back to 1996.  The Judge erroneously referred to the most recent such offences as being in 2003. Although a history of burglary and receiving offences is significant

in sentencing on burglary charges,[3]  the historical nature of Mr Rowe’s offending

justified recognition only by a minimal uplift.  However, the fact that there were two previous burglaries within a relatively short time, with the second involving goods worth $5,000, did justify an uplift that was more than minimal.  Looking at the totality of the offending, an uplift of nine months would have been reasonable.  This would have produced an end sentence of two years six months before a reduction for Mr Rowe’s guilty plea.

[3] Senior v Police (2000) 18 CRNZ 340.

[14]     A reduction of 25 per cent for the guilty plea would produce an end sentence on the lead offence of 22 months.  This is substantially less than the end sentence of two years nine months imposed by the Judge and I conclude that the sentence imposed was manifestly excessive.

[15]     The appeal is therefore allowed.   The sentences on the third burglary and assault are quashed and substituted with sentences of 22 months and nine months respectively,  these  sentences  to  be  served  concurrently.    The  sentences  of  nine months and 12 months on the first and second burglaries respectively are confirmed.

These sentences also to be served concurrently.

P Courtney J