Sergent v Police

[2012] NZHC 3475

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-34 [2012] NZHC 3475

DYLON ROBERT SERGENT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 December 2012

Counsel:         O S Winter for Appellant

P L Murray for Respondent

Judgment:      17 December 2012

ORAL JUDGMENT OF MACKENZIE J

[1]      The appellant pleaded guilty to one charge of aggravated robbery and one charge  of  burglary.     On  14 November  2012  he  was  sentenced  to  five  years imprisonment for the aggravated robbery and seven months and two weeks for the burglary cumulative on the aggravated robbery sentence.   The appellant appeals against the sentence for burglary.

[2]      The burglary charge circumstances were that on 23 June 2012 the appellant and his two co-offenders were drinking at the appellant’s address at about 10.00pm, when the appellant drove the group to a farm in Rongotea, where they entered a shed and stole a Honda ATV valued at $7,000, a weed eater and a builder’s level.  They

also  stole  a  slug  gun  from  a  nearby  office  building.    They  then  filled  plastic

SERGENT V NEW ZEALAND POLICE HC PMN CRI-2012-454-34 [17 December 2012]

containers with 100 litres of petrol from the farm’s fuel tanks and the tap was left on and another 100 litres of fuel drained to the ground.  The group drove off, some of them in the car, with one of the group driving the ATV.  They were stopped by police in Sanson.  The group in the car were released but the slug gun and the ATV were seized.  On 25 June, the police established that the farm had been burgled and spoke to the appellant and his two co-offenders who denied any knowledge of the burglary. The other stolen property was not located.

[3]      While the appellant was on bail for that charge, he and a co-offender were involved in the aggravated robbery on 6 August.  While I need not describe the facts of that in any detail, it involved them going to a car yard seeking to have a test drive of a vehicle and then presenting a rifle to the sales person at the yard intending to take the car and the appellant drove off in the car.

[4]      At sentencing Judge Smith sentenced the appellant on both charges.   He sentenced cumulatively to reflect the fact that the two offences were separate and distinct.  He adopted a starting point of seven years for the aggravated robbery and a starting point of two years for the burglary.  That gave a cumulative starting point of nine years which he reduced to eight years in recognition of the totality principle. He then uplifted that starting point by three months to reflect the fact  that the aggravated robbery occurred while the appellant was on bail for burglary, and he reduced the sentence by nine months to reflect the appellant’s genuine remorse, his family’s support and his immediate steps to address his offending and drug habit.  He also noted that the appellant had no previous convictions.   He then reduced the appellant’s sentence by 25 per cent to reflect the guilty pleas which were entered at the earliest opportunity.

[5]      The end sentence was a sentence of five years on the aggravated robbery and seven and a half months on the burglary.

[6]      Mr Winter for the appellant submits that the starting point of two years was too high and is manifestly excessive.   He submits that had the burglary offending occurred alone it is likely that, the appellant being a first offender, a sentence short of imprisonment would have been imposed.  Mr Winter acknowledges that in light of

the sentencing for the aggravated robbery, if a separate sentence was to be imposed for the burglary that would have to be a custodial sentence, but he submits that the overall sentence of five years would have been an adequate reflection of the totality of offending.

[7]      Mr Murray, for the respondent, acknowledges that the starting point adopted was stern but says that the focus must be on the end sentence, not on the starting point, and he submits that the end sentence of seven months and two weeks was stern but not manifestly excessive.

[8]      Mr Murray’s submission that the focus must be on the end sentence rather than on the components is undoubtedly correct as a general rule.  The difficulty in this case is that the sentences have been imposed separately and cumulatively.  If one were to compare a starting point of two years and the end point of seven months and two weeks, it is apparent that that could have been reached only if the whole, or at least a very significant part, of the totality reduction had been applied to the burglary charge and no component of it to the aggravated robbery charge.   Looking at the starting point of seven years for the aggravated robbery, and allowing for a guilty plea, would suggest that only a small component of the five year sentence is a reflection of the totality principle.

[9]      I consider that on this appeal there are only two options.  One of those is, as Mr Murray submits, to view the totality of the sentencing imposed of five years seven months and two weeks against the totality of the offending.   That would require  a  detailed  analysis  of  the  appropriateness  of  the  aggravated  robbery offending in circumstances where that sentence is not separately challenged.   The alternative is to consider the burglary charge by having regard to the starting point and to consider whether that was in fact manifestly excessive.  In the circumstances, I consider that the second is the appropriate approach to adopt here.

[10]     Mr Murray has referred to a number of cases in relation to first time burglars and submits that a sentence of imprisonment is not an unusual outcome for such an offender.  I consider that in this case any sentence that was imposed did have to be a

sentence of imprisonment.  Mr Murray has referred to a number of cases.[1]   I have separately had regard to some other comparable cases which I propose not to discuss in any detail.[2]     Taking into account all of those authorities, I have come to the conclusion that a starting point of two years was manifestly excessive and that a starting point in the range of about one year and six months would have been an appropriate reflection of the burglary charge, viewed as a separate component of the sentencing but associated with the sentencing on the aggravated robbery charge.

[1] Dickerson v New Zealand Police HC Wanganui CRI-2010-483-49, 1 September 2010; Pearse v

Police HC Hamilton CRI-2005-419-117, 13 October 2005; Randall v Police HC Hamilton CRI-

2009-419-81, 15 February 2010.

[2] Yukich v R [2010] NZCA 499; Rota v R [2012] NZCA 49 ; R v Povey [2009] NZCA 362.

[11]     That would have led to a starting point about six months less than the Judge adopted.  That needs to be then translated into the end sentence in a way that makes allowances for the other factors but which does not attribute to that the whole or indeed the major part of the reduction for the totality principle.

[12]     The end sentence which the Judge reached was a sentence of seven months and two weeks.   I consider that carrying the six month deduction in the starting point, which I would allow, through to the end sentence would lead to a reduction of about four months.  That would leave an end sentence for the burglary cumulative on the five year sentence on the aggravated robbery of three months.

[13]     The appeal is allowed.  The sentence of seven months and two weeks on the burglary charge is quashed and a sentence of three months is substituted.  That is

cumulative on the sentence on the aggravated robbery charge.

Solicitors:           Winter Woods Lawyers, Palmerston North, for Appellant

“A D MacKenzie J”

Crown Solicitor’s Office, Palmerston North, for Respondent