Stepanicic v R

[2015] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND

CA187/2015
[2015] NZCA 211

BETWEEN	CHARLES STEPANICIC Appellant
AND	THE QUEEN Respondent

Hearing:	14 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	P H H Tomlinson for Appellant B D Tantrum and E E Meade for Respondent
Judgment:	4 June 2015 at 11:30 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.

B    The appeal against sentence is allowed. 

CThe sentence of seven years imprisonment on the two burglary charges is quashed.

DThe minimum period of imprisonment imposed on the two burglary charges is also quashed.

EConcurrent sentences of two years imprisonment on each of the burglary charges are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1. The appellant faced four charges in the District Court arising from events in the early hours of 6 April 2011.  He had broken into two residential dwellings but was later located by a police officer who sustained injury allegedly caused by the appellant.

2. On the morning of his jury trial he pleaded guilty to the two burglary charges.  After the trial before Judge P Sinclair, he was acquitted on a charge of threatening to kill a police officer but convicted on one charge of causing grievous bodily harm with intent to avoid arrest or facilitate flight.  He was sentenced by Judge Sinclair on 16 April 2014 to a total of seven years imprisonment on the three charges on which he had been convicted.[1]  In addition, a minimum period of imprisonment of three years and two months was imposed.  There was no differentiation as to the sentences relating to each charge.  Effectively the result must be treated as concurrent sentences of seven years on all three charges with a minimum period of imprisonment on each as well. 

   [1]R v Stepanic[ic] DC Manukau CRI-2011-084-205, 16 April 2015.

3. On 2 March 2015 this Court allowed the appellant’s appeal on the charge of causing grievous bodily harm.[2]  His conviction on that count was quashed and a retrial ordered.  No alteration was made to the sentence on the burglary charges since that was not then in issue.  We were advised that there is a fixture for the appellant’s retrial on that count scheduled for 31 August 2015 and there is to be a sentencing indication hearing on 12 June 2015.

   [2]Stepanicic v R [2015] NZCA 35.

4. The appellant now appeals against his sentence on the burglary charges.  The Crown accepts that a sentence of seven years imprisonment for the burglary charges alone is manifestly excessive and that it is appropriate that, in these unusual circumstances, this Court should effectively re‑sentence the appellant on those charges.

Background facts

1. The facts are not in dispute.  The first burglary occurred at 5.45 am on 6 April 2011.  The appellant went to a residential address in West Auckland.  A female victim was home and in her bed at the time.  The appellant gained entry into the house through an unlocked door.  While in the house he went into the victim’s bedroom where she was sleep and took her backpack, shoulder bag, her Adidas shoes, a set of keys and a wallet.  He also took a cell phone, video camera and another set of keys from the kitchen bench.  During the burglary the victim awoke and saw the appellant crawling along the floor at the foot of her bed but thought it was her son so went back to sleep. 

2. The second burglary occurred soon afterwards.  The appellant left the first address and went to the next residential address, also in West Auckland, arriving there around 6.00 am.  A female victim was at home in bed at this property.  The appellant broke into the house by ripping off the latches to the kitchen window.  Once inside the house he took several items of property belonging to the victim which included two wallets, a camera, a laptop, a pair of oval 9 carat gold earrings, a set of keys with photos of the victim’s son on them and the car alarm and car key on it, a bag and a PlayStation 3 gaming console.  The appellant set off a car alarm at the second address, which awoke the victim who went to investigate.  The appellant ran from the address.  The victim phoned the police and officers were dispatched, with one apprehending the appellant. 

3. There is no contest about the aggravating factors of this offending.  They are that both burglaries were of residential properties; they occurred at night when people were in their homes with the risk of actual danger or confrontation; a number of personal items were stolen from both properties and the victim impact statements reveal that there have been significant effects on the peace of mind of the occupants. 

4. The summary of facts shows that at least some of the property stolen was recovered.

Discussion

1. There is a difference between counsel as to the appropriate starting point.  Mr Tomlinson for the appellant submitted that the starting point should be 18 months imprisonment while Mr Tantrum for the Crown suggested a figure of two and a half years was appropriate.  There is no tariff for burglary sentences because the range of circumstances in which these offences can be committed is so varied.[3]  As this Court noted in Arahanga v R burglary of a domestic residence is a significant aggravating feature due to the heightened risk of confrontation with the occupants.[4]  Dwelling house burglaries at the relatively minor end of the scale, it was said, tend to attract a starting point of approximately 18 months to two and a half years imprisonment.  In the present case, we consider the appropriate starting point was two years imprisonment.

   [3]Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

   [4]Arahanga v R, above n 3, at [78].

2. Mr Tantrum submitted there should be an uplift for two factors.  The first related to previous convictions for burglary.  However, the last of these was in 1998 and we consider that they are too old to have any bearing on culpability for the current offending.  However, we accept Mr Tantrum’s second point that there should have been a small uplift because the appellant was on bail for other offending at the time of the subject offences.  We would allow an uplift of four months to arrive at a sentence before mitigating factors of two years and four months. 

3. Both counsel submitted there should have been a discount for the appellant’s guilty pleas although they differed as to the extent of this.  Mr Tantrum responsibly informed the Court that although the guilty pleas on the burglary charges were entered only at the commencement of trial, the appellant had intimated some months earlier that he would plead guilty to those charges.  In the circumstances, we are satisfied that a discount of four months from the starting point of two years and four months would be appropriate.

4. The end result is that the proper sentence on each of the two burglary charges is two years imprisonment.  Counsel accepted there was no basis for a minimum period of imprisonment on the burglary charges alone. 

Result

1. An extension of time to appeal is granted.

2. The appeal against sentence is allowed. 

3. The sentence of seven years imprisonment on the two burglary charges is quashed.

4. The minimum period of imprisonment imposed on the two burglary charges is also quashed.

5. Concurrent sentences of two years imprisonment on each of the burglary charges are substituted.

6. We conclude with the observation that it is important when sentencing on multiple charges in circumstances such as this to impose separate sentences appropriate to each charge. 

Solicitors:
Meredith Connell, Auckland for Respondent