Sunnex v Police HC Christchurch CRI 2010-409-43

[2010] NZHC 521

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI-2010-409-000043

GEORGE MICHAEL SUNNEX

Appellant

v

POLICE

Respondent

Hearing:         22 April 2010

Appearances:  A Bailey for Appellant

K Basire for Respondent

Judgment:      22 April 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against sentence.

[2]      Following pleas of guilty the appellant was convicted in the District Court on two charges: one of burglary, the  other  of  theft. He  was  sentenced  to  a  term  of

imprisonment of two years and four months.

SUNNEX V POLICE HC CHCH CRI-2010-409-000043  22 April 2010

The facts of the offending

[3]        At 8 a.m. on Waitangi Day 2009, the appellant forced open a locked door to Christchurch Cathedral, which at the time was closed to the public.  Once inside, he used a length of wire with chewing gum at one end to remove $95 in cash from a donation box.

[4]      The appellant returned to the Cathedral the following day, when he removed

$39.20  using  the  same  modus  operandi.   This  time  the  Cathedral  was  open  to  the public, so the charge was one of theft rather than burglary.

[5]      When  interviewed  by the  police,  the  appellant  told  them  he  had  stolen  the money to fund his drug habit.  Police found a butter knife in his possession.

[6]      The appellant is 48 years of age and has an extensive criminal history.  As the

Judge noted, his listed convictions over a 30-year period run to some 12 pages.

[7]      In written submissions, the Crown states that the appellant has offended virtually every  year  since  1978  to  the  present  day and  has  amassed  a  total  of  127 prior convictions. These include 23 previous convictions for burglary in the District Court, and two in the Youth Court. His most recent conviction for burglary was in 2006,  with  further  burglary  convictions  in  1997  and  1999. The  majority  of  the burglary convictions were committed in the period before 1989.

[8]      Other offences include  21  offences  relating  to  unlawfully  being  present  in buildings  or  yards,  possession  of  weapons  and  a  miscellany  of  33  dishonesty convictions which include unlawfully interfering with motor vehicle.

[9]      The appellant has received the full range of sanctions, including imprisonment   and   community-based   sentences.            His   most   recent  term   of imprisonment  was  for  four  months. It  was  imposed  on  18  November  2009  for possessing  instruments  for  burglary,  two  charges  of  unlawfully  interfering  with  a motor vehicle, being unlawfully in an enclosed yard and breach of a liquor ban.

[10]     The  offences  at  issue  in  this  appeal  were  committed  very  shortly  after  his release from prison.

The sentence imposed by the District Court

[11]     In sentencing the appellant, the  District   Court   Judge   identified   the aggravating features as being the appellant’s mean-spiritedness in taking the money, and his previous criminal history. The sentencing Judge described the appellant as a recidivist  burglar. He adopted a starting point of  three  years  for  the  burglary, uplifted by six months on account of previous convictions, with a credit of one-third

for the early guilty plea, resulting in the end sentence of two years and four months.

[7]      I would have thought that a starting point may be three years for the burglary is an appropriate response which ought to be uplifted by six months because of your previous propensities to behave in this way.  From that you get a credit of one-third because you pleaded guilty pretty much at the first opportunity to both of these matters, which have been laid indictably.

[8]      Giving you a credit of one-third of the three and a half years means

an end sentence for the burglary of two years and four months.    As to the theft, a sentence of two months imprisonment reflecting on a guilty plea, the term to be concurrent.   You will therefore serve a maximum sentence of two years and four months imprisonment.

[9]      Even though you will have no immediate hope of paying even that small  amount  of  reparation,  I  have  taken  into  account  also  that  you  are prepared to pay it.   It is not a lot of money but I will make an order that you pay  reparation  on  the  burglary  of  the  $95  and  on  the  theft  of  $39.20. Payment is suspended until 28 days from your release.

Grounds of appeal

[12]     On appeal, counsel for the appellant Mr Bailey submits that the sentence was manifestly  excessive.  In  support  of  that  submission  Mr  Bailey  contends  that  the starting point of three years for the burglary was too high having regard to:

i)        Authorities such as R v Columbus [2008] NZCA 192 and R v

Stevens [2009] NZCA 190.

ii)The  fact  that  the  burglary  charge  was  akin  to  theft  and  only slightly more  serious  than  the  theft,  for  which  the  maximum penalty is only three months’ imprisonment.

iii)While  the  offending  was  in  bad  taste,  it  did  not  cause  direct loss to anyone.  The money had been donated and the amount stolen was only modest.

[13]     In  Mr  Bailey’s  submission,  a  more  appropriate  starting  point  would  have been six to nine months, with an uplift on account of the previous convictions.

Discussion

[14]     I  agree  that  in  light  of  Columbus  the  starting  point  of  three  years  was  too high.

[15]     On the other hand, Mr Bailey’s submissions do not in my view adequately reflect the seriousness of the offending, involving as it did:

i)        An element of pre-meditation.

ii)The  burglary  of  a  church,  which  is  a  place  of  worship  and sanctuary.

iii)      The targeting of the same premises.

iv)The number of victims.   In my view, Mr Bailey’s contentions regarding  the  effect  on  victims  understate  the  effect  such offending  has. This  involved  taking  from  the  church,  from members of the public and from the intended recipients of the charity. There  is  the  point  too  that  if  people  consider  that money they donate is going to be stolen, they will be deterred from giving.

[16]     Further,  while  as  I  have  said  I  consider  the  starting  point  was  too  high, conversely  I  consider  the  uplift  of  only  six  months  on  account  of  the  previous convictions was too light.   This appellant can only be described  as an incorrigible offender, particularly as he had only recently been released from prison for a similar type of offending.

[17]     I  also  do  not  accept  Mr  Bailey’s  suggestion  that  the  decision  of  R  v  Chin CA43/04, 10 June 2004, on which the  Crown relies, is now out of date.   I do not understand the Court of Appeal to have indicated that sentencing Judges should now treat burglary less seriously, or that Chin is no longer authoritative.

[18]     Ultimately, on appeal the Court’s focus must be on the end sentence, rather than  its  component  parts  and  the  means  by  which  the  Judge  arrived  at  that  end sentence.   The issue for me is whether a sentence of two years and four months did not properly reflect the overall criminality of the offending and this offender.

[19]     I have given careful consideration  to  this  issue,  as  there  is  certainly  some merit in the appeal.  However, I have come to the view that while this sentence was,

as the Crown itself acknowledges, at the upper end of the range, it was nevertheless within range. Importantly, if I were to intervene, it would only amount to tinkering, and that is something I should not do if I am to be true to the appellate role.

[20]     For  those  reasons,  I  have  decided  the  appeal  should  be  dismissed  and  the sentence confirmed.

Solicitors:
A Bailey, Christchurch

Crown Solicitor’s Office, Christchurch