Swinburne v R

[2010] NZCA 568

IN THE COURT OF APPEAL OF NEW ZEALAND

CA543/2010
[2010] NZCA 568

BETWEENJAMIE MICHAEL SWINBURNE

Appellant

ANDTHE QUEEN

Respondent

Hearing:25 November 2010

Court:Harrison, Ronald Young and Keane JJ

Counsel:K L McHugh for Appellant

M E Ball for Respondent

Judgment:25 November 2010 

ORAL JUDGMENT OF THE COURT

A            Appeal against sentence allowed.

BThe cumulative sentence of three months imprisonment on the charge of breach of home detention is quashed.  Imposed instead is a sentence of three months imprisonment concurrent on the other sentences of imprisonment.

CThe overall sentence of imprisonment is thereby reduced to three years, two months imprisonment.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]        Mr Swinburne was sentenced to three years, five months imprisonment for four burglaries, a breach of home detention, possession of cannabis and resentencing on attempting to pervert the course of justice and assault.[1]

[1]      Police v Swinburne DC Invercargill CRI-2010-025-1330, 29 July 2010.

[2]        Ms McHugh for the appellant says that the final sentence was manifestly excessive because Judge Phillips:

(a)         set the starting point too high;

(b)         incorrectly applied the totality principle; and

(c)erroneously failed to give credit for the appellant’s youth and his prospects.

[3]        No point of principle arises.  We are therefore in a position to give an oral judgment today.

Offending

[4]        During the day of 4 February 2010 the appellant broke into a house in Invercargill by smashing a glass panel rear door.  He searched the dwelling and took $200 cash and a digital camera (first burglary charge). 

[5]        A week later on 11 February the appellant broke into another house in Invercargill, also by smashing a glass panel in the rear door.  Once again $200 was taken together with a digital camera, PlayStation and PlayStation games (second burglary charge).

[6]        Four days later on 15 February the appellant again broke into a house by smashing a glass panel in a rear sliding door.  The dwelling was searched and a laptop computer, a black computer bag, a Nintendo, plus games and jewellery items were taken (third burglary charge).

[7]        A few days later, on 18 February, the appellant again broke into a house by breaking a glass panel in a rear sliding door.  The appellant searched the property and took a 42 inch television, a digital camera, a laptop and $2,200 cash in foreign currency (fourth burglary charge). 

[8]        All of the burglaries occurred during the day.  None of the property has been recovered.  The total value of the property taken or damaged was $13,531.

[9]        At the time of these burglaries the appellant had been released from prison on electronically monitored home detention.  The appellant also breached his home detention sentence.

[10]       In June 2009 the appellant was sentenced to 12 months imprisonment for a large number of burglaries, an assault and resisting arrest.  Originally the appellant had been sentenced to home detention.  However he breached home detention and was in danger of being sentenced to imprisonment.  In an attempt to avoid imprisonment he contacted a woman whom he believed would give evidence of his drinking (and thus breaching home detention) to try and dissuade her from giving evidence.  As a result, the appellant was convicted of attempting to pervert the course of justice.  Then, while the appellant was on remand in custody, he assaulted another inmate by punching him.  The appellant pleaded guilty to Summary Offences Act 1957 assault.

[11]       On 28 January 2010 Judge Moran sentenced Mr Swinburne for the attempting to pervert the course and justice and assault charges.[2]  The Judge imposed home detention.  He did so for these reasons:

[6]         Having got myself to the stage where I am satisfied that imprisonment is an appropriate sentence, I then have to consider home detention because that is an alternative to imprisonment.  I am going to sentence you to home detention.  The reasons are that you have already been in custody for most of the last 12 months.  For the last two and a half months you have been in there on remand so you would not have been in there but for these charges.  You now have a stable home environment to go to if I give you home detention and the sentencing objectives I have talked about can be met by such a sentence.

[2]      R v Swinburne DC Invercargill, CRI-2009-025-2489, 28 January 2010.

[12]       While the appellant was subject to that sentence of six months home detention he committed the four burglaries, the breach of home detention and possession of cannabis.  Further, because of his breach of the home detention sentence imposed by Judge Moran he was resentenced on the charges of attempting to pervert the course of justice and assault.

Sentencing

[13]       The final sentences by Judge Phillips were imposed in this way.  On the burglary charges the Judge identified a start sentence of four years imprisonment (three and a half years imprisonment for the offending together with an uplift of six months) with a full discount of one third for a net sentence of two years, eight months imprisonment.  He imposed a cumulative term of six months imprisonment on the resentencing of the attempt to pervert the course of justice, concurrently with three months for the assault.  A further cumulative term of three months imprisonment was imposed for the breach of home detention.  On the possession of cannabis charge the appellant was convicted and discharged.  The final sentence, as imposed, was three years, five months imprisonment.

Discussion

[14]       We turn now to the grounds of appeal.  Ms McHugh says firstly that the three years, five months imprisonment was manifestly excessive.

[15]       The four burglaries of residential premises involved substantial theft without the prospect of reparation.    For this offending by itself a start sentence of three and a half years was justified.

[16]       There were serious personal aggravating features.  As the Crown pointed out, the appellant had committed two burglary sprees between August to October 2008.  The first was a series of six burglaries committed after having been granted bail and the second a series of eight burglaries, again committed after release on bail.  The releases on bail arose because of the appellant’s age.  This justified a substantial uplift.  The six months increase was moderate.  The deduction of one third for the appellant’s guilty plea was the maximum that could be allowed.

[17]       The offences of attempting to pervert the course of justice and assault were discrete events which justified cumulative sentences.[3]  The attempt to pervert the course of justice was especially serious.  It was an attempt by the appellant to influence a witness in order to avoid imprisonment.  This offending occurred while the appellant was subject to home detention.  The cumulative sentence of six months only for this offending was well within the proper range.  The appellant was fortunate the prison sentence for the assault was concurrent.

[3]           See Sentencing Act 2002, s 84.

[18]       Finally, we refer to the breach of home detention where an additional three months imprisonment was imposed.  This related to the appellant failing to drive to his home by the approved route when he purchased the cannabis.  We do not consider this sentence should have been cumulative.  The appellant was resentenced for his offending which gave rise to the sentence of home detention.  While the appellant’s breach was a discrete failure there is an element of double counting in a cumulative sentence for the breach together with the resentence for the offences for which he was serving home detention.  This is especially so given that the resentencing resulted in a cumulative sentence.  We consider therefore that a concurrent sentence should have been imposed for the breach alone.  We therefore reduce the final sentence imposed by the Judge by three months imprisonment.

[19]       As to totality, the Judge recognised the overall sentence had to match the overall offending.[4]  He reduced the sentences for attempting to pervert the course of justice and breach of home detention on the basis of imposing an appropriate overall sentence.  We are satisfied the Judge made no error in this approach.

[4]           See Sentencing Act 2002, s 85.

[20]       As to youth and “any prospects”, the Judge was correct not to make any allowance.  He was well aware of the appellant’s age.  The appellant has a serious list of convictions for property and violent offending over the last few years.  He now has 35 convictions in the Youth Court and the District Court since 2006.  This was sophisticated adult offending.  Any discount solely for the appellant’s youth has now been exhausted.

[21]       We are therefore satisfied, save for the cumulative sentence for the breach of home detention, that the sentences imposed were appropriate and well within the Judge’s discretion.

[22]       The appeal is allowed to the extent that the cumulative sentence of three months imprisonment on the charge of breach of home detention is quashed.  We impose instead a three month concurrent sentence.  In all other respects the appeal is dismissed.

[23]       As a result the total sentence of three years, five months imprisonment is reduced to one of three years, two months imprisonment.

Solicitors:

Crown Law Office, Wellington for Respondent