The Queen v Caldwell

[2006] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

CA24/06

THE QUEEN

v

LEISTER BRENDON CALDWELL

Hearing:26 June 2006

Court:Glazebrook, John Hansen and Potter JJ

Counsel:D R La Hood for Appellant

K J Beaton for Crown

Judgment:29 June 2006 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(GIVEN BY POTTER J)

Introduction

[1]       Leister Brendon Caldwell appeals against an effective sentence of four years three months imprisonment imposed by Gendall J in the High Court at Wellington on 16 December 2005 after the appellant entered guilty pleas to a raft of charges.  The ground for the appeal is that the sentence is manifestly excessive. 

[2]       The Crown resists the appeal on the basis that the sentence of four years three months imprisonment was within the range available in the overall circumstances of the appellant’s offending and was not manifestly excessive.

Background sentence

[3]       The appellant was sentenced in respect of a total of 22 charges.  They included 11 counts of receiving, one for cultivation of cannabis, two for possession of a Class A drug, one for possession of cannabis, one for possession of pipes (x 8), and a burner, one for unlawful possession of a restricted weapon (stun gun), one for driving while disqualified, one for unlawful possession of a firearm (pistol), one for possession of a pipe, one for failing to answer bail and one for unlawfully taking a motor vehicle. 

[4]       The offending that gave rise to these charges occurred in three principal episodes.  The first was between August 2003 and March 2004 (charges followed from the execution of a search warrant on 8 March 2004), the second was in September-October 2004 (charges followed from the execution of a search warrant on 13 September 2004), and the third was in February 2005, followed by the appellant’s arrest on 11 February 2005.  The appellant failed to answer bail on 23 February 2005 and absconded.  On 20-21 August 2005 he unlawfully took a motor vehicle which was found in his possession when he was finally apprehended in October 2005.

[5]       When Police executed the search warrant on 8 March 2004 at the appellant’s address in Ngaio, Wellington a significant amount of electronic equipment was found which had been the subject of burglaries in the area over the previous seven months.  Also found were a number of cannabis plants, seeds and hydroponic equipment used to cultivate cannabis.  Also present were pipes and bongs, electronic scales, two sets of butane gas equipment and a large number of empty point bags unrelated to the cultivation of cannabis, but related to the use and possible sharing of methamphetamine and documents consistent with being “tick lists”.

[6]       On 13 September 2004 Police executed a further search warrant at the appellant’s address which was then in Waikanae.  They found a plastic bag containing cannabis and pipes and items used for smoking methamphetamine.  Also located was an electric stun gun. 

[7]       In October 2004 the appellant was stopped in a motor vehicle on a routine patrol.  He was a disqualified driver and was charged with driving while disqualified. 

[8]       While the appellant was on bail in relation to the charges arising from the execution of the two search warrants, he was apprehended at the Kapiti shopping centre on 11 February 2005.  Pursuant to a search warrant Police searched his motor vehicle and discovered items of lingerie to the value of $4,464 (a week earlier there had been a burglary from business premises in Paparaumu in which $15,000 worth of lingerie had been stolen), .4 grams of methamphetamine in small point bags having a street value of $400, together with a glass pipe and other items clearly related to the use of methamphetamine.  A home made firearm was located beside the front passenger seat.

[9]       Not only did the appellant fail to appear on 23 February 2005 but did not appear for trial of the indictable matters on 12 April 2005.  A warrant was issued for his arrest but he absconded and managed to avoid capture for several months.  During that period while on the run, he further offended by unlawfully taking a motor vehicle on or about 20 August 2005.  When he was finally apprehended in October 2005 the vehicle was found in his possession.

Sentencing

[10]     The Judge said that this was not a case where the appellant was to be sentenced “simply as a dishonest receiver”, nor as being involved in possessing and cultivating of drugs or possessing offensive weapons.  There were multiple features involved in the sentencing exercise.  He stated that the totality of the crimes supported the view that the appellant was a major receiver of expensive stolen electronic items in the context of his possession, personal use and cultivation of Class C drugs and personal use of Class A and B drugs, allied with the possession of illegal firearms which he considered was an aggravating and sinister feature of the drug and receiving offences.  An additional seriously aggravating feature was the further receiving offence committed while on bail, the appellant’s failure to attend at Court and his absconding for a very significant period in an attempt to avoid trial on the serious drug matters.  He stated that stern penalties were necessary to protect the property of the public and to deter others from like conduct.

[11]     The Judge noted the requirement that the totality of the offending be considered when sentence was imposed.  He stated that cumulative sentences could be imposed, at least on the three bands or categories of offending, but that to do so would infringe the totality principle because it would lead to a total period of imprisonment out of proportion to the crimes.  He considered, however, that a cumulative sentence was justified and required in respect of the conversion of the motor vehicle on 20 August 2005 when the appellant was on the run from the Police and in defiance of Court orders.  He stated:

The car conversion … has grave aggravating features and … requires a cumulative sentence to bring home to you and others who might be likewise inclined that further serious offending whilst awaiting trial on other matters and whilst evading authorities cannot be expected to be the subject of concurrent sentences.

[12]     The Judge took as the lead offence the charge of receiving lingerie between 4 ‑ 11 February 2005.  He noted that some cases suggested starting points of up to 18 months imprisonment for a single serious incident of receiving but that moderately serious operations such as the appellant’s justified starting points much higher.  He referred to Police v Som HC WN CRI 2005-485-141 4 November 2005 Ronald Young J, where a starting point (he said) of three and a half years was considered appropriate.  (The starting point taken in Som was in fact three years three months). 

[13]     He noted the serious aggravating feature that when this offence was committed the appellant was on bail awaiting trial on ten identical counts together with two counts of cannabis use and possession of a Class A drug.  He took a starting point of three and a half years imprisonment. 

[14]     He was satisfied on the evidence that there was some commercial element or connotation around the cannabis cultivation, which should be treated at a moderate level and attract concurrent sentences so as not to increase the lead sentence. 

[15]     He observed that the firearms charges carried sinister overtones and connected with drug offending would usually attract cumulative sentences of nine to twelve months to reflect additional culpability.  However, he imposed concurrent sentences to ensure an end result that complied with the totality principle. 

[16]     In respect of the car conversion on 20 August 2005 he imposed a cumulative sentence of nine months imprisonment.  The Judge stated specifically that he did not include the offence of car conversion as a separate aggravating offence because he had dealt with it by way of a cumulative sentence.

[17]     As to mitigating circumstances, he considered that the guilty pleas entered prior to trial were hardly early pleas as defence was futile once the appellant was finally apprehended.  The pleas were not remorseful acceptance of guilt but a final realisation of the inevitable which followed escape and alluding capture for eight months.  The Judge observed that even if a discount or allowance for guilty pleas were to be granted it would be outweighed by a wide margin by aggravating features personal to the appellant.  In these he included 44 previous convictions for a wide range of criminal behaviour, fleeing the authorities and gaining an unwarranted eight months’ freedom.

[18]     The end sentence imposed was four years three months imprisonment comprising the lead sentence of three years six months and the cumulative sentences for the car conversion offence, of nine months.  Separate concurrent sentences were imposed for each of the other charges.

Submissions

[19]     Mr La Hood for the appellant submitted that the sentence imposed was manifestly excessive because, first, the starting point of three and a half years for the lead sentence was excessive, and secondly, the imposition of a cumulative sentence for the offence of car conversion resulted in the overall sentence being excessive.

[20]     He noted that the starting point taken in Som was three years three months imprisonment, not three years six months as stated by the sentencing Judge, and that Som involved property to the value of more than $30,000, where the receiving had taken place to order from one of Wellington’s most notorious burglars.  It was submitted that in this case, even taking into account all the other receiving charges, given the value of the property (less than $20,000) and the fact that it was recovered, the starting point was too high. 

[21]     He emphasised that there was no evidence of commercial dealing in relation to the charge of cultivating cannabis.  He submitted that the offences of possession of a Class A drug did not justify any uplift in the starting point and that no more than six to twelve months uplift would have been justified for the firearms offending. 

[22]     He further submitted that while the sentence of nine months for the car conversion offence was not inappropriate, by making that sentence cumulative on the sentence of three and a half years imposed for the other offending, the overall sentence was manifestly excessive.

[23]     Mr La Hood further submitted that the Judge was wrong not to allow a discount for the guilty pleas, albeit that they were late in the piece and that his explanation that even if a discount were allowed, it would be far outweighed by aggravating features, double-counted some of the aggravating features which had already been taken into account in the uplift from the starting point for the lead sentence. 

[24]     Finally, he submitted that an overall starting point, whether reached by concurrent or cumulative sentences, should not have exceeded three years imprisonment from which there should have been allowed a discount of at least six months for the guilty pleas.

[25]     The Crown submitted that because of the particular combination of aggravating features which the Judge had to take into account, an overall approach to sentencing was entirely appropriate and that a sentence of four years three months imprisonment was not manifestly excessive in all the circumstances.

Conclusions

[26]     We agree that the effective sentence of four years three months imprisonment was within the range available, given the overall culpability of the appellant.  There were three distinct episodes of offending in March 2004, September 2004 and February 2005 as well as the further offences of failing to answer bail in February 2005 and unlawfully taking a motor vehicle in August 2005.  Subject to the totality principle, sentences in respect of each of these several episodes of offending could justifiably have been imposed on a cumulative basis, which would have resulted in a higher overall end sentence.

[27]     The Judge correctly and carefully approached sentencing on a totality basis.  He gave logical and clear reasons for this approach and for the imposition of a cumulative sentence in respect of the car conversion offence on 20 August 2005.  The significant aggravating factors of the repeat receiving offences, the drug related and firearms offences, offending whilst on bail and absconding were appropriately reflected in the uplift in the lead sentence.  The Judge distinguished between aggravating features of the offending and of the offender and properly attributed them, on the one hand in setting the starting point for the lead sentence, and on the other hand in balancing any discount that would otherwise have been available for the guilty pleas. 

[28]     The approach of the sentencing Judge was entirely principled and the resulting sentence cannot be regarded as out of proportion to the gravity of the overall offending or manifestly excessive.

[29]     The appeal is dismissed.

Solicitors:
Sladden Cochrane, Wellington for Appellant
Crown Law Office, Wellington