The Queen v John Paul Clifton Herewini

IN THE COURT OF APPEAL OF NEW ZEALAND

CA424/01

THE QUEEN

JOHN PAUL CLIFTON HEREWINI

Hearing:	18 March 2002
Coram:	Richardson P McGrath J Durie J
Appearances:	R Vigor-Brown for Appellant B J Horsley for Respondent
Judgment:	21 March 2002

JUDGMENT OF THE COURT DELIVERED BY DURIE J

The appellant appeals a sentence of seven years imprisonment for several property and drug offences. On ten counts of burglary, eight theft, one attempted theft and four receiving he was sentenced in the District Court to five years imprisonment after one and a half years had been allowed for guilty pleas. In addition he was sentenced, cumulatively, to a further two years, after allowing one year for guilty pleas, on five charges of supplying methamphetamine and one of selling cannabis.
The appellant contends that the total of seven years imprisonment was manifestly excessive.
The appellant’s apprehension resulted from Police undercover work in Taupo after the district was seen to have been “ravaged” by crimes against property especially by burglary and motor vehicle theft. Although the appellant is aged only 22 he was the main target of the Police operation on account of information that the Police had received against him. As events turned out he was indeed the largest seller of stolen property to the Police officer who posed as a receiver for the purposes of the operation. Over three months the appellant was responsible for theft and damage to property to the value of some $232,000. The burglaries were sophisticated operations. Often they were committed in conjunction with associates and often they involved disabling alarm box wires, cutting telephone lines and shutting down security systems.
The appellant also sold cannabis and methamphetamine to the undercover Police officer. In five separate supplies the officer received some 16 grams valued at about $3,000.
Mr Vigor-Brown for the appellant did not dispute that the appellant is a “recidivist burglar” in the sense given that term by the Full Court of the High Court in Senior v Police (2000) 18 CRNZ 340. That term is used there in contrast with a “first time burglar” which leaves scope for degrees of recidivism. Clearly the appellant is not a first time burglar. He has 14 previous convictions for burglary arising from nine separate events over a period from May 1993 to March 2000. Moreover his record indicates that previous sentences of imprisonment have been ineffectual. In 1997 he was sentenced to 17 months imprisonment following car thefts and in March 2000 19 months for burglary, theft and receiving.
The question in this appeal is where the appellant now stands amongst recidivist burglars who range from the pitiable, small time addict to the notorious, large scale professional. Notwithstanding the scale that the range may contemplate, the element in sentencing principle that is common to all is that recidivism gives vent to the prevention principle referred to by this Court in R v Ward [1976] 1 NZLR 588 in the context of protecting the public from the offenders’ habits.
In Senior, the burglar in question had a previous conviction for a spate of burglaries which had resulted in a sentence of two years and nine months. He had re-offended only soon after his release from prison. His re-offending involved, once more, a series of sophisticated burglaries of homes. Property worth some $60,000 was involved. After a review of other cases the Full Court considered that the seven years with which the District Court had started in that case was sustainable. An allowance of three years for co-operation was also upheld. In that case the appellant had initially been charged with only one burglary but had then admitted to 23 others.
Indicative of the more extreme case was R v Andrian (1996) 13 CRNZ 499. That involved 16 home burglaries and a variety of thefts and receiving charges over about one year affecting about $250,000 worth of property. The offending followed hard upon the appellant’s release from a sentence of seven years for burglary. The appellant, aged 44, had 78 previous convictions for burglary alone and had been before the Court nine times on burglary offences. The Court of Appeal upheld a sentencing structure which imposed eight years for the burglaries and other offences, a further four years for a representative charge of receiving and allowed three years for co-operation. The result was an effective term of nine years.
In this case the District Court gave particular weight to the appellant’s continuous offending since 1993, and to the features that the current offending occurred soon after release from prison, that the appellant was the prime mover of a major spree of criminality, that the operation was sophisticated and that property amounting to a high value was involved. In mitigation the Court allowed that significant property was recovered but then properly observed that most of the property had been passed to the undercover officer in any event. The Court allowed further for the appellant’s relative youth and, of course, the early guilty plea.
Mr Vigor-Brown for the appellant relied upon the synergistic effect of four factors. The first was to the effect that the appellant’s culpability is reduced because several people were involved in some of the offences to the extent that had reparation been ordered, reparation would need to have been apportioned amongst each of those involved. We consider the sentiment behind this argument was best expressed by the appellant himself, to the probation officer, that he would not have had the audacity to commit so many offences without the support of those associates.
The second factor contended for was that some of the burglaries would not have occurred but for agreements, discussions or requests made with or by the undercover officer. The appellant expressed this to the probation officer by saying that probably he would not have offended but for the “bundles of cash” waved in his face.
The third was that there was less danger to civilians and less prospect of uninsured losses in this case because the appellant targeted commercial premises rather than homes. Again, the appellant had stressed this to the probation officer.
Finally, counsel contended that the Judge had not given adequate consideration to the appellant’s remorse which he said was genuine and was made in the context that the appellant had a supportive partner and had a young family in his care.
We first deal with another matter raised in the course of hearing. The increase on the appellant’s previous sentence of 19 months to the present seven years is much more marked than the increase on previous offending in Senior and Andrian which raises a question of whether such a substantial increase could have been foreseen in this case. We accept the submissions of Mr Horsley for the Crown that such an increase for the much larger offending in this case ought to have been expected by the appellant. The increase is commensurate with the appellant’s rapid graduation to a much more serious level of offending than before and in light of his earlier convictions the consequence was predictable.
However, we are in broad sympathy with Mr Vigor-Brown’s submission in viewing and comparing the current offending with the facts and outcome in Senior and Andrian. On that approach we think that the penalty in this case was disproportionately severe. We think that in treating the drug and property offences separately, on the basis that they are, indeed, quite separate in character, the Judge overlooked that common to both was the presence of an undercover officer ready and willing to receive both general goods and drugs. The appellant asserted to the probation officer that “the Police officer asked him to procure the methamphetamine to enable his truck driving employees to work extended shifts”. He asserted that other property had been requested too. We accept as correct the sentencing Judge’s observation that the appellant was not obliged to take part but the encouragement that the operation necessarily provided to the two categories of offending requires that they be considered together. As well, at the end of the day it is the totality of the sentences imposed that has to be assessed. As we have indicated the Judge dealt with the two categories separately and effectively imposed cumulative terms of imprisonment.
The construction of the sentence is of secondary importance to the principle of totality and in now considering the totality we are satisfied that a sentence in excess of six years is not sustainable.
The appeal is allowed. The sentences are quashed for the purpose of substituting a single sentence of six years.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 29

21 March 2002