The Queen v Keith Anthony McEwen
[2001] NZCA 74
•8 March 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA459/00 |
THE QUEEN
V
KEITH ANTHONY MCEWEN
| Hearing: | 1 March 2001 (at Auckland) |
| Coram: | Blanchard J Anderson J Paterson J |
| Appearances: | C L Harder for Appellant S P France for Crown |
| Judgment: | 8 March 2001 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
This is an appeal against a sentence of 8½ years imprisonment imposed in the District Court at Whangarei on 15 December 2000 in respect of a count of burglary to which the appellant had pleaded guilty. At the same time he had been sentenced to three years imprisonment for burglary of a pharmacy and one year’s imprisonment on a number of charges including receiving, wilful damage, unlawful taking of a motor car, and theft. There is no appeal against those other sentences. The ground of appeal is that the 8½ year sentence is manifestly excessive.
The sentence under appeal was imposed for the burglary of the vessel “Tui” which is an old sugar barge permanently moored on blocks in the Waitangi River. It functions as a museum and restaurant and was the place of display of many relics retrieved by the late Mr Kelly Tarlton from sunken ship wrecks in New Zealand waters. The relics included a large quantity of gold sovereigns and a collection of jewellery known as the Rothschild Collection salvaged from the wrecks of the vessels Elingamite and Tasmania. The coins and jewellery were of much historic interest and popular appeal, apart from their commercial value. That value was in the vicinity of $300,000. The items were housed in a safe, the door of which was left open during public viewing hours albeit secured behind a bullet proof glass shield. The appellant was working as a second chef on the Tui in the earlier part of last year. On about 8 April 2000 when he was meant to be working the evening shift in the kitchen, the appellant broke into the safe, stole the jewellery and coins, and absconded. The burglary consisted of the breaking out of the Tui after the theft. The treasure has never been recovered. Added to the public loss of such historic items are the acute anguish and financial loss occasioned to Mrs Tarlton. The product of her late distinguished husband’s work has been pillaged and her livelihood has been grievously damaged. In a cruel gesture the appellant, whilst on remand, offered to meet with Mrs Tarlton, ostensibly to facilitate the recovery of the stolen goods, but after she had travelled to Auckland he refused to see her.
At the time of the burglary the appellant was on parole. He had been sentenced to two years imprisonment at the end of 1998 for a number of crimes of dishonesty, including fraudulent use of documents, burglary, and unlawfully taking or interfering with motor vehicles. His criminal career includes convictions for aggravated robbery, many charges of burglary, and other types of dishonesty. It encompasses 92 crimes for which he has been punished since 1993. He is still only 24 years old.
In his sentencing notes the Judge expressed the opinion, based on material before him including a psychological assessment, that the appellant had some psychopathic tendencies with limited insight into his own behaviour. He identified six particular aggravating features of the offending. These were:-
The high degree of premeditation and deliberateness demonstrated by the offending on the Tui and the break-in of the pharmacy.
The breach of trust in relation to an employer who provided him with work and an enjoyable environment.
A complete lack of remorse, one manifestation of which was the arrangement to speak with Mrs Tarlton whilst on remand – an arrangement which he refused then to carry out. There was, in addition, the appellant’s complete lack of co-operation which might have lead to the recovery of the stolen items.
The financial value and national and international importance of the stolen goods and the devastating effect the theft had had on Mrs Tarlton’s business.
The fact that the offending had occurred on parole.
The record of criminality indicating a strong need to protect society from the appellant’s dishonesty.
The Judge considered that the starting point for the burglary on the Tui should be seven years imprisonment and that such term should be increased because of the aggravating features identified immediately above.
Submissions in support of the appeal
Counsel for the appellant candidly acknowledged the aggravating circumstances but submitted there were mitigating circumstances which justify an appreciably lesser sentence than 8½ years imprisonment. These included the pleas of guilty. The pleas were not entered promptly, although counsel had submitted they were not overly late. In examining that submission the sentencing Judge referred to the entry of the pleas well after committal and when one trial date had been offered although not found suitable to defence counsel. The Judge remarked that there was nothing warranting as great a discount as would have been available had the plea been entered at the first reasonable opportunity. The sentencing notes do not explain the extent to which, if at all, the sentence was modified by an allowance for the pleas of guilty. Counsel’s submission on appeal is that in imposing the sentence of 8½ years imprisonment, the Judge could not have given appropriate allowance for the pleas. In his oral submissions before us, counsel summarised his argument in terms of a notional term of imprisonment in excess of 8½ years being too high if allowance had been made for the guilty pleas, and the actual sentence being inappropriately excessive if no such allowance had been made.
The Crown’s submissions
In responding for the Crown, Mr France emphasised the significance properly to be given to the factors which the Judge had identified as aggravating. He submitted that if anything they warranted evaluation at more than the 18 months which the Judge had assessed in determining the sentence of 8½ years imprisonment. He acknowledged however, that if such sentence had been modified or was taken as if modified by an allowance for the guilty pleas, the sentence reflected the equivalent of a sentence of 9 to 9½ years, which was very high. Nevertheless, it was not a manifestly excessive reflection of the totality of the offending.
Decision
At the sentencing the Judge and counsel rightly had regard to the principle of totality in the structuring of the sentencing. The method, namely adopting a head sentence reflecting the total criminality and combining this with concurrent sentences for the various component crimes, was not inappropriate. In consequence the head sentence falls to be examined on appeal, not just in respect of the burglary itself, but in conjunction with all the associated features of the criminal conduct.
With respect to the sentencing Judge, we doubt whether in this case there can be contemplated a starting point which does not have regard to what the Judge considered aggravating factors. Rather than that they exacerbate offending which has an inherent culpability, they serve in this case to define the essential gravity of the offending which any mitigating factors may then ameliorate. However, the issue in this Court remains whether, having regard to all the features of the case, including mitigating aspects, the sentence of 8½ years imprisonment is manifestly excessive. We think it is.
There can be no question but that the appellant deserved a stern sentence. The heartless crime against Mrs Tarlton, with the appellant’s scornful indifference to the public loss of items of historical value, sit in a context of incessant criminality. Serious considerations of public protection warrant a sentence which may serve to deter the appellant and will keep him away from the public for a lengthy period.
Even so, we are concerned that the sentencing Judge, although recognising in the course of his sentencing notes that the guilty pleas warranted some discount, seems not to have made a consequential reduction in sentence. Whether he had or not, in the result the sentence is manifestly excessive.
It is important that discounts for guilty pleas be manifest and adequate, in order to encourage them in appropriate cases. They serve the objectives of reducing stress to victims arising from defended trials, obviating cost and inconvenience to law enforcement and Court resources, and encouraging rehabilitation through acknowledgement of fault.
Making adequate allowance for the guilty pleas, we think that the sentence should not have exceeded 7½ years imprisonment.
The appeal is accordingly allowed. The sentence of 8½ years imprisonment for burglary is quashed and a sentence of 7½ years imprisonment is substituted. All other sentences, including of course their concurrency, remain unaffected.
Solicitors:
Stephen Mitchell, Auckland, for Appellant
Crown Law Office, Wellington
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