The Queen v Leslie Roy Bowen
[2001] NZCA 168
•23 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 460/00 |
THE QUEEN
V
LESLIE ROY BOWEN
| Hearing: | 22 May 2001 |
| Coram: | Tipping J Heron J Paterson J |
| Appearances: | O S Winter for Appellant S P France for Crown |
| Judgment: | 23 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY HERON J |
This appeal against conviction and sentence proceeds only in respect of sentence and the appeal against conviction is accordingly dismissed. Following trial by jury, the appellant was convicted of 11 offences, three counts of burglary and eight counts of theft. The offending essentially involved the breaking and entering of rural premises or stealing valuable property therefrom including farm vehicles and equipment. In respect of the burglaries the appellant received a sentence of four years and in respect of the thefts, apart from one count (which involved a smaller sum), a sentence of three years imprisonment was imposed. Outstanding fines of $4,270 were remitted.
The Judge having dealt with each count in summary observed that a total of $94,320 worth of property was taken, of which $43,080 worth was recovered. It was a pivotal part of the Crown case that the appellant was the ringleader in organising the various thefts and burglaries. The Judge formed the impression that the appellant was the dominant member of the group of persons committing these offences and that he was older, had a background of offending and was in all respects the ringleader. Indeed it was common ground that his involvement was as a party and not a direct participant in respect of the burglary and thefts.
As the Judge observed the offending was carried out on predominantly rural properties in the Manawatu area and that all of the victims reported a general loss in terms of their sense of security apart from the inconvenience and financial loss, often not insured.
Mr Winter on behalf of the appellant submitted that the theft sentences of three years imprisonment could not be attacked but the burglary sentences of four years were manifestly excessive. He said that the manner in which the burglaries were carried out involved no great degree of expertise, such as might be found in the burglary of commercial premises, but that in many cases it simply involved the opening of a door or the prising of a padlock. In that respect they differed little from the circumstances of the thefts. He pointed out that the property was generally taken from premises where there were no people in residence, and that there was an absence of aggravating features such as to require a sentence as long as four years.
Mr Winter took us through the circumstances of the three burglary counts demonstrating the limited extent to which property was damaged in the course of breaking and entering. He submitted there was little financial gain to the appellant from his involvement with these burglaries and they should be seen as at the bottom of the scale of this type of offending.
The Judge reviewed the relevant authorities, including R v Andrian, CA 198/95, 12 February 1996, R v Ataria CA58/97, 27 July 1997, R v Wickliffe, CA 387/95, 20 March 1996. Clearly the range for burglaries and thefts on this scale with a degree of professionalism can range as high as nine years down to three to four years. The circumstances will vary greatly depending on the nature and scale of the enterprise. We see nothing excessive in the Judge fitting this case into the overall range and choosing four years as the appropriate measure for the more serious burglary offending.
As Mr France says, there was a need for personal and general deterrence and whilst the burglaries did not involve dwelling houses where a possibility of a confrontation with an occupier always exists, there was the aggravating feature of an organised enterprise involving many valuable items of farm property the loss of which had considerable personal impacts on the victims as outlined in the various reports before the court.
The personal circumstances of the appellant were unexceptional. Aged 32 he had regularly appeared before the courts over the previous 16 years including an earlier conviction for burglary but had not served a prison term. Whilst his past record disclosed no pattern of regular theft and burglary, he had as a mature man, organised an operation which gave the events a more serious context.
Following cases such as R v Binnie, CA 261/99, 6 September 1999, and R v Wickliffe, to mention but two, the sentence of four years must have been appropriate in all the circumstances.
Accordingly we also dismiss the appeal against sentence.
Solicitors:
Barltrop Graham, Feilding for Appellant
Crown Law Office, Wellington
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