The Queen v Linus Kevin Constable
[2000] NZCA 63
•24 May 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA551/99 |
THE QUEEN
V
LINUS KEVIN CONSTABLE
| Hearing: | 24 May 2000 |
| Coram: | Thomas J Anderson J Panckhurst J |
| Appearances: | G J Mowbray for Appellant C L Mander for Crown |
| Judgment: | 24 May 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
This is an appeal against sentences of 12 months imprisonment imposed concurrently on one count of burglary and one of wilful damage. The appellant had been convicted on his trial before a District Court Judge and jury and subsequently appealed against conviction and sentence. He no longer pursues the appeal against conviction.
The complainant was the appellant’s estranged wife. The couple had been separated for almost two years when the appellant broke into the complainant’s home on 4 February 1998. The damage he then caused to his wife’s house and personal belongings was mean spirited and vindictive. Many of Mrs Constable’s possessions were of great sentimental value. They included family heirlooms such as chinaware and jewellery, as well as musical instruments and other chattels which she had cherished since childhood. The latter included a piano accordion, which Mrs Constable had been given by her father, and a 12 string guitar that she had acquired when young. The appellant smashed the heirloom china, stole some jewellery, and poured plaster of paris and alcohol over Mrs Constable’s piano. He stole the other musical instruments. Music had always played a significant role in her life and the loss of these items was grievous to her. Bed clothing and other items were strewn about the floor and damaged with alcohol. Vanity taps were left on with the plugs in causing total flooding throughout the house. More than $22,000 worth of damage was caused.
The appellant was sentenced on 10 December 1999. The Judge noted that this was not a chance burglary but had been aimed at the appellant’s former wife personally in order to cause maximum pain and distress. At the time of sentencing the appellant was still denying guilt on his part, preferring to cast the blame on another woman whom he had been living with at the time.
Sentencing had been deferred on two previous occasions so that the question of reparation could be examined. By the time of sentencing the appellant had indicated through his counsel that he was prepared to make reparation to Mrs Constable personally in the sum of $7500 and that such amount had been paid to the complainant’s bank account by bank cheque. The Judge expressed pleasure that the appellant had accepted responsibility in that sense at least and indicated it would stand in his favour. The appellant was also prepared to make reparation to the insurance company involved in its loss of $14,979 and such reparation was to be paid at the rate of $50 per week.
Mr Constable had no significant prior convictions and the Judge was prepared to accept that the offence was out of character. Nevertheless he was of the view that the offence called for a clear condemnatory approach and was beyond an ordinary type of dishonesty offence. He remarked that but for the acceptance by the appellant that reparation was appropriate he would have imposed a significantly greater sentence, yet considered nevertheless that a sentence of imprisonment must be imposed to mark the Court’s view of that kind of offending. The timing of the conviction rendered home detention an irrelevancy.
Counsel for the appellant accepts at the outset that it is not helpful to use a comparative approach in assessing the appeal because of the idiosyncratic features of the offending. One matter of relevance, however, was the amount involved, namely $22,479, and the fact that the appellant had no previous convictions for burglary and only relatively minor convictions otherwise. It was submitted that in such circumstances undue weight was placed by the sentencing Judge on denunciation and insufficient weight on the mitigating aspect of acceptance of reparation. Counsel submits that appropriate balancing of those features would have been achieved by either a sentence of periodic detention or a shorter term of imprisonment. Counsel also submits that insufficient weight was given to the mitigating aspects of the absence of any significant prior offending.
In relation to the concurrent sentence of 12 months imprisonment for wilful damage, counsel submits that there was an error of principle by the sentencing Judge. That submission proceeds from the combination of a maximum sentence of five years imprisonment for the offence under s 298(4) of the Crimes Act 1961 and the application of s 6 of the Criminal Justice Act 1985. The Judge made no reference to s 6 in the sentencing notes and counsel argues that although the Judge may have found special circumstances in terms of s 6 without expressing them, he nevertheless did not consider whether a sentence other than imprisonment would be “clearly inadequate or inappropriate”. Counsel also submits that the Judge failed to consider s 7 of the Criminal Justice Act and argued that although a denunciatory sentence must be accepted as necessary, nevertheless the denunciatory purpose could have been met by a sentence of periodic detention.
In reply counsel for the Crown emphasised the substantial damage; the premeditated nature of the offence; the burglary of a private home to cause malicious damage; and the motive of personal distress to the victim.
We do not consider it realistic to approach the question of sentencing otherwise than on the basis of a continuing course of criminal conduct by the appellant commencing with the burglary and encompassing the malicious damage to the house and theft of many items. Such matters so obviously amount to special circumstances of the offence as to explain why the sentencing Judge made no specific reference to s 6 of the Criminal Justice Act. Further, having presided over the trial, the Judge would have been well aware, without the need for articulation, of the extent of the loss and damage and its spiteful motive. This case had singular features which the Judge plainly regarded and was entitled to regard as serious, and warranting a firm sentence notwithstanding the acceptance by the appellant to make reparation. Although not mentioned by the Judge, there are considerations of general deterrence in respect of domestic offences, whether of personal violence or calculated to cause serious loss and anguish through damage to property. We are not persuaded that either sentence was manifestly excessive or wrong in principle. The appeal against sentence is dismissed. The appeal against conviction, which was not pursued, is also dismissed.
Solicitors:
Thomas Dewar Sziranyi Druce, Lower Hutt, for Appellant
Crown Solicitor, Wellington
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