The Queen v Mark Barry Renall
[2000] NZCA 254
•16 August 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA196/00 |
THE QUEEN
V
RICHARD JOHN BERRY
| Hearing: | 16 August 2000 |
| Coram: | Blanchard J McGechan J Doogue J |
| Appearances: | B A Davidson and P R Strachan for Appellant M T Davies for Respondent |
| Judgment: | 16 August 2000 |
| JUDGMENT OF THE COURT DELIVERED BY MCGECHAN J |
This is an appeal against sentence of 2½ years imprisonment following a plea of guilty on arraignment as accessory after the fact to what might be termed a home invasion aggravated robbery.
The sentencing Judge proceeded on an assumption the maximum sentence for the offence as accessory was 19 years imprisonment, and that assumption was a factor of some importance in the sentence His Honour imposed.
It is accepted that assumption was incorrect and the maximum sentence in fact was 5 years.
As the legislation is confusing, we will take a moment to say why. Section 17C(n) Crimes Act 1961 provides the maximum sentence for aggravated robbery involving home invasion is 19 years. Section 17D(3) provides that for an accessory after the fact to such a s17C offence the maximum penalty under accessory s312 is that s17C maximum, that is 19 years. Section 312, the accessory section, then provides that the maximum punishment for an accessory to an offence carrying the maximum of 10 years or more, such as the present 19, is 5 years.
The Judge having proceeded upon a wrong principle the sentence should be re-examined afresh.
Having said that, there is much of value in the Judge’s reasoning which we adopt without repetition. In particular, the Judge was of the view that on a 5 year maximum the appropriate range fell somewhere between 12 and 18 months imprisonment, leaning towards the 12. Counsel for Appellant did not dispute that assessment, subject to questions of suspension and leave to apply for home detention. Counsel for the Crown urged the slightly greater range of 18 months to 2 years maximum but also advanced as comparable a decision of R v Morgan (unreported, HC Hamilton, T6/90, 14 May 1990, Anderson J) which imposed an effective sentence of 15 months.
The offence has its serious elements. The underlying aggravated robbery involved two other offenders; home invasion; production of a firearm; and violence. We note that blood was found, at least forensically, on the firearm concerned. The co-offenders were sentenced, following appeal, to 10 years and 8½ years. The Appellant’s role was to break down and to conceal that firearm at his home. Along with the Judge, we accept Appellant would have known the aggravated robbery would have occurred in a house and involved violence, and was not merely passive in concealing the weapon concerned. No explanation was given by Appellant.
Assistance with aggravated robberies, not least home invasions which involve firearms and violence, requires a firm general deterrent.
On the other hand, the Appellant has reached his early 40’s without any significant prior offending. The Search involved in this matter turned up some other personal firearms for which he did not have a licence, and in respect of which he was fined and received periodic detention, but that, although of concern, was not a previous conviction. He has a family situation and responsibilities, and a confirmed opportunity of employment as a bricklayer. The risk of further offending is not seen as high.
There must be a prison sentence. The offence and need for a general deterrent require it. We accept it can be towards the lower end of the range noted, and 12 months would be appropriate.
We are not prepared to suspend the sentence and to deal with it otherwise by periodic detention. In that respect we depart from the tentative thoughts of the sentencing Judge, but His Honour was not required to consider the point in depth. While there are personal factors which go some way towards suspension, the need for a general deterrent in this kind of case precludes that course. It would be incorrect on Petersen[1] principles. It would send the wrong signals. Periodic detention is insufficiently punitive.
[1] [1994] 2 NZLR 533
We are however prepared to grant leave to apply to the District Prisons Board for release on the stricter home detention regime. The family situation and confirmed employment opportunity point in that direction, as does the unlikelihood of further offending. The ultimate decision is of course with the District Prisons Board.
Accordingly, leave to appeal is granted. The appeal is allowed to the extent that the sentence of 2 years imprisonment is quashed and a sentence of 12 months imprisonment is substituted. The Appellant is granted leave to apply to the District Prisons Board for release on home detention.
Solicitors
Strachan O’Connor, Wellington, for Appellant
Crown Law Office, Wellington, for Respondent
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