The Queen v McClean

[2006] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND

CA54/06

THE QUEEN

v

NICHOLAS TUHORO MCCLEAN

Hearing:10 August 2006

Court:Ellen France, Gendall and Heath JJ

Counsel:D Allan for Appellant

D G Johnstone for Crown

Judgment:30 August 2006  at 2.15 pm

JUDGMENT OF THE COURT

A        The appeal is allowed. 

BThe concurrent sentences of six and a half years imprisonment for each of the three counts of burglary are set aside.  We substitute concurrent sentences of four and a half years imprisonment.  The four and a half year term is cumulative upon the sentence of 18 months imposed by the Hamilton District Court on 23 September 2005.  All the other sentences remain as fixed by the District Court.

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REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       On 19 January 2006, the appellant was sentenced by Judge Tompkins to an effective term of eight and a half years imprisonment.  That term was made up as follows:

(a)Six and a half years imprisonment for three burglaries of dwelling houses.

(b)Two years imprisonment for possession of cannabis for sale.  This term was concurrent with the six and a half year term for the burglaries and the cannabis offending.

(c)Six months imprisonment for assault.  This term was cumulative on the six and a half year term.

(d)One and a half years imprisonment for aggravated assault.  This term was cumulative on the six and a half year term for the burglaries and the cannabis offending, and on the six month term for assault.

[2]       The appellant had pleaded guilty to all but the assault charge.  He was convicted of that charge after a defended hearing.

[3]       These terms were cumulative on a term of some 21 months imprisonment which the appellant was already serving at the time he was sentenced by Judge Tompkins.  (On our calculation, the term was 22 and a half months.)

[4]       The appellant appeals against the effective sentence of eight years and a half years on the grounds it was manifestly excessive.  There are two issues.  First, whether the starting point of six and a half years adopted for the burglary charges was manifestly excessive and, second, whether the overall sentence was manifestly excessive given the totality principle.

Factual background

[5]       We need to set out the background to the appellant’s offending in some detail.  We start with the term the appellant was serving at the time he was sentenced by Judge Tompkins.  That term was made up as follows:

(a)       The appellant served two and a half months imprisonment for a number of driving offences including driving while disqualified on a third or subsequent occasion.  This offending took place in the course of a Police car chase after the appellant was disturbed at one of the homes he burgled on 13 April 2005.

(b)        From 23 September 2005, the appellant commenced serving a term of 18 months imprisonment.  This sentence was imposed on a charge of injuring a Police officer with intent to injure.  This offending occurred on 15 April 2005.  The appellant was to be interviewed by the officer at Waikeria Prison.  Before the interview began, the appellant assaulted the officer, knocking out two of his teeth.

(c)        On 8 December 2005, the appellant was sentenced to two months imprisonment for assault.  The assault occurred when he bit a Police officer on 13 April 2005 after he was apprehended following the Police chase.

[6]       The incidents giving rise to the offending for which Judge Tompkins sentenced the appellant occurred over a period beginning on 9 April 2005.  That date saw the first of the three burglaries.  The other two burglaries were committed on 13 April.  On 13 April, the appellant was also found in possession of 1.8 kilograms of cannabis.  He said he took it from one of the homes he burgled. That formed the basis of the possession for supply charge.

[7]       All three burglaries involved dwelling houses.  The appellant was disturbed in two of the burglaries and so took no property.  He took $540 cash and a watch from the third house but both were later recovered.

[8]       On 24 June 2005, the appellant assaulted a Prison officer.  He smashed a window in a visit booth, punching the window in an effort to assault the officer on the other side.  Glass sprayed into the officer’s face and some glass went in his eye.

[9]       Finally, on 23 August 2005, the appellant assaulted another Police officer this time in the holding cells at the District Court.  He hit the officer’s head with his handcuffed hands and rendered the Police officer unconscious.

Sentencing remarks

[10]     After outlining the chronology of events and considering the pre-sentence report, the sentencing Judge first sets out his overall approach.  Judge Tompkins accepted that the three burglaries should be dealt with by concurrent sentences.  The Judge noted the appellant accepted that the sentences for the assault and aggravated assault charges should be cumulative on those imposed in relation to the burglaries and the drug offending. 

[11]     The Judge then addressed the question of the inter-relationship between this sentencing exercise and the existing term.  The 18 months sentence for the 15 April assault was concurrent on the other sentences imposed by that time. The sentences subsequently imposed on 8 and 9 December 2005 were concurrent.  Because those two sentences were concurrent, Judge Tompkins took the view that the sentences he imposed should be cumulative upon the current term.  We note that the appellant’s record suggests the two month term was cumulative and we come back to that.

[12]     Sentencing proceeded on the basis the appellant accepted a term of imprisonment was inevitable.

[13]     The aggravating features identified were as follows.  First, this was premeditated repetitive offending in relation to dwelling houses which had a high impact on the victims.  Those factors outweighed the fact the burglaries involved relatively low amounts and that there had been some recovery of goods.

[14]     The second aggravating feature identified was that the appellant had taken his ten year old son along with him whilst carrying out the first and second of the burglaries.

[15]     Third, the Judge referred to the appellant’s willingness to resort to violence at the least provocation.  Associated with that, the pre-sentence report identified the absence of any insight into the offending and saw the appellant as of high risk of re‑offending.

[16]     Fourth, the assaults were on people acting in the course of their duties.  Finally, there was an extensive list of previous convictions.

[17]     The only mitigating factor identified was the late guilty pleas made to all of the charges other than the assault on the Prison officer.

[18]     In terms of the burglary charges, Judge Tompkins adopted a starting point of six and a half years imprisonment.  No reduction was given for the guilty pleas on the basis that the aggravating factors personal to the appellant outweighed any mitigating features.

[19]     On the possession charge, a two year term concurrent on the earlier term was imposed.  Sentences of six months and 18 months imprisonment were imposed in relation to the assault and aggravated charges respectively on a cumulative basis.

[20]     Finally, the Judge considered the totality of the offending and concluded the overall sentence imposed was consistent with that principle.

The challenge to the burglary sentence

[21]     The appellant says that the term of six and a half years imprisonment imposed in relation to the burglary charges was manifestly excessive.  Two reasons are advanced.  First, that the starting point was excessive having regard to Senior v Police (2000) 18 CRNZ 340, R v Southon (2003) 20 CRNZ 104 (CA), and R v Binnie CA261/99 6 September 1999.  While the impact of the burglaries on the victims was relevant, there was ultimately no property loss.  Second, the term was manifestly excessive because there was no reduction for the guilty pleas.

[22]     The Crown accepts that the matter could have been approached differently so the effect of the guilty pleas was clear.  However, it is submitted there has been no error in approach especially given the fact that sentencing for burglary is so clearly affected by a prior history of such offending.  The various aggravating and mitigating features have been put in the mix.  In any event, the Crown submits the final sentence is appropriate whatever approach is adopted.

Discussion

[23]     The Judge was right that a deterrent sentence was called for.  The appellant has an extensive history involving 36 previous burglary convictions.  In addition, the cannabis offending involved some 1.8 kilograms of cannabis.  Then there was the violent offending involving as Judge Tompkins says officers acting in the course of their duties.

[24]     However, with the benefit of further argument on the matter, we consider the starting point was too high.  The impact of the burglaries on the victims is obviously highly relevant but there is no other comparison between this offending and that in cases like Senior, Southon or R v Andrian (1996) 13 CRNZ 449 (CA).  The offending in Andrian, for example, involved entry into several homes over a period of over a year.  The items taken included silverware, jewellery and heirlooms.  The Police found over $170,000 worth of goods in a safe deposit box used by Mr Andrian.

[25]     The exact value of the total stolen property in that case was estimated to be about $250,000.  The sentence of nine years imprisonment was upheld on appeal.

[26]     Here the amounts involved were minimal and, ultimately, all property was recovered.  Six and a half years was too high a starting point in that situation.

[27]     It would also have been preferable to spell out the mitigating effect of the guilty pleas even though the Judge considered the appellant was not entitled to any reduction in sentence because of those pleas.  More importantly, we consider there should have been some discount for the guilty pleas in relation to the burglaries.  The victims were spared the need to appear at a trial and the pleas reflect at least an acknowledgement by the appellant of his wrong-doing.

[28]     We consider a starting point of five years imprisonment on the burglary charges was appropriate to reflect the aggravating features identified by the Judge.  With a discount of six months for the guilty pleas that would leave an end sentence of four and a half years imprisonment on those charges.  With this change, the effective sentence is six years and six months.  That term reflects the appellant’s overall culpability and no further adjustment is necessary.

[29]     No issue can be taken then with the decision to impose a cumulative term.  However, as we have indicated, the record indicates the two month term for assault was cumulative.  That is inconsistent with the sentencing remarks.  The matter should be checked by the relevant authorities against the warrant.  But, on the basis the sentencing remarks do not say the two month term is cumulative, we make the four and a half year term cumulative on the 18 month term imposed on 23 September 2005 for assault.

Result

[30]     The appeal is allowed. The concurrent sentences of six and a half years imprisonment for each of the three counts of burglary are set aside.  We substitute concurrent sentences of four and a half years imprisonment.  The four and a half year

term is cumulative upon the sentence of 18 months imposed by the Hamilton District Court on 23 September 2005.  All the other sentences remain as fixed by the District Court.

Solicitors:
Crown Law Office, Wellington