The Queen v Michael Todd Rohloff

[2003] NZCA 223

IN THE COURT OF APPEAL OF NEW ZEALAND

CA193/03

THE QUEEN

v

MICHAEL TODD  ROHLOFF

Hearing:22 September 2003

Coram:Blanchard J
Goddard J
William Young J

Appearances:  G J King for Appellant

A Markham for Crown

Judgment:24 September 2003 

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1]       The appellant pleaded guilty to nine charges of burglary and two charges of theft from motor vehicles and was sentenced in the District Court at Wellington to a total sentence of six years imprisonment with a minimum non-parole period of 3½ years imprisonment.  He has appealed against both the length of the total sentence imposed and against the imposition of a minimum non-parole period.

[2]       The appeal against the total sentence of six years imprisonment was advanced on the ground that the sentence is manifestly excessive in all the circumstances.  As particulars, Mr King argued that the starting point of five years was too high in light of relevant authorities; that an appropriate starting point was four years imprisonment that the sentence failed to take sufficient account of the mitigating factors and the discount given of one year was imprecise and arbitrary; and that the sentencing Judge’s approach in deducting one year for the early guilty pleas but then increasing the sentence by a further two years did not fit with principles governing sentencing discounts.

[3]       The above particulars can be simply grouped into two categories: first, whether the starting point adopted by the Judge was appropriate in the circumstances; and secondly, whether the Judge erred in her computation of aggravating and mitigating factors in determining a final sentence of six years imprisonment.

[4]       The appeal against the imposition of a minimum non-parole period was advanced on the ground that the appellant’s case is not an appropriate one in which to impose a minimum non-parole period and that the sentencing Judge had based the imposition of the non-parole period on the appellant’s conviction record rather than on the seriousness of his current offending.

The facts

[5]       There is no dispute that the appellant comes squarely within the description of a recidivist burglar and is to be categorised as such for sentencing purposes.  He is aged 22 years and has been offending since 1995, when he was aged 15 years.  Since that time he has amassed a lengthy list of criminal convictions: for burglary, dishonesty offending, motor vehicle offending and some class B and C cannabis offending.  In all, he has over 30 burglary convictions, more than 20 convictions for unlawfully taking or interfering with motor vehicles, 15 convictions for theft from cars, several convictions for possession of instruments for burglary or car conversion; convictions for theft, shoplifting and fraud and a number of driving convictions.  He has been sentenced to imprisonment on a number of occasions and the probation officer who wrote the pre-sentence report notes that he has spent a large proportion of the last five years in prison.  The historical pattern of his activities indicates that he offends almost immediately following his release from a sentence of imprisonment.  The present offending is a case in point: it was committed during a six month period commencing immediately upon his release serving 10 months of a 15 month prison sentence for similar burglary and fraud offending.

[6]       This lengthy cycle of repeated offending, interrupted only by incarceration, appears to stem from an unstable early life with little familial contact during teenage years and the total absence of a father figure.  The appellant has never been in employment and has no formal qualifications.  He says that he lacks the confidence and self-esteem necessary to seek employment because of his criminal record and his lack of qualifications.  He says the influence of drugs and other anti-social influences and the lack of parental guidance in his early teenage years have been the contributing factors to his offending but states that he wishes to make positive changes in his life and, in particular, to control his desire for drugs, which he said has been the prime motivation for his continuing to offend.

[7]       The subject offences were carried out in the Wellington suburbs of Mount Victoria, Roseneath and Oriental Bay, which the appellant had deliberately targeted as likely to yield good pickings.  He would travel to these districts during the day, either by foot or by bus, and gain entry to premises or vehicles using rocks to smash windows or doors.  He was always careful to cover his hands with his socks to reduce the likelihood of leaving fingerprints on any surfaces and once inside the premises or vehicles would select specific items such as cash, jewellery, computer equipment, cameras, clothing, games machines, alcohol or musical equipment and pack these into bags.  He would then leave the area as quickly as possible.  He was careful never to carry out burglaries or car thefts in the district in which he was residing.

[8]       A large proportion of the property stolen was sold through second-hand dealers, friends of the appellant or receivers and the appellant says the proceeds went to support his drug habit.

[9]       The appellant also burgled two commercial premises, one being the Ministry of Defence headquarters in Stout Street.  That burglary was not apparently the result of any specific targeting by the appellant, but was opportunistic in nature.  That was accepted by the sentencing Judge

[10]     On arrest the Police located some items of the property stolen by the appellant from the addresses specified in the nine charges but other items of stolen property located could not be identified by complainant and are therefore not the subject of charges.  By his own admission, the appellant was committing between one and two burglaries every week.  The total value of the property he stole from the seven residential properties and two commercial premises identified in the nine charges is $52,653.00, of which only a small proportion has been recovered.  The appellant declined to identify any associate involved in his offending or to disclose who the receivers of the stolen goods were.  He did however assist the Police in the recovery of a gold watch which had great sentimental value for one of the complainants.

[11]     Altogether, there are 19 known victims of the appellant’s current offending, most of whom are young people who are living in flatting situations and who had worked hard to obtain the possessions which the appellant stole from them.  Many have been hurt by the personal nature of items stolen, such as cameras containing undeveloped rolls of film and all have experienced the feelings of violation and distress common to victims of burglary.

The probation officer’s recommendation

[12]     The probation officer has described the appellant as constituting a high risk of re-offending, given his continued offending during any period of release into the community and his failure to comply with sanctions imposed by the Court.  The probation officer expressed the view that the appellant would need to address his lifestyle habits, including his desire for drug taking, with appropriate interventions to reduce the level of his risk.  He noted that the appellant’s response to sentences of periodic detention and supervision previously imposed has been poor and that his terms of parole have been cancelled due to the imposition of further sentences of imprisonment.  He observed that the appellant’s most recent term of parole has also been poorly managed by him, resulting in enforcement action being taken.

The sentencing judgment

[13]     In a brief sentencing judgment the District Court Judge noted that the appellant had been co-operative to the extent of admitting his offending and entering early guilty pleas but had failed to assist the Police in recovering any stolen property, apart from the gold watch.  She noted the appellant’s lengthy criminal history and referred to the decision of the Full High Court in Senior v Police (2000) 18 CRNZ 340 for guidance.  In that decision the High Court had referred to the need for members of the public to be protected from the activities of recidivist burglars.  The Judge also referred to ss7, 8 and 16 of the Sentencing Act 2000 and the principles of denunciation and deterrence as outweighing any other factors in the appellant’s case.  She then determined sentence as follows:

The Crown suggests a starting point of four years’ imprisonment, but with aggravating features to be considered.  There are little or no mitigating features, other than your immediate plea of guilty, your co-operation with the police, and your age.  I disregard your drug habit as any form of mitigation.

Despite what [your counsel] has had to say, and he has canvassed in some details the various difficulties that you have encountered during your life, I consider that the appropriate starting point is one of five years.  From which I am going to deduct 12 months for your early plea and the other mitigating factors which I have stated.  Bearing in mind the totality of the offending and the enormous number of previous convictions, and the fact that some of these offences were committed whilst you were still on parole, I consider that the overall sentence must be increased to one of six years’ imprisonment.

Discussion

[14]     Mr King argued that the starting point of five years adopted by the sentencing Judge was manifestly excessive in the circumstances of the appellant’s offending and did not accord with the starting point of not more than four years identified in Senior.  The observation in Senior (at paragraph 32), that in most cases of recidivist burglary coming before the courts the starting point did not exceed four years, was made following analysis by the Court of a number of decisions.  A similar further observation was made by the Court at paragraph 36 of the judgment:

A recidivist burglar who pleads guilty to say a single offence or even two or three offences is unlikely to receive a sentence which exceeds three years.

[15]     However as this Court remarked in R v Southon (CA314/02, 13 February 2003), Senior is not to be regarded as anything more than a “very helpful analysis of historic sentencing patterns in this area” which provides an aid to achieve consistency in sentencing similar offenders committing similar offences in similar circumstances.  The Court in Southon further remarked that recent appellate decisions demonstrate that recidivist burglars “… cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment”.

[16]     What Senior does highlight is that the length of any sentence to be imposed in a case of recidivist burglary will largely depend upon the number of previous convictions, the number of offences for which the offender is now appearing for sentence, and the presence of aggravating and mitigating factors.  A significant factor remains the protection of the public.

[17]     The starting point of five years imprisonment adopted by the sentencing Judge in the appellant’s case is unexceptional, given the appellant’s unrelenting pursuit of a career in burglary since the age of 15 years, alleviated only by periods of incarceration; and also given the nature and number of the current burglaries he embarked upon immediately upon his release from prison and whilst still on parole.  In his case a starting point of as high as six years imprisonment is, in our view, appropriate, with the focus then on the length of the discount to be given for the mitigating factors.

[18]     The approach taken by the sentencing Judge in fixing a ‘nominal’ starting point of five years imprisonment, then making a deduction for the guilty pleas and other mitigating factors and then increasing the sentence to take account of the aggravating factors led her to inflate the starting point of the sentence to one of an effective eight years imprisonment.  The aggravating factors which led to this increase included the appellant’s conviction history, a factor that the Judge had already recognised in adopting a starting point that reflected the recidivist nature of his offending.  The addition of further length to the final sentence to account for that history was, in effect, a double counting of the same aspect. 

[19]     We consider that the Judge also erred in assessing the appropriate discount to be given for the mitigating factors present.  These she identified as the appellant’s early guilty pleas, his age and the limited degree of co-operation he had given to the Police.  We think the deduction of one year was insufficient to reflect these mitigating factors, particularly the factor of the early guilty pleas.  It was also insufficient as a percentage of the total sentence.  The error came about because the Judge made the deduction from her nominal starting point, rather than from her effective starting point.

[20]     We are satisfied that an appropriate starting point for the sentence in this case is one of six years imprisonment and that an appropriate deduction from that starting point to allow for the mitigating factors is 18 months.  The appropriate final sentence is therefore one of 4½ years imprisonment.

[21]     That brings us to the second limb of the appeal, which concerns the imposition of a minimum non-parole period.  Mr King argued that the circumstances surrounding the appellant’s offending had not warranted the imposition of a minimum period of imprisonment, submitting that s86 of the Sentencing Act 2002 is directed solely to the circumstances of the offending and not the offender.  On that basis, he submitted, neither the appellant’s history nor the protection of the public were factors that invoked the application of s86. 

[22]     We are satisfied however that the nature and degree of the appellant’s current offending, including the fact that some of it was committed whilst he was on parole for similar offending, renders it sufficiently serious to justify its denunciation by the imposition of a minimum period of imprisonment.  Although still relatively young, the appellant has demonstrated by this latest offending that he is a determined career criminal whose offending has caused anguish to numerous victims.  In this regard we accept the sentencing Judge’s approach as correct.

Conclusion

[23]     The appeal is allowed.  The sentence of six years imprisonment is quashed and in lieu a sentence of 4½ years imprisonment imposed with a minimum non-parole period of three years imprisonment.

Solicitors:

Crown Law Office, Wellington