The Queen v Ricky James Mullen
[2002] NZCA 171
•19 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA146/02 |
THE QUEEN
V
RICKY JAMES MULLEN
| Hearing: | 16 July 2002 |
| Coram: | McGrath J Robertson J Gendall J |
| Appearances: | P D Williams for the Appellant J M Jelaś for the Crown |
| Judgment: | 19 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
Following his committal for trial the appellant pleaded guilty to one count of aggravated burglary and was sentenced in the District Court to 2 years imprisonment which is the subject of this appeal. The sentence was made cumulative with a sentence of 1 year 3 months imprisonment being served by the appellant at the time he was sentenced.
Background facts
On the evening of 8 October 2001 the appellant and his four co-offenders, B, H, D and J, were at a house in Dunedin smoking cannabis. Shortly after midnight they ran out of cannabis and a plan was developed to travel by car to a home where they would threaten the occupant and demand drugs and money from him. At the time the group departed the plan was that B would enter the house first, followed by the appellant. The appellant was aware that B had a bar with him, and H a screwdriver, in order to facilitate the criminal enterprise. In the course of their planning a diagram had been drawn up of the interior and exterior of the house concerned to facilitate the forced entry.
W, drove the group to a street neighbouring that of the victim’s home where he dropped off B, H, D and J. At this point the appellant indicated that he had decided against himself entering the house but that he would be a lookout for those who did. He remained outside with J for that purpose.
H and B then forced their way into the home breaking the front door panel. Once inside they attacked the victim using the iron bar and the screwdriver. They forced him into his bedroom and demanded he hand over cash and drugs. When the victim told them he did not have either he was attacked and hit, repeatedly, about the head and upper body region. The attack continued for several minutes before the victim managed to break free. At this point B and H left without taking anything of value with them. The appellant had remained at the scene during the entry, briefly, then returned to the getaway car. Some 3 to 5 minutes later H and B returned. The group, with the exception of J who had run away from the scene, then returned to their original address.
The victim required medical treatment. He suffered a laceration to his ear requiring 5 stitches, numerous bruises and cuts to his head and upper body. He also had mild concussion.
Two statements were made to the police by the appellant. In the first he admitted his presence and implicated B and H. He did not refer to the driver of the vehicle, W, nor to the second lookout, J. A fuller statement was subsequently made in which the appellant referred more fully to the group’s discussions prior to the burglary, his own role and that of all of his co-offenders.
Ms Williams, who appeared for the appellant, told us that the appellant indicated at an early stage prior to filing of an indictment that he was likely to plead guilty on arraignment subject to the precise charge that he would face. A sentence indication hearing was held by the District Court Judge on 8 April 2002. At that hearing, the Judge indicated that, without the benefit of pre-sentence reports, he considered a sentence of 2½ to 3 years was appropriate for H and B who had actually entered the premises. In the case of the appellant, who had not entered the premises and thus not participated in the violence, there would be “a significant discount” to acknowledge his lesser involvement.
On arraignment guilty pleas were entered. The appellant, H, B and W were sentenced on 6 May 2002. J was sentenced on 1 July 2002.
The Judge accepted H and B were the principal offenders. H was sentenced to 2½ years imprisonment to be served cumulatively with a sentence imposed on 3 December 2001. B was sentenced to the same term of imprisonment with remittance of all outstanding fines. The appellant received a 2 year term of imprisonment to be served cumulatively with the sentence of 1 years 3 months he was currently serving. W received a sentence of 18 months imprisonment suspended for 12 months, together with supervision. He was also disqualified from driving for 3 months. J was sentenced to 125 hours of community service to be served cumulatively with 200 hours service for remitted fines.
District Court: sentencing remarks
In sentencing the appellant the Judge observed that his participation in the offence was that of a party who had remained outside acting as a lookout and who was not involved in the violence. On the other hand the appellant had a prior record of offending, including the sentence of 15 months imprisonment imposed in November 2001 for burglary. In the Judge’s view, that required that a cumulative sentence be imposed for the present offending. The Judge recognised there should be credit for the guilty plea and an acknowledgement that he was not involved in the violence. It is clear that these aspects were implicitly reflected in the sentence he imposed of 2 years imprisonment cumulative on the sentence the previous November.
Submissions on appeal
In her submissions in support of the appeal Ms Williams argued that the District Court Judge had failed, in sentencing the appellant, to have regard to parity considerations in relation to the sentences imposed on the co-accused. She also argued in her written submissions that making the sentence of 2 years imprisonment cumulative on the sentence currently being served was a departure from the totality principle but that aspect of the appeal was not pressed at the hearing. In developing her argument orally Ms Williams submitted that the appellant, who she told us had arrived part way through the group’s planning of the offending, had considerably less culpability than the principal offenders. He had been a lookout only having decided not to enter the house. No credit had been given the appellant for confirming in his second statement the involvement of the other four men accused in the offence. Overall the tenor of Ms William’s submissions was that the appellant, apart from J, was the least culpable of the offenders. His culpability, she said, was certainly no more than that of W who had drawn the map of the premises, driven the vehicle to the address, and who knew the victim. In these circumstances, Ms Williams submitted, the sentence of 2 years imprisonment was not a fair measure of the appellant’s offending.
Finally, the Judge had indicated at the status hearing that a “significant discount” would be available for a guilty plea. In light of that indication and all the circumstances the sentence imposed of 2 years was manifestly excessive.
Decision
We see the principal question raised by the appeal as whether the imposition of a sentence of 2 years imprisonment for the appellant’s offending lacked parity with the sentences of 2½ years imprisonment imposed on the principal offenders. The appellant was aged 18 years at the time he was sentenced but despite his youth, had a lengthy record of offending which had culminated in the sentence of 15 months imprisonment which commenced in November 2001. His criminal history clearly had to be taken into account in the sentencing on the matter the subject of the appeal.
While the appellant did not enter the house and directly take part in the violence of the principal offenders he was a party to offending in circumstances in which it was clear that violence was to be anticipated. In particular he was aware that his co-offenders had armed themselves to facilitate the entry. The appellant was accordingly implicated in that aspect of the offending, although he did not commit it himself. In those circumstances only limited credit should have been given for not actually being involved in the violence.
The Judge treated W with what appears to be very considerable leniency in view of the absence of any prior offending in his case. W’s situation was different to that of the appellant and there was no basis for the suggestion by counsel that the term of imprisonment imposed on the appellant should have been equated with the eighteen month term of the suspended sentence of imprisonment imposed on W rather than the 2½ year terms to be served by the principal offenders. We do not see the position of J as in any respect relevant to the issues raised on the appeal. We are satisfied that parity is to be assessed in relation to the sentences imposed on B and H.
Disparity is a frequent ground of appeal in cases where co-offenders have different degrees of culpability in the offending. A sentencing judge must however also consider individual circumstances of a mitigating and aggravating kind which apply. It is important to bear in mind the point about the disparity principle made in R v Lawson [1982] 2 NZLR 219, 223:
It is not merely whether the offender thinks he has been unfairly treated, but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and the offenders would think that something had gone wrong with the administration of justice.
That statement applies to this appeal. We have considered all that Ms Williams put to us concerning the appellant’s relative situation at the time of sentencing and involvement in the offending but are not persuaded that the sentence of 2 years imprisonment was excessive or out of line with the 2½ years received by B and H. It is unclear whether the discount was what the Judge had in mind at the time of the status hearing but we do not see that factor as of assistance to the appellant especially given that the indication was offered without the insights eventually provided by the pre-sentence report.
We are also satisfied that the sentence imposed had to be one cumulative on that currently being served and that no question of failure to apply the totality principle arises.
Overall we consider the sentence imposed was fair in itself and in relation to those received by the relevant co-offenders. In those circumstances the appeal is dismissed.
Solicitors
Aspinall Joel Radford Bowler, Dunedin, for Appellant
Crown Law Office, Wellington, for Crown
0
0
0