The Queen v Riordan John Lee

[2002] NZCA 5

IN THE COURT OF APPEAL OF NEW ZEALAND CA242/01

THE QUEEN

V

RIORDAN JOHN LEE

Hearing:	26 February 2002
Coram:	Blanchard J Tipping J Durie J
Appearances:	G J King and C J Milnes for Appellant J C Pike for Crown
Judgment:	26 February 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. The appellant, Mr Lee, was convicted of aggravated burglary (under s 240A(b)(ii) of the Crimes Act 1961) after a jury trial in the District Court at Auckland.  He was sentenced to three and a half years imprisonment.  He now appeals against this sentence.

2. Mr Lee, who is aged 30, and an accomplice decided to burgle a flat in Panmure at about 5pm on Thursday 2 November 2000. Whilst his accomplice kept watch outside, the appellant entered the flat, selected goods to steal and stacked them near the front door. Alerted by the lookout that the occupier of the house was returning home, the appellant attempted to escape by jemmying open the back door using a large screwdriver.  The occupier discovered the appellant in this position, and verbally challenged him.  The appellant responded by advancing on the occupier whilst holding the screwdriver in a threatening manner, swearing and saying “What are you going to do about it?”

3. Fearing for his safety, the occupier fled the premises.  The appellant also departed the scene, but was traced from fingerprints left on a washing machine that had been moved to the front door.  Although the appellant pleaded not guilty to the charge of aggravated burglary, he accepted that he had committed burglary, and entered the not guilty plea only to challenge the aggravated component of the charge.

4. In imposing the sentence of three and a half years imprisonment, the sentencing Judge acknowledged that the appellant had no intention of confronting anyone in the course of the burglary, and indeed that the presence of the lookout was intended to avoid such an occurrence.  The Judge also accepted that the appellant had not carried the screwdriver into the flat with the intention of using it as a weapon, but rather that it had been “fortuitously at hand”.  Although the appellant had a considerable number of dishonesty convictions and one relatively serious assault conviction, the Judge noted the absence of any previous convictions for burglary.

5. The Judge found that the fact that a domestic home had been broken into was an aggravating feature of the offence.  More generally, however, rather than possessing any truly mitigating features, the appellant’s conduct displayed an absence of aggravating features.   There was no actual violence and the appellant had not planned to have the weapon.  Having considered the authorities, including R v Povey  (CA 205/87, 20 November 1987), the Judge identified the starting point for this offending as being two and a half years imprisonment.  With an increase prompted by the home invasion provisions, the Judge found that the “appropriate sentence” was three and a half years imprisonment.   She said that there was no reason to increase or decrease the sentence from this point.

6. In support of the appeal Mr King noted that the appellant was a first time burglar who had accepted at trial that he was guilty of burglary and had shown remorse.  He had tried to prevent a situation of confrontation or danger by using a lookout.  The offending was at the lower end of the scale, involving no actual violence.  The appellant’s reaction had been primarily defensive.  There was an appearance of double counting of the home invasion element in the penalty.

7. For the Crown, counsel pointed out similarities with Povey where a four year sentence was appealed.  Mr Pike accepted, however, that the weapon in that case had been a knife which had been taken to the scene by an offender who had 13 previous burglary convictions.  But it was submitted that in this case there had been a conditional threat of violence.  Effectively the appellant had indicated that he would stab the householder if accosted.

8. We consider that although the appellant’s conduct merited a reasonably substantial prison sentence, a three and a half year term was manifestly excessive in relation to the circumstances of the offending and the particular offender.  There is in our view an appearance that the Judge has begun with a starting point of two and a half years which must have included a significant upward adjustment to allow for the element of home invasion (the fact that it is a dwelling which is burgled is itself an aggravating feature) and has then added a further year for the same feature.

9. This was not a case of taking a weapon to a home to be used as such, if necessary, in relation to a burglary.  Rather, a tool which was intended to be used to facilitate removal of goods was on the spur of the moment presented as a weapon in what appears to have been a brief confrontation with the householder.  The appellant’s intention in brandishing the screwdriver seems to have been primarily defensive, judging by the remark which he made.  Any production of a weapon in this connection is to be viewed seriously because of the danger to the householder, but this was at the lesser end of the scale. 

10. It is a mitigating feature also that the appellant had no other previous convictions for burglary.

11. We have concluded that the proper sentence was one of two and a half years.  Accordingly we quash the sentence imposed in the District Court and substitute a sentence of imprisonment for two and a half years.  The appeal is allowed accordingly.

Solicitor:

Crown Law Office, Wellington