The Queen v Russell Anthony Bowden
[2001] NZCA 189
•26 June 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA.102/01 |
THE QUEEN
V
RUSSELL ANTHONY BOWDEN
| Hearing: | 25 June 2001 |
| Coram: | Keith J Heron J Randerson J |
| Appearances: | D J H Stringer for Appellant J M Jelas for Respondent |
| Judgment: | 26 June 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RANDERSON J |
The appellant appeals against a total sentence of 27 months imprisonment imposed in the District Court on 8 March 2001 in respect of one charge of burglary and one charge of attempting to pervert the course of justice. The appellant had pleaded guilty to both charges but, in the case of the burglary charge, only on the day before trial. In addition, he was ordered to pay reparation of $3598.37 at the rate of $10 per week, payments to commence one week after his release from prison.
The facts
The appellant was one of two offenders who, at 10.30 am on 4 August 1999, broke into the complainant’s private residence and removed a computer and accessories, a small amount of cash, and other minor items. The total value of the property was $4550. A jemmy was used to open the front door to gain access. The complainant was not at home at the time.
Five days later, a search warrant was executed at the co‑offender’s address and the computer was recovered. The appellant was subsequently located in Christchurch, some distance from the place where the burglary had occurred. When spoken to in December 1999, he claimed to have time sheets and witnesses to verify that he had been in Christchurch at the time. He was given the opportunity to bring them into the police but failed to do so. He was again located by the police on 12 April 2000. When interviewed, he denied any involvement blaming the co‑offender and a third person.
The appellant was then charged and pleaded not guilty in April 2000. At that time, he elected summary jurisdiction but later, probably in September, he elected trial by jury. In the meantime, his co‑offender had pleaded guilty to the burglary charge at an early stage and was co‑operating with the police. He was sentenced to nine months imprisonment on 11 August 2000 for his part in the burglary and ordered to pay reparation of $1000. On 13 December 2000, he gave evidence against the appellant at depositions. This was plainly the spur for the appellant to attempt to arrange alibi witnesses.
On 22 December 2000, he gave a formal alibi notice to the Crown which included the names and addresses of three witnesses who he claimed could confirm he was elsewhere at the time of the burglary. Police inquiries subsequently showed that the appellant had misled the police and none of the witnesses could support his alibi. All three admitted they had been told by the appellant what to say and two admitted their alibi statements were false. The third (who was the appellant’s partner and mother of his child), claimed the appellant had visited her between certain times on the morning in question, but later admitted she could not recall what day it was because she was on a methadone programme. When the police spoke to the appellant about the alibi witness, he was unco‑operative and ran off.
The Judge's sentencing notes
The Judge noted that the appellant had been engaged by the complainant to provide computer advice and had earlier visited his home. The appellant had wanted to borrow the complainant’s computer but the complainant declined to do so only a short period before the burglary.
The Judge observed that the appellant was entitled to some discount for his early guilty plea on the charge of perverting the course of justice but he was not inclined to give much discount for the plea of guilty bearing in mind that “it was at the last minute after what can only be described as desperate and dishonest attempts to avoid conviction”. The Judge then referred to the probation report, noting that the appellant was 27 years of age and that reparation could only be paid over a period of time. He said the appellant had seven convictions for dishonesty. That is acknowledged to be in error. The correct position was that the appellant had three previous convictions for theft between 1994 and 1999, one conviction for unlawfully interfering with a motor vehicle in 1993 and another in the same year for receiving. There were two minor offences in the year 2000 which are not relevant for present purposes. On the previous occasions the appellant had been fined in 1993 and given periodic detention for the offending in 1994 and 1999. It is significant that the burglary the subject of this appeal occurred while the appellant was on bail awaiting sentence for two of the thefts committed in May and June 1999.
The Judge regarded the appellant as a dishonest person who had decided to break into the complainant’s house. He observed that there were a lot of house burglaries and they could not be dealt with leniently. The sense of a loss of security, evident in the case of the complainant, was also a factor mentioned by the Judge.
He adopted a starting point of at least 21 to 24 months imprisonment for the burglary had the appellant been convicted at trial. Taking into account the guilty plea as “the only possible mitigating factor”, the appellant was sentenced to 18 months imprisonment. Leave to apply for home detention was declined.
The Judge then went on to consider the charge of perverting the course of justice which he regarded as quite separate from the burglary. In that case, he adopted a starting point of 18 months and considered the appellant was entitled to a considerable discount for the guilty plea to arrive at the ultimate sentence on that charge of 9 months imprisonment. He described this sentence as “additional”. Mr Stringer accepts the sentences were intended to be cumulative.
The appellant’s submissions
The appeal was originally only against the burglary sentence but, without objection from the Crown, it has been widened to include the second sentence. The appeal is based on the three principal grounds:
[a] The sentence was manifestly excessive or wrong in principle;
[b] New facts have come to light since the sentence which make it inappropriate; and
[c] Disparity with the sentence imposed upon the co‑offender.
Under the first heading, it was submitted the Judge had failed to consider the appellant’s circumstances and particularly the fact that, by the time of sentence, he had a stable partner with responsibility for a newborn baby. It was also submitted the Judge had overlooked a favourable reference and failed to consider that the appellant had employment up to his arrest. Counsel further submitted that the appellant was in a position to resume full time employment and would thereby be able to pay reparation in less than a year. It was said this was a factor which could suggest home detention was appropriate. It was submitted the Judge had failed to mention that the missing computer was found at the co‑offender’s address which suggested the appellant’s role was not that of a principal. Finally, counsel said the Judge had erred in giving insufficient discount for the guilty plea and had made an error of fact with regard to the number of previous convictions.
Under the heading of new facts, it was submitted there were doubts about the true reparation figure on various grounds including a suggestion that the co‑offender may have misled the police and his insurers. We do not have any material to enable us to reach a conclusion on that issue but the Crown accepts that the total reparation figure had been reduced to $2000 by the time of the sentencing and that $1000 was sought by the police from the appellant and $1000 from the co‑offender. It is not clear to us why the Judge was not informed of this at the time. In any event, the Crown accepts the reparation order cannot stand and should be amended to the lower figure.
The final ground was disparity between the appellant’s sentence and that of his co‑offender. Despite some mitigating factors in the co‑offender’s case, it was submitted that a disparity of 100% was too great in the circumstances.
Crown submissions
Ms Jelas for the Crown submitted that the sentence was well within the appropriate sentencing range. The aggravating features were the burglary of a private home and the effect on the victim, the breach of trust having regard to the fact that the appellant had previously met the victim through the appellant’s employment with a computer servicing company, the fact that the burglary had occurred within a few days of a request to borrow the computer, and evidence suggesting there had been some degree of planning between the appellant and the co‑offender prior to the burglary.
Dealing with the appellant’s personal circumstances, it was submitted for the Crown that given the seriousness of the offending, the appellant’s personal circumstances were of less significance in the overall assessment. Although the Judge did not refer in detail to the contents of the probation report, the sentencing notes make it clear he could not have been unaware of its contents. It was submitted that the reference could not have carried much weight, given the appellant’s record of previous convictions over the period when the referee claimed to have known the appellant. As well, the suggestion of a stable relationship and address had to be considered against the pre‑sentence report which records that “in recent years he [the appellant] has seldom stayed at one address for more than a few months” and the officer’s assessment that he was likely to re‑offend unless his “faulty anti‑social thinking style changes”. We add that his partner’s willingness to become involved in providing a false alibi cannot have given the Judge any cause for confidence about a new era of stability in the appellant’s life.
The Crown submitted that there was nothing in the sentencing notes to suggest that the sentencing Judge approached the appellant’s sentence on the basis that he was the principal offender. The evidence suggested that the burglary was a joint enterprise and it was appropriate for the Judge to deal with it on that basis.
As to the plea of guilty, counsel submitted that the Judge was entirely correct to limit the discount for the guilty plea given the circumstances of a guilty plea one day before trial and the inevitability of such a plea given the false alibi.
As to the issue of disparity, Ms Jelas submitted that the co‑offender had been entitled to the maximum credit for an early guilty plea, given the fact that it came a little over a month after he was charged. As well, although the co‑offender had an extensive criminal history in the period 1983 to 1990 (including dishonesty offences), he had not offended for ten years prior to the subject burglary. In those circumstances, the Judge was entitled to give substantial credit on that account. The Crown also submitted that the co‑offender had continued to co‑operate with the authorities after the offending, giving a statement to the police and giving evidence at the appellant’s disposition hearing.
Finally, on the issue of home detention, the Crown submitted that the total term of imprisonment was in excess of two years. It followed that leave to apply for home detention under s 21D of the Criminal Justice Act 1985 was not available. In any event, home detention was not appropriate given the fact that he had re‑offended while on bail (in relation to the charge of perverting the course of justice), his previous criminal record, and the seriousness of the burglary offence. The disrespect for authority indicated by the attempt to pervert the course of justice was also a factor which militated against the grant of home detention even if it had been available.
Assessment
We accept the Crown’s submissions. Although the starting point for the burglary was towards the upper end of the range for offending at this level of seriousness, the sentence was within the range available to the sentencing Judge, given the aggravating circumstances identified by the Crown and notwithstanding the error as to the extent of previous convictions. We do not consider that error to be material. The facts disclosed a pattern of dishonesty which was worsening during the 1999 year and which did not cease even after the appellant’s arrest for burglary.
The Judge must be taken to have been aware of the personal circumstances of the appellant as described in the probation report and we agree that those circumstances had to be weighed against the seriousness of the offending. While we accept the appellant has responsibilities to his young child and the prospects of employment on his release, those factors were known to the Judge and would not have warranted a shorter sentence, especially given the unfavourable pre‑sentence report.
We share the Judge's concern about the appellant’s conduct which led up to his last minute guilty plea. We entirely agree that little credit for the guilty plea on the burglary charge was warranted. Notwithstanding that, the Judge did give a credit of between three and six months on that account which could be regarded as generous in the circumstances.
A charge of attempting to pervert the course of justice is always to be viewed seriously because it strikes at the heart of the administration of justice. While there is no evidence of threats to witnesses, the appellant quite deliberately set out to persuade three witnesses to give him a false alibi and then gave formal notice of such to the Crown which put the police to the time and trouble of interviewing the witnesses. The appellant’s conduct went well beyond preparation and was a serious, if desperate, attempt to pervert the course of justice at his trial. Notwithstanding his guilty plea on that charge, the sentence of nine months could be seen as lenient. In R v Hillman (CA14/92, 14 May 1992), this Court established a benchmark of around three years imprisonment for relatively serious cases and a range of 18 months to two years for cases similar to this. Although non‑custodial sentences may be considered in some cases, deterrence is an important factor in this type of offending: R v Clutterbuck (CA372/99, 17 November 1999).
Standing back and viewing the totality of the offending, we are not persuaded that a total sentence of 27 months was inappropriate.
It is well settled that any disparity in sentence must be such as to lead a reasonably minded independent observer to the belief that something has gone wrong with the administration of justice: R v Lawson [1982] 2 NZLR 219 (CA). In this case, the disparity between the sentence of the appellant and the co‑offender may be explained as reflecting the substantial discount justified by the co‑offender’s early guilty plea and his assistance with the authorities, the fact that he had not offended for some ten years prior to the matters in question, and the fact that the appellant had the greater knowledge of the equipment available at the victim’s home. That the co‑offender was also sentenced on some other minor matters at the time of his sentencing is not material to the present appeal.
Given those factors, we do not consider a reasonably minded independent observer would be led to the belief that anything had wrong with the administration of justice.
On the view we have taken, we cannot consider the issue of home detention as the sentence will remain in excess of two years. But for the reasons advanced by the Crown, we would not have regarded the present case as suitable for home detention even if it were available.
Result
The appeal is allowed but only to the extent that the reparation order is reduced to $1000 to be paid at the rate of $10 per week, the first payment to be made seven days after the appellant’s release from prison.
Solicitors:
Stringer and Son, Christchurch for Appellant
Crown Law, Wellington
0
0
0