The Queen v Subtritzky - [2007] NZCA 75

IN THE COURT OF APPEAL OF NEW ZEALAND
CA350/06
[2007] NZCA 75
THE QUEEN
v
ROSS GENE BRYCE SUBRITZKY
Hearing:15 March 2007

Court:Robertson, Baragwanath and Venning JJ
Counsel:P T R Heaslip for Appellant

E M Thomas for Crown

Judgment:19 March 2007 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       This is an appeal against sentence on the basis that the overall effective sentence was manifestly excessive.
[2]       In the District Court at Auckland, Mr Subritzky faced an indictment containing nine counts, three of which were alternatives. He was represented by counsel. On the basis of his pleas on five counts, he was discharged under s 347 of the Crimes Act 1961 on the other four counts.
[3]       Judge Robinson in sentencing correctly noted that he faced one charge of burglary, one of unlawfully taking a motor vehicle, a charge of theft and two of driving while disqualified.
[4]       The appellant was sentenced to an effective sentence of three and a half years’ imprisonment.
The facts
[5]       The offending began on 13 December 2005. The summary of facts on which Mr Subritzky pleaded guilty asserted that he entered premises at Bethells Beach. He now instructs his counsel that he was not the burglar. We find that assertion unpersuasive in light of his plea when represented by counsel and when nothing of consequence is advanced to support the contention. It is not correct to suggest that the summary related to Mr Williams, an associate of Mr Subritzky. Upon investigation we find Mr Williams was charged only with receiving in respect of the Bethells Beach property. It may be that Mr Williams said that he knew the occupants, but it was Mr Subritzky who entered the dwelling and removed property. It is unconvincing for Mr Subritzky now to tell his counsel about a wholly different factual position which has no supporting evidential base.
[6]       On 20 December the appellant, who at the time was disqualified from driving, went to a petrol station, filled up his car and drove off without paying.
[7]       A week after that, he was seen to be in control of a motor vehicle which had been converted.
The appeal
[8]       He now contends that he pleaded guilty in the expectation that he would receive a similar or lesser sentence than Jarrad Williams who had been sentenced to 200 hours community work and supervision for the Bethells Beach offending plus a raft of other charges. There is no evidential basis for this assertion of belief, let alone a logical connection between the two sentencing exercises.
[9]       The appellant complained that his counsel was insufficiently attentive to his case and that the sentencing Judge was not provided with the notes of Mr Williams’ sentencing which were pivotal.
The appeal points
[10]     The first issue is that the Judge dealt with Mr Subritzky without having in front of him sentencing notes in respect of Jarrad Williams who had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Subtritzky

Details

AGLC: The Queen v Subtritzky [2007] NZCA 75
Case: [2007] NZCA 75
Decision Date: 19 March 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence in the case of The Queen v Ross Gene Bryce Subritzky. The appellant argued that his sentence was manifestly excessive. He had been sentenced to three and a half years in prison following convictions for burglary, unlawfully taking a motor vehicle, theft, and two counts of driving while disqualified. The appellant contended that the sentence was excessive because he believed he would receive a similar or lesser sentence than his co-offender, Jarrad Williams, who received a sentence of 200 hours of community work and supervision for the same Bethells Beach burglary, along with other charges. Additionally, the appellant argued that his counsel was insufficiently attentive to his case and that the sentencing judge was not provided with the notes of Mr Williams’ sentencing, which were pivotal.
The court found that there was no evidential basis for the appellant's belief that he would receive a similar or lesser sentence than his co-offender. The court also found that it was unrealistic to expect the Crown or the judge to have known that the sentencing notes of Mr Williams would have been of assistance. The court noted that the principle of parity should not be achieved by a simple measurement against a co-offender’s culpability. Instead, it should be achieved by sentencing each offender appropriately for their role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender. The court also found that the appellant's criminal history, which included 102 previous convictions, was a substantial aggravating factor. The appellant was also subject to a sentence of two years’ imprisonment at the time of the offending, which he had been granted leave to apply for home detention. However, he was not of good behaviour, which was a requirement for early release.
The court concluded that the appellant's sentence did not infringe the totality principle, or make the effective term of three and a half years’ imprisonment outside the available sentencing range. The court found that the protection of the public was a prime consideration and that the appellant's offending warranted a stern response. The appeal was dismissed.

Orders