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 been dealt with earlier by another Judge. 

[11]     Mr Heaslip accepts that no issue was made in the District Court about parity with Mr Williams, or about the sentencing notes in respect of him being of value.  It is quite unrealistic to suggest that the Crown, let alone the Judge, should have known that these would have been of assistance.

[12]     Mr Williams appeared for sentence on 10 August 2006 on three charges of burglary, a charge of assault, two charges of theft of petrol, receiving, driving while suspended, charges under the Misuse of Drugs Act 1975 and a charge of intentional damage.  Included in the catalogue was one charge of receiving an empty laptop bag and a toolbox with tools which had been stolen in a burglary at Bethells Beach.  That is the burglary to which Mr Subritzky pleaded guilty and was to be sentenced, but it is unrealistic to suggest that, because of that tangential connection between the two young men, the prosecutor and/or the Court, should have been hunting out Mr Williams’ sentencing notes or even that Mr Subritzky’s own counsel should have been putting them before Judge Robinson.

[13]     Even if the sentencing notes could have been of assistance, the principle of parity needs to be kept in perspective.  We repeat what was said in this Court in R v K (CA345/02) (2003) 20 CRNZ 62 at [20] (CA):

[P]arity will not be achieved by a simple measurement against a co-offender’s culpability.  Parity means treating like cases alike and others with due regard for relative differences.  It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[14]     In sentencing this man, Judge Robinson divided the offending between the driving while disqualified charges and the other charges.  He took a starting point of three years’ imprisonment on the charges of burglary and car conversion, but made an allowance of six months for mitigating factors including the guilty plea.  Those effective sentences of two and a half years were concurrent with a three month sentence for the theft of petrol.

[15]     The Judge then held that the two driving while disqualified charges might attract 18 months’ imprisonment, but allowed six months for mitigating factors.  He imposed an effective 12 months’ imprisonment to be cumulative upon the dishonesty sentence.

Discussion

[16]     We find nothing in this case which suggests that the parity principles are of relevance or assistance. 

[17]     Although not directly relevant, it is to be noted that the community based sentence imposed on Mr Williams on 10 August 2006 does appear to have been extraordinarily merciful.  No doubt a final attempt to have this man turn his life around as stressed by the final warning it included.  Whether the sentence would have survived a Solicitor-General’s appeal against a manifestly inadequate sentence is open to debate.  It is not a helpful benchmark in dealing with Mr Subritzky on quite different charges and in respect of which the only linkage is that Mr Williams received some items from a burglary which Mr Subritzky committed.  As well, their personal circumstances and criminal histories were different.

[18]     Turning to the relevant factors in his sentence.

[19]     First, Mr Subritzky has 102 previous convictions. 

[20]     Secondly, at the time of this offending Mr Subritzky was subject to a sentence of two years’ imprisonment which had been imposed in February of that year and in respect of which he had been granted leave to apply for home detention.  The first requirement of any early release is that a person is of good behaviour.  This was a substantial aggravating factor in this case.

[21]     Thirdly, this was a series of offences by someone who was ignoring entirely the needs and requirements of other people in the community including in a particularly nasty way taking Christmas presents in the weeks before Christmas.

[22]     We have no doubt that the protection of the public has to be a prime consideration.  The offending bought this man within the second category outlined in Senior v Police (2000) 18 CRNZ 340 (HC) where a full bench of the High Court applied the prevention principle enunciated by this Court in R v Ward [1976] 1 NZLR 588 (CA) to recidivist burglars.

[23]     The fact that the Judge was at pains to ensure that the separate and distinct offending in driving while disqualified was not simply swallowed up into the total culpability was clearly an available (and we suggest inevitable) approach.  Mr Subritzky was continuously defying Court orders in a brazen manner.

[24]     Mr Heaslip realistically accepted that the Judge inevitably had to impose a term of imprisonment for this offending in light of this man’s previous convictions, but submitted that something less than a “crushing sentence” would be sufficient, although he accepted that it would have to be served and that leave to apply for home detention could not be justified.

Result

[25]     Despite Mr Heaslip’s exhaustive analysis of all the material, we find nothing in this sentencing which infringes the totality principle, or makes the effective term of three and a half years’ imprisonment outside the available sentencing range.  The public needed to be protected from Mr Subritzky until he is willing to conform to basic standards.  Mr Heaslip spoke of incremental moves up the sentencing scale when dealing with offending of this sort.  That had not worked in the past.  It was open to the Judge to conclude that only a stern response would now be effective.

Conclusion

[26]     The appeal has no merit and is dismissed.

Solicitors:
Crown Law Office, Wellington