Waaka v The Queen
[2005] NZCA 105
•19 May 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA30/05
THE QUEEN
v
STACEY OWEN WAAKA
Hearing:17 May 2005
Court:Hammond, Potter and Doogue JJ
Counsel:E J Forster for Appellant
A Markham for Crown
Judgment:19 May 2005
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS
(Given by Doogue J)
Introduction
[1] Stacey Owen Waaka appeals against an effective sentence of 6½ year’s imprisonment imposed in respect of three offences of burglary and one of aggravated assault to facilitate avoidance of detection for one of those crimes of burglary. A minimum non-parole period of 3½ years imprisonment was imposed. There is no appeal against the minimum non-parole period.
[2] The grounds of the appeal are that the sentencing Judge increased the sentence for burglary to five years imprisonment in reliance upon the violence used in one of the burglaries and yet gave a cumulative sentence of 1½ years imprisonment for the offence of aggravated assault. It is said that this resulted in the violence giving rise to a double penalty. It is submitted that this results in the total period of imprisonment imposed being wholly out of proportion to the gravity of the overall offending.
Background
[3] At about 3.00 am on Wednesday 21 July 2004 the appellant entered an address by opening an unlocked back door. The 57 year old female occupant got out of bed to see what was creating a noise in her house. The appellant attacked her, punching her about the head and face with a closed fist with such force that he knocked her to the ground, leaving her with contusions and lacerations to the head, face, forearm and elbow. The appellant then fled.
[4] Later the same morning the appellant forced open a bathroom window in another residence. He then proceeded to the master bedroom where he took jewellery to a total value of $7,920.He later sold the items at a local drug house and obtained drugs.
[5] Just over three weeks later the appellant went to another residential property and opened a ranch slider at the front of the house. He disturbed one of the occupants, who attempted to hold him. The appellant was located a short time later by a police patrol.
[6] The appellant at the time of the offending was 23 years old. He had been released on conditions following a sentencing in September 2000, when he had been imprisoned with an effective sentence of 5½ year’s imprisonment for aggravated robbery and assaulting a person with a blunt instrument. That offending also involved gratuitous violence. The more recent violent offending occurred just over a month after the appellant had completed an intensive violence prevention programme.
[7] The appellant was at the time of the recent offending in breach of the conditions relating to his earlier release. He was meant to be in Wanganui. He had returned his family home in Hawke’s Bay. He had also returned to reliance on drugs and alcohol and there is little question that all of his offending was intended to finance those habits.
[8] The appellant has 22 previous convictions committed since the age of 14, five of which are for burglary related offences and nine for violence.
[9] The appellant pleaded guilty to the offending at an early stage, expressed remorse for his actions and indicated willingness to undertake further rehabilitative intervention to address his problems.
[10] The first of the appellant’s victims not only had the injuries already referred but was severely affected by the attack upon her. Her arthritis was aggravated. She developed high blood pressure and depression for which she required ongoing medical treatment and medication. She suffered insomnia and constant nightmares and felt unable to continuing living at her family home, which she shared with her son. As a result she moved to another part of New Zealand.
[11] The male victim of the second burglary not only suffered the loss of irreplaceable items of sentimental significance to him but suffered sleeplessness and anxiety for some time after the burglary.
[12] The female victim of the third burglary suffered anxiety as a result of the experience and no longer considered the area where she and her partner were living as safe for their children.
Sentence under appeal
[13] Judge Adeane referred briefly to the background of the appellant, who was well known to him because of the past offending. He noted that the protection of the public was the most important consideration. He referred to the mitigating factor of the guilty pleas. He went on to say:
I recognise the provisions of the Sentencing Act which now oblige Judges to impose maximum sentences for the worst offending of king and near to the maximum for the next worse class of cases. Until such time as the effect of that is enunciated in the higher Courts I do not intend to adopt that approach in a matter of burglary, but nevertheless these two matters coming together as they did are extremely serious and the violence used is a major aggravating feature which needs to be treated in a particular way.
[14] He then imposed the sentences under appeal five years for each of the first two burglaries and the cumulative sentence of 18 months imprisonment for the aggravated assault. For the third burglary which he said was effectively a matter of being unlawfully on premises he imposed a concurrent sentence of six months imprisonment. He noted that the “sentences imposed reflect the inevitable risk which in my view, you present to this community”.
Jurisdiction of this Court
[15] Ms Markham has properly drawn our attention as a preliminary point to whether the Court has jurisdiction in respect of the appeal when the maximum sentence imposed for any one offence was five years. The issue arises under s 28H District Courts Act 1957 which provides that “in any case where the sentence imposed exceeds the maximum sentence of imprisonment” as prescribed by s 7 Summary Proceedings Act 1957, ie, five years imprisonment, the sentence appeal lies to this Court. Those sections apply because here the pleas of guilty were entered prior to committal pursuant to s 153A Summary Proceedings Act 1957.
[16] There is no question that the ultimate sentence imposed in the District Court exceeds five years imprisonment, notwithstanding that neither of the components that gave rise to the sentence of 6½ years imprisonment exceeded the five year figure. However the matter is approached we accept that it is appropriate that the issue of jurisdiction should be determined by the total sentence imposed and not by the component parts. It would make little sense for a prisoner to have a right of appeal to this Court in the event of it being a single sentence of six years imprisonment but not to have a right of appeal to this Court where as a result of cumulative sentences the sentence totalled nine years imprisonment. It must also be borne in mind that appeals to the High Court would normally be dealt with by a single Judge and appeals of this kind to this Court normally by three Judges. Whether it be an appeal by a prisoner or an appeal by the Crown the intention of the legislature must surely be that total sentences of more than five years imprisonment should come to this Court. We should note, however, that there was no competing argument in respect of the point.
Competing submissions
[17] For the appellant it is said that when the Judge treated the violence used as a major aggravating feature he then went on to double count it in the appellant’s sentencing. It is submitted he did this by not only imposing the cumulative sentence for the aggravated assault but by taking the violence into account in respect of the sentence for the first two burglaries.
[18] The respondent contests this and says that the sentencing notes do not reflect “double counting” of the violence as an aggravating feature. The respondent submits that the Judge’s comment that the violence was a “major aggravating feature which needs to be treated in no particular way” is a reference to the cumulative sentence. The respondent says there is nothing in the sentencing remarks to indicate that the violence was taken into account in the five-year sentence imposed for the burglaries.
[19] The appellant submits that the correct approach would have been to take a starting point for the burglaries, which it is submitted should have been of the order of three to five year’s imprisonment. That should have attracted a discount of a year for the early pleas of guilty. It is accepted for the appellant that the cumulative sentence of 18 months imprisonment for the aggravated assault was available to the Judge. However, it is submitted that the appropriate total sentence has to be substantially less than 6½ year’s imprisonment.
[20] For the respondent the following aggravating features of the offending were noted: the gratuitous violence in respect of the first burglary; the fact that three separate burglary offences were committed within a three week period, the second immediately after the first involving violence; the appellant targeted private homes at night or in the early morning; in the second burglary the appellant took items of not insignificant monetary value and irreplaceable sentimental value; there was no prospect of recovery or reparation; the appellant was on parole and in breach of release conditions in respect of serious violent offending at the time of all the offending; the offending had serious effects on all of the victims; and the appellant has an extensive history of offences of violence and against property.
[21] Given these factors it is submitted that the Judge was correct to identify protection of the public as the dominant sentencing consideration and that the appellant’s propensity for serious violence in combination with his propensity for burglary set him apart from other recidivist burglars. Thus it was submitted that the Judge was well entitled to take a starting point of about nine years imprisonment, as he must have done, for the total offending. While it is accepted the resultant overall sentence is stern, it is submitted that it is not manifestly excessive.
Discussion
[22] We can see no basis for the appellant’s submission that the Judge double counted the violence against the victim of the first burglary in respect of the sentences imposed for the burglaries and the aggravated assaults. Quite the contrary. It seems to us clear that the Judge regarded the cumulative sentence imposed for the aggravated assault as being the appropriate sentence for the violence that incurred in the course of the first burglary. There is nothing in the sentencing notes that indicate the Judge also took the violence into account in respect of the sentence imposed for the burglaries. Despite the submissions for the appellant we are satisfied the Judge was fully entitled to take a starting point for the burglaries above the range identified for the appellant. When allowance was then made for the aggravating features other than the violence and the mitigating circumstance of the early guilty pleas a sentence of 5 years for the burglaries had to be open to the Judge.
[23] It is understandable the total sentence imposed was at the upper end of the range available to the sentencing Judge. The aggravating circumstances noted by the Crown and the Judge made that inevitable. In particular the appellant’s propensity to engage in violence is a disturbing aggravating circumstance relating to his offending. The public are entitled to protection from persons such as the appellant who are not only a danger to their property but their safety. The appellant was given an opportunity following the custodial part of the sentence imposed in the year 2000 to address his problems of violence. Notwithstanding that opportunity the appellant breached the terms of his release in returning to his home area and his bad old ways. The sentencing Judge could have no assurance that that would not occur on a subsequent occasion. He was entitled to put the protection of the public at the forefront of his considerations.
[24] While therefore we accept that the sentence imposed was at the upper end of the range available to the sentencing Judge, we cannot categorise it as manifestly excessive.
Result
[25] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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