Wardle v The Queen
[2015] NZHC 915
•4 May 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-20 [2015] NZHC 915
BETWEEN ADAM DANIEL WARDLE
Appellant
AND
THE QUEEN
Hearing: 29 April 2015 Appearances:
L Denton for the Appellant
K Basire for the RespondentJudgment:
4 May 2015
JUDGMENT OF NATION J
Background
[1] Mr Wardle appeals against a sentence of two years eight months’ imprisonment on five charges of burglary, one year imprisonment on a charge of possession of instruments for burglary and three months on one charge of receiving and one charge of possession of utensils under the Misuse of Drugs Act 1975.1 All sentences were concurrent.
[2] Mr Wardle had to apply for leave to bring this appeal out of time. Leave is granted accordingly.2
[3] The events giving rise to the sentencing were summarised by Judge Couch in his Sentencing Indication:3
1 Police v Wardle DC Christchurch CRI-2014-009-3914, 28 July 2014.
2 Criminal Procedure Act 2011, s 248(4); R v Knight [1998] 1 NZLR 583 (CA) at 587 and 589.
3 Police v Wardle DC Christchurch CRI-2014-009-3914, 24 July 2014 [Sentencing Indication]
WARDLE v R [2015] NZHC 915 [4 May 2015]
[2] In chronological order the first set of charges arises out of events which occurred in February this year [(2014)]. In the early hours of the morning the defendant reversed his car up a driveway of a red zone property in Christchurch. He parked in front of an open garage. When disturbed by the police they found stolen property in the vehicle, some of it property which had been stolen in another burglary of a red zone house. That gave rise to the charge of receiving. Being on the property in the circumstances I have described gave rise to the charge of burglary. There was also found in the defendant’s car a bag containing tools for burglary. Finally, there were found to be four bongs in the car and that gave rise to the charge under Misuse of Drugs Act 1975.
[3] During March and April the defendant with two others, committed four burglaries of holiday homes in the Marlborough region. There was forcible entry into three of those properties and they located a hidden key for the fourth. In each case the properties were unoccupied. It appears that the defendant and the others stayed in the properties for periods of time, sleeping there and eating the available food. They then stole substantial amounts of property and left. The total amount of property stolen is of the order of
$40,000. Most of that property was subsequently sold at pawn shops in
Nelson and Christchurch.
[4] Mr Wardle was charged with the Christchurch offending on 12 February
2014. He entered not guilty pleas on those charges on 14 March 2014.
[5] Mr Wardle was charged with the Marlborough offences on 5 May 2014. He received a sentence indication for all charges on 24 July 2014, pleaded guilty and was sentenced on those charges on 28 July 2014.
Jurisdiction to appeal
[6] Section 250(2) of the Criminal procedure Act 2011 (the Act) provides that the
Court must allow the appeal if it is satisfied:
(a) for any reason there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
[7] S 250(3) of the Act provides that this Court must dismiss the appeal in any other case.
Judge Couch’s assessment
[8] For the totality of the offending, Judge Couch adopted a starting point of three years’ imprisonment. In assessing the seriousness of the lead charges of burglary, the following aggravating features of the offending were noted:
(a) they all related to dwelling houses, were premeditated and, in the case of
Marlborough burglaries, were repeated;
(b) the value of property taken was high - $40,000;
(c) the effect on the victims, in relation to the Marlborough properties, was significant, it having been particularly offensive and disturbing to the owners of those properties. Not only had the offenders stolen property from the houses, but they had also occupied the homes, using their beds and eating their food.
[9] Aggravating features personal to Mr Wardle included his previous conviction and the fact that the offending in Marlborough was committed while Mr Wardle was on bail. He noted Mr Wardle had convictions for four matters of dishonesty including two convictions for burglary in 2008 and 2011. That led the Judge to an uplift of the starting point by six months to three years six months. He added a further three months for the possession of implements for burglary and possession of utensils charges. This led to an adjusted starting point of three years and nine months. Judge Couch reduced that sentence by 14 months by way of “full reduction” for guilty pleas and credit for the assistance Mr Wardle had supplied to the Police in connection with the recovery of property stolen from the Marlborough burglaries.
Appellant’s submissions
[10] In careful submissions for the appellant, Ms Denton argued the end sentence of two years eight months’ imprisonment was manifestly excessive because:
(a) the starting point of three years nine months was too high, having regard to the principle of parity with Mr Wardle’s co-offender and totality in the overall sentence;
(b) the Judge had given insufficient credit for assistance by Mr Wardle in implicating his co-offender, and in the recovery of stolen items.
[11] Mr Wardle’s co-offender in connection with the Marlborough burglaries, Mr Bisset, was sentenced on 9 June 2014 in the District Court at Blenheim.4 In addition to being sentenced on the four burglary charges, Mr Bisset was also up for sentence on two further offences of unlawfully taking a motor vehicle and theft. This was after a sentencing indication where the Judge had indicated that a starting point of around two years’ imprisonment would be appropriate for the four burglaries and the other offending was to be treated as relatively minor with a potential uplift of a few months. With a discount for guilty pleas, the Judge had indicated a sentence of around 18 months was appropriate.
[12] Ms Denton referred to the appellate Courts role in ensuring “the maintenance of due proportion between sentences”.5 Given this need for parity, she submitted that the Judge had been in error in adopting a starting point of three years’ imprisonment for the five charges of burglary.
[13] Ms Denton submitted that the disparity in offending was particularly unfair in that, on a sentence of eighteen months, Mr Bisset would be released automatically after serving just nine months of his sentence, subject to only terms of supervision. Mr Wardle, on the other hand, would have to apply for parole and would be entitled to do this after serving one third of his sentence.
[14] Ms Denton referred to a number of cases where the High Court had considered sentences imposed for burglary offending and, on the basis of those cases, submitted that an adjusted starting point of “three years or slightly over” was appropriate.
[15] Ms Denton then submitted that the sentencing Judge should have given Mr Wardle greater credit for the assistance he provided to the Police and for his guilty pleas so that an end sentence in the vicinity of two years’ imprisonment would be appropriate.
The Crown’s opposition
[16] For the Crown, Ms Basire submitted:
(a) there was no error in the way the Judge had dealt with the sentencing;
(b) the disparity could be justified because Mr Wardle had been on bail when committing the Marlborough offences and because the Christchurch burglary was a significant further offence with the aggravating feature that it involved the burglary of a Red Zone property;
(c) although the disparity could be justified on that basis, disparity, of itself, should not be a basis for interfering with the sentence if this Court could consider that the sentence imposed on the co-offender was inadequate.6
[17] Ms Basire referred to dicta from the Court of Appeal in Harrison v R and cases they referred to indicating the range of sentences that could be appropriate for multiple burglary offending in connection with residential properties.7 Given the Court of Appeal’s indication as to the sort of sentences that could be appropriate, Ms Basire submitted that the sentence imposed on Mr Bisset could be considered manifestly inadequate. She suggested the Bisset sentences could perhaps be
explained through the sentencing Judge not having information as to the way the offenders had not only stolen property from the homes in Marlborough but had used those homes and food in them to the added distress of the home owners.
[18] Ms Basire submitted the credit which the sentencing Judge had given Mr Wardle for such assistance as he had provided to the Police was sufficient. She explained how the Police had significant information linking Mr Bisset to the
Marlborough burglaries before Mr Wardle gave them information about this and that he had provided information to the Police about Mr Bisset’s involvement in the Marlborough burglaries only after a search warrant had been executed at his address and the Police had found firearms and other items stolen in the Marlborough burglaries.
[19] The Crown argued that the overall credit Mr Wardle had received for his guilty pleas was generous in that he had been given the maximum discount on a starting point sentence of three years three months for all the offending. A 25 percent discount was not appropriate in relation to the Christchurch offences because he had not entered guilty pleas on those charges at the first reasonable opportunity. He had been arrested on those charges in February 2014, had initially pleaded not guilty and entered guilty pleas only after receiving a sentence indication for all offending in July 2014.
Disposition
[20] I consider the starting point which the Judge adopted for the burglary offences with regard to aggravating features associated with the offending and with Mr Wardle personally, was at the lower end of the range of sentencing that was appropriate for the offending for which he was being sentenced. The Court of Appeal has confirmed that, in the case of serious burglaries of residential premises, starting points of three and a half years to four years are appropriate.8 On this basis the adjusted starting point here was unimpeachable. I consider the credits which he received for guilty pleas and such assistance as he did provide with regards the
recovery of stolen property, were appropriate.
[21] I do not consider that there had to be a reduction in either the starting point or the ultimate end sentence to achieve parity with the sentencing for Mr Bisset, given the significant difference in culpability of the offenders, namely, Mr Wardle’s involvement in a burglary of a Christchurch Red Zone property and his offending in
Marlborough while he was on bail for the Christchurch offences. It does appear that
8 Harrison v R [2011] NZLA 80; Swinburne v R [2010] NZCA 568; R v Sherlock [2008] NZCA
555.
Mr Bisset was treated leniently but it also appears his sentence was imposed essentially just for the Marlborough burglaries.
[22] As the Court of Appeal said in R v Thompson:9
… the Court must consider whether reducing a proper sentence imposed on one offender in order to bring it into line with the sentence imposed on a co- offender would itself cause public concern at the administration of justice.
[23] Were there not that distinction, I would also not alter the sentence simply by reason of the disparity. I consider that, having regard to the guidance from the Court of Appeal in Harrison v R, the sentence on Mr Bisset for the Marlborough burglaries was inadequate.
[24] The combination of the sentencing notes and the sentencing indication also make it quite apparent that Judge Couch was alive to the issue of disparity and was mindful of this in fixing the end sentence.
[25] For the above reasons, this Court should not interfere with sentence imposed on Mr Wardle on the basis that a reduction is required to achieve parity or a sentence closer to it.
Outcome
[26] I am not satisfied that there was any error in the sentence imposed on Mr Wardle or that a different end sentence should now be imposed. Accordingly his appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
9 R v Thompson CA 245/98, 22 December 1998 at 13.
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