Warwick v Police HC Timaru CRI 2009-476-27

[2010] NZHC 1136

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2009-476-000027

DANIEL WILLIAM WARWICK

v

POLICE

Hearing:         30 June 2010

(Heard at Christchurch (via video link))

Appearances: A W Belcher for Appellant

C A O'Connor for Crown

Judgment:      30 June 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against sentence.

[2]      Following pleas of guilty the appellant, Mr Warwick, was convicted of two charges: one of aggravated burglary, and the other assault with intent to injure.  He was sentenced to a term of imprisonment of three years and four months.

WARWICK V POLICE HC TIM CRI-2009-476-000027  30 June 2010

Facts of the offending

[3]      On 19 September 2009 Mr Warwick and his co-offender, Mr Edge, went to the victim’s address.  They banged loudly on the door demanding to be let in, but because  the  victim  did  not  recognise  their  vehicle,  he  ignored  their  knocking. Unable to gain entry, the two began kicking the front door in an attempt to force their way in.  The victim attempted to barricade the door, while calling on the police, but he was unable to stop the two men entering.

[4]      According to the police summary, once inside the house both defendants began to yell at the victim, demanding drugs from him.  The victim tried to tell them he did not have any, but this only served to infuriate Messrs Edge and Warwick.  Mr Edge then grabbed an ironing board that was standing in the lounge area, and threw it at the victim.  He then launched himself at the victim, throwing several punches which the victim was able to deflect with his arm.  Mr Edge retrieved the ironing board and swung it at the victim, trying to hit him.  On the third attempt, Mr Edge lost control of the ironing board and it flew across the lounge area.  He picked up an iron which had been sitting next to the ironing board, and tried to hit the victim a number of times with it, with little success.

[5]      At this stage Mr Warwick stepped in and struck the victim, causing him to fall over a nearby seat and onto the floor of the dining area.  As the victim lay on the floor, both defendants kicked and punched him around the head, face and body, with the victim trying to protect himself with his forearms.

[6]      Eventually the victim escaped to a nearby house, where he called the police.

[7]      Sometime  during the  assaults  the  victim’s  cellphone  was  destroyed.    As regards physical injuries, the victim sustained bruising to his right eye and nose area, a sore head and forearms from deflecting the blows, but did not require medical treatment.

[8]      In explanation for their conduct, Mr Warwick told the police they were angry the victim was allegedly dealing drugs and they wanted him out of town.

The sentencing in the District Court

[9]      The information before the sentencing Judge included a pre-sentence report. It told the Judge that Mr Warwick is 33 years of age, employed as a supervisor in a shearing gang.  His previous convictions were for threatening language and driving offences, his last offence being some time ago, and he only ever having been fined. His level of motivation to change was considered high.  Because of that, his age and his  limited  criminal  history,  the  report  writer  assessed  him  at  low  risk  of  re- offending.

[10]     Mr Warwick and his co-offender, Mr Edge, were sentenced at the same time by the same Judge.

[11]     In the case of Mr Warwick (the appellant), the Judge identified the starting point as five years.  He then uplifted that on account of aggravating factors, which he identified as being the unlawful entry, the fact Mr Warwick was there with someone else, and pre-meditation in going to the address.

[12]     The  Judge  then  reduced  that  on  account  of  personal  mitigating  factors, namely lack of previous convictions for violence, his offer to make amends and unspecified personal circumstances.  The Judge then further reduced the sentence by one-third on account of the early guilty plea, arriving at the end sentence of three years and four months’ imprisonment.   A term of two years, to be served concurrently, was imposed in respect of the assault with intent to injure charge.

Grounds of appeal

[13]     The grounds of the appeal are as follows:

i)There is said to be an unjustifiable and gross disparity between the sentence imposed on Mr Warwick (three years and fourth months imprisonment) as opposed to a sentence of seven months’ home detention and 250 hours’ community work imposed on Mr Edge.

ii)It is said the Judge gave insufficient weight to the fact the appellant played a somewhat passive role in relation to the aggravating elements of the burglary: namely the use of the ironing board and the iron.

iii)      The Judge was wrong to apply the principles in R v Mako

[2000] 2 NZLR 170 in setting the starting point.

Discussion

[14]     I  turn  first  to  consider  the  issue  raised  by  the  third  ground,  which  is essentially – putting disparity to one side – whether the sentence was on its own manifestly excessive.

[15]     It is clear the Judge did apply Mako, an approach which has been approved by the Court of Appeal in R v Watson CA224/03, 24 October 2003 at [27]:

Although Mako was concerned with cases of aggravated robbery, the principles   expressed   therein   are   equally   applicable   to   the   crime   of aggravated burglary.

[16]     I accept that in Rao v Police HC Timaru CRI-2009-476-000026, 29 March

2010, Panckhurst J held that Mako was not universally applicable to all categories of aggravated burglary.  However, Rao is distinguishable.  It was essentially a case of a burglary gone wrong.  In my view, that is in a very different category to the situation at issue here, which involved a violent and forced entry into a home for the specific purpose of confronting the occupier.  I say this even allowing for the fact that the intruders did not bring a weapon with them but picked up domestic items and used them as weapons in the course of the confrontation.

[17]     In my view, the starting point was appropriate.  Further, the discounts granted were also highly appropriate and indeed could be said to be generous.

[18]     Turning then to the question of disparity, I accept that the disparity in this case between a prison sentence of three years, four months, as opposed to home

detention and community work, could fairly be described as ‘gross’.  The issue for me is whether in the circumstances the gross disparity is justifiable.

[19]     In R v Te Whata CA229/05, 23 February 2006 the Court of Appeal has said:

The fact that a Judge has been moved to extend extreme leniency in one case does not lead to an unjustifiable disparity with another offender’s sentence where the factors which influenced that leniency do not apply to the second person.

[20]     In this case, the Judge acknowledged he was making a distinction between the two co-offenders and explained it by reference to the following factors:

i)        Age.  Mr Edge is only 17 years of age whereas Mr Warwick is

33.

ii)The extent of the age differential.   My interpretation of the sentencing notes is that this led the Judge to infer Mr Edge had been acting under the influence of the much older man, especially when combined with information that the address of the victim was unknown to Mr Edge, but known to Mr Warwick.

iii)Mr Edge was grossly intoxicated because he had been supplied with alcohol and drugs by Mr Warwick.

[21]     Mr Belcher says these matters were not in the police summary of facts, and there was no hard evidence of them.  However, they were raised in statements made to the police, and in my view the Judge was entitled to rely on them as mitigating factors, despite the absence of a contested facts hearing, so long as they were not relied upon by him as aggravating factors in the sentencing of Mr Warwick.

[22]     The problem however, as Mr Belcher points out, is that because of the view the Judge took in relation to Mr Edge, it is difficult to see how he could have placed much weight on for example Mr Warwick’s passive involvement in relation to the ironing board and the iron.

[23]     Ultimately, the acid test is as set out in R v Lawson [1982] 2 NZLR 209 (CA):

It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[24]     Applying that test to the facts here, I feel constrained to answer that question in the affirmative.  The disparity in this case was so great that in my view the factors invoked by the Judge are not sufficient to displace the sense of unease created by the different sentences.

[25]     I have carefully considered how best this should be rectified, and in the circumstances I have decided  the most appropriate course of action, having regard to the seriousness of the offending, is for me to reduce Mr Warwick’s sentence by eight months.

[26]     The outcome of this appeal therefore is that the appeal is allowed, and the sentence imposed in respect of the aggravated burglary is quashed and replaced with a sentence of two years and eight months.

Solicitors:

Hope & Associates, Oamaru

(Counsel: A W Belcher, Dunedin) Crown Solicitor’s Office, Timaru