McArthur v Police

[2014] NZHC 201

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-000033 [2014] NZHC 201

BETWEEN  MICHAEL TERRENCE MCARTHUR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   18 February 2014

Appearances:           J Mooney for Appellant

AWM Britton for Respondent

Judgment:                18 February 2014

ORALJUDGMENT OF TOOGOOD J [Appeal against Sentence]

MCARTHUR v NEW ZEALAND POLICE [2014] NZHC 201 [18 February 2014]

[1]      Michael Terrence McArthur has appealed against a sentence of 15 months’ imprisonment imposed on him by Judge Roberts in the District Court at New Plymouth in respect of two charges of burglary.   He says, first,  that  the Judge adopted a starting point which was too high having regard to the nature of the burglaries and his role in them; and also he appeals on the grounds of disparity of sentence as between him and a co-offender.

Facts

[2]      The brief facts of the case are that on 7 June 2013, in the early hours of the morning, the appellant and three co-offenders left a party and began walking home. It appears they were affected by alcohol.   They approached a residential property where two of the co-offenders gained entry to a closed shed and took food from the freezer.  The appellant and one other remained on the road as look-outs and sounded a warning that they had been seen.   All four left the property.   The group then stopped outside a second property where the appellant again acted as one of the look-outs while the other two entered a shed and removed some tools and a baseball bat. A short time later all four were apprehended.

Personal circumstances

[3]      The appellant was aged nearly 23 at the time of his offending.  He has a short list  of  previous  convictions  but  they include  a  conviction  for  burglary  in  2010 (although it does appear that the offence had been committed some three-and-a-half years earlier) and another in 2011.  For the latter offending, he received a sentence of six-and-a-half months’ home detention and was ordered to undertake 200 hours’ community work as well as making a reparation payment.   In May 2012, he was convicted of theft from a dwelling and given a further sentence of community work which he was serving at the time of the latest offending.  The probation officer noted that the appellant acknowledged he had a drinking problem and was assessed as having a medium risk of reoffending.   Imprisonment was recommended, however. The appellant was unemployed at the time.

[4]      Burglaries of domestic dwellings are regarded by the courts as serious not only because of the risk of confrontation with occupants but also because of the sense of violation which victims suffer.  It does not much help the appellant that the dwelling itself was not entered.   The Judge  addressed the circumstances of the offending, but noted particularly that one of the victims was a 61-year-old woman who reported that she was now more nervous as a result of this offending, and is afraid to go about her backyard in the dark; she regularly wakes up at night to check the windows to ensure that no other person is unlawfully on her property.  The Judge was right to comment on this aspect.

[5]      The Judge noted that the appellant had previously been sentenced to home detention and community work and that such sentences had failed to deter him from further offending.  The Judge also took into account that the appellant was in fact serving a sentence of community work at the time of this offending.

[6]      A 16-month starting point was adopted, the Judge referring to the part played in the offending by the appellant.  That may be regarded as sympathetic given that the courts do not usually distinguish between the respective roles played by co- offenders, particularly where, as here, the look-out provides his co-offenders with a warning.   The Judge uplifted the starting point by four months to reflect the appellant’s  previous  convictions  and  then  discounted  the  sentence  by  a  full

25 percent for the appellant’s guilty plea, bringing the end sentence to 15 months’

imprisonment.

[7]      The Judge  recognised  that  a  co-offender, Tony Smith-Elleray,  received  a sentence of 250 hours’ community work with a final warning.  He had only one prior conviction for burglary, in 2010, but a number of other previous convictions and I see that he had received a short sentence of imprisonment in respect of a breach of a community work order and a subsequent related drink-driving offence.  The Judge considered that the appellant’s conviction history was far more serious because the appellant had previously received sentences of community work and home detention.

Taking into account the judgment of the Court of Appeal in Arahanga v R,1 the Judge noted that although a flexible approach to assessing starting points was required to reflect the variety of circumstances in which the burglary of domestic residences may occur, a starting point in the range of 18 months to two-and-a-half years was appropriate.

[8]      In order to address the appellant’s willingness to engage in drug and alcohol counselling  and  the  need  to  consider  rehabilitation,  the  Judge  imposed  special release conditions.

Submissions for the appellant

[9]      Ms Mooney argues that the following mitigating factors required the Judge to

take a starting point of around 12 months’ imprisonment:

(a)      The appellant arguably played a lesser role in the burglary by acting as a look-out and not actually entering the properties.

(b)While the burglaries occurred at residential addresses, the targets were sheds and garages where the risk of confrontation was reduced in comparison to entering dwellings.

(c)       The burglaries were opportunistic and involved little premeditation. (d)        The property taken was of low value and everything was recovered.

[10]     Ms Mooney also suggests that the Judge erred in distinguishing between the appellant  and  Mr  Smith-Elleray  in  terms  of  their  previous  conviction  histories, noting  that  Mr  Smith-Elleray  had  numerous  other  convictions  for  dishonesty offences and also that he had been more actively involved in entering the properties and taking possession of the stolen items.  In the view of the appellant’s counsel, a small uplift for prior convictions, which would have been incorporated into the

starting point to an extent in any event, would have justified an end sentence of between 10 and 12 months’ imprisonment after a full discount for the guilty plea.

Submissions for the respondent

[11]     For  the  Crown,  Mr  Britton  argues  that  the  starting  point  of  16  months adopted by the Judge was well within the available range and in fact towards the lower end of it.  While accepting that the four-month uplift for previous convictions was at the upper end of the scale, he submits that a similar outcome could have been

properly achieved, in accordance with the approach taken in Hale v Police,2  of

imposing  an  uplift  of  two  months’ imprisonment  for  prior  convictions  and  two months’ imprisonment for offending while serving a sentence of community work. Mr Britton also submits that the Judge was right to distinguish between the appellant and Mr Smith-Elleray on the basis of their different conviction histories and, in particular,  in  the  escalating  regime  of  sentences  imposed  on  the  appellant  who appears not to have learned from the earlier penalties imposed.

Discussion

[12]     While it may have been open to the Judge to take a slightly lower starting point, I am not persuaded that he was in error in approaching the matter in the way he did.  The starting point of 16 months is lower than the range suggested by the Court of Appeal in Arahanga and that adopted by Lang J in Hale v Police, and it properly reflects the modest value of the property actually stolen.  The fact that it was recovered can be put down to Police efficiency and does not assist the appellant much.  I agree with Mr Britton that it may have been more appropriate for the Judge to uplift from the starting point by two months for the previous convictions, not to re-sentence the appellant but to recognise that a longer period of imprisonment was necessary to act as a deterrent.  But also I agree that a further two months could have been properly added in recognition of the offence having been committed while the appellant was serving a community-based sentence.  In any event, the real question is whether the end sentence was clearly excessive or inappropriate, rather than a concern about the pathway by which the Judge reached it.

[13]   Neither counsel have argued that the discount for the guilty plea was inappropriate.

[14]     As  to  the  disparity  point,  I  consider  the  Judge  was  entitled  to  make  a distinction between the criminal histories of the co-offenders, in that the appellant appeared not to have learnt his lesson from the earlier community-based sentences. His  prior  sentence  of  home  detention  was  relevant  to  the  Judge’s  view  that  a sentence of imprisonment in this case was the least restrictive outcome that was appropriate in the circumstances.  In coming to this view the Judge took account of the fact not only that the appellant had two prior convictions for burglary but also a prior conviction for theft from a dwelling.

[15]     In all of the circumstances, I am not persuaded that the Judge erred and I do not consider a different sentence should have been imposed.   For those reasons I dismiss the appeal.

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Toogood J