IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI GEORGE MICHAEL SUNNEX Appellant. POLICE Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CRI GEORGE MICHAEL SUNNEX Appellant v POLICE Respondent Hearing: 22 April 2010 Appearances: A Bailey for Appellant K Basire for Respondent Judgment: 22 April 2010 ORAL JUDGMENT OF HON. JUSTICE FRENCH Introduction [1] This is an appeal against sentence. [2] Following pleas of guilty the appellant was convicted in the District Court on two charges: one of burglary, the other of theft. He was sentenced to a term of imprisonment of two years and four months. SUNNEX V POLICE HC CHCH CRI [22 April 2010]

2 The facts of the offending [3] At 8 a.m. on Waitangi Day 2009, the appellant forced open a locked door to Christchurch Cathedral, which at the time was closed to the public. Once inside, he used a length of wire with chewing gum at one end to remove $95 in cash from a donation box. [4] The appellant returned to the Cathedral the following day, when he removed $39.20 using the same modus operandi. This time the Cathedral was open to the public, so the charge was one of theft rather than burglary. [5] When interviewed by the police, the appellant told them he had stolen the money to fund his drug habit. Police found a butter knife in his possession. [6] The appellant is 48 years of age and has an extensive criminal history. As the Judge noted, his listed convictions over a 30-year period run to some 12 pages. [7] In written submissions, the Crown states that the appellant has offended virtually every year since 1978 to the present day and has amassed a total of 127 prior convictions. These include 23 previous convictions for burglary in the District Court, and two in the Youth Court. His most recent conviction for burglary was in 2006, with further burglary convictions in 1997 and The majority of the burglary convictions were committed in the period before [8] Other offences include 21 offences relating to unlawfully being present in buildings or yards, possession of weapons and a miscellany of 33 dishonesty convictions which include unlawfully interfering with motor vehicle. [9] The appellant has received the full range of sanctions, including imprisonment and community-based sentences. His most recent term of imprisonment was for four months. It was imposed on 18 November 2009 for possessing instruments for burglary, two charges of unlawfully interfering with a motor vehicle, being unlawfully in an enclosed yard and breach of a liquor ban.

3 [10] The offences at issue in this appeal were committed very shortly after his release from prison. The sentence imposed by the District Court [11] In sentencing the appellant, the District Court Judge identified the aggravating features as being the appellant s mean-spiritedness in taking the money, and his previous criminal history. The sentencing Judge described the appellant as a recidivist burglar. He adopted a starting point of three years for the burglary, uplifted by six months on account of previous convictions, with a credit of one-third for the early guilty plea, resulting in the end sentence of two years and four months. [7] I would have thought that a starting point may be three years for the burglary is an appropriate response which ought to be uplifted by six months because of your previous propensities to behave in this way. From that you get a credit of one-third because you pleaded guilty pretty much at the first opportunity to both of these matters, which have been laid indictably. [8] Giving you a credit of one-third of the three and a half years means an end sentence for the burglary of two years and four months. As to the theft, a sentence of two months imprisonment reflecting on a guilty plea, the term to be concurrent. You will therefore serve a maximum sentence of two years and four months imprisonment. [9] Even though you will have no immediate hope of paying even that small amount of reparation, I have taken into account also that you are prepared to pay it. It is not a lot of money but I will make an order that you pay reparation on the burglary of the $95 and on the theft of $ Payment is suspended until 28 days from your release. Grounds of appeal [12] On appeal, counsel for the appellant Mr Bailey submits that the sentence was manifestly excessive. In support of that submission Mr Bailey contends that the starting point of three years for the burglary was too high having regard to: i) Authorities such as R v Columbus [2008] NZCA 192 and R v Stevens [2009] NZCA 190.

4 ii) The fact that the burglary charge was akin to theft and only slightly more serious than the theft, for which the maximum penalty is only three months imprisonment. iii) While the offending was in bad taste, it did not cause direct loss to anyone. The money had been donated and the amount stolen was only modest. [13] In Mr Bailey s submission, a more appropriate starting point would have been six to nine months, with an uplift on account of the previous convictions. Discussion [14] I agree that in light of Columbus the starting point of three years was too high. [15] On the other hand, Mr Bailey s submissions do not in my view adequately reflect the seriousness of the offending, involving as it did: i) An element of pre-meditation. ii) The burglary of a church, which is a place of worship and sanctuary. iii) The targeting of the same premises. iv) The number of victims. In my view, Mr Bailey s contentions regarding the effect on victims understate the effect such offending has. This involved taking from the church, from members of the public and from the intended recipients of the charity. There is the point too that if people consider that money they donate is going to be stolen, they will be deterred from giving.

5 [16] Further, while as I have said I consider the starting point was too high, conversely I consider the uplift of only six months on account of the previous convictions was too light. This appellant can only be described as an incorrigible offender, particularly as he had only recently been released from prison for a similar type of offending. [17] I also do not accept Mr Bailey s suggestion that the decision of R v Chin CA43/04, 10 June 2004, on which the Crown relies, is now out of date. I do not understand the Court of Appeal to have indicated that sentencing Judges should now treat burglary less seriously, or that Chin is no longer authoritative. [18] Ultimately, on appeal the Court s focus must be on the end sentence, rather than its component parts and the means by which the Judge arrived at that end sentence. The issue for me is whether a sentence of two years and four months did not properly reflect the overall criminality of the offending and this offender. [19] I have given careful consideration to this issue, as there is certainly some merit in the appeal. However, I have come to the view that while this sentence was, as the Crown itself acknowledges, at the upper end of the range, it was nevertheless within range. Importantly, if I were to intervene, it would only amount to tinkering, and that is something I should not do if I am to be true to the appellate role. [20] For those reasons, I have decided the appeal should be dismissed and the sentence confirmed. Solicitors: A Bailey, Christchurch Crown Solicitor s Office, Christchurch