JAMES v R [2004] NZCA 30 (24 March 2004)

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JAMES v R [2004] NZCA 30 (24 March 2004)

Last Updated: 1 April 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 353/03

THE QUEEN

v

CRAIG JOHN JAMES

Hearing: 10 March 2004

Coram: Glazebrook J
John Hansen J
Ronald Young J

Appearances: B R Green for Appellant
A M Powell for Crown

Judgment: 24 March 2004

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1] On 19 December 1991 Mr James was sentenced to a total of six years and eight months imprisonment after pleading guilty to a number of offences arising out of two episodes of offending. This is a rehearing of Mr James’ appeal against sentence which had been dismissed after an ex parte hearing.

Background

[2] Late on Sunday 18 August 1991 Mr James and three companions travelled from Christchurch towards Westport through the Lewis Pass in a car hired by Mr James earlier in the day. The group broke into the Fulton Hogan engineers’ camp compound in the Lewis Pass and stole an amount of property including a vehicle. The group then travelled to Reefton where they broke into the Reefton Four Square and took items from the store.
[3] They continued on to Westport and the following evening went to the house of Mr K who was known to Mr James. Mr James told Mr K to get into the car which he duly did. Mr James then drove away but stopped a short time later. He then instructed one of his associates to "do it now". The associate hit Mr K on the head twice with a torch and then thrust it into the back of Mr K’s seat. Mr James pretended that it was a shotgun and threatened to kill Mr K unless he told them where they could find explosives.
[4] The group then drove to the ICI magazine near Westport and broke into a number of buildings and sheds at the compound. Various types of explosives and non-explosive stores were taken. After taking their guide home and unsuccessfully experimenting with the explosives, three of the group, including Mr James, broke into Westport Toyota and stole two cars and five chainsaws.
[5] The group began the drive back to Christchurch in four vehicles (including the hire car) which were loaded with explosives, cigarettes, tools and machinery. Two of the stolen vehicles did not reach Christchurch. Mr James arranged for the remaining stolen vehicle and the rest of the explosives to be locked in a storage shed he had previously hired.
[6] In relation to this episode, Mr James pleaded guilty to six counts of burglary, one count of attempted burglary, three counts of unlawfully taking a motor vehicle, unlawful possession of explosives, presenting a firearm and threatening to kill.
[7] On 23 August 1991 Police executed a search warrants on a block of six flats partly owned by Mr James. Police found, hidden in a vacuum cleaner dust bag, 28.9g of cannabis divided into 20 foils. They also found a sawn off double barrel shotgun and a .22 semi-automatic pistol hidden in a chimney. In relation to this episode Mr James pleaded guilty to unlawful possession of a pistol, unlawful possession of a firearm and possession of cannabis for supply.

The Sentence

[8] Williamson J considered that the offences were serious, with the aggravating features of explosives and threatened violence. The Judge also, however, took into account that Mr James had expressed remorse for the offences, had pleaded guilty and that there was some medical background indicated in the psychiatric and psychological reports relating to injuries he had suffered in an accident.
[9] The Judge said that the Court had to have regard for the totality of the offences. The Judge concluded that the appropriate sentence in relation to the burglary of the buildings was 4 years and 8 months (5 years less 4 months spent in custody). Various concurrent sentences were imposed in respect of the other offending from that episode.
[10] Mr James was sentenced to 2 years imprisonment for the possession of cannabis and 1 1/2 years imprisonment for possession of the firearms. Those two sentences were imposed concurrently with each other but were cumulative on the other sentences, resulting in a total sentence of 6 years and 8 months.

Appellant’s Submissions

[11] The first submission for Mr James was that the sentence of 2 years imprisonment in respect of the possession of cannabis for supply charge was manifestly excessive. While Mr James had two cannabis-related previous convictions, neither involved possession for supply. In addition, the offending in this case, which Mr James pleaded guilty to, involved possession of 28.9g of cannabis which was only 0.9g above the statutory presumption of supply under s6(6)(e) of the Misuse of Drugs Act 1975. The sentence of 1 1/2 years for the possession of the firearm was not challenged.
[12] Secondly it was submitted that the sentence of 4 years and 8 months imprisonment imposed for the burglaries was manifestly excessive because there was a marked and unjustified disparity with the sentences of the co-offenders, or alternatively because, even if the disparity was warranted, no credit was given to Mr James for mitigating factors. Two of Mr James’ co-offenders received sentences of 21/2 years imprisonment calculated from a 31/2 year starting point and the third co-offender, sentenced only on two burglary charges, received a sentence of 18 months imprisonment.
[13] While it was accepted that Mr James played a greater role in the offending, it was submitted that this greater role did not justify the imposition of a sentence twice that of the co-offenders. Mr James’ sentence, taking into account his guilty plea, remorse and medical background, was 11/2 years more than the sentence the judge had referred to as an appropriate starting point for the co-offenders and 21/2 years more than the actual sentence they received. In the alternative, if there was no improper disparity, then an insufficient credit was given to Mr James for mitigating factors.
[14] Mr James also took issue with the Judge’s statement that the co-offenders were younger and less involved in the offences. Although Mr James, at 27, was the eldest of the group, the others were all aged in their twenties and therefore Mr James cannot be said to have been significantly older than the co-offenders. In addition, all the offenders had previously appeared before the Courts and, in relation to the Engineers’ compound and Four Square burglaries, Mr James did not play a greater role in this offending than his co-offenders, all of whom broke into the premises and took property.
[15] Finally, it was submitted that looking at the totality of the offending the sentence was manifestly excessive. Even if the individual sentences for the two sets of offending could be justified they must each have been at the upper end of the range. In combination the total sentence must be seen as manifestly excessive.

Crown Submissions

[16] The Crown accepted that the sentence of two years imprisonment for possession of cannabis for supply was severe. However, in the Crown’s submission, it was not excessive having regard to the guidelines for commercial cannabis offending. The relatively small amount of cannabis and guilty plea were offset by the fact that Mr James was also unlawfully in possession of firearms. In the Crown’s submission, Mr James’ argument as to that sentence being manifestly excessive depends on the Court putting to one side the other offending for which he was sentenced.
[17] The Crown submitted that the sentence can only be altered if it is manifestly excessive having regard to the totality of the offending. In the Crown’s submission, Mr James’ offending, taken as a whole, merited a significant term of imprisonment and that is what it got. If the overall criminality of the offending was fairly reflected in the aggregate sentence, any adjustment to the final sentence for the cannabis offending would disturb that balance.
[18] The seriousness of the offending in this case was, in the Crown’s submission, stressed by the sentencing Judge and derived principally from the fact that the purpose and result of this offending were to put Mr James unlawfully in possession of a large quantity of explosives. The offending was aggravated by the extent to which Mr James was prepared to go to achieve his end, including the threat to kill and stealing vehicles to carry away the explosives. The Crown submitted that deterrent sentences are invariably imposed on those who use explosives in the course of criminal offending and are also appropriate where explosives are stolen for use or sale. The fact that Mr James was also found in possession of cannabis for supply and two firearms, including a sawn off shotgun, established a connection to criminal offending that made his unlawful possession of explosives more worrying.
[19] The Judge clearly had regard to the aggregate effect and the totality of the offending to be punished by the two cumulative sentences as well as expressly having regard to the mitigating factors. The overall sentence may have reflected little or no leniency after the mitigating features were accounted for but could not, in the Crown’s submission, be said to be outside the range of sentences that could properly be imposed.
[20] The Crown submitted further that the disparity between Mr James and his co-offenders was justified by reason of their different roles in the offending. The co-offenders were not sentenced for possession of explosives or threatening to kill and their mitigating factors were different. There was no requirement for parity and therefore no disparity. The co-offenders were younger, two of them had children, none had previously been imprisoned and their probation reports, in contrast to that of Mr James, had recommended community-based sentences.
[21] The Crown further submitted that the argument for Mr James that the Judge did not take mitigating factors into account goes no further than establishing that the Judge approached the sentencing of Mr James and the co-offenders in a different way, as he was entitled to do. In addition, it is contrary to the Judge’s express words that he was taking mitigating factors into account.

Discussion

[22] Taking the sentence for the cannabis offence first, we accept that a two year sentence was high but this was not the only offence for which Mr James was being sentenced. In the circumstances, we do not consider the sentence was outside the range available to the judge.
[23] The next point is that the sentencing Judge was entitled to take into account the difference in culpability between Mr James and his co-offenders. Mr James had organised the transportation for the weekend of offending. It is clear that he played the principal role in collecting the guide and coercing him into disclosing where the explosives were. While all four offenders were involved in the burglaries at the Engineers’ Compound and the Four Square, it was Mr James who gave instructions to his co-offenders to break into the various buildings at the ICI magazine to find the explosives and it was he who arranged to hire a shed to store one of the stolen vehicles and the remaining explosives.
[24] The sentencing judge was entitled to consider Mr James as the instigator of the offending and leader of the group. He was also entitled to take into account that Mr James was convicted of more offences than his co-offenders, including threatening to kill and possession of explosives, and the fact that the circumstances of the co-offenders were different. The judge accepted that on their part it was not a premeditated plan to go to the West Coast and steal explosives and that they were dominated by Mr James. In contrast to Mr James, none of the co-offenders had previously been imprisoned and two had children. Any disparity in the sentences of Mr James and his co-offenders is clearly justified by these factors.
[25] Finally with regard to the totality of Mr James’ offending, taken as a whole it was very serious offending and merited a significant term of imprisonment involving as it did, the stealing of explosives along with a considerable amount of other property, threatened violence and with a separate incident involving the possession of cannabis for supply and firearms. The total sentence imposed may have been severe but in our view, even taking into account the mitigating factors noted by the judge, was within the range available.

Result

[26] Mr James’ appeal against sentence is dismissed.

Solicitors:
Cameron & Co, Christchurch for Appellant
Crown Law Office, Wellington

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[2]	Late on Sunday 18 August 1991 Mr James and three companions travelled from Christchurch towards Westport through the Lewis Pass in a car hired by Mr James earlier in the day. The group broke into the Fulton Hogan engineers’ camp compound in the Lewis Pass and stole an amount of property including a vehicle. The group then travelled to Reefton where they broke into the Reefton Four Square and took items from the store.
[3]	They continued on to Westport and the following evening went to the house of Mr K who was known to Mr James. Mr James told Mr K to get into the car which he duly did. Mr James then drove away but stopped a short time later. He then instructed one of his associates to "do it now". The associate hit Mr K on the head twice with a torch and then thrust it into the back of Mr K’s seat. Mr James pretended that it was a shotgun and threatened to kill Mr K unless he told them where they could find explosives.
[4]	The group then drove to the ICI magazine near Westport and broke into a number of buildings and sheds at the compound. Various types of explosives and non-explosive stores were taken. After taking their guide home and unsuccessfully experimenting with the explosives, three of the group, including Mr James, broke into Westport Toyota and stole two cars and five chainsaws.
[5]	The group began the drive back to Christchurch in four vehicles (including the hire car) which were loaded with explosives, cigarettes, tools and machinery. Two of the stolen vehicles did not reach Christchurch. Mr James arranged for the remaining stolen vehicle and the rest of the explosives to be locked in a storage shed he had previously hired.
[6]	In relation to this episode, Mr James pleaded guilty to six counts of burglary, one count of attempted burglary, three counts of unlawfully taking a motor vehicle, unlawful possession of explosives, presenting a firearm and threatening to kill.
[7]	On 23 August 1991 Police executed a search warrants on a block of six flats partly owned by Mr James. Police found, hidden in a vacuum cleaner dust bag, 28.9g of cannabis divided into 20 foils. They also found a sawn off double barrel shotgun and a .22 semi-automatic pistol hidden in a chimney. In relation to this episode Mr James pleaded guilty to unlawful possession of a pistol, unlawful possession of a firearm and possession of cannabis for supply.

[8]	Williamson J considered that the offences were serious, with the aggravating features of explosives and threatened violence. The Judge also, however, took into account that Mr James had expressed remorse for the offences, had pleaded guilty and that there was some medical background indicated in the psychiatric and psychological reports relating to injuries he had suffered in an accident.
[9]	The Judge said that the Court had to have regard for the totality of the offences. The Judge concluded that the appropriate sentence in relation to the burglary of the buildings was 4 years and 8 months (5 years less 4 months spent in custody). Various concurrent sentences were imposed in respect of the other offending from that episode.
[10]	Mr James was sentenced to 2 years imprisonment for the possession of cannabis and 1 1/2 years imprisonment for possession of the firearms. Those two sentences were imposed concurrently with each other but were cumulative on the other sentences, resulting in a total sentence of 6 years and 8 months.

[11]	The first submission for Mr James was that the sentence of 2 years imprisonment in respect of the possession of cannabis for supply charge was manifestly excessive. While Mr James had two cannabis-related previous convictions, neither involved possession for supply. In addition, the offending in this case, which Mr James pleaded guilty to, involved possession of 28.9g of cannabis which was only 0.9g above the statutory presumption of supply under s6(6)(e) of the Misuse of Drugs Act 1975. The sentence of 1 1/2 years for the possession of the firearm was not challenged.
[12]	Secondly it was submitted that the sentence of 4 years and 8 months imprisonment imposed for the burglaries was manifestly excessive because there was a marked and unjustified disparity with the sentences of the co-offenders, or alternatively because, even if the disparity was warranted, no credit was given to Mr James for mitigating factors. Two of Mr James’ co-offenders received sentences of 21/2 years imprisonment calculated from a 31/2 year starting point and the third co-offender, sentenced only on two burglary charges, received a sentence of 18 months imprisonment.
[13]	While it was accepted that Mr James played a greater role in the offending, it was submitted that this greater role did not justify the imposition of a sentence twice that of the co-offenders. Mr James’ sentence, taking into account his guilty plea, remorse and medical background, was 11/2 years more than the sentence the judge had referred to as an appropriate starting point for the co-offenders and 21/2 years more than the actual sentence they received. In the alternative, if there was no improper disparity, then an insufficient credit was given to Mr James for mitigating factors.
[14]	Mr James also took issue with the Judge’s statement that the co-offenders were younger and less involved in the offences. Although Mr James, at 27, was the eldest of the group, the others were all aged in their twenties and therefore Mr James cannot be said to have been significantly older than the co-offenders. In addition, all the offenders had previously appeared before the Courts and, in relation to the Engineers’ compound and Four Square burglaries, Mr James did not play a greater role in this offending than his co-offenders, all of whom broke into the premises and took property.
[15]	Finally, it was submitted that looking at the totality of the offending the sentence was manifestly excessive. Even if the individual sentences for the two sets of offending could be justified they must each have been at the upper end of the range. In combination the total sentence must be seen as manifestly excessive.

[16]	The Crown accepted that the sentence of two years imprisonment for possession of cannabis for supply was severe. However, in the Crown’s submission, it was not excessive having regard to the guidelines for commercial cannabis offending. The relatively small amount of cannabis and guilty plea were offset by the fact that Mr James was also unlawfully in possession of firearms. In the Crown’s submission, Mr James’ argument as to that sentence being manifestly excessive depends on the Court putting to one side the other offending for which he was sentenced.
[17]	The Crown submitted that the sentence can only be altered if it is manifestly excessive having regard to the totality of the offending. In the Crown’s submission, Mr James’ offending, taken as a whole, merited a significant term of imprisonment and that is what it got. If the overall criminality of the offending was fairly reflected in the aggregate sentence, any adjustment to the final sentence for the cannabis offending would disturb that balance.
[18]	The seriousness of the offending in this case was, in the Crown’s submission, stressed by the sentencing Judge and derived principally from the fact that the purpose and result of this offending were to put Mr James unlawfully in possession of a large quantity of explosives. The offending was aggravated by the extent to which Mr James was prepared to go to achieve his end, including the threat to kill and stealing vehicles to carry away the explosives. The Crown submitted that deterrent sentences are invariably imposed on those who use explosives in the course of criminal offending and are also appropriate where explosives are stolen for use or sale. The fact that Mr James was also found in possession of cannabis for supply and two firearms, including a sawn off shotgun, established a connection to criminal offending that made his unlawful possession of explosives more worrying.
[19]	The Judge clearly had regard to the aggregate effect and the totality of the offending to be punished by the two cumulative sentences as well as expressly having regard to the mitigating factors. The overall sentence may have reflected little or no leniency after the mitigating features were accounted for but could not, in the Crown’s submission, be said to be outside the range of sentences that could properly be imposed.
[20]	The Crown submitted further that the disparity between Mr James and his co-offenders was justified by reason of their different roles in the offending. The co-offenders were not sentenced for possession of explosives or threatening to kill and their mitigating factors were different. There was no requirement for parity and therefore no disparity. The co-offenders were younger, two of them had children, none had previously been imprisoned and their probation reports, in contrast to that of Mr James, had recommended community-based sentences.
[21]	The Crown further submitted that the argument for Mr James that the Judge did not take mitigating factors into account goes no further than establishing that the Judge approached the sentencing of Mr James and the co-offenders in a different way, as he was entitled to do. In addition, it is contrary to the Judge’s express words that he was taking mitigating factors into account.

[22]	Taking the sentence for the cannabis offence first, we accept that a two year sentence was high but this was not the only offence for which Mr James was being sentenced. In the circumstances, we do not consider the sentence was outside the range available to the judge.
[23]	The next point is that the sentencing Judge was entitled to take into account the difference in culpability between Mr James and his co-offenders. Mr James had organised the transportation for the weekend of offending. It is clear that he played the principal role in collecting the guide and coercing him into disclosing where the explosives were. While all four offenders were involved in the burglaries at the Engineers’ Compound and the Four Square, it was Mr James who gave instructions to his co-offenders to break into the various buildings at the ICI magazine to find the explosives and it was he who arranged to hire a shed to store one of the stolen vehicles and the remaining explosives.
[24]	The sentencing judge was entitled to consider Mr James as the instigator of the offending and leader of the group. He was also entitled to take into account that Mr James was convicted of more offences than his co-offenders, including threatening to kill and possession of explosives, and the fact that the circumstances of the co-offenders were different. The judge accepted that on their part it was not a premeditated plan to go to the West Coast and steal explosives and that they were dominated by Mr James. In contrast to Mr James, none of the co-offenders had previously been imprisoned and two had children. Any disparity in the sentences of Mr James and his co-offenders is clearly justified by these factors.
[25]	Finally with regard to the totality of Mr James’ offending, taken as a whole it was very serious offending and merited a significant term of imprisonment involving as it did, the stealing of explosives along with a considerable amount of other property, threatened violence and with a separate incident involving the possession of cannabis for supply and firearms. The total sentence imposed may have been severe but in our view, even taking into account the mitigating factors noted by the judge, was within the range available.