Aerenga v Police

[2012] NZHC 1375

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-144 [2012] NZHC 1375

ALLAN AERENGA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 June 2012

Counsel:         A Ives for the Appellant

J Wall for the Respondent

Judgment:      18 June 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel/Solicitors:

Ms A Ives, Barrister, Auckland

Mr J Wall, Meredith Connell, Office of the Crown Solicitor, Auckland

AERENGA V POLICE HC AK CRI-2012-404-144 [18 June 2012]

[1]      The   appellant   has   appealed   against   an   end   sentence   of   20   months imprisonment for a total of 10 offences.  One of these was committed in July 2010. The remainder occurred between February and November 2011.

[2]      It  will  assist  to  set  out  the  particulars  of the  offences  together  with  the sentence imposed for each offence. All of the sentences imposed were concurrent.

Date          Offence and particulars  Sentence: imprisonment unless noted otherwise (maximum sentence)

14.07.10Theft: Approaches Armani watch display at DFS Galleria store, steals four watches (combined value at $3,278), places watches in jacket and runs out of store.

24.03.11     Assault: Arrives at address where ex-partner is located.  Becomes threatening after ex- partner refuses entry.  Rips door off hinges

to gain entry to house. Victim contacts police on mobile phone. Appellant then tackles victim on driveway and begins to drag her back to house. Victim receives scrape mark on right arm.

24.03.11     Intentional damage: Arrives at home of ex- partner carrying a brick in a pillowcase. Swings pillowcase at kitchen window.  Flees address after victim contacts police.

01.05.11     Obtains by deception: Enters Strandbags (Queen Street store) with two handbags. Requests refund for those bags from staff member.  Informs staff member that he has been sent from Newmarket store.  Unknown female associate of appellant calls Queen Street store professing to be a staff member of Newmarket store and fraudulently corroborates appellant’s story.  Queen Street staff member “refunds” appellant the sum of

$573.  Newmarket store contacted after appellant leaves; advice that there were no problems with computer system and no knowledge of claim.

20 months; release conditions

(7 years)

1 month
(6 months)

1 month
(3 months)

3 months
(1 year)

Date          Offence and particulars  Sentence: imprisonment unless noted otherwise (maximum sentence)

28.05.11     Theft: Enters city apartment while open home in progress, steals laptop from bedroom (value of $1,070), and flees.

10.07.11     Unlicensed driver failing to comply with prohibition.

20 months; release conditions

(7 years)

Convicted and discharged

09.08.11     Breach of bail – no details on file.  1 month

(1 year)

12.08.11     Theft: Steals two women’s wallets from Gucci store on Queen Street (combined value of $1,130)

06.09.11     Theft: Appellant enters house and steals clothes (value of $200) from laundry area

1 year 8 months; release conditions

(7 years)

1 month

(3 months)

01.11.11     Breach of bail – no details on file.  1 month

(1 year)

[3]      The appellant has a reasonably substantial number of previous convictions. These were summarised in the pre-sentence report as follows:

Mr Aerenga first appeared in the District Court in 1993 and he has appeared with some regularity since that time.   He has more than 40 previous convictions for offences involving dishonesty including burglary and theft,

11 previous convictions for breach of bail conditions, and 7 previous convictions for failure to comply with Court orders.  Mr Aerenga has four

previous convictions for violent offences and seven for cannabis offences.

[4]      I will note at this point some other observations in the pre-sentence report:

Mr Aerenga advised he has no significant employment history.  With regard to his finances he said he has no material assets and no debts other than fines.   Mr Aerenga has a debt of $3,849 owed to the Ministry of Justice. This includes fines of $850, costs of $563 and reparation of $2,436.  He said he normally receives a sickness benefit of about $180 per week.

…

Because  of  his  health  problems  any  sentence  which  involved  physical activity would have to be closely monitored.

…

With regard to the theft of property Mr Aerenga said he committed these offences because “I had no money at the time – I was living rough – I was on the run and receiving no benefit”.   He said he committed the offences to survive.

Mr Aerenga seemed to justify his offending because of his personal circumstances and he did not express any feelings of remorse or concern for the victims.  He did however accept responsibility for the property he took and he said he would pay reparation if ordered by the Court to do so.

…

Mr Aerenga’s  lifestyle  has  remained  consistent  for  many  years  and  no special conditions or rehabilitation programmes can be recommended with any confidence of successful completion.  He could be referred to domestic violence programmes but his lack of motivation to address the issues would make him unsuitable for such programmes. …

Mr Aerenga is 36 years old and over the past ten years he has been in and out of  prison  several  times.    He  has  been  subject  to  release  conditions  but records indicate his response has been poor.

District Court sentence

[5]      The Judge briefly described the lead offence and the essence of some of the other offences.   He referred, in general terms, to the submissions he had received from Ms Ives, noting that she had “put forward everything she can” on behalf of the appellant.   In this context the Judge referred to letters he had received and to certificates from programmes the appellant had completed while in custody on remand.  He noted a submission that during part of the preceding year Mr Aerenga appeared to have been acting responsibly.

[6]      The Judge then referred to the fact that some of the offences he was dealing with must have been committed while the appellant was on bail.  This is clearly the case.  He referred also to the significant criminal history.

[7]      The Judge then came back to personal matters by referring to a letter he had received from the appellant in which the appellant said he had made changes which would mean that he would not come back to court. As the Judge put it:

Well we will see.  That is for you to walk your talk Mr Aerenga.  I have to deal with what is in front of me.

It is appropriate to interpolate at this point that I apprehend the Judge was referring there  to,  amongst  other  things,  what  was  demonstrated  by  the  previous  list  of offences of this nature and indicated by the observations of the probation officer.

[8]      There was no suitable address for the appellant to serve a sentence of home detention.   In consequence sentencing proceeded on the basis – accepted for the appellant – that there had to be a sentence of imprisonment.

[9]      The heart of the sentencing decision is contained in the following:

[8]       In my view the thefts in excess of $1000 are the lead offences.   I started with an 18 month sentence.  For the Galleria offending of the watches I uplifted that by a year to take account of all your other offending over the year.  That would take you to a two and a half year jail sentence.  I cannot impose that, totality does not allow me to.   I have got to look at your offending overall.  So I bring it back to two years then I have got to give you a discount for your guilty pleas, not the full discount in my view, something in the order of 15 percent, which would knock that two years back by four months, leaving an end sentence of one year, eight months.

[9]       Accordingly, on all the theft charges over $1000 you are sentenced

to one year and eight months’ imprisonment. All sentences are concurrent.

[10]     Concurrent sentences for the other offences were imposed, as noted in the earlier summary.   In addition, the Judge recorded that he was going to get a fines report and that he would be remitting the fines, cancelling court costs, but not interfering with an existing reparation order which was to be paid at $20 a week.

[11]     I have received comprehensive and helpful written submissions from Ms Ives, for the appellant, as well as comprehensive and helpful submissions from Mr Wall, for the respondent.   Four central points for the appellant may be identified. The first is that the starting point of one year and six months imprisonment for the lead offence was excessive.  Ms Ives described this offending as not much different from shoplifting, albeit shoplifting of high value items.   She submitted that the offending was relatively opportunitistic and only the stolen laptop had any personal significance.

[12]     The second submission related to the uplift of 12 months which was reduced to six months to reflect totality.   As Mr Wall has acknowledged, there may be a

degree of uncertainty in this in terms of the sentencing.  As I understand it Ms Ives had understood the Judge’s comment at sentencing, when dealing with the one year uplift, to be a reference to an uplift for previous offences.   She had  heard the statement, which is recorded above at [8], as being “all your other offending over the years”.  The written submissions were, in considerable measure, directed to this.  I agree that if the uplift was one year, albeit reduced for totality, for previous offending that would be excessive.  However, the sentencing notes, as produced, on the face of them appear to refer quite clearly to an uplift for the other offences.   These were offences which occurred over the year of 2011.  It is also, I consider, highly unlikely that the Judge would not have imposed an uplift for the other offences he was dealing with, bearing in mind the fact that he was intending to impose, and did impose, concurrent sentences.

[13]     The third submission, in its essence, was that the Judge had failed to give any credit for the efforts the appellant had made in undertaking programmes in prison and generally to seek to get himself onto a better path in life. Associated with this, it was submitted, was a failure to take account of the evidence of the appellant’s poor health, although Ms Ives did not seek to over emphasise that point having regard to the lack of any detailed evidence of a medical nature.  And in this general context it was also submitted that there was a failure to give any credit for remorse.

[14]     The fourth point concerned the credit of 15% for the guilty pleas.  Ms Ives submitted that, having regard to what was said by the Supreme Court in Hessell,[1] this was clearly insufficient.   She submitted that an allowance should have been given of between 20 to 25%, notwithstanding the fact that the guilty pleas were entered at the status hearing.

[1] R v Hessell [2010] 2 NZLR 298 (CA); (2010) 24 CRNZ 966 (SC).

[15]     In respect of Mr Wall’s submissions I will pick up relevant aspects in the

discussion which follows.

[16]     As earlier noted there was no issue as to whether there should be a sentence of imprisonment.   The question on appeal is whether the sentence was manifestly

excessive.  As Ms Ives fully recognised, the ultimate question on appeal is whether

the end sentence is manifestly excessive.  The process by which that sentence may have been reached is not determinative of the answer to that question.

[17]     In my judgment a starting point of 18 months for theft of the watches – clearly identified in this case as the starting point – was within range.   Ms Ives referred to, amongst other cases, a decision of mine in Walsh v Police.[2]   That case on its facts is not comparable when considering the offences themselves (and therefore leaving aside, as one must do, the personal circumstances of the offender).  Mr Wall referred to a decision of the Court of Appeal in Duncan[3]  as indicating that the starting point of 18 months in this case was within range.

[2] Walsh v Police HC Tauranga, CRI-2010-470-36, 18 March 2011.

[3] R v Duncan CA345/09, 15 September 2009.

[18]     I am also satisfied that an effective uplift of six months for all other offences that the Judge was dealing with was well within range.   That is particularly so if regard is had to the facts relating to some of the other offences.  I refer, for example, to the theft of a computer from a bedroom and the two quite distinct offences in February and March 2011 against the appellant’s former partner.  The Judge might have been justified in imposing cumulative sentences.  The totality principle would still have had to be applied, but this could have easily resulted in a justifiable end sentence of at least two years for all of the offending.

[19]     In respect of the mitigating matters of a personal nature, it is correct that these matters were not expressly referred to by the Judge when he assessed the sentence in the paragraphs I have quoted.  However, they are matters which he had earlier referred to.  I am referring here to the fact that the appellant had completed some courses while in custody and the other matters of a personal nature earlier summarised.    Against  this  is  the  fact  that,  when  the  Judge  was  assessing  the sentences, he also did not refer to any uplift for previous offences.  But these matters were also referred to earlier.  My view in respect of these matters is that either the Judge did not take account of any of the aggravating or mitigating factors in which case one cancels the other out, or he did which, in essential terms, produces the same

result.

[20]     The final point concerns the credit of 15% for the guilty pleas.   This is a matter that may be debated on reasonable grounds, but it is also a matter for exercise of discretion by the sentencing Judge.  I am not persuaded that an assessment of 15% is so clearly wrong that it should be interfered with on an appeal, if that factor is considered in isolation.

Result

[21]     Overall, this court on the appeal needs to consider whether the end sentence of 20 months imprisonment, taking account of all relevant matters, is manifestly excessive.  I am satisfied that this end sentence is not manifestly excessive.

[22]     In consequence the appeal is dismissed.

Woodhouse J