Andrews v The Queen

[2018] NZHC 3216

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-419-0056

[2018] NZHC 3216

BETWEEN

RAWINIA ANDREWS

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 December 2018
Appearances:	G A Walsh for the appellant K C Whyte for the respondent
Judgment:	7 December 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

Gerard Walsh, Barrister, Hamilton Almao Douch, Hamilton

ANDREWS v R [2018] NZHC 3216 [7 December 2018]

[1]        Rawinia Andrews appeals her sentence of two years’ imprisonment imposed by Judge Cocurullo in the District Court at Hamilton on 24 September 2018.1

[2]        Ms Andrews was convicted of a spree of dishonesty offending for which she received 14 charges. These were variously for: burglary (three charges),2 dishonestly using a document (two charges),3 theft under $500 (four charges),4 theft between $500- 1,000 (two charges),5 theft over $1,000,6 common assault,7 and breach of intensive supervision.8

Issues

[3]        Ms Andrews’ counsel, Gerard Walsh, contends the sentence is manifestly excessive. He says the Judge erred by adopting a manifestly excessive starting point; and applying excessive uplifts for the balance of offending, and previous convictions.

[4]        I must allow Ms Andrews’ appeal only if I am satisfied there is an error in the sentence, and a different sentence should have been imposed. In any other case, I must dismiss the appeal against sentence.9

[5]        The approach previously taken by courts on sentencing appeals continues to apply,10 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.11

[6]        I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is ‘manifestly

1      New Zealand Police v Andrews [2018] NZDC 20089 [“Sentencing decision”].

2      Crimes Act 1961, s 23(1)(a). Maximum sentence is 10 years’ imprisonment.

3      Section 228(b). Maximum sentence is seven years’ imprisonment.

4      Sections 219 and 223(d). Maximum sentence is three months’ imprisonment.

5      Sections 219 and 223(c). Maximum sentence is one year’s imprisonment.

6      Sections 219 and 223(b). Maximum sentence is seven years’ imprisonment.

7      Summary Offences Act 1981, s 9. Maximum sentence is six months’ imprisonment, or a fine not exceeding $4,000.

8      Sentencing Act 2002. s 70A(a). Maximum sentence is six months’ imprisonment, or a fine not exceeding $1,500.

9      Criminal Procedure Act 2011, s 250(3).

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

11     At [33], [35].

excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.12

Offending

[7]        Ms Andrews’ offending is spread across numerous discrete occasions in May, June and July this year. Judge Cocurullo properly characterised the offending as “carried out in an unabating fashion”.13

[8]        The three burglary charges, which the Judge adopted as the lead offences, relate to three separate incidents:

(a)on 13 June, Ms Andrews and a co-offender entered the manager’s office behind the service deck at a Harvey Norman store. They opened the victim’s bag, and removed an iPhone, credit card and driver’s license;

(b)on 26 July, she and the same co-offender entered a Countdown from which they had previously been trespassed; and

(c)three days later, she again entered a Countdown, putting some products into her bag before staff asked her to remove the items and leave the store.

[9]        The Judge’s sentencing decision then isolates three further charges which all carry a maximum sentence of seven years’ imprisonment:

(a)two charges for dishonest use of document arise from events immediately following the 13 June burglary. Ms Andrews used the victim’s credit card to purchase items at Z and Caltex stations, collectively valued at around $130; and

(b)she received a theft over $1,000 charge for, along with her usual co-offender, taking various rugs valued at just under $1,900 from a Briscoes store without paying for them.

12     Ripia v R [2011] NZCA 101 at [15].

13 Sentencing decision, above n 1, at [11].

[10]      That leaves the remaining nine charges. Ms Andrews was charged with thefts under $500 for:

(a)on 20 May, filling up $30 worth of petrol without paying;

(b)on 3 June, taking a trolley full of food items from Pak N Save without paying;

(c)later that same day, attempting to do the same at Countdown before being stopped by staff and trespassed; and

(d)on 26 July, leaving Countdown with various meat products without paying (this being the same incident giving rise to the burglary charge I mentioned earlier).

[11]      The charges of theft between $500-$1000 arise from her taking a $600 rug from a Freedom Furniture store on 4 July, and then taking fragrance testers valued at around $950 dollars from a Farmers Store. The theft over $1000 again involves her taking rugs from Briscoes, this time valued at almost $1900.

[12]      The common assault occurred in the course of the 29 July burglary. While she was being escorted out of the store she was aggressive and verbally abusive; and at one point, she swung her handbag, hitting the victim on the left side of her face. The breach of intensive supervision relates to Ms Andrews’ failing to report on several occasions.

District Court decision

[13]In sentencing Ms Andrews, Judge Cocurullo:

(a)adopted the three burglary charges as the lead offences, for which he imposed a 12-months’ starting point;

(b)uplifted that by six months for the theft over $1,000 and dishonest use of document charges (which all carry a maximum sentence of seven years’ imprisonment), and by a further nine months for the remaining eight charges;

(c)uplifted by six months to take into account her “disgraceful previous conviction list for dishonesty”;14 and

(d)applied a one month discount for her “willingness to attend restorative justice”, as well as the full 25 per cent for her early guilty plea.15

Arriving at an end sentence of two years’ imprisonment,16 the Judge considered imprisonment the ‘least restrictive option’, rejecting an electronically monitored sentence primarily on grounds of the need to denounce and deter Ms Andrews’ recidivist dishonesty offending.

Discussion

[14]      It is accepted Ms Andrews’ offending is at the lower end of the possible statutory sentences for her various dishonesty convictions. Mr Walsh argues a starting point for the burglary charges of only seven to nine months’ imprisonment is warranted by the relevant authorities, with an uplift of no more than six months for the balance of the offending. That 13 to 15 month total is substantially less than the 27 months imposed by Judge Cocurullo for the full list of charges.

[15]      The most instructive authority relied upon Mr Walsh is Gardiner v Police,17 where the offender faced three charges of burglary, as well as various associated charges. The burglary charges were for twice entering the rear of a takeaway shop through a closed gate and removing food and a bucket of unidentified items; and also entering the rear of a cafe and taking some food and a bottle of juice. On appeal, the High Court considered the appropriate starting point for the burglary charges was eight months’ imprisonment.

[16]      Comparing only the burglary charges, I consider Ms Andrews’ offending comparable to Mr Gardiner’s. Her offending is aggravated by the added invasiveness of rummaging through the victim’s bag in their personal office. But the starting point

14 Sentencing decision, above n 1, at [19].

15     At [14] and [20].

16     More precisely, that was the sentence for the burglary charges. Concurrent sentences of imprisonment, and in some cases reparation as well, were imposed for the other charges.

17     Gardiner v Police [2015] NZHC 1241.

for Mr Gardiner’s burglary charges also reflects his culpability in taking certain items, whereas Ms Andrews has received a separate theft charge for the 26 July incident (and dishonest use charges for her actions following the 13 June incident).

[17]       I am bolstered in my view by consideration of Wratt v Police,18 involving one charge of burglary and one of theft. During the early hours of the morning, the offender cut into the fence around a Bunnings Trade store and yard with wire cutters. Once he had entered, he then cut a tie on some decking timber, and removed four planks from the yard, but police spotted and arrested him and returned the timber. That was the burglary charge; he received the theft charge because he had also stolen a $70 hammer from the store six weeks earlier.

[18]      The Court considered a starting point between six to nine months’ imprisonment was within range. While there is only one burglary charge reflected in the range, it also incorporates the theft. Moreover, the burglary is markedly more serious, involving a premeditated burglary of commercial premises at night time.   Ms Andrews’ offending comprises more haphazard and opportunistic incidents, even if such incidents persistently are repeated.

[19]      I therefore consider a starting point of eight months appropriate. But that still leaves the bulk of the charges. I accept the Crown’s point that offending in Gardiner and Wratt involved much lesser sums of money; Ms Andrews’ offending involved a combined sum of over $3,500, by my calculation, including a single theft of $1,900 worth of rugs. This should be reflected in any uplift imposed for the other charges.19

[20]       Lang J’s decision in Torbarina v Police is illustrative in this regard.20 The offender faced three charges of theft, each time from commercial premises, of various items with a combined value of just under $3,200. I also note he used an implement to cut the safety cord securing one of the items, showing a degree of premeditation.

18     Wratt v Police [2012] NZHC 3137.

19     Torbarina v Police [2014] NZHC 3221 at [10]: “The starting point to be applied in respect of offending of this type will necessarily be dictated by the value of the items stolen …”

20     Torbarina v Police, above n 19.

[21]      Lang J approved the District Court’s 18 months’ imprisonment for this offending, but noted this already incorporated an uplift for Mr Torbarina’s “50 previous convictions for theft and shoplifting since 1997”.21 Judge Cocurullo described Ms Andrews’ own, comparably serious, history in the following terms:22

You have at age 40 now amassed 88 previous convictions. Forty of those are for shoplifting. Seven are for breaches of Court orders. Four are for burglaries. One is for using a document and four others are for other dishonesty matters.

For reasons of consistency in sentencing, I cannot accept uplifts of 15 months for the balance of the offending, plus six months for previous history, are within range.

[22]      I acknowledge the Judge was mindful of the need to take into account totality, “to  ensure that  a sentencing does not  get  out of kilter in a way that  prejudices  [Ms Andrews]”.23 With respect, the 33 months imposed prior to discounts is ‘out of kilter’ with a global view of Ms Andrews’ culpability.

[23]      From the eight-month starting point, it is in my view appropriate to uplift by 10 months for all the remaining charges, and by four months for previous history. The resulting notional sentence of 22 months’ imprisonment is appropriately four months higher than that imposed in Torbarina, considering the more comprehensive scope of Ms Andrews’ offending.

[24]      From there, I take no issue with the discounts applied by Judge Cocurullo. So 22 months is reduced to 21 for her willingness to attend restorative justice, and a 25 per cent reduction for her guilty plea leads to an end sentence of 16 months’ imprisonment.

Home detention?

[25]      The final question is whether to substitute imprisonment with a community-based sentence as ‘least restrictive’. On this issue, Judge Cocurullo stated “there are not many factors that are in support of sentencing you to an electronically monitored sentence” (by which I take it he meant home detention).

21     At [6] and [10].

22 Sentencing decision, above n 1, at [12].

23 At [16].

[26]      The Judge acknowledged counsel’s submission, with such a sentence, Ms Andrews’ chances of continuing her dishonesty offending would be “greatly diminished”. But he went on to say:24

I would however as a retort add that the fact there is fairly neutral because whilst in prison, you would have no opportunity to offend in that way also.

He further considered Ms Andrews’ recidivist offending weighed strongly against home detention:25

… you are without doubt a recidivist offender for dishonest offending and no sentences including imprisonment have deterred your dishonesty behaviour…. there is here a need to deter and to denounce what you have done.

The Judge also noted Ms Andrews’ 2012 sentence of home detention was elevated to imprisonment, but as “it is somewhat conjecture as to what happened”, he appropriately put the matter to one side.

[27]      I take no issue with the Judge’s approach. It is appropriate to consider the effect of previous sentences for recidivist offending of this kind.26 Ms Andrews has served several terms of imprisonment solely or largely for dishonesty offending, most recently including six months in 2017, eight months in 2015, and 10 months in 2012. I am satisfied imprisonment remains the least restrictive option in the circumstances. This is not disputed by her counsel.

Result

[28]The appeal is allowed.

[29]      The sentence of two years’ imprisonment is quashed and replaced with a reduced sentence of 16 months’ imprisonment.

—Jagose J

24 Sentencing decision, above n 1, at [22].

25 At [23].

26     Torbarina v Police, above n 19, at [11].