Araipu aka Tonihi v Police

[2015] NZHC 201

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-106

CRI 2014-409-107 [2015] NZHC 201

PAEWHENUA ARAIPU AKA TONIHI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	12 February 2015
Counsel:	K Paima for Appellant C D Newman for Respondent
Judgment:	18 February 2015

JUDGMENT OF BROWN J

[1]      The appellant pleaded guilty to two charges of wilfully doing an indecent act in a public place contrary to s 125 of the Crimes Act 1961.1

[2]      The  two  indecent  act  charges  arise  out  of  events  that  occurred  on

24 December 2013.    On  the  first  charge,  Mr Tonihi  parked  a  minivan  near  an intersection near Shirley Road, opened the door, lowered his pants and masturbated while facing out of the vehicle.  Two young girls (approximately 12 years old) and a female pedestrian saw what he was doing while passing by.

[3]      The second offence occurred 10 minutes later on Marshlands Road near a kindergarten.  Mr Tonihi again opened the door to his van and began to masturbate.

He drew the attention of a female passerby by asking her what the time was.  There

1      Punishable by a maximum of two years’ imprisonment.

TONIHI v NZ POLICE [2015] NZHC 201 [18 February 2015]

is  no  information  suggesting  any  occupants  of  the  kindergarten  saw  Mr Tonihi masturbating.

[4]      On 30 April 2014 he was sentenced by Judge D J L Saunders in the District Court at Christchurch to 18 months’ intensive supervision and ordered to pay $500 in reparation for emotional harm.

[5]      The appellant appeared again before Judge Saunders on 24 September 2014 for sentence following guilty pleas on a number of charges, the details of which and

the sentences imposed being as follows:

Offence	Section	Maximum penalty	Sentence imposed
Burglary	Crimes Act 1961, s 231	Ten years’ imprisonment	Nine months’ imprisonment; $250 reparation (cumulative)
Theft (value exceeding $1,000)	Crimes Act, s 219	Seven years’ imprisonment	Seven months’ imprisonment; reparation of $2,150 (cumulative)
Possession of instruments for car conversion	Crimes Act, s 227	One year imprisonment	Four months’ imprisonment (cumulative)
Breach of police bail	Bail Act 2000, s 24	Three months’ imprisonment; fine not exceeding $1,000	One month imprisonment (concurrent)
Breach of court bail	Bail Act, s 38	One year imprisonment; fine not exceeding $2,000	One month imprisonment (concurrent)

[6]      On  24 September 2014  the  Judge  also  resentenced  the  appellant  on  the indecent  act  charges  to  nine  months’  imprisonment  cumulative  on  the  other sentences.   Hence the end sentence imposed was 29 months’ imprisonment.   By notice of appeal dated 14 October 2014, the appellant appealed against the sentence of 29 months’ imprisonment on the grounds that it was manifestly excessive.

Legal principles on appeal

[7]      An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.  Section 250(2) provides that the High Court must allow the appeal if it is satisfied that:

(a)      for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[8]      A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered but not in a way that amounts to a minor adjustment.  In any other case the Court must dismiss the appeal.

The judgment under appeal

[9]      The  judgment  commenced  with  reference  to  the  April 2014  sentence  of intensive supervision:

[1]       Mr Tonihi, since I last saw you, which was when I imposed intensive supervision, you have significantly offended in the community.  What I was not aware of when I imposed intensive supervision on you a little earlier this year was that there was the theft of the caravan which came before the Court on   8 August   and   which   you   have   promptly   pleaded   guilty   to   but significantly, I recall that when intensive supervision was imposed, you had spent  approximately  two  to  three  weeks  in  custody  and  counsel  that appeared, indicated that you had been shocked and hated the time that you had spent in custody, that you had detoxified from the synthetic cannabis and that you were willing and ready to address the sexual offending for which you had been convicted.

[2]       I was persuaded to a term of 18 months’ intensive supervision on the basis that it did appear on submission at that stage that you were ready to tackle the issues that had given rise to the offending.  You were willing to pay emotional harm reparation and you were going to seek employment. Your desire to be offending free did not last long because on 11 May, you were in possession of instruments capable of being used for conversion of a motor vehicle and while you initially pleaded not guilty to that in June, you subsequently pleaded guilty to that charge.

[10]     The Judge then recited the circumstances relating to the subsequent burglary and theft charges before returning to the earlier sentence:

[8]       The proper and principled approach now is to go back and look at the earlier sentence that you were under judicial monitoring for namely intensive supervision. That was quite a different type of offending but it was sexual offending and one that could have demanded a short term of imprisonment.   I had taken the view that that short term that you had in custody had  detoxified  you  and  you  were  ready to address  your  sexual offending.  I was wrong because you went straight back to using synthetic cannabis, and as Mr Paima has said, that robbed you of your motivation to get  out  of  bed  and  go  to  supervision,  but  it  did  not  rob  you  of  your motivation to commit offences of dishonesty such as the burglary that I have mentioned.

The Judge then cancelled the intensive supervision sentence and substituted a sentence of nine months’ imprisonment in respect of the charges of wilfully doing an indecent act in a public place.

[11]    The Judge considered that a term of seven months’ imprisonment was appropriate for the theft of a caravan and imposed a sentence of four months’ imprisonment in respect of the possession of instruments for car conversion.   In respect of the burglary charge the Judge adopted a 12 month starting point which was uplifted by six months to recognise the fact that it was committed while the appellant was on a community-based sentence.  However that penalty was reduced to nine months in part on account of the totality principle as explained in this way:

[16]      Against that, your strongest mitigating factor is the guilty plea which came at an early stage of these proceedings and on that basis there will be a reduction from the starting point and uplifted to bring about a nine month sentence of imprisonment with a reparation order of $250 to the complainant Ms Crotty.  That nine months should be cumulative on the sentence of four months that I imposed for the other offence of dishonesty.  The reduction to the nine months takes into account the totality principle which I am also required to do.  Your age is not a major fact although you are now 20, you are an adult and you are being dealt with in an adult Court.  You had the benefit of a community-based sentence which you abused and that is why a custodial sentence is appropriate.

Submissions of counsel

[12]     The contention in the appellant’s written submissions was that the substituted nine month term of imprisonment was excessive and that as a consequence the total sentence of 29 months’ imprisonment was manifestly excessive.   However in oral

submissions Mr Paima refined that submission.  Although it was no longer argued that the total sentence of 29 months was manifestly excessive, the sentence of nine months for the sexual offending was said not to have the requisite degree of proportionality  with  the  sentence  of  18 months  intensive  supervision  originally imposed.

[13]     Reliance was placed on the judgment in R v Morgan, paras [13] to [16] of which were said to be highly relevant to the appeal:2

[13]      As Heath J said in White, in re-sentencing under s 68(3)(c) the Judge is concerned to impose a sentence that could have been imposed on the offender  originally.  The  substituted  sentence  should  not  include  any element of sanction for the failure to comply with the community work sentence (see R v Phillips CA 379/90 22 May 1991 at 3, dealing with failure to complete a sentence of periodic detention). Section 71 of the Sentencing Act creates a specific offence of breach of a community work sentence, and this is the appropriate mechanism to deal with that issue.

[14]     Where imprisonment is imposed in substitution for a community- based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to  take  advantage  of  it.  The  re-sentencing  Judge  is  likely  to  weigh  the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community  based  sentence  was  imposed  because  the  sentencing  Judge placed particular weight on the offender's rehabilitation, that factor may assume less weight on re-sentencing given the offender's failure to comply with the community-based sentence.

[15]      Accordingly,    while   we   accept   that   there    must    be    some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the  appellant's  failure  to  make  any real effort to  comply with  the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.

[16]      We are satisfied that the Judge erred in his approach. The sentence of eight months imprisonment bore no relationship to the sentence of 150 hours community work originally imposed, or the factors which gave rise to it. The substituted sentence reflects the Judge's understandable frustration at being misled by the appellant when he accepted the sentence indication.

2      R v Morgan [2008] NZCA 232.

We  acknowledge  that  the  Judge  also  sentenced  the  appellant  on  other matters, in a way that did not add to the overall length of the term of imprisonment. The Judge was, then, conscious of the totality principle. Despite  that,  we  consider  that  the  basis  on  which  the  sentence  was formulated was wrong in principle.

[emphasis as in counsel’s submission]

[14]     Mr Paima noted that the appellant had spent three months in custody, that he had not offended in this manner before and that there had been a prompt guilty plea. Given  that  he  would  have  been  entitled  to  a  full  discount  for  his  guilty  plea, Mr Paima  submitted  that  the  nine  month  term  of  imprisonment  translated  to  a

12 month starting point.  Reference was made to the decisions in Hosking v R, where an end sentence of 15 months imprisonment was reduced to 12 months on appeal, and R v T where a six months term of imprisonment was imposed.3

[15]     While recognising that  those cases do not  establish a tariff or range for sentencing, it was Mr Paima’s submission that both cases demonstrated more serious offending than that of the appellant.   It  was submitted that a more appropriate starting point  for the appellant’s  offending was  within the range of four to  six months’ imprisonment.  Even if six months was deemed an appropriate starting point then an allowance of full credit for the guilty plea would reduce the end sentence to one of approximately four months’ imprisonment.

[16]     Mr Newman for the respondent submitted that the sentence of 29 months had to be viewed as a whole.  The correct question to be asked on appeal was whether or not that sentence was manifestly excessive.  Naturally he placed reliance upon the appellant’s revised position so far as the total sentence was concerned.  He noted that the totality principle had been addressed by the Judge and pointed out that in respect

of the burglary charge alone a starting point of 12 months had been adopted.

3      Hosking v R [2012] NZCA 460; R v T CA500/05, 11 May 2006.

Discussion

[17]     As Mr Paima acknowledged, there is no tariff sentence for the offence of doing an indecent act in a public place.  There are cases where significantly higher penalties have been imposed than those in the cases upon which Mr Paima relies, for example:

(a)      Pauley v Police:4  starting point of 14 months’ imprisonment uplifted by four months for a range of similar previous convictions and two months for offending while subject to post detention conditions with one month discount for late guilty plea.   District Court sentence of

20 months not manifestly excessive;

(b)      Ashby v Police:5   end sentence of 18 months’ imprisonment upheld on

appeal; the defendant had 13 similar previous sexual convictions.

[18]     In my view a starting point of 12 months’ imprisonment was within the range available to the Judge, albeit near the top end.   I do not consider that the starting point or the end point of nine months after taking into account the discount for guilty plea were disproportionate in the sense of bearing no relationship to the original sentence of 18 months’ intensive supervision.

[19]     However, even if a lesser starting point had been appropriate, it does not follow that a total sentence of 29 months would have been manifestly excessive.  I say that because I consider that the Judge’s application of the totality principle at [16]6  had the consequence that the penalty imposed for the burglary charge was significantly less than it would have been if the penalties already imposed for the other charges had not been taken into account.  The 12 month starting point uplifted

by six months even with a full 25 per cent discount for the guilty plea would have resulted  in  a  sentence  of  13.5 months  for  the  burglary  charge.    However  the

application of the totality principle resulted in a reduction to nine months.

4      Pauley v Police [2014] NZHC 2409.

5      Ashby v Police HC Hamilton CRI 2004-419-102, 5 November 2004.

6      At [11] above.

[20]     I consider that if the sentence for the sexual offending had been six or even four months then the reduction in respect of the burglary charge would not have applied.  In that event a cumulative sentence of 29 months would still have been the likely outcome.

Conclusion

[21]     For the reasons above the appeal against sentence is dismissed.

Brown J

Solicitors:

Raymond Donnelly & Co, Crown Solicitors, Christchurch