Aurupa v Police
[2012] NZHC 2750
•19 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000307 [2012] NZHC 2750
BETWEEN MIDDLEMORE AURUPA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 9 October 2012
Appearances: H Kim for Appellant
H W Y Yiu for Respondent
Judgment: 19 October 2012
JUDGMENT OF DUFFY J [re Appeal Against Sentence]
This judgment was delivered by Justice Duffy on
19 October 2012 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140
Copy to:
H N Kim, PO Box 97247, Manukau
AURUPA V NEW ZEALAND POLICE HC AK CRI-2011-404-000307 [19 October 2012]
[1] Middlemore Aurupa was charged with receiving a stolen computer valued at
$2,000, which he then sold to the owner of a second-hand dealership for $300. The charge carries a maximum penalty of seven years’ imprisonment.
[2] In the District Court, Judge Gibson sentenced Mr Aurupa to 16 months’ imprisonment, with leave to substitute the sentence with eight months’ home detention. Mr Aurupa appeals against this sentence on the basis that it is manifestly excessive and that the refusal to adjourn the sentencing was unjust in the circumstances.
District Court sentencing
[3] Judge Gibson considered that given Mr Aurupa’s previous history and the seriousness of the charge, the only options available were imprisonment or home detention. The Judge adopted a starting point of 15 months’ imprisonment, which was uplifted by five months for his previous relevant convictions. A discount of 20 per cent was then applied. Though Mr Aurupa had pleaded guilty at the earliest opportunity, the Judge did not grant the full discount of 25 per cent (recognised in
Hessell v R1) because the Judge did not believe that Mr Aurupa was genuinely
remorseful. This led to an end sentence of 16 months’ imprisonment.
[4] The Judge was prepared to impose eight months’ home detention, but a report on Mr Aurupa’s suitability to serve this sentence was not available as he had not consented to electronic monitoring. Accordingly, a sentence of 16 months’ imprisonment was imposed, with leave to substitute the sentence with eight months’ home detention.
Submissions of the appellant
[5] Counsel points to the following mitigating features of the offending: (a) The stolen item was recovered without any loss to the owner.
1 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
(b) The item, though high in value, was a single item.
(c) Mr Aurupa was to be sentenced for only one offence. (d) Mr Aurupa pleaded guilty on his first appearance.
(e) The second-hand dealer suffered a relatively minor loss of $300, which Mr Aurupa has offered to repay.
(f) The contributing factors identified in the pre-sentence report were
“lack of problem solving” and Mr Aurupa’s financial issues.
[6] It was submitted that the sentence is manifestly excessive in comparison to the following cases:
(a) Edmonds v R:2 Ms Edmonds was charged with receiving stolen property and conspiracy to receive stolen property, arising from her selling a stolen sapphire and diamond ring and gold chain to a second- hand shop. The sentencing Judge adopted a starting point of imprisonment of two years and six months, giving a discount of three months for her late guilty plea. The Court of Appeal held that the Judge had not given sufficient credit for Ms Edmonds’ assistance given to the police. They applied a larger discount to the Judge’s starting point, which qualified Ms Edmonds for home detention.
(b)Beri v Police:3 Mr Beri was charged with possession of a firearm, two breaches of community work, and two charges of receiving. The receiving charges involved Mr Beri receiving a stolen motorbike, which he painted black; as well as laptops and jewellery from an earlier occasion. The sentencing Judge took the receiving charges as the lead offence and adopted a starting point of 12 months’
imprisonment. This was upheld on appeal.
2 Edmonds v R [2011] NZCA 415.
3 Beri v Police [2012] NZHC 1923.
(c) Pitihira v Police:4 Mr Pitihira was charged with unlawfully taking a motor vehicle, theft, receiving, wilful trespass and three breaches of community work. On appeal, Woolford J held that the correct “global” starting point was approximately 12 months’ imprisonment.
(d)O’Donnell v Police:5 Mr O’Donnell was charged with burglary, two counts of receiving, driving while suspended, and a breach of community work. On appeal, Gendall J considered that the burglary and receiving charges would have justified a total starting point of at least 15 months’ imprisonment.
(e) Roughton v Police:6 Mr Roughton was charged with exceeding a speed limit and receiving a motorcycle. A total sentence of 200 hours’ community work and a reparation order of $2,000 were upheld on appeal.
(f) Cribb v Police:7 Mr Cribb was charged with 10 counts of receiving stolen property of various values, including a boat and trailer worth more than $40,000, and motor vehicles. The sentencing Judge adopted a starting point of two and a half years’ imprisonment, which was not disputed on appeal, though Ellis J considered that the Judge had not given sufficient weight to his assistance to the police and whether home detention was appropriate.
(g)Pairama v Police:8 Mr Pairama was charged with a number of dishonesty offences, including receiving stolen wheel rims while on bail and selling them to a second-hand dealer. On appeal, Ronald Young J held that a justifiable starting point for the overall offending
in the circumstances was 12 months’ imprisonment.
4 Pitihira v Police [2012] NZHC 1690.
5 O’Donnell v Police [2012] NZHC 997.
6 Roughton v Police HC Hamilton CRI-2010-019-9376, 5 April 2011.
7 Cribb v Police HC Hamilton CRI-2010-419-46, 8 July 2010.
8 Pairama v Police HC Hamilton CRI-2007-419-85, 24 July 2007.
[7] Mr Aurupa submitted that a starting point in the range of six to eight months would have sufficiently met the criteria for deterrence and denunciation in the Sentencing Act.
[8] Mr Aurupa further submitted that insufficient weight was given to his remorse and his offer to pay reparation (at a rate of $25 per week, with the amount to be paid in full in four to five months); and that he was entitled to a discount of 25 per cent for his early guilty plea.
[9] Since Mr Aurupa’s incarceration his partner, Ms Tekii, and their 17 year old son are struggling. Ms Tekii has provided an affidavit to this effect. It is not clear whether Mr Aurupa provided evidence of his personal circumstances to Judge Gibson.
[10] Finally, Mr Aurupa submitted that Judge Gibson should have adjourned the sentence so that home detention enquiries could be completed. Mr Aurupa’s counsel explained to me that Mr Aurupa had not fully appreciated the conditions subject to a sentence of home detention or community detention, which was why the adjournment was sought as that would have enabled counsel to explain better to Mr Aurupa the consequences of his not consenting to electronic monitoring.
Submissions of the respondent
[11] The respondent submitted that the sentence is not manifestly excessive by way of comparison to Vansilfhout v Police.9 In that case, a starting point of three years and three months’ imprisonment was adopted for one charge of receiving goods to the value of $500 and electronic equipment valued at just under $4,000. On appeal, the High Court noted that the aggravating features had been double counted and stated that a starting point of between 18 and 21 months’ imprisonment should
have been adopted.
9 Vansilfhout v Police HC Rotorua CRI-2006-470-2, 7 March 2006.
[12] The respondent submitted that Judge Gibson was entitled to be sceptical of Mr Aurupa’s unsubstantiated claim of remorse and that the 20 per cent discount was correct.
[13] Finally, the respondent submitted that Judge Gibson did turn his mind to home detention and left open an avenue of recourse in granting leave to apply for home detention.
Analysis
Approach
[14] Under s 121(3) of the Summary Proceedings Act 1957 Mr Aurupa must show that the sentence is manifestly excessive. If so, the Court may quash the sentence and pass another sentence, or otherwise deal with him, sever and quash an invalid part of the sentence, or vary the sentence.
[15] A sentence is manifestly excessive when it is “substantially or significantly more severe” than required, in light of the offence and culpability of the offender.10
[16] The approach to be taken to appeals under s 121 was set out in Yorston v
Police11 where the Court said that:12
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error of principle.”
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
10 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [SAB15].
11 Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010.
12 At [13]-[15] (citations omitted).
Application
[17] I consider that the starting point was too high. The respondent relied on Vansilfhout v Police, which involved receiving clothes of $500 value and $4,000 worth of electronic equipment. On appeal Priestley J reduced a starting point from three years three months’ to one of “around 18 to 21 months” (see [13]). Priestley J described the original starting point as one that sat “uneasily with the s 8(e) principle of overall consistency” (at [12]). However, Priestley J did not say how he arrived at a starting point of 18 to 21 months or why that better fitted with the requirements of s 8(e). Thus the decision provides minimal guidance on choice of an appropriate starting point for the offence of receiving.
[18] There is a reference in Vansilfhout to four authorities that were cited by the
appellant’s counsel. Consideration of those authorities reveals the following.
[19] In R v Singh13 the appellant pleaded guilty to two representative charges of receiving computer equipment obtained by a crime. The first charge related to him receiving eight stolen lap-top computers. The second charge related to him receiving various stolen lap-top computers and miscellaneous computer items. He was sentenced in the District Court to six months’ imprisonment and given leave to apply for home detention. He appealed on the ground the sentences were excessive, particularly in relation to the sentence imposed on a co-offender who had received a non-custodial sentence. The Court of Appeal did not find the sentence manifestly excessive given that Mr Singh’s involvement in receiving of stolen goods was at a significant level. The scale of Mr Singh’s offending was described as a “particularly pernicious activity providing as it does a ready market for thieves” (at [11]).
[20] In R v Collier14 the appellant pleaded guilty in the District Court to charges of receiving a stolen motor vehicle and an unrelated charge under the Misuse of Drugs Act 1975. On the receiving charge he was sentenced to two years and nine months’ imprisonment. He appealed against that sentence. At the appeal Mr Collier
advanced the argument that the District Court Judge in selecting a starting point of
13 R v Singh CA17/05, 19 May 2005.
14 R v Collier CA170/03, 21 August 2003.
three years’ imprisonment had been overly influenced by Mr Collier’s previous offending, and the need to deter Mr Collier from repeated offending. The Court of Appeal accepted Mr Collier’s argument that despite his criminal history he had not been convicted of an offence of dishonesty for approximately ten years and therefore the offending should have been approached as a one-off offence. It was submitted that the sentence was excessive for a one-off offence as there was no evidential foundation to suggest Mr Collier was part of a wider car ring conspiracy. Mr Collier
relied on a decision R v Hughes,15 in which the appellant was involved in a dishonest
receipt of a motor vehicle. He received a sentence of 12 months’ imprisonment, which was upheld on appeal. Mr Collier relied on this to support his argument that he should have been sentenced to a term in the range of six to 12 months’ imprisonment. The Court of Appeal found that the sentence imposed was clearly excessive and that he should have been sentenced on the basis the offence was an isolated one. Giving due allowance for his plea of guilty the Court of Appeal considered that an appropriate sentence was one of 12 months’ imprisonment. He was given leave to apply for home detention.
[21] In R v Holden16 Mr Holden pleaded guilty to six charges of receiving. A variety of property stolen in five separate burglaries was found in his home. The value of all the suspect property was $33,773. Mr Holden pleaded guilty to these charges on 12 May 2004. On the day of his sentence, he also pleaded guilty to four additional charges of receiving. He had not been before the Court for dishonesty for over 10 years. He received an effective sentence of 21 months’ imprisonment, which was upheld on appeal.
[22] In Miny v Police17 Mr Miny appealed a sentence of two years’ imprisonment (with leave to apply for home detention), following entry of guilty pleas to a representative charge of receiving. He was an antique dealer who purchased jewellery he suspected was stolen over a 13 year period. He extracted gemstones from the jewellery then arranged for metals to be melted down and sold. The
sentencing Judge found that the Crown could not prove the amount of jewellery
15 R v Hughes CA427/97, 26 February 1998.
16 R v Holden CA329/04, 21 December 2004.
17 Miny v Police HC Wellington CRI-2003-485-97, 9 December 2003.
received, but the Judge concluded that Mr Miny obtained enough gold to make 540
9-carat gold rings. The District Court Judge adopted a starting point of three and a half years’ imprisonment, which was reduced by one and a half years for mitigating features. On appeal, Ellen France J found that the Judge had taken into account all relevant factors and the sentence was not outside the available range.
[23] From my reading of the authorities, I reach the following conclusions. First, as there is no express support for the choice of the 18 to 21 month starting point that was adopted in Vansilfhout v Police, I do not find that decision helpful. Secondly, the cases cited in Vansilfhout generally involved more serious offending. I note that in Singh, where the appellant had received significantly more computers and electronic equipment than in the present case, an end sentence of six months’ imprisonment was upheld on appeal. In Collier the Court of Appeal considered that for a one-off offence involving dishonest receipt of a motor vehicle the appeal was allowed and a sentence of two years nine months’ imprisonment was replaced with a sentence of 12 months’ imprisonment.
[24] The authorities I have gained the most help from are Beri, Pitihira and Pairama. These cases involved multiple offending with receiving treated as the lead offence which attracted starting points of 12 months’ imprisonment being applied on appeal. As Mr Aurupa committed only one offence, the starting point adopted for his offending would have to be less than that imposed in those cases.
[25] When adjustments are made for the differences between the cited cases I am left to conclude that, as in Collier, Mr Aurupa’s offending should have been approached as a single one-off offence. I consider that an appropriate starting point would have been within the range of six to eight months’ imprisonment.
[26] A reasonably high uplift would have been required for Mr Aurupa’s previous convictions, as he has an extensive history of criminal offending. His 1991 youth offending involved burglary and taking a motor vehicle. His District Court offending spans from1991 to 2009, with short gaps when he was serving periods of imprisonment. His offending is largely comprised of property-related offences, including five receiving charges, nine counts of burglary and one of aggravated
robbery, 13 counts of interfering with or taking motor vehicles, six counts of breach- type offending, and other offences that are not relevant to dishonesty offending. He has received a range of sentences. Against this, however, it needs to be recognised that since 2004 there has been a considerable improvement in his conduct. In 2004 he was convicted on a number of charges of dishonesty, including receiving. He appears to have received a number of concurrent sentences with the longest being three years’ imprisonment. However, a breach of bail offence on 3 February 2005 shows that he must have been released from prison at that time. Then there is an offence of unlawfully getting into a motor vehicle in May 2009 and the current offending which occurred on 13 February 2012. As there is no evidence of any major offending between 2005 and the current offending it seems that Mr Aurupa has been making some effort successfully to reduce his offending.
[27] It is important that any uplift for past convictions does not result in a double penalty. I consider that when measured against a starting point of between six to eight months’ imprisonment, an uplift of three to four months’ imprisonment would be sufficient to reflect the seriousness of his criminal history.
[28] There is then the question of a reduction for mitigating factors. In Hessell v R,18 the Supreme Court held that a discount of up to 25 per cent was appropriate for the entry of an early guilty plea. As it is accepted that Mr Aurupa’s guilty plea was entered at the first reasonable opportunity, he should receive a 25 per cent discount for his guilty plea alone. I see no reason, therefore, why he should not have enjoyed a full discount for the entry of a guilty plea.
[29] There is then the question of whether any discount should be given for remorse. In Hessell v R the Supreme Court found that remorse is a separate factor from the entry of a guilty plea. Judge Gibson made no allowance for remorse. However, the Judge may not have had the benefit of the affidavit evidence that I have received from Ms Tekii. Her evidence shows that Mr Aurupa is remorseful and that he has been trying to reduce his offending. She describes him as being very much ashamed of falling back on his old ways of offending and states that he is
utterly remorseful. I consider that the gap in Mr Aurupa’s criminal history provides
18 Above n 1.
some support for the view that in recent years he has sought to make changes to his life and to avoid re-offending. There is also the fact that he offered to pay reparation to the person to whom he sold the computer. He is entitled to some credit for remorse, his offer to pay reparation and his attempts to mend his ways. I would give a further discount, which would take the overall discount for mitigating factors to one-third. I would adopt the end sentence of six months, being the least restrictive option: see s 8(g) of the Sentencing Act.
[30] The end sentence that I have reached is less than half the end sentence reached by Judge Gibson. This shows that the sentence imposed in the District Court was manifestly excessive. This was due to the starting point and uplift being too high. Then there was insufficient regard given to the discounting factors. Whilst errors in sentencing methodolgy will not always result in a sentence being overturned on appeal, a cumulation of errors led the sentencing judge to impose a sentence that is manifestly excessive. Accordingly the sentence imposed in the District Court is quashed.
Home detention
[31] I agree with counsel for the respondent’s suggestion that Judge Gibson’s refusal to grant an adjournment was properly based on the fact that Mr Aurupa had not cooperated with previous attempts to prepare a report on an electronically monitored sentence. Further, the Judge granted leave so that Mr Aurupa could canvass this option if he so wished. This was an appropriate course to take in the circumstances.
[32] When Mr Aurupa’s appeal was first before me I ordered a report on a sentence of home detention. He is granted leave to apply for a sentence of home detention. The application will be heard at 9.00 a.m. on Thursday 25 October 2012.
Result
[33] The appeal is allowed. The sentence imposed in the District Court is quashed and is replaced with a sentence of six months’ imprisonment.
[34] An application to replace this sentence with a sentence of home detention wll be heard at 9.00 a.m. on Thursday 25 October 2012.
Duffy J
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