Eneliko v Police
[2014] NZHC 3330
•18 December 2014
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2014-463-80 [2014] NZHC 3330
BETWEEN WHYLENE ENELIKO
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 December 2014 Counsel:
J M Holmes for Appellant
N G Belton for RespondentJudgment:
18 December 2014
JUDGMENT OF HEATH J
This judgment was delivered by me on 18 December 2014 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Tauranga
Counsel:J M Holmes, Tauranga
ENELIKO v NEW ZEALAND POLICE [2014] NZHC 3330 [18 December 2014]
The appeal
[1] Mr Eneliko appeals against an effective end sentence of one year and one month’s imprisonment, imposed by Judge Geoghegan in the District Court at Tauranga on 24 October 2014.1 The charges to which Mr Eneliko pleaded guilty were burglary (x2), unlawful interference with a motor vehicle, theft, escaping custody and intentional damage. The offending occurred between 29 August 2014 and 14 September 2014.
[2] Mr Eneliko turned 17 years on 2 August 2014. Notwithstanding his age, Mr Eneliko is not a stranger to the youth and criminal justice systems. His first appearance in the Youth Court was on 24 July 2012, and his most recent was on 29
September 2014.
[3] On 29 September 2014, a declaration was sought from the Youth Court that
Mr Eneliko had failed to comply with conditions of a supervision order made on 28
July 2014, on three charges of burglary, one of robbery, one of resisting Police and one of escaping custody.2 As it happens, Judge Geoghegan also presided at that Youth Court hearing. He was aware that further charges were being called in the District Court on 24 October 2014. In the course of his judgment he said:
[4] I have reached the view that this matter had to be dealt with on a pragmatic basis. Given that it appears likely that [Mr Eneliko] will be sentenced to a custodial sentence on 24 October, one would have to question what the practical advantage is of transferring these matters to the District Court, bearing in mind that upon granting the application I would have to direct an FGC and the matter would have to come back before the court for preparation of a plan and report. As a result of my discussion with [Mr Eneliko’s social worker], he has agreed to withdraw this application. It is probably fair to say that that was not his first choice, but there is a practicality about this matter which needs to be acknowledged. I have explained to [Mr Eneliko] that he appears to be one of those unfortunate young men who appears to be destined to spend significant periods of time in prison. I sincerely hope that that is not the case.
Grounds of appeal
[4] Mr Holmes, on behalf of Mr Eneliko, advances four grounds in support of the appeal:
1 Police v Eneliko DC Tauranga CRI-2014-070-3171, 24 October 2014 (Judge Geoghegan).
2 Police v WE [2014] NZYC 715 (Judge Geoghegan) at para [1].
(a) The starting point taken by the Judge was too high
(b)No uplift for previous offending was appropriate, as no such offending had come before the District Court previously
(c) There was a failure to give appropriate credits for mitigating factors;
in particular, remorse and youth.
(d)An irrelevant consideration was likely taken into account; namely an earlier decision of the Youth Court over which Judge Geoghegan had presided of which he (as Mr Eneliko’s counsel in the District Court) had no knowledge at the time of sentencing.3
The facts
[5] Judge Geoghegan summarised the facts succinctly:4
[2] The summary of facts with reference to the burglary committed on
29 August tells me that you had gone down a long driveway to an enclosed rear property where you located a Weed Eater which you uplifted and took
with you. It seems to me to have been a somewhat opportunistic and
unsophisticated burglary.
[3] The second burglary occurred sometime between 5 and 7 September at a residential address where entry to the address was gained by an insecure window. Stolen from the address were PlayStation games, a Billabong backpack and a BMX. Those items were valued at $2000. You were subsequently spoken to by police and you admitted your involvement.
[4] The charges of unlawfully interfering with a motor vehicle and theft arise from an incident on 25 August when you were with associates of yours at the Kaupapa Māori Health Clinic. The clinic was closed and two of their motor vehicles were parked outside. Both vehicles were locked. Two of your associates approached the motor vehicles, broke into them and the theft occurred from there.
[5] The charge of escaping custody arises from the police speaking to you about a breach of your bail conditions on 14 September and as you were being handcuffed you have simply done a runner.
[6] The intentional damage is to a cell that you were held in at the police station.
3 Police v WE [2014] NZYC 715. The relevant part of the decision is set out at para [3] above.
4 Police v Eneliko DC Tauranga CRI-2014-070-3171, 24 October 2014 (Judge Geoghegan) at paras [2]–[6].
Sentencing in the District Court
[6] Judge Geoghegan constructed the sentence to be imposed as follows:
(a) First, he chose an appropriate starting point, by reference to the lead offences of burglary. The starting point chosen was one of 14 months imprisonment.5
(b)Second, an uplift of six months was added to reflect previous offending and to take account of other charges on which he was appearing for sentence. The adjusted starting point was 20 months imprisonment.6
(c) Third, a credit of 25% was given for the guilty plea.7 An additional reduction of 10% was allowed to take account of youth.
[7] That left an end sentence of 13 months imprisonment on all charges.
[8] Although the term of imprisonment was below that which triggers an ability to impose home detention, that was not regarded as a realistic sentencing option. The Judge said:
[13] Of some significance though is your reflection to the report writer that this is not where you want to be in your life and that, at least, shows some degree of insight on your part to your offending and lifestyle. Imprisonment is recommended for a number of reasons, not the least of which is that in reality you appear for sentencing as a recidivist burglar and that you have a history of non-compliance with bail and offending while on bail.
[14] There is reference, of course, to a home detention address being available but you have confirmed through Mr Holmes today that sentencing you to home detention, which is an option which I would have considered very favourably, is simply setting you up to fail and in that regard again at least that shows a degree of insight into your own situation.
[9] Given the close proximity between the Youth Court appearance on 29
September 2014 and the District Court sentencing on 24 October 2014, it is likely
5 Ibid, at para [18].
6 Ibid.
7 Hessell v R [2011] 1 NZLR 607(SC).
that Judge Geoghegan was personally aware of Mr Eneliko’s past offending. That conclusion is consistent with what the Judge said in his sentencing remarks:8
[7] You appear, unfortunately, as a 17 year old but with an extensive history in the Youth Court including admitted charges involving eight burglaries, one aggravated robbery, one robbery and drug offending. Looking at your Youth Court history the sad fact of the matter seems to be that you were always destined to appear in the adult Court at this time in your life despite the numerous attempts made within the Youth Court jurisdiction to provide you with an opportunity to change and to place yourself in a more positive environment and with a more positive way of thinking. Sadly, you have failed to do any of that and you will pay the penalty for that today.
Analysis
(a) Was the starting point too high?
[10] In support of his contention that the starting point was too high, Mr Holmes made three preliminary points:
(a) No guideline judgment has been given by either the Court of Appeal or the Supreme Court on sentences for burglary charges. It is the range of varying circumstances in which such an offence can be committed and the lack of uniformity in relevant aggravating and mitigating factors that renders that task impossible, notwithstanding
an earlier attempt by a Full Court of this Court, in Senior v Police.9
(b)The Full Court’s decision in Senior, while not having been adopted as a tariff case, has helpfully identified a number of aggravating features that have been taken into account in subsequent decisions of this Court and the Court of Appeal.10
(c) Sentencing Judges must guard against the risk of undue emphasis on past dishonesty convictions in fixing a starting point for a burglary
8 Police v Eneliko DC Tauranga CRI-2014-070-3171, 24 October 2014 at para [7].
9 R v Senior (2000) 18 CRNZ 340 (HC). That approach was disapproved by the Court of Appeal in R v Southon (2003) CRNZ 104 (CA).
10 For example, see R v Columbus [2008] NZCA 192 at paras [14] and [15] and Iwikau v Police
[2012] NZHC 2027.
offence. They must do so to avoid imposing a sentence which is effectively punishment for prior offending.11
[11] Mr Holmes referred to a number of comparator cases. The two on which he placed primary reliance were a decision of this Court in Terore v Police12 and one of the District Court, in Police v Harrison.13
[12] Mr Belton, for the Police, contended that the starting point taken by the Judge was within range, and sought to distinguish those authorities on which Mr Holmes had relied. Mr Belton referred me to R v Curry,14 in which a starting point of 15 months imprisonment was selected by the sentencing Judge, in relation to the burglary of a residential property during hours of darkness in winter, when his role was that of “getaway” driver only. That starting point was upheld by the Court of
Appeal. In the present case, Mr Eneliko’s role was that of a “look-out”.
[13] At this stage, I deal only with the starting point for sentence, before taking account of prior offending. The Judge’s choice of 14 months imprisonment was within a range that can be discerned from the authorities to which counsel referred. Similar starting points were used in both Curry15 and Harrison. I am satisfied that the starting point was appropriate.
(b) Uplift for prior admitted or proved offending in the Youth Court
[14] The next question is whether the Judge erred in the uplift that he added to reflect prior offending and other charges on which Mr Eneliko was appearing. In that regard, there was some conflation between two types of aggravating factors.
[15] The existence of other charges on which Mr Eneliko was being sentenced was an aggravating factor of the offending. It required the Court to determine what
sentence was appropriate to mark the totality of the offending.
11 R v Columbus [2008] NZCA 192 at para [15].
12 Terore v Police HC Whangarei CRI-2009-088-3650, 13 December 2012.
13 Police v Harrison DC Tauranga CRI-2014-070-2159, 14 July 2014 (Judge Cooper).
14 R v Curry [2010] NZCA 491.
[16] The existence of prior offending, some of a similar kind, was a personal aggravating factor. In determining whether the Judge erred, it is necessary to consider whether, in combination, an uplift of six months was appropriate.
[17] A period of six months was added to take account of both types of aggravating circumstances. In addition, it appears that the Judge took into account the fact that one of the burglaries was committed while Mr Eneliko was on bail on other charges, and others while he was subject to supervision under Youth Court orders. All of those factors justify a modest uplift of six months without infringing against the principle expressed in Columbus that the Court must be careful not to punish for past offending.
(c) Credits for mitigating factors
[18] As to credit, a guilty plea attracted the maximum credit of 25%. The credit of
10% for youth might ordinarily be considered on the low side for a 17 year old, but not for someone with Mr Eneliko’s history and his consistent failure to abide by orders of the Court.
[19] Further, I am satisfied that the Judge expressed his reasons for those credits adequately:16
[19] You are entitled to the maximum discount for your guilty plea but I would also add an additional 10 percent to take account of your youth. As I have said, you are a young man with your life ahead of you and there are significant amounts of literature which refer to the relatively late cognitive developments in youth and accordingly there should be some allowance for that. That discount is one of seven months in total, which leaves an end sentence of 13 months’ imprisonment.
[20] I discern no error in the way in the credit given for mitigating factors. If anything the allowance for youth was generous, given the existence of prior (and similar) offending that had come before the Youth Court.17 The uplift for prior
offending and the credit for youth could have cancelled each other out.18
16 Police v Eneliko DC Tauranga CRI-2014-070-3171, 24 October 2014, at para [19].
17 See Geros v R [2011] NZCA 122 at para [18].
(d) What is the relevance of the September 2014 Youth Court decision?
[21] Mr Holmes expressed concern that Judge Geoghegan had presided over the Youth Court hearing a matter of weeks before sentencing in the District Court, given the comments that he made about the inevitability of a sentence of imprisonment.19
[22] Mr Holmes, properly, did not assert any bias on the part of the Judge, whether apparent or otherwise. Nor could he point to any prejudice; in the sense that had he known of the terms of the earlier judgment there was nothing further that could have been added to the comprehensive submissions he had already made. The suggestion that imprisonment might be the only option was tempered by the fact that home detention was not a live possibility on sentencing.20
[23] Judge Geoghegan was entitled to take account of the numerous appearances made by Mr Eneliko in the Youth Court, and the nature of the offending that had been proved or admitted; the most recent of which resulted in the supervision order on three charges of burglary, one of robbery, one of resisting Police and one of escaping custody. They were of a similar ilk to those which the Judge was considering in the District Court. Even if the Judge had not presided at the Youth Court hearing, the nature and extent of the prior offending would have been apparent from the criminal history list before him.
Result
[24] I am not satisfied that the end sentence of one year and one month’s
imprisonment can be shown to be clearly excessive.21 For that reason, the appeal is dismissed.
P R Heath J
19 Police v WE [2014] NZYC 715, at para [4], set out at para [3] above.
20 Police v Eneliko DC Tauranga CRI-2014-070-3171, 24 October 2014, at paras [13] and [14], set out at para [8] above.
21 Tutakangahau v R [2014] 3 NZLR 482 (CA).
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