Haimona v Police

[2018] NZHC 472

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-88

[2018] NZHC 472

BETWEEN

WILLIAM WERA HAIMONA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 March 2018
Appearances:	LS Caley for Appellant ARA Pell for Respondent
Judgment:	20 March 2018

ORAL JUDGMENT OF TOOGOOD J

Haimona v New Zealand Police [2018] NZHC 472 [20 March 2018]

Introduction

[1]    William Wera Haimona pleaded guilty to nine charges of burglary, each of which carries a maximum sentence of 10 years’ imprisonment,1 and one charge of theft of property exceeding $1,000, which carries a maximum penalty of seven years’ imprisonment.2

[2]    Mr Haimona was sentenced to a term of three years’  imprisonment  by  Judge T R Ingram in the District Court at Hamilton on 6 December 2017.3 He now appeals that sentence.

Offending

[3]    The facts to which Mr Haimona pleaded guilty were that nine burglaries were committed in Hamilton by two others and him over ten days. The co-offenders were not each involved in all of the nine burglaries which Mr Haimona committed, and he appears to be solely responsible for the theft. However, they targeted houses during the day when the occupants were not at home – or when they believed the occupants were not at home. In some, at least, of the cases they disabled the power externally and then searched the house before leaving by car.

[4]    On 15 August 2017, Mr Haimona and the others forced the door of a house and took a bag of clothing. Four days later, they disabled power to a property; forced entry; searched the property and took clothes, shoes, credit cards and electronics, including two television sets, an Xbox, two laptops and a PlayStation.

[5]    On 24 August, the three disabled the power at a third property; entered the house and took belongings valued over $7,000 including televisions, a laptop, jewellery and clothing. They also took a Ford Thunderbird 2005 sports car worth

$50,000. I pause here to observe that the alleged co-offenders have denied involvement in that burglary.

1      Crimes Act 1961, s 231.

2      Crimes Act 1961, ss 219 and 223 (b).

3      Police v Haimona [2017] NZDC 27650.

[6]    Mr Haimona committed three burglaries the following day. At the first property, they turned the power off; kicked in the front door; searched the property and took electronics and jewellery worth around $2,000. They did the same at a second property, taking clothing and jewellery valued over $5,000. They broke into the neighbouring property by forcing the door, and took electronics valued at least

$3,500.

[7]    Three further burglaries were committed on 25 August 2017. At the first property, a garage  was  entered  and  various  tools  were  taken.  At  the  second,  Mr Haimona waited in the car while the others cut the power line to the house; forced the door; took a set of keys and left with a car worth $5,000. At the third, the three cut the power and then tried to pry open a window, but the occupant was present at the property and confronted them.

[8]    The remaining charged of theft occurred on 24 July 2017. Mr Haimona and others entered a tech store. While the shop assistant was distracted, Mr Haimona grabbed the shop assistant’s iPhone and charger, valued at $1,050, from over the counter.

[9]    When arrested, Mr Haimona admitted the offending, although he says his role was largely confined to acting as driver and lookout. He also named his co-offenders, who are his nephews, and indicated a willingness to give evidence against them. He pleaded guilty to the ten charges at the earliest opportunity. Of the two men named by Mr Haimona, one denies involvement in all charges and the other, a Mr Terry, denies involvement in the burglary in which the Thunderbird was taken. They are to be tried in due course.

[10]   After this appeal was set down, Mr Haimona provided the Police with a lengthy statement describing the roles played by himself and each of his nephews in the burglaries. He says he will give evidence consistently with that statement. I accept that if he does give evidence in those terms it will be of significant assistance to the prosecution.

Personal circumstances

[11]   Mr Haimona is a 39-year-old man of Ngāti Mahanga/Waikato descent. He has two children.

[12]   He has a conviction record including nearly 50 convictions, largely for breaching conditions, violence and driving offences. He has received four short terms of imprisonment: in 2000, 2014, 2015 and 2016. He had no prior convictions for burglary, theft or dishonesty offending except for an assault with intent to rob in 1997.

District Court decision

[13]   Judge Ingram took the nine burglary offences as the lead offending. He adopted the three-year starting point given to one of the co-offenders, Mr Terry, saying it was in line with leading authorities, in particular Senior v Police.4 The Judge then imposed an uplift of six months for the theft of the iPhone,5 and an additional uplift of six months for offending while subject to release conditions.

[14]   The Judge then turned to the principles of sentencing and relevant aggravating and mitigating features.6 He did not separate out the aggravating features of the offending and the offender; but rather, listed all together having already set the starting point. Although that may seem an unorthodox approach, I apprehend that that was a delayed explanation of the starting point rather than a failure to follow the conventional three-step process.

[15]   The Judge emphasised the seriousness of the offending, pointing to the substantial losses and the vulnerability of the victims. He was right to do so. Burglaries of this kind, as the victim impact statements show, are more than merely the taking of property which can be replaced. They result in feelings of invasion of privacy and violation among householders. Often what is taken has some emotional value for the victims and often a great deal of inconvenience is caused, and that is so in this case.

4      Senior v Police (2000) 18 CRNZ 340 (HC).

5      Police v Haimona [2017] NZDC 27650 at [2].

6      At [4]–[5].

[16]   Judge Ingram considered the behaviour was premeditated; he decided that  Mr Haimona was unable to pay reparation and noted Mr Haimona had a “long and bad record”.7 The Judge then allowed the full 25 per cent discount for the guilty pleas.8 He did not allow any further discounts, nor mention any other mitigating factors, and this approach led to a final sentence of three years’ imprisonment being imposed concurrently on each of the charges.

Submissions

[17]   Initially Mr Haimona appealed on three grounds, including that the uplifts were too high and that there was disparity between his sentence and those imposed on his co-offender, Mr Terry. However, Mr Haimona now pursues the appeal solely on grounds the sentence was manifestly excessive, arguing that the Judge should have given credit for Mr Haimona’s remorse and personal circumstances, and for his assistance to police, leading to recovery of the stolen Ford Thunderbird. Mr Caley also emphasises Mr Haimona’s willingness to give evidence which will assist the Crown in the prosecution of the other two alleged offenders.

[18]   Mr Caley submits that an eight per cent discount is appropriate to reflect     Mr Haimona’s genuine remorse, demonstrated by his confession naming his nephews, and the information provided to police about the whereabouts of the Thunderbird. He points also to Mr Haimona’s letter of remorse and his willingness to participate in restorative justice.

[19]   Mr Caley submits that a further discount of 25 per cent should be allowed for Mr Haimona’s cooperation with police and his willingness to give evidence. He says Mr Haimona’s cooperation has been detrimental to him; he has received threats from a gang leading to a bail breach, and has suffered family consequences for naming his nephews as co-offenders.

[20]   For the respondent, Mr Pell accepts that Mr Haimona named his co-offenders when interviewed and made a confessional statement, and that he told police where he

7 At [5].

8 At [5].

believed the Thunderbird vehicle would be. He says, however, that the vehicle was not there when the address was visited, and that it was located at that address a week later due  to  unrelated  enquires  by  police.  Accordingly,  Mr  Pell  submits  that  Mr Haimona’s cooperation amounted to not much more than a guilty plea, which was accounted for by the Judge. He argues that a combined discount of 58 per cent for pleas, remorse and cooperation would be grossly excessive compared to relevant cases.9 The respondent submits at most one to two further months could be allowed for remorse, but this would be mere tinkering with a sentence that was within the range available.

[21]   Finally, and more significantly, it is submitted that the starting point imposed by Judge Ingram could and should have been higher, with reference to Mr Terry’s sentence and the Court of Appeal’s judgment in Swinburne v R.10

Approach on appeal

[22]   An appeal against sentence must be allowed only if the Court is satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.11 A material error requiring correction will be established if the sentence is manifestly excessive or wrong in principle, or if there are exceptional circumstances.12

[23]   In a case such as this the real question is whether the effective end sentence was manifestly excessive. The appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.13

9      Citing R v Hadfield CA337/06, 14 December 2006; ABC v Police [2013] NZHC 1487.

10     Swinburne v R [2010] NZCA 568.

11     Criminal Procedure Act 2011, s 250.

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30] and [31].

13     Larkin v Ministry of Social Development [2015] NZHC 670 at [26], applying Ripia v R [2011] NZCA 101 at [15].

Discussion

[24]   Under s 9(2)(f) of the Sentencing Act 2002, a judge must take into account remorse shown by the offender. As the Supreme Court emphasised in Hessell v R, where a proper and robust evaluation of all the circumstances demonstrates genuine remorse beyond that which might reasonably be inferred from the guilty plea, sentencing credit can properly be given separately from a discount for the plea.14

[25]   It is also clear that a discount is available where the offender has co-operated with or provided assistance to police, to recognise the value of the assistance given and to encourage offenders to inform.15 In R v Simpson, the Court of Appeal stressed that the extent of any discount depends primarily on the value of the information, although the degree of personal risk and the consequences involved may also be relevant.16

[26]   The extent of Mr Haimona’s cooperation in this case is not easily assessed, at least in terms of the recovery of property. His prompt confession to the offending is relevant to the amount of the guilty plea discount, rather than particular cooperation. It is also not clear that the confession alone demonstrates particular remorse, given that police had found relevant property at Mr Haimona’s home, suggesting the case against him was strong.

[27]   On the other hand, Mr Haimona did confirm the identity of his co-offenders, and the location at which the car was eventually found. I am not persuaded that the former information was of particular value to police, given they had already arrested Mr Haimona and the alleged co-offenders. There is nothing to suggest that his confession led to the identification of additional crimes unknown to Police, as confessions by spree burglars often do, but it does appear to have contributed, at least, to finding and returning the Ford Thunderbird. I accept that it may have come at personal cost to Mr Haimona’s family relationships, and I accept also that the evidence

14     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

15     R v S CA236/00, 30 October 2000 at [17]; R v R CA62/96, 27 May 1996 at 5; see also R v Accused (CA 349/89) [1990] 2 NZLR 316 (CA) at 319.

16     R v Simpson [2008] NZCA 467 at [19]; see also R v Krasoudakis (1996) 14 CRNZ 487 (HC) at 490–491.

that he says he will give will materially assist the prosecution. I emphasise that that was not known to Judge Ingram at the time he imposed the sentences in this case.

[28]   Mr Haimona has also provided a letter expressing remorse which I am prepared to acknowledge as deserving of recognition; and although his victims were not interested in meeting Mr Haimona in a restorative justice setting, he made the offer to do so.

[29]   Taking account of those matters, I accept that Judge Ingram erred in not according some discount for remorse and cooperation. It is fair to the Judge to say, however, that Mr Caley’s written submissions at sentencing in the District Court referred to those matters in passing only, but Mr Caley tells me he made further oral submissions and that the Judge did have a memorandum from the Police confirming cooperation by Mr Haimona without going into much detail. As I have said, the Judge did not know at that point that Mr Haimona had given an undertaking to give evidence.

[30]    Looking at those issues of remorse and cooperation afresh, I would allow a five per cent discount for genuine remorse, and a further 15 per cent discount for cooperation, largely driven by the undertaking to give evidence. A discount of 20 per cent in addition to the guilty plea discount is not inconsequential.

[31]   But while I accept that the Judge erred not addressing the discounts available for those matters, the present appeal must be allowed only if the errors resulted in a sentence that was manifestly excessive.17 For that reason, it is necessary to consider whether the end sentence taken as a whole was too harsh in all of the circumstances.

[32]   I first consider the starting point. There is no tariff case for burglary, although the decisions of the Court of Appeal in R v Colombus and R v Southon, and of a full High Court in Senior v Police are helpful.18 So too are the comments of the Court of Appeal in Arahanga v R, in which the Court noted:19

17     See the discussion at [22] and [23] above.

18     R v Columbus [2008] NZCA 192; R v Southon (2003) 20 CRNZ 104 (CA); Senior v Police (2000) 18 CRNZ 340 (HC).

19     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

Dwellinghouse burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.

I add that the Court of Appeal was there referring to a single burglary.

[33]   In this case, the starting point was intended to reflect nine burglaries committed by Mr Haimona which were relatively seriousness. The following circumstances are relevant to assessing the appropriate starting point:20

(a)Most of the properties burgled were residential dwellings (except in one instance where a garage was burgled), creating a heightened risk of confrontation.21

(b)There were three offenders.

(c)The     offending    was    premeditated,    although    not    particularly sophisticated.

(d)Two of the burglaries involved the unlawful taking of a vehicle.

(e)Property of considerable value was taken and not much recovered.

[34]   The Judge settled on the starting point by reference to the sentence imposed on the co-offender, Mr Terry, for whom Judge Cocurullo took a starting point of three years’ imprisonment.22 While parity of sentence between co-offenders is important, Mr Terry was sentenced for only six of the burglaries. Relative to that sentence, the starting point adopted by Judge Ingram for Mr Haimona is low.

[35]   Reference to other cases also indicates that a starting point of three years’ imprisonment was unduly favourable to Mr Haimona. In Swinburne v R, the Court of Appeal considered a starting point of three and a half years’ imprisonment was justified for four burglaries of residential premises by a single burglar during which

20     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [79].

21     Invasion of a residential dwelling is an aggravating feature per Sentencing Act 2006, s 9(1)(b).

22     Police v Terry [2017] NZDC 25804 at [7].

property worth $13,531 was taken or damaged.23 Here there were more than twice as many burglaries and the value of the property taken was significantly greater, even allowing for the recovery of the Thunderbird. In Jones v R, the Court of Appeal imposed a three-year starting point for three burglaries by one burglar where $2,000 worth of property was taken from one property, $34,000 from another, and nothing from the third.24 In Harrison v R, the Court of Appeal upheld a starting point of four years’ imprisonment for four burglaries of dwelling houses in one month, with items worth $66,000 taken.25

[36]   Mr Haimona’s offending was serious, viewed in its totality. While he does not have a history of recidivist burglary, his offending was otherwise more serious than the cases cited given that he offended with two others, rendering victims more vulnerable in the event of confrontation. The offending was clearly premeditated.  Mr Haimona admitted that the three went out on at least one occasion with the intention of finding a house to burgle, and at many of the addresses he and his co- offenders disabled the power before entering the house. The worth of the property taken has not been fully valued. However, it appears that the property taken must well exceed $20,000 in addition to the two vehicles, together worth $55,000. As I say, only the Thunderbird has been recovered.

[37]   In my view, the seriousness of the burglaries alone would have been better reflected in a starting point of between three and a half to four years’ imprisonment, rather than the three years’ imprisonment adopted by the District Court Judge.

[38]   The uplifts imposed for the theft and for offending while subject to court conditions were also warranted and are no longer challenged. Mr Haimona has a long history of non-compliance with court-imposed sanctions. His offending also appears to be increasing in seriousness with time. In Jones, the Court of Appeal imposed a similar uplift for offending while subject to release conditions.26

23     Swinburne v R [2010] NZCA 568.

24     Jones v R [2012] NZCA 273 at [17].

25     Harrison v R [2011] NZCA 80.

26 At [17].

[39]   That means that a revised starting point of between four and a half years’ and five years’ imprisonment would have been appropriate to reflect the overall culpability before applying, as Judge Ingram did, the full discount of 25 per cent for guilty pleas entered at the earliest opportunity. There needs to be the further adjustment of 20 per cent for remorse and cooperation which I consider to be appropriate.

[40]   By a different route, therefore, I reach an end sentence of 33 to 36 months’ imprisonment - close to the three years imposed by Judge Ingram which is at the top of that range. That means that applying the usual principles the sentence would not be regarded as manifestly excessive. But as I have said, exceptional circumstances may be taken into account. Mr Haimona has signalled his appreciation that he needs to be a better father to his children, and to abandon his past tendency to offend. The disapproval from his whānau about his giving evidence against family members is not to be underestimated. In the circumstances, given that Mr Haimona is at an age when he might be well placed to reform, I think it is appropriate for this Court to make a gesture which encourages him to take advantage of such rehabilitation courses as are available in prison, and to stiffen his resolve not to reoffend when he is released.

[41]   Applying the discounts I have identified to the lower end of the starting point range produces an effective end sentence of 33 months. I propose, therefore, to take that as the proper sentence.

Result

[42]   Accordingly, I allow the appeal; quash the sentences imposed; and impose sentences of two years and nine months’ imprisonment on each charge, to be served concurrently.

Addendum:

[43]   I made an observation in the course of the hearing which might have been included in my oral judgment, but was not. I consider it to be important to repeat it by this addendum so that Mr Haimona understands the significance of his assurance that he will give evidence against his alleged co-offenders. If Mr Haimona refuses to give evidence in terms of the statement on which I have relied, it will be open to the

Crown to apply to the Court to recall this judgment and re-assess the extent of      Mr Haimona’s cooperation as a factor relevant to the appropriate sentence and to the outcome of this appeal.27 A recall of this decision may result in the sentence imposed in the District Court being reinstated.

.........................................

Toogood J

27     R v Smith [2003] 3 NZLR 617 (CA) at [36], Smaill v Police (No 2) HC Dunedin CRI-2010-412- 16, 5 August 2010, Romanov v New Zealand Parole Board [2014] NZHC 2491 at [16]-[19].