Hemopo v Police

[2024] NZHC 157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-607

[2024] NZHC 157

BETWEEN

TINA HEMOPO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 February 2024
Appearances:	R M Keenan for Appellant O J Southern for Respondent
Judgment:	13 February 2024

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 13 February 2024 at 2.30 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

R M Keenan, Auckland

Kayes Fletcher Walker, Auckland

HEMOPO v NEW ZEALAND POLICE [2024] NZHC 157 [13 February 2024]

[1]    Ms Hemopo pleaded guilty to numerous charges  in the District Court.  On  31 October 2023, Judge D P Robinson sentenced her to 25 months imprisonment.1 Ms Hemopo appeals against sentence. She says that a series of errors in the approach taken by the Judge resulted in her receiving an end sentence that was manifestly excessive.

The charges

[2]    The charges to which Ms Hemopo entered guilty pleas related to offending that occurred between 18 June 2021 and 27 March 2023.

[3]    On 18 June 2021, the police stopped Ms Hemopo whilst she was driving a motor vehicle. She initially gave false details, but the police ascertained her true identity and learned that she was disqualified from driving at that time. By this stage Ms Hemopo was in breach of prison release conditions ordered by the District Court because she had failed to report to a probation officer as her conditions required her to do.

[4]    On the evening of 16 September 2021, Ms Hemopo entered a residential address through an unlocked front door. The elderly occupant of the address was asleep in one of the bedrooms, but Ms Hemopo encountered the occupant’s granddaughter in the kitchen. Ms Hemopo then walked through the address looking for items to steal. She uplifted a car key and subsequently drove away in the occupant’s Toyota motor vehicle. She also took items from the shed in which the vehicle was stored.

[5]    On 22 September 2021, the police stopped Ms Hemopo whilst she was driving the stolen vehicle in Mangere. It was found to contain items stolen from the shed.  Ms Hemopo told the police that an associate had loaned her the motor vehicle, but this explanation was obviously not a truthful account. Ms Hemopo was charged with burglary and driving whilst disqualified as a result of the incidents that occurred on this date.

1      New Zealand Police v Hemopo [2023] NZDC 24050.

[6]    On 29 April 2022, Ms Hemopo was again found driving while disqualified. On this occasion, police conducted a vehicle stop on Ms Hemopo’s vehicle. As police approached the vehicle, Ms Hemopo drove away at speed and the police were required to use a helicopter to follow her. She was observed travelling at speeds of approximately 130 kilometres per hour in a built-up area where the posted speed limit was 50 kilometres per hour. She was ultimately found hiding in a shed after abandoning her vehicle. This incident led to a further charge of driving whilst disqualified, as well as charges of dangerous driving and failing to stop when required to do so.

[7]On 1 May 2022, Ms Hemopo was again arrested for driving whilst disqualified.

[8]    On 19 July 2022, Ms Hemopo was driving a Suzuki motor vehicle in a south bound direction on State Highway 1 near Remuera. The vehicle in front came to a sudden halt because of traffic congestion. Ms Hemopo was unable to stop her vehicle and collided with the rear of the vehicle in front of her. This gave rise to a further charge of driving whilst disqualified, as well as a charge of careless driving.

[9]    In March 2023, Ms Hemopo was found riding a stolen Yamaha motorcycle. She failed to stop when required to do so. Ms Hemopo subsequently abandoned the motorcycle but was apprehended a short distance away. This led to her being charged with receiving the stolen motorcycle, failure to stop and driving whilst forbidden.

[10]   Finally, Ms Hemopo failed to answer her bail on four separate occasions. This gave rise to two representative charges of failing to answer bail.

The sentence

[11]   The Judge took a starting point of 21 months imprisonment on the lead charge, which he considered to be the charge of burglary. He then adopted a starting point of 16 months imprisonment on the first charge of driving whilst disqualified. This reflected the fact that the offending on 18 June 2021 was the 11th occasion on which Ms Hemopo had driven whilst disqualified. The Judge then added an uplift of one month each for the remaining five charges of driving whilst disqualified or whilst

being forbidden to drive. This produced a sentence of 21 months imprisonment on those charges.

[12]   The Judge then selected a starting point of 10 months imprisonment on the charge of receiving the stolen motorcycle. Next, he applied uplifts of one month to reflect the charge of dangerous driving and one month each to reflect the charges of breaching prison release conditions and failing to appear.

[13]   This process produced a sentence of 55 months imprisonment. The Judge then reduced the sentence by 13 months, or 24 per cent, to reflect totality principles. This resulted in a sentence of three years six months imprisonment before taking into account aggravating and mitigating factors personal to Ms Hemopo. Turning to these, the Judge added an uplift of five per cent, or two months, to reflect the fact that virtually all the offending occurred whilst Ms Hemopo was on bail. She had been on bail for the entire period after being charged with the offending that occurred on 18 A June 2021.

[14]   Turning to mitigating factors, the Judge applied a discount of 25 per cent, or 11 months, to reflect guilty pleas. He then applied discounts of 10 per cent each to reflect mitigating factors  identified  in  a  s  27  report  and  rehabilitation  efforts  Ms Hemopo had undertaken.  The  Judge  offset  these  discounts,  which  totalled  45 per cent, against the five per cent uplift he had added to reflect the fact that most of the offending had occurred whilst Ms Hemopo was on bail. This resulted in a reduction of 19 months, producing an end sentence of 25 months imprisonment.

The appeal

[15]   On Ms Hemopo’s behalf, Ms Keenan contends that the Judge adopted a starting point on the burglary charge that was too high. She says the Judge ought to have selected a starting point of no more than 16 to 18 months imprisonment on the burglary charge.   Ms Keenan also submits that the Judge was wrong to apply an uplift of   five per cent to reflect the fact that the offending occurred whilst on bail. She says this formed part of the analysis required to determine the starting point for the various charges.   Ms Keenan  also contends the Judge should have applied  a discount of   15 per cent to reflect the mitigating factors identified in the cultural report.

[16]   Taking these factors into account, Ms Keenan contends that the end sentence ought to have been one of between 17.5 and 19.5 months imprisonment.

Analysis

[17]   In setting the starting point for the burglary charge, the Judge adopted the approach taken by the Court of Appeal in Arahanga v R.2 In that case, the Court observed that a starting point of between 18 months and two years six months imprisonment will generally be appropriate for the burglary of residential premises.

[18]   In the present case, the offending that comprised the burglary charge contained several aggravating factors. The first was that it occurred at night-time when occupants could be expected to be, and in fact were, present at the address. This increased the risk that Ms Hemopo would confront occupants of the address, which was in fact what happened.

[19]   The offending also resulted in the theft of valuable items, including the motor vehicle and items stolen from the shed where the motor vehicle was stored. Taking these factors into account, I do not consider a starting point of 21 months imprisonment can be said to be outside the available range. It is well within the range approved in Arahanga.

[20]   I accept that it can be argued it was not necessary for the Judge to apply an uplift to reflect the fact that most of the offending occurred whilst Ms Hemopo was on bail. However, this factor only increased the sentence by two months. It can also be argued that the uplift applied to reflect the charge of dangerous driving was lenient. Another Judge may well have applied an uplift of three months to reflect that charge given the danger that Ms Hemopo posed to other drivers and pedestrians when she sped away from the police checkpoint on 22 September 2021.

[21]   I also accept that another Judge may have applied a discount of 15 per cent rather than ten per cent to reflect mitigating factors identified in the cultural report. This would have reduced the sentence by a further two months. Equally, however,

2      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

another Judge may not have reduced the sentence by 13 months to reflect totality principles. Another Judge may well have applied a discount of around eight months, or 15 per cent, to reflect those principles.

[22]   This analysis illustrates the fact that the individual components of a sentence are often not material. It is not helpful to isolate areas where an uplift may have been too great or a discount may have been too low unless countervailing considerations are also taken into account. This is because the ultimate question an appellate court is required to decide is whether the end sentence is manifestly excessive having regard to all relevant factors. In the present case, when one stands back and views the offending in totality, an end sentence of 25 months imprisonment cannot be said to be manifestly excessive having regard to the nature and number of the offences that Ms Hemopo committed over such a significant period.

The result

[23]The appeal against sentence is dismissed.

Lang J