Henare-Wynard v Police

[2012] NZHC 891

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-007

CRI 2012-488-008 [2012] NZHC 891

IN THE MATTER OF     section 116 of the Summary Proceedings

Act 1957

BETWEEN  KINGI DAMIAN HENARE-WYNARD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 April 2012

Appearances: A M Dooney for Appellant

T R Nicholls for Crown

Judgment:      3 May 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 3 May 2012 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Marsden Woods Inskip & Smith, Crown Solicitor, Whangarei: [email protected]

Counsel:

A M Dooney, Barrister, Whangarei: [email protected]

HENARE-WYNARD V POLICE HC WHA CRI 2012-488-007 [3 May 2012]

Offending

[1]      The  Appellant  appeals  against  a  sentence  of  two  years,  four  months’

imprisonment  that  was  imposed  on  him  in  the  District  Court  at  Whangarei  on

14 February 2012.[1]  The Court imposed sentence in respect of:

[1] Police v Henare-Wynyard DC Whangarei CRI-2011-088-3343, 14 February 2012.

(a)       One charge of burglary committed on 16 November 2011.[2]

[2] Crimes Act 1961, s 231.

(b)      Three charges of theft under $500.00 committed on 27 July 2011.[3]

[3] Crimes Act 1961, ss 219 and 223(d).

(c)       Breaches of prison release conditions committed in June and July

2011.[4]    The Appellant breached conditions that he report to the probation service as required; that he not reside with the victim of a domestic  assault;  and  that  he  not  change  his  residential  address without the consent of the probation officer.

[4] Sentencing Act 2002, s 96.

[2]      The Judge arrived at the end sentence by taking the burglary as the lead offence and setting a starting point of two years’ imprisonment.  The Judge increased the sentence by three months on account of the theft charges, by a further three months on account of the Appellant’s breaches of release conditions and by a further six months on account of the Appellant’s previous convictions, other than those for burglary.  The Judge had taken the prior burglary offending into account in fixing the starting point on the burglary charge.

[3]      These sentences totalled three years’ imprisonment.  The Judge reduced the total sentence by 25 per cent on account of the fact that the Appellant had pleaded guilty at an early stage.   The end sentence was broken down as to 22 months’ imprisonment on the burglary charge, three months cumulatively for the breaches of release conditions and three months cumulatively for the theft charges, giving a total

of 28 months’, or two years, four months’, imprisonment.

Approach to sentencing appeal

[4]      The ultimate issue on this appeal is whether the end sentence was manifestly excessive.[5]   In assessing that issue, it is only necessary for me to consider the uplift of six months for prior convictions referred to in [2] above.  If that uplift were not excessive, the Appellant accepts the total sentence could not be said to be manifestly excessive.

[5] R v Xie [2008] NZCA 111 and R v Columbus [2008] NZCA 192 at [11].

[5]      Counsel  contends  that  the  previous  convictions  that  the  Judge  took  into account were not relevant to the offending in issue and that no uplift should have been imposed or, if one was to be imposed, it ought to have been modest.

[6]      The Crown is opposed to any reduction in sentence, on the basis that it could not be said that the Judge erred in his approach to sentencing and that the final sentence was not manifestly excessive.

[7]      On the matter of the uplift, the Judge expressed himself as follows:[6]

[6] Police v Henare-Wynyard DC Whangarei CRI-2011-088-3343, 14 February 2012 at [14] – [16].

[14]     The starting point for the offending, therefore, before considering your personal, aggravating, and mitigating factors is two and a half years.

[15]      In relation to personal matters, there are your previous convictions.  I put to one side the burglary convictions which have already been taken into account.  You have numerous other convictions, however.  You have been offending, although it has dropped off in recent time, for all manner of offences, dishonesty, violence, excess breath. You were last before the Court for serious offending on 10 September 2010, where you were sentenced to nine months’ imprisonment, as I have already indicated, for male assaults female and breach of a protection order.  I consider that a six month uplift in relation to that is appropriate.

[16]     That makes a starting point of three years.  You are entitled to full credit for your pleas of guilty. You are not entitled to any other credit.

[8]      The Judge was correct in saying that the Appellant has other convictions. There are some 38 since 2001, and some before that.  The vast majority of those in the last 10 years or so have been for offences that are quite different to those on

which he was for sentence on 14 February 2012, and very much at the minor end of

the scale.  There are, however, seven offences against the person since 2001, and in this regard the breach of the release conditions prohibiting the Appellant from co- habiting with the victim of the domestic assault is relevant.   There are also some convictions for theft.

[9]      In sentencing an offender, the Court is required to take into account certain matters to the extent that they are applicable in the case.  These matters include the number, seriousness, date, relevance, and nature of any previous convictions of the offender.[7]  As Woolford J said recently:[8]

[7] Sentencing Act 2002, s 9(1)(j).

[8] Johnstone v Police [2012] NZHC 551 at [20].

[20]      In  most  cases  an  offender’s  previous  convictions,  if  recent  and relevant, may command an uplift on the starting point that the Court would otherwise adopt. Such uplifts are common but in most cases are of relatively restricted scope. The aim of this exercise is not to punish the offender once again for previous offending but to impose a degree of prevention and deterrence:

The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because  of  those previous  convictions.  If  a  sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he  has  already  expiated. We  agree  that  the  sentence  passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

...

[10]     The effect of the six month uplift for the non-burglary offending that the Judge imposed was to double the uplift on the theft charges and on the breaches of release conditions.  In my view, an uplift of that duration crossed the line between

achieving an appropriate degree of deterrence and punishing the Appellant for earlier

convictions, for which he had already been sentenced.   I do not consider that an uplift of any more than three months could have been justified.

[11]     Had the Judge increased the sentence by three, rather than six, months the starting point would have been 33 months.  Deducting 25 per cent for the guilty plea, that would give an end sentence of two years, three weeks’ imprisonment.

[12]     Given the above, I vary the sentence imposed on the three charges of theft.  I reduce the sentence on those charges to one month, two weeks’ imprisonment, that sentence to be cumulative on the burglary charge.

[13]     I reduce the sentence on the three charges of breach of release conditions to one month, one week’s imprisonment, that sentence to be served cumulatively on the burglary charge and on the charges of theft.

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

M Peters J