Heremaia v The Queen
[2017] NZHC 2707
•6 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-298 [2017] NZHC 2707
BETWEEN DALLAS HEREMAIA
Appellant
AND
THE QUEEN Respondent
Hearing: 31 October 2017 Counsel:
D G A Reece for Appellant
H G Max for RespondentJudgment:
6 November 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 6 November 2017 at 4:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
David Reece (Auckland) for Appellant
Crown Law (Wellington) for Respondent
HEREMAIA v THE QUEEN [2017] NZHC 2707 [6 November 2017]
Introduction
[1] On 8 August 2017, Judge RJ Collins sentenced Ms Heremaia1 to two years and nine months’ imprisonment on a charge of aggravated burglary.2 Ms Heremaia now appeals that sentence, contending that it is manifestly excessive.
Background
[2] Ms Heremaia turned 17 years on 3 December 2016. On 4 January 2017, she was sentenced in the Auckland District Court for unlawfully getting into a motor vehicle.3 Her sentence was to come up for sentence if called upon within nine months. However, on 26 February 2017, she again unlawfully got into a motor vehicle.
Ms Heremaia was sentenced for that offence on 15 March 2017 to 40 hours’
community work.
[3] On 21 March 2017, six days later, Ms Heremaia committed the aggravated burglary. She pleaded guilty to that offence.
[4] The aggravated burglary was a serious one. On 20 March 2017, at 10:45 pm, a silver BMW motor vehicle was taken at gunpoint during an aggravated robbery. Four or five hours later, Ms Heremaia and three others drove to the BP Pakuranga in the stolen BMW motor vehicle. Judge Collins described what happened next:
[4] At the time the service station was open but serving customers via the night service window. The defendant and three others exited the car and used a rock to smash the bottom half of the glass door. The shop assistant, on seeing these actions, fled the customer area of the store and locked himself in an office and alerted the security company and police. Once the door was smashed, the offenders entered the premises. One of the four was armed with a cut-down side by side double-barrelled shotgun with a pistol handgrip. The group went to the cigarette cabinets and till and stole a large quantity of cigarettes and tobacco as well as cash from the till. In total, the offenders stole
$341 in cash and $5000 worth of cigarettes and tobacco.
1 Police v Heremaia [2017] NZDC 17915.
2 Crimes Act 1961, s 232(1)(a).
3 Crimes Act, s 226(2).
The Sentence
[5] Judge Collins adopted a starting point by reference to R v Mako4 because its principles apply to aggravated burglary as well as to aggravated robbery.5 The circumstances of the aggravated burglary determine the degree of application. In this case, Judge Collins observed that the Police could have charged aggravated robbery instead of aggravated burglary:
[7] … The actual criminality here is exactly the same; four offenders armed with a sawn-off side by side firearm, smashed their way into a retail outlet late at night. The sole attendant, on seeing what he was being confronted with, went and hid.
[6] Judge Collins adopted what he considered to be the lowest starting point available, namely four years’ imprisonment.6 He uplifted the starting point by six months to take into account two factors.7 The first was that Ms Heremaia offended while she was subject to a sentence which had been imposed on her only six days earlier. The second was that, despite having been sentenced recently on two occasions for unlawfully getting into a motor vehicle, Ms Heremaia was party to the use of a stolen vehicle for the purposes of the aggravated burglary.
[7] Judge Collins then considered Ms Heremaia’s personal circumstances. He gave a discount of 20 per cent for Ms Heremaia’s youth.8 The Judge accepted that the pre-sentence report was positive in its description of Ms Heremaia but he was not convinced “on any objective basis” that Ms Heremaia was remorseful.9
[8] Judge Collins found it particularly relevant that Ms Heremaia had performed very little of the sentence of community work imposed on her in March 2017 prior to her arrest at the beginning of May 2017.10 She had been remanded in custody since
her arrest. The Judge observed that the fact Ms Heremaia had been in custody meant
4 R v Mako [2000] 2 NZLR 170 (CA).
5 R v Watson CA224/03, 24 October 2003 at [27]; R v Drewett [2007] NZCA 48 at [15]; Archbold v R [2015] NZCA 493 at [9].
6 At [8].
7 At [9].
8 At [10].
9 At [5].
that although she could express intentions aimed at rehabilitation, there was nothing concrete that had occurred.11
[9] Judge Collins then allowed Ms Heremaia a full discount of 25 per cent for her guilty plea.12 This resulted in the end sentence of two years and nine months’ imprisonment.
The Appeal
[10] Mr Reece was motivated to bring the appeal because of Ms Heremaia’s young age. He had approached the sentencing with the goal of achieving an end sentence of two years or less so that home detention would be an option. He referred me to an earlier decision of mine, Leisi v Police, in which I said:13
[16] In my view, however, where an offender is 17 years old and has no previous convictions, then a sentencing Court should give all reasonable prominence to the purpose of assisting the offender’s rehabilitation and reintegration. The principle of imposing the least restrictive outcome appropriate in the circumstances must, of course, be taken into account. The best way of promoting public safety in respect of a young, first time offender is to do what can be done reasonably to reduce the risk of him re-offending.
(Citations omitted)
[11] With that in mind, Mr Reece did his best to find error on the part of Judge
Collins that would justify reducing Ms Heremaia’s sentence.
[12] The first ground he advanced was that the Judge’s starting point of four years’
imprisonment was too high. Judge Collins relied on [56] of R v Mako:
A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around 4 years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken 5 years, and in bad cases 6 years, should be the starting point.
(Emphasis added)
[13] Mr Reece submitted that the highlighted passage gave the Judge room to go below four years, to perhaps three years and six months. In other words, the Judge erred in saying “the lowest starting point that can be taken is one of four years’ imprisonment”.14
[14] I do not accept this ground of appeal. I agree with Judge Collins that the aggravated burglary charge in this case could equally have been charged as an aggravated robbery. The factors set out in [56] of Mako apply. Here, the service station attendant was confronted by four people, one of whom was armed with a sawn- off shotgun. The attendant then went and hid. The offenders got away with $341 in cash and $5,145.61 worth of cigarettes and tobacco. Judge Collins could have adopted a starting point of five years’ imprisonment and in my view a starting point of four years’ imprisonment was rock bottom.
[15] The second ground of appeal is that the uplift of six months was not justified. In Mr Reece’s submission, Judge Collins should not have imposed an uplift in relation to such minor offending as getting into a stolen car.
[16] I do not accept this ground of appeal either. Judge Collins did not uplift the sentence to take into account Ms Heremaia’s criminal history. The first factor he took into account in calculating the uplift was that the offending occurred while
Ms Heremaia was subject to a sentence which had been imposed on her only six days earlier. The second factor the Judge took into account was that a stolen car had been used for the aggravated burglary and Ms Heremaia’s culpability in that respect was increased by her two recent convictions for unlawfully getting into motor vehicles.
[17] As to the imposition of six months as an uplift, I find that to be, as Crown counsel acknowledges, stern. It amounts to a 12.5 per cent uplift (one-eighth) on the sentence for the actual offending. The Judge could have chosen an uplift of as few as three months considering the difference in kind between the aggravated burglary and Ms Heremaia’s previous offending. There is also the factor that no allegation has been made that Ms Heremaia was involved in the aggravated robbery that enabled her group to have access to the silver BMW car.
[18] The third ground of appeal is that Judge Collins was wrong not to give a separate discount for Ms Heremaia’s remorse and her insight into her offending as described in the pre-sentence report.
[19] I have read the pre-sentence report. It paints a picture of a teenager who felt “left out” by her family and fell into bad company. Ms Heremaia admitted her inability to resist peer pressure, accepted she has an alcohol problem, and attributed her offending to these factors. She appeared to the probation officer to be remorseful and motivated to change. Ms Heremaia had agreed to be referred to Odyssey House and, prior to sentencing, had been interviewed and accepted for admission into the programme.
[20] It would have been possible for Judge Collins to give a small credit for the positive indications contained in the pre-sentence report. But what he did do was give a full 25 per cent discount on the sentence to mark Ms Heremaia’s plea of guilty. That was generous because the offending occurred in March, Ms Heremaia was arrested and brought before the Court on 1 May 2017 and did not enter her plea of guilty until
7 June 2017.
[21] As the Supreme Court made clear in Hessell v R, the discount for a plea of guilty cannot exceed 25 per cent.15 This recognises the fact that remorse is dealt with separately.16
[22] Tangible evidence of genuine remorse can warrant an additional sentencing discount of between five and eight per cent.17 Generally, remorse is indicated by the taking of particular steps, such as active participation in a restorative justice programme or the making of reparation. The Supreme Court in Hessell commented:
[64] Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant's remorse. Where remorse is shown by the defendant
in such a way, sentencing credit should properly be given separately from that for the plea.
[23] I cannot say that Judge Collins was wrong not to give a separate discount, although I accept Mr Reece’s submission that the Judge took too hard a line in criticising Ms Heremaia for completing only four hours of her community work sentence in the four or five weeks between imposition of the sentence and her arrest on the charge of aggravated burglary.
[24] I have considerable sympathy for Mr Reece’s view that, if at all possible,
17 year olds should not be sent to prison. Section 9(2)(a) of the Sentencing Act 2002 specifically recognises the age of the offender as a mitigating factor. But there is no automatic credit given for young age. The Court of Appeal in Churchward v R has recognised three factors associated with youth which are generic and which often attract a discount.18
[25] First, the teenage years are the years of risk-taking, poor decision-making and susceptibility to peer pressure. It is recognised that the developing brain of a teenager gives a neurological basis for these attributes.
[26] It is also the case that young people are thought to be more susceptible to rehabilitative programmes than older people who are set in their ways. Accordingly, the Courts will emphasise rehabilitation and reintegration in the sentencing of young people to the extent possible. However, young people are still subject to the law and if their offending is serious enough, there is little the Court can do to give practical emphasis to rehabilitation and reintegration.
[27] Lastly, there is the effect of imprisonment on young people, including the fact that long sentences may be crushing.
Decision
[28] My task is to examine whether the Judge erred. I should be guided by the
Judge’s reasoning but I need to make my own decisions on the issues relevant to
Ms Heremaia’s sentencing. If my view on those issues should be at variance with the District Court Judge’s, I must give effect to the view I have reached.19 Critically, to disturb the Judge’s sentence I would have to find it to be manifestly excessive in all the circumstances.20 That means that my focus is on the end sentence, not how the Judge arrived at it.
[29] In this case, Judge Collins adopted a light starting point of four years’ imprisonment for the offending. His uplift of six months’ imprisonment to account for offending while subject to a recent sentence and for the use of the stolen BMW was stern. Nevertheless, the final starting point of four years six months’ imprisonment was well within the available range.
[30] Judge Collins then gave a discount for Ms Heremaia’s youth of 20 per cent. Under the circumstances, that is as great a discount as could possibly be given. The Judge recognised the positive pre-sentence report and did as much as he reasonably could to take account of it in the context of Ms Heremaia’s youth. There was no extraordinary factor in Ms Heremaia’s case that would have justified an extraordinary discount in the interests of rehabilitation and reintegration. Particularly in the context of serious offending.
[31] Similarly, the discount for the plea of guilty of 25 per cent was a greater discount than he needed to award.
[32] In all, Judge Collins discounted the starting point by 39 per cent. The end sentence of two years and nine months’ imprisonment was well within the available range. Even if I were to differ in my assessment of the uplift, it could only be by a matter of two or three months and that would not be enough to disturb the end sentence because it would not render the end sentence manifestly excessive.
[33] The appeal is dismissed.
19 Criminal Procedure Act 2011, s 250(2).
Brewer J
0