Herewini v Police

[2015] NZHC 2807

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-37 [2015] NZHC 2807

BETWEEN

LOGAN HEREWINI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 November 2015
Counsel:	TSM Spencer for the Appellant JPR Scott for Respondent
Judgment:	12 November 2015

JUDGMENT OF DUFFY J

This judgment was delivered by me on 12 November 2015 at  2.15 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Crown Solicitor, Whangarei

Counsel:

Tracy Spencer, Whangarei

HEREWINI v NEW ZEALAND POLICE [2015] NZHC 2807 [12 November 2015]

[1]     Mr Herewini appeals against a sentence of three years three months imprisonment on a charge of burglary. Concurrent sentences of one month each for charges of unlawfully being in an enclosed yard and possession of cannabis were also imposed, although these sentences are not appealed.

[2]      The appeal was filed two days late. I propose to allow an extension of time for filing the appeal as in my view the sentence imposed was manifestly excessive. My reasons for reaching this conclusion now follow.

Facts

[3]      Mr Herewini committed the offences of  unlawfully being in an enclosed yard and possession of cannabis on 11 April 2015. He entered a property and walked around to a large shed area where there was some farming machinery.  A short time later Mr Herewini realised the occupier had arrived; he ran into the shed and hid underneath a farming machine.  Police were called.  They arrested Mr Herewini and located approximately 1.5 grams of cannabis on his person.

[4]      On the morning of 20 July 2015 Mr Herewini went to a residential address in Kaitaia.  He had on gardening gloves and carried a backpack and screwdriver.  He entered the property, forced the roller door of the garage open, crawled under it, entered the dwelling through the garage and began to search the house.   He was observed in the lounge by an off-duty police officer.  When he noticed the officer he began to crawl around on his hands and knees. The officer called the police.

Previous Convictions

[5]      Mr Herewini has a number of convictions for burglary: five counts from a single occasion in 2011 and convictions from 2010, 2003, two occasions in 2002 and

1999.  He also has a conviction from being a party to a burglary in 2002.

Pre-sentence report

[6]      The pre-sentence report is not included in the appeal file, although one is referred to by the District Court Judge.

District Court Sentencing

[7]      On sentencing Judge Harvey noted that it was quite clear from Mr Herewini’s previous convictions that he was a recidivist burglar.  He recorded comments in the pre-sentence report that he needed rehabilitative programs and counselling but was resistant to those on his last release.  He had substance abuse issues, an unhelpful lifestyle and was assessed as posing a high likelihood of reoffending.

[8]      Judge Harvey also recorded that Mr Herewini had 11 previous convictions for burglary, had been to prison for burglary and had demonstrated that he was going to continue to commit offences no matter what the court did.  He considered that the letters of apology Mr Herewini had provided were somewhat empty, as if he wanted to stop hurting people he would stop offending.

[9]      Judge  Harvey  then  stated  that  given  the  purposes  and  principles  of sentencing, Mr Herewini’s history and the nature of the offending, the appropriate starting point was four years imprisonment.   He uplifted this by four months to reflect Mr Herewini’s previous offences and gave a 25 per cent discount for a guilty plea, resulting in an end sentence of three years three months imprisonment for the burglary charge.  The Judge then recorded that he had taken into account the other two charges and sentenced Mr Herewini to one month’s imprisonment on each.

Appellant’s submissions

[10]    Mr Herewini appeals on the basis the sentence imposed was manifestly excessive because Judge Harvey took into account his previous burglary offending both when setting the starting point and in an uplift.  In addition, he did not give any credit for remorse.

[11]     Mr  Herewini  notes  that  Judge  Harvey  refused  to  adjourn  sentencing  to complete electronic monitoring inquiries.   The Judge did not refer to Restorative Justice, although Mr Herewini was willing to participate in this.  Mr Herewini states that referrals were made and there was a letter advising that a referral could not be made in relation to the April offending and no report was available in relation to the burglary offending.

[12]     Mr Herewini submits that the four year starting point was too high. Although there are two distinct approaches to sentencing for burglary, the preferred approach is to set the starting point and then uplift for previous burglary offending.

[13]     Mr Herewini relies on two cases: the first, R v Columbus,1  was an appeal against a sentence of two years three months imprisonment.   The appellant had forced open a garage door, causing $672 worth of damage.   He stole a mountain bike, gardening tools  and a tool box.   The bike was later recovered.   He then committed other dishonesty offences over the following two and a half weeks.  The Court of Appeal substituted a sentence of one year ten months imprisonment.  The Court noted that the burglary would not justify a starting point of more than one year. An uplift of six months to reflect the later theft offences committed on bail was justified and a further uplift of one year to reflect the appellant’s 89 previous convictions including 13 burglary and 34 property related offences was appropriate.

[14]     Mr Herewini also relies on Wilson v R2  where Wylie J dismissed an appeal against a sentence of 15 months imprisonment for one charge of burglary.   The appellant had  entered  a house through  a second-storey bedroom window in the evening.  The occupant was awoken, turned on the light and told him to leave.  He climbed back out of the window and left.   He had 11 previous convictions for burglary.   Wylie J considered that a starting point of 18 months would have been appropriate with a four to six month uplift for the appellant’s previous convictions. A 25 per cent discount would have resulted in an end sentence of about 16 to 18 months, meaning that the end sentence of 15 months was modest.

[15]     Mr  Herewini  stresses  that  in  the  present  case  he  caused  no  damage  to property and did not take anything.  The burglary was committed during the day and he knocked at the door first to check that no one was home.   The other relevant factors are that the offending was opportunistic and Mr Herewini has acknowledged the impact of the offending on the occupier.  The offending is similar to Columbus in

that access to the property was gained through the garage.  In Wilson the offender

1   R v Columbus [2008] NZCA 192.

2   Wilson v R [2012] NZHC 65.

was  similarly  caught  before  taking  anything  and  had  convictions  for  previous burglary offending. However, that offending occurred at night.

[16]     Mr Herewini submits that the burglary was low level and should attract a sentence in the vicinity of 12 to 18 months imprisonment.  Mr Herewini accepts that the four month uplift was appropriate for his previous convictions.

[17]     Next Mr Herewini states that the Judge was wrong to dismiss Mr Herewini’s remorse.   Mr Herewini had offered to undertake restorative justice process.   The conferences did not eventuate through no fault of his own.

[18]     Mr Herewini also points to additional medical information not available to Judge Paul.  Mr Herewini states that he suffers from seizures as a result of an injury. He attaches medical information from Northern Region Corrections Facility in this regard.

[19]     Mr Herewini argues that an additional 2 per cent discount to reflect  his remorse and medical issues would be appropriate, along with the full 25 per cent discount for early guilty plea.3   Accordingly, he submits that a shorter term sentence of imprisonment is the appropriate sentence.

Respondent’s submissions

[20]     The  Crown  submits  that  the  starting  point  was  justified  given  that  the offending occurred whilst Mr Herewini was on bail and in light of his previous convictions.   The Judge would have been justified in uplifting further if a lower starting point were adopted, and should have imposed cumulative sentences for the other offending.

[21]     The offending was not low level burglary: there was a degree of planning, residential premises were entered and taking property was only prevented due to the

officer’s intervention.

3      Mr Herewini pleaded guilty at his second appearance.

[22]     In the circumstances and bearing in mind the totality of the offending it cannot be said that the end sentence was manifestly excessive.

Appeal

[23]     A sentence appeal is by way of rehearing.  This Court must allow the appeal if satisfied that there has been an error in the sentence imposed for any reason and that  a  different  sentence  should  be  imposed.4      The  approach  taken  to  sentence appeals  was  not  changed  by  the  passing  of  the  Criminal  Procedure Act  2011; Mr Herewini must demonstrate an error on the part of the sentencing court, in that the sentence was manifestly excessive or wrong in principle.5    This Court will not intervene if the end sentence was within a range properly justified by accepted principles.6

Extension of Time

[24]     A notice of appeal must be filed within 20 working days of the sentence appealed. The appeal was filed two days out of time. The touchstone for granting an application to extend time is the interest of justice: this involves consideration of why the appeal was filed late, and the merits of the proposed appeal.7   The length of delay is also a relevant factor: leave is more likely where the delay is short.8

[25]     As I have stated, the extension of time is allowed.  The delay is only of two days; the Crown has not raised any objection; and the appeal has merit.   More worryingly,  the  reason  given  for  the  delay  is  that  Mr  Herewini’s  counsel  had difficulty speaking with him about the filing of the appeal.  She was unable to speak with him by telephone.   A personal attendance at the remand prison for a legal meeting was arranged but after a 45 minute wait, Mr Herewini still had not been brought to the “visits area”.   Such obstruction, even when unintentional, is unacceptable.  If in fact such obstruction did occur it constitutes an interference with

Mr Herewini’s rights under s 24 of the New Zealand Bill of Rights Act 1990.   I

4   Sentencing Act 2002, s 250.

5   Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].

6   Ripia v R [2011] NZCA 101 at [15].

7   Mikus v R [2011] NZCA 298 (citations omitted).

8   R v Lee [2006] 3 NZLR 42 (CA) at [114].

propose therefore to have a copy of this judgment sent to Mr David Patterson, the manager of the Northland Regional Corrections Facility so that further enquires can be made regarding the ability of Mr Herewini’s counsel to have access to him prior to the filing of the appeal.

Substantive Appeal

[26]     As Mr Herewini submits there have been two divergent approaches to setting the starting point for recidivist burglary offending.  Following Senior v Police courts have taken previous convictions into account when setting the starting point.9   In R v Columbus the Court explained that the rationale behind this approach was that:10

… while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s

7(f)  and (g)). The justification for this greater weighting for prior offending is explained in Senior v Police.

[27]     However, the Court of Appeal warned against “the risk of placing undue emphasis on past dishonesty convictions that lies in fixing a starting point by imposing a sentence which is primarily a punishment for previous offending”.11    In Gibbs v R Dunningham J considered that having regard to recidivism when uplifting the starting point for personal aggravating circumstances was preferable as it avoids the rest of double counting.12

[28]     In the end it is the end sentence which is important.   I propose to assess whether this was in range by fixing a starting point that focuses on the present burglary offending with an uplift for Mr Herewini’s previous convictions.

[29]     While the Court of Appeal has not set a tariff for burglary because of the broad  range  of  circumstances,  it  stated  in  Arahanga  v  R  that  dwelling  house

burglaries at the relatively minor end of the scale tend to attract a starting point of

9   Senior v Police (2000) 18 CRNZ 340 (HC) at [27]–[28].

10    R v Columbus [2008] NZCA 192 at [14].

11 At [15].

12    Gibbs v R [2015] NZHC 2460 at [11]; and see Blisset v Police at [27]–[36].

between 18 months to two years and six months imprisonment.  The heightened risk of confrontation with the occupants is a significant aggravating factor.13

[30]     Also  relevant  to  the  starting  point  are  the  degree  of  planning  and sophistication in the offending, nature of the premises, the kind and value of the property stolen, damage done, impact on the owners and the extent of the offending where more than one burglary is committed.14

[31]     In addition to the two cases relied on by Mr Herewini, I have found two other cases helpful.

[32]     In Moeroa v Police Edwards J allowed an appeal against a sentence of two years  four months  imprisonment  for one charge of  burglary and  one  charge of unlawfully being in an enclosed yard.15   The appellant had gone on to a property and attempted to enter it through a window.  He was seen by the occupant and left.  The unlawfully being in a yard offending had occurred 10 days earlier: the appellant had parked his car in a driveway.  The owner of the property came home, saw the car and tooted her horn.  He drove away.

[33]     Edwards  J  considered  that  15  months  imprisonment  was  an  appropriate starting point. She considered that a further 12 months was appropriate to recognise the appellant’s previous convictions, which numbered over 71 and included 31 convictions over a 20 year period.  She allowed a 22 per cent discount for the guilty plea and arrived at an end sentence of one year’s imprisonment.   The concurrent sentence  of  one  month’s  imprisonment  for  unlawfully being  in  a  yard  was  not disturbed.  The 15 month starting point in this case appears to have also reflected the charge of unlawfully being in the yard.

[34]     Also useful to note is Tepania v Police.16   In that case the appellant, who had been drinking, entered a house through a window in the early hours of the morning.

He awoke an occupant, who struggled with him and restrained him.   No property

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

14    R v Nguyen CA 110/01, 2 July 2001.

15    Moeroa v Police [2015] NZHC 2226.

16    Tepania v Police [2013] NZHC 2327.

was taken.  On appeal Priestly J considered that 22 to 24 months imprisonment was an appropriate starting point, taking into account the struggle in which the appellant inflicted injuries on the victim.  A four month uplift for the appellant’s “formidable list of convictions” many of which included dishonesty and burglary was given.  His Honour allowed a discount for the appellant’s personal circumstances  and early guilty plea, arriving at an end sentence of 18 months two weeks imprisonment.

[35]     Based on these cases the starting point adopted by Judge Harvey was clearly too high,  even  if the four  year starting point is taken to  reflect Mr  Herewini’s previous convictions.  If this were the case, the Judge should not then have uplifted the starting point to reflect the previous convictions.

[36]     I consider that, looked at by itself, the burglary was at the very low end of the scale of residential burglaries.  It occurred during the day when nobody was home, no  damage  was  caused  and  no  property  was  stolen,  albeit  presumably  because Mr Herewini was interrupted by police.  It was more serious than the offending in Columbus as Mr Herewini entered the actual house, but on the other hand no damage was caused or property taken. In addition I consider that the offending is less serious than cases where a burglar is interrupted by the occupant, where the offending is likely to have a much greater impact on the occupant.  In this way the offending is less  serious  than  Wilson,  which  also  occurred  during  the  night.  However,  that Mr Herewini   had   a   screwdriver   and   gloves   shows   that   the   offending   was premeditated rather than spontaneous.

[37]     Given these factors, in my view a starting point of 15 months imprisonment for the present burglary offence would have been appropriate.  A four months uplift for  the  previous  burglary  offending  is  appropriate  to  reflect  that  five  of  those offences occurred at the one time and the remaining offences occurred more than ten years ago.   In this regard the previous offending is considerably less than the offending in Moera and the four month uplift is in line with that imposed in Tepania.

[38]     The present offending occurred on bail, and I consider that a further uplift of two months is warranted to mark this factor.

[39]     The burglary sentence was imposed as the lead sentence for multiple offences that were dealt with concurrently,  thus it reflected the other offending.   Crown counsel suggested that the other two offences may have warranted a cumulative sentence.  However the proximity in time and the similarity of the burglary offence and the offence of being in an enclosed yard warranted a concurrent sentence.  The possession of cannabis occurred at the same time as the offence of being in an enclosed yard and so both offences are connected in time.   Like Judge Harvey, I consider that sentences for all offences should be concurrent.   I consider that a further uplift of four months is sufficient to reflect those offences.  This takes the sentence to one of 25 months imprisonment.

[40]     I see no reason to interfere with the 25 per cent guilty plea discount that Mr Herewini received.  The medical evidence does not provide much information as to Mr Herewini’s seizures and the letters of remorse are not in the appeal file.  I am not prepared to allow any further discount for personal factors.

[41]     When the sentence is adjusted for a guilty plea discount it comes out at approximately 19 months imprisonment, this shows that the end sentence imposed by the District Court Judge was clearly excessive.   It follows that the appeal is allowed.

Result

[42]     The sentence of imprisonment for the burglary offence that was imposed in the District Court is set aside.   In its place I impose a sentence of 19 months imprisonment.

[43]     The sentences for the other two offences are not the subject of the appeal and so they remain in place.