Hetariki v Police
[2015] NZHC 2461
•8 October 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000081 [2015] NZHC 2461
BETWEEN LYALL ANZAC HETARIKI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 October 2015 Appearances:
D Matthews for Appellant
K B Bell for RespondentJudgment:
8 October 2015
JUDGMENT OF DUNNINGHAM J
Background
[1] Lyall Hetariki appeals his sentence of two years five months’ imprisonment
imposed by Judge Strettell on 4 August 2015 on two counts of burglary.1
[2] Although the appeal was originally lodged against both conviction and sentence, the conviction appeal has been abandoned.
The offending
[3] The two offences occurred on 11 May 2015 between 11.45 am and 2.40 pm, when Mr Hetariki was in the suburb of Redwood. He went to a property in Vaughan Way, discovered there was nobody present, and then attempted to enter the property using a screwdriver and an aluminium cricket wicket, but was unable to open the rear window. He then moved to a property close by, found that the owner
was not home there, took a ladder from the rear of the address and threw it at a
1 Police v Hetariki [2015] NZDC 15433.
HETARIKI v NEW ZEALAND POLICE [2015] NZHC 2461 [8 October 2015]
window. It did not break. He then found a rock, smashed the glass and climbed in. He located a wallet in a bedroom and took $150 from it before leaving.
District Court sentencing
[4] When sentencting on the two charges, Judge Strettell took the appellant’s
14 previous burglary convictions, as well as numerous other dishonesty offending, as an aggravating feature noting that Mr Hetariki had a history of 132 previous convictions.2
[5] The Judge took a starting point of two years and six months’ imprisonment having regard to the offending and uplifted that by six months to reflect the aggravating features relevant to the offender, noting that he is a “recalcitrant and regular serious offender whom the public requires protection from”.3 That took the sentence to three years, which the Judge then reduced by seven months to reflect the guilty pleas entered at an earlier stage and his expressed willingness to look at an
alternative to offending upon his release. That reduced the sentence to a term of two years, five months, which was the sentence ultimately imposed, along with reparation of $550 and $400 in respect of each property owner who was burgled.
Principles on appeal
[6] Mr Hetariki may appeal his sentence as of right.4 This Court must only allow the appeal if satisfied that:5
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
2 It would appear from the criminal record that the number is in fact 15 previous burglary offences.
3 At [4].
4 Criminal Procedure Act 2011, s 244.
5 Section 250.
[7] The Court of Appeal has recently confirmed that where a sentence is “manifestly excessive”, that is an error which justifies setting the sentence aside on appeal.6 Importantly, as was noted in Larkin v Ministry of Social Development, “whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached”.7
Submissions
[8] The appellant submits that the sentence imposed by the District Court was manifestly excessive. The burglaries were at the lower level of culpability because:
(a) they were committed during the day;
(b)Mr Hetariki ensured the occupants of the property were not home so there was no risk of confrontation;
(c) no entry into the property was actually achieved in respect of the first burglary;
(d) the offending was opportunistic rather than premeditated;
(e) the property taken was not of great financial value nor of sentimental value;
(f) the property was not taken for financial gain.
[9] In the circumstances he submitted that a starting point of no more than 16 to
18 months should have been taken for the two burglaries.
Discussion
Approach to sentencing
[10] There is no tariff decision for a burglary sentence. The reason for this was explained by the Court of Appeal in R v Nguyen:8
[18] The range of circumstances in which the offence of burglary can be committed is such that no tariff can be fixed. Entry into private homes generally will have an emotional impact giving rise to a sense of violation and insecurity for the owners that may not arise in the case of commercial premises. The value of goods stolen from commercial premises may be higher.
[11] In Tairi v Police, Duffy J identified the two different approaches which have been taken in sentencing for burglary in the past:9
[37] The approach taken by different courts to sentencing for burglary has not always been consistent. In some decisions, previous convictions of the offender are taken into account when setting the starting point; in others, they are considered when fixing the uplift for personal aggravating factors. Although the former approach (as exemplified in Senior) is contrary to the established three-step Taueki approach, the Court of Appeal in R v Columbus explained that the rationale behind this approach was that:
… 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.
[38] 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”.
[39] The recent trend shows a shift away from the approach in Senior to one that follows the general approach to sentencing set out in Taueki. This has led to Senior being viewed as “no longer a reliable guide for starting points “but still of use for “identifying the characteristics of someone who should be classified as a recidivist burglar.”
[12] The latter approach is the one preferred here as it is more consistent with the current approach to determining a sentence and it avoids the risk of double counting previous offending. That does not mean that a significant uplift cannot be imposed for recidivism if a lower starting point is taken.
[13] In R v Nguyen, although the Court of Appeal was not willing to fix a tariff for burglary sentencing, it did identify a number of factors relevant to the seriousness of burglary offending:10
(a) the degree of planning and sophistication in the offending; (b) the nature of the premises entered;
(c) the kind and value of the property stolen; (d) damage done;
(e) the impact and potential impact upon occupants or owners of the property; and
(f) the extent of the offending where multiple burglaries are involved.
[14] The factor which the courts have tended to consider as being the most aggravating is the nature of the premises. Dwelling house burglaries are treated significantly more seriously than non-residential burglaries. The Court of Appeal explained the reason for this in Arahanga v R: 11
Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house 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.
[15] The Court of Appeal considered that a starting point of four years was appropriate for two counts of burglary where, although there was no actual violence, the risk of violence was high, demonstrated by their brazen behaviour.12 It was also aggravating that the two burglaries took place in the early hours of the morning, there were two burglars, one of the burglaries took place while the victims were asleep in the house, the offending involved the unlawful taking of a motor vehicle and high value items were taken.13
[16] On this authority, a relatively minor burglary may still attract a starting point of 30 months. However, the sentence in Arahanga appears high compared with other recent Court of Appeal decisions.
[17] In Rota v R the Court of Appeal allowed an appeal allowed an appeal against a sentence of three years on the ground that it was manifestly excessive.14 In that case, the offender had four associates, a door was broken down and $4,000 worth of goods were taken and an imitation pistol was found in the vehicle along with masking tape (although there was no evidence that Mr Rota knew of their presence). The sentencing Judge took a starting point of 30 months imprisonment. However,
the Court of Appeal considered that an appropriate starting point was 20 months.
[18] This decision appears hard to reconcile with Arahanga in that there were elements present in the burglary which would, at the very least, place it at the more serious end of burglaries that could be classified as “relatively minor”. However, the Court of Appeal adopted a starting point which would suggest that it would be classified at the lower end of the scale for a relatively minor dwelling house burglary.
[19] In R v Povey the same issue arises.15 The Court of Appeal held that the seriousness of the offending in that case was accentuated by there being entry by night into a woman’s apartment, the presence of two offenders, the element of
premeditation evidence by gloves and a scarf for concealment, and the carrying of a
12 At [82].
13 At [79].
14 Rota v R [2012] NZCA 49.
spear gun which injected a very real risk of injury to the occupant. The sentencing Judge took a starting point of 24 months imprisonment which was uplifted by a further 12 months to reflect the offender’s 22 previous convictions for burglary. Although the starting point and uplift were ultimately upheld, there was not suggestion by the Court of Appeal that the sentence was a particularly lenient one given the circumstances.
[20] In Mita v R, the offender was involved in two burglaries with property of more than $5,000 being taken in one of the burglaries.16 There was little taken in the second burglary, although there had been an attempt to remove a flat screen television from the wall. The Court of Appeal considered that, even having regard to the offender’s previous dishonest offences, a starting point of 24 months was too high for the two incidents. The Court held that a starting point of no more than
18 months’ imprisonment could be justified.
[21] R v Columbus is a Court of Appeal authority, predating the Arahanga. The offender broke into a garage of a residential property through a vehicle access door. Damage of $672 was caused. A mountain bike, gardening tools and a tool box were stolen. The Court of Appeal held that the circumstances of the burglary themselves
did not justify a starting point of more than one year.17 The Court held that an uplift
was appropriate to reflect the offender’s criminal history which was made up of
89 previous convictions, 13 of which were for burglary and another 34 property related offences. This justified an increase of 12 months.
Application to the case at hand
[22] Counsel for the appellant made a number of submissions on factors which he said reduced the gravity of the offending.
[23] The first submission was that there was no risk of confrontation with the occupants of either property because Mr Hetariki ensured that they were not present before attempting to enter. However, I accept the respondent’s submission that even
the act of ensuring whether any occupants were present gave rise to the risk that the
16 Mita v R [2012] NZCA 137.
17 At [16].
appellant would be confronted by any occupants. Alternatively, if he had watched the property to ensure that the occupants were away for an extended period of time, that would suggest that the burglary was clearly premeditated. This factor can have little bearing on the sentencing process.
[24] The next submission is that the offending was opportunistic rather than premeditated. It does appear that the burglary was unsophisticated but, at the very least, it must be said that there was premeditation in the second burglary because, after failing to gain entry to the first house, Mr Hetariki actively sought out another unoccupied house to burgle. That suggests a moderate degree of premeditation.
[25] It is accepted that the value of the property taken on the burglary which succeeded was low. It is also accepted that there does not seem to be any further intent behind the criminality, such as to obtain property to on sell.
[26] Having regard to the cases discussed earlier, had Mr Hetariki only committed the second burglary where he actually gained access, I consider a starting point of
18 months would be appropriate given that it was relatively minor burglary. This would then require an uplift to reflect the first burglary. I would uplift it by four months, taking the total sentence to 22 months. This does suggest the starting point was high. However, it is the end point which is relevant on appeal.
[27] Aggravating and mitigating factors which are personal to the appellant then need to be taken into account. Mr Hetariki is clearly a recidivist offender. He has committed 132 previous offences, 15 of which are burglary offences and a further 40 of which are other dishonesty offences. In line with Court of Appeal authority in Povey and Columbus, a 12 month uplift is justified. This would take the total to
34 months before discounts.
[28] The discount applied by Judge Strettell to reflect remorse and the guilty plea is accepted by this Court. That is a combined discount of 20 per cent. This amounts to a seven month discount, reducing the final sentence to 27 months or two years and three months.
[29] This sentence is only two months less than the sentence imposed by the District Court. In the circumstances, I am not satisfied that the sentence imposed was manifestly excessive, or that a different sentence should have been imposed. To do so would simply be tinkering.
[30] For these reasons, the appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
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