Hokianga v Police HC Gisborne CRI 2007-416-1

[2007] NZHC 1623

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2007-416-00001

SHAMROCK HOKIANGA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 February 2007

Appearances: M J Sharp for Appellant

D J O’Connor for Respondent

Judgment:      15 February 2007

(ORAL) JUDGMENT OF ANDREWS J [on appeal against sentence]

Solicitors:

Burnard Bull & Co, Gisborne Fax [phone]

Crown Solicitors, Napier Fax [phone]

S HOKIANGA V NZ POLICE HC GIS CRI 2007-416-00001  15 February 2007

Introduction

[1]      On 24 November 2006, Mr Hokianga was sentenced on charges of burglary, theft of motor vehicles, theft from motor vehicles and unlawfully interfering with motor  vehicles.    He  was  sentenced  to  two  years  imprisonment  on  each  of  the burglary charges, to be served concurrently.   He was sentenced to 18 months imprisonment on each of the charges of theft of motor vehicles cumulative upon the burglary sentences.  The sentences on the remaining charges were concurrent with either the burglary or motor vehicle theft sentences.  The total term of imprisonment imposed was therefore 3½ years.

[2]      Mr Hokianga appeals against sentence on the grounds that the total term of

3½ years was manifestly excessive.

[3]      Although five specific grounds were set out in the points on appeal, the nub of the appeal was that the Judge did not give sufficient consideration to Mr Hokianga’s youth and that had he done so a lesser term would have resulted.

Background

[4]      I summarise the facts from the Police summary of facts. From the end of June to mid-August 2006 reports of cars in the Gisborne area being broken into and items stolen, or having items removed from them, increased dramatically.   At the same time several burglaries were reported in the same locations.

[5]      On  16  August  2006  a  black  Hilux  vehicle  was  reported  stolen  from  an address in Emery Street, Gisborne.   That day, the Police went to an address and found  the  vehicle  in  the  process  of  being stripped.    Inquiries  revealed  that  Mr Hokianga and an associate had dropped the vehicle off there that morning.   Mr Hokianga was located a few days later and admitted dropping the Hilux off at the address.  Search warrants were executed at his home address where property stolen from the burglaries and motor vehicle incidents was located.

[6]      Mr  Hokianga  then  went  with  the  Police  and  pointed  out  addresses  and vehicles and described in detail how the burglaries and motor vehicle offences had been committed and what property had been taken.   Mr Hokianga’s associate apparently went through the same exercise with the Police and the two accounts largely tallied with each other.

[7]      As a result the admissions by Mr Hokianga and his associate, the Police were able to resolve many reported motor vehicle offences and burglaries.  In addition the Police were advised of some offences which had not previously been reported.

[8]      Mr Hokianga first appeared in Court on 13 September 2006, and was, as noted earlier, sentenced on 24 November 2006.

District Court Sentencing

[9]      In sentencing the District Court Judge first summarised the facts by referring to the Police Summary.  He then noted that Mr Hokianga had told the Police that the offences had all been “done for money”.   The Judge found that hard to accept given that Mr Hokianga and his partner were both on benefits.  Further, he commented that being poor and hard up could not be accepted as an excuse.

[10]     The Judge further noted from the victim impact statements that a lot of those victims were no better off than Mr Hokianga or were even poorer than he was.  Mr Hokianga had not, the Judge said, given any thought to those people.

[11]    The Judge then looked at the Probation Officer’s report.   He noted Mr Hokianga’s convictions for burglary in August 2005 and March 2006 and that the offending on which he was in the process of sentencing had been committed in July

2006, only two months after Mr Hokianga had been released from imprisonment for the same sort of offending having occurred in May 2006.

[12]     The Judge noted counsel’s submission that Mr Hokianga is young (19) and that the Courts give special consideration to young people.  The Judge said he would make allowances in respect of that.   The Judge also noted that Mr Hokianga had

been co-operative with the Police when they finally caught up with him and again the Judge noted that Mr Hokianga would be given credit for that and for his plea of guilty.

[13]     The Judge then referred to Mr Hokianga’s family situation noting his three children but he then went on to ask Mr Hokianga why he hadn’t thought of his family’s situation when committing the offences.

[14]     The Judge referred to the principles  set  out  in  the  Sentencing Act  2000 including:

a)        the strong need to denounce and deter Mr Hokianga’s conduct and the need to deter others;

b)       to consider Mr Hokianga’s own circumstances;

c)        to impose the least restrictive sentence possible.

[15]     He referred to the comments of the High Court in Senior1  and the Court of

Appeal in Southon2.

[16]     On each of the six burglary charges on which Mr Hokianga was convicted the Judge adopted a starting point of three years imprisonment, which he reduced by one year in recognition of Mr Hokianga’s co-operation and plea of guilty.

[17]     On the motor vehicle theft charges the Judge adopted a starting point of two years imprisonment.  This was reduced to 18 months, again for Mr Hokianga’s co- operation and pleas of guilty.  That sentence was, the Judge said, to be cumulative upon the burglary sentences.

1 Senior v Police (2000) 18 CRNZ 340

2 R v Southon (2003) 20 CRNZ 104

Preliminary point:  Leave to appeal

[18]     Under s 116 of the Summary Proceedings Act 1957, Mr Hokianga’s appeal was required to be filed within 28 days of his being sentenced on 24 November

2006.  The notice of appeal as filed on 15 January 2007 and was therefore out of time.  The application for leave to appeal under s 123 of the Act was supported by an affidavit sworn by Mr Hokianga’s counsel Mr Clarke.  Not surprisingly it appears that the return of the notice of appeal signed by Mr Hokianga was affected by the closure of Mr Clarke’s officer over the Christmas break.   The notice was filed shortly after his office reopened and once the Court Registry had reopened.

[19]     In light of that timing I consider grounds as being established on which I can exercise my discretion to extend the time for filing the appeal under s 123.  I record that I have come to that conclusion in the absence of any consideration as to the likelihood or prospect of the appeal succeeding.   As I advised counsel during the course of the hearing, that conclusion is based solely on the particular circumstances of the time of the year on which sentence was imposed.   Accordingly, leave is granted for the appeal.

Principles on appeal

[20]     I turn now to the principles to be applied on this appeal.   To succeed Mr Hokianga must demonstrate that the sentence as imposed was manifestly excessive. As the Court of Appeal said in Martin3  this comes down to asking whether the sentence imposed, however arrived at, was within bounds.

Discussion

[21]     As noted earlier, the nub of this appeal is whether the total sentence of 3½ years imprisonment was manifestly excessive.    Mr Sharp submitted that, taking into account Mr Hokianga’s age, his naivety and immaturity and the totality principle, it

3 Martin v NZ Police CA199/04M 14 February 2005

was manifestly excessive.  For the Crown Mr O’Connor submitted that the sentence was stern but within bounds.

[22]     There  was  discussion  during  the  hearing  as  to  which  of  the  categories described in Senior most accurately fitted Mr Hokianga and his offending.  At the end of the day however such categorisation is not the real issue here, which is whether the Judge properly considered and took into account the relevant sentencing principles and whether the total sentence imposed was within bounds.  It is only if the Judge failed to give the required consideration and the total sentence is wholly inappropriate for the overall offending, that this Court should interfere with the sentence imposed.

[23]     I  note  that  in  determining  the  effective  sentences  the  Judge  gave  Mr Hokianga significant discounts for his co-operation and the guilty plea.  In the case of the burglary charge the discount was one-third.  For the motor vehicle theft it was one-quarter.  These discounts are generous and in my view, give appropriate credit for Mr Hokianga’s co-operation and guilty pleas.

[24]     The Judge certainly considered Mr Hokianga’s age.  Mr Hokianga was 19 at the time of the offending and at the time of sentencing.  The Judge noted that Mr Hokianga’s youth would lead to the Court giving special consideration, acknowledging the greater impact of a lengthy term of imprisonment on a young person than on a mature adult.  Also, a purpose of sentencing that may be taken into account is assisting with the offender’s rehabilitation and reintegration into the community (s 7(l)(h) Sentencing Act 2002).  Mr Sharp submitted that that purpose would  have  been  furthered  by  imposing  a  shorter  term  of  imprisonment  thus lessening Mr Hokianga’s exposure to more mature and experienced criminals.

[25]     However,  it  was  also  proper  for  the  Judge  to  note,  as  he  did,  that  Mr Hokianga’s offending came only about two months after he had been released after four months imprisonment imposed on a burglary conviction in March 2006.   In those  circumstances  I  cannot  totally  accept  Mr  Sharp’s  submissions  that  Mr Hokianga should have been dealt with as a young immature, naïve offender.  Having served  a  term  of  imprisonment  for  burglary  Mr  Hokianga  clearly  knew  the

consequences.   He knew that imprisonment follows conviction.   He cannot be considered naïve in that respect.  Further, Mr Hokianga’s youth and immaturity had to be balanced against other purposes of sentencing in particular those of accountability, denunciation, deterrence and protection of the community. .

[26]     When  those  are  put  into  the  balance  and  the  sentence  imposed  on  Mr Hokianga considered against other sentences for similar offending, it does not inevitably follow that the starting point of three years imprisonment was out of line. I refer to the sentences referred to in Mr O’Connor submissions:

•   R v O’Brien (CA348/03), 11/5/04).   [Upheld a sentence of 4½  years imprisonment on 8 charges of burglary, one attempted burglary, three theft charges, one unlawful taking and two receiving.  Appellant had prior convictions but none for burglary].

•   R v Chin (CA43/04, 10 June  2004).    [Upheld  a  sentence  of  3  years imprisonment   on   a   single   charge   of   burglary,   with   2   months imprisonment, to be served concurrently, on other charges of theft. Appellant had 9 previous convictions for burglary.  No discount or guilty plea].

•    Ngatai v NZ Police (HC Auckland, CRI-2005-404-257-258, 21 October

2005, Heath J).  [Appellant had committed two successive burglaries of the  same  commercial  premises,  taking  stainless  steel  items  valued  at

$16,000.  Appeal allowed:  starting point of two years for each burglary charge,  reduced  to  17  months  for  mitigating  factors  including  guilty pleas. Sentences were to be served concurrently].

•   Sheeran v NZ Police (HC, Masterton, MA4/03, 7 may 2003).  [Appellant took items valued at $50,000 from ‘The Warehouse’ and at $4,500 from a tobacconist.   Starting point of about 4 years for each burglary, reduced this to 3 years, to be served concurrently, upheld on appeal.   Appellant had numerous dishonesty convictions including 13 previous convictions

for burglary.  Offending involved a degree of planning and sophistication as well as property of a significant value.

•   Taikato v NZ Police (Tauranga Registry, 17 December 2004, Rodney Hansen J).  [Upheld sentence of 3 years imprisonment.  A stern response but appropriate given totality of offending, serious aggravating features, an escape from custody and appellant’s history.   Burglary involved the theft of firearms which were exchanged for drugs.   Appellant had 91 previous   convictions   (30   for   burglary   and   approximately   30   for dishonesty offences against property)].

[27]     Looking at the totality of offending, I cannot ignore the fact that the Judge was sentencing Mr Hokianga on a total of 29 charges.   The “totality” therefore comprised more than the six burglary and six motor vehicle theft charges.  Mr Sharp submitted that a total effective sentence of two years (whether achieved by way of shorter terms for the two lead sentences and obtaining a cumulative order, or by making them concurrent) would have been a sufficient sentence and would have given a sufficient response in terms of the sentencing purposes.

[28]     Whilst I am of the opinion that that would be to interfere too far with the sentence,  I am troubled by the fact that a man of 19 years has been sentenced to 3½ years imprisonment.   There is some force to Mr Sharp’s submission that Mr Hokianga’s chances of rehabilitation and reintegration into the community are not enhanced by lengthy exposure to inmates who will quite possibly be more experienced criminals.   Of course against that it must be said that by committing numerous burglaries and motor vehicle offences within a few months of being released  from  a  term  of  imprisonment  for  a  similar  offence,  Mr  Hokianga  has brought that situation upon himself.  As I said earlier, he must have known that a lengthy term of imprisonment was a likely consequence.

[29]     It  is  in  the  interests  of  minimising  some  of  the  negative  effects  of  that exposure, and it is for that reason alone, that I intend to take the step of interfering to some extent with the Judge’s sentencing.  For an adult “mature” offender the total sentence  of  3½  years  is  entirely  within  bounds.    However,  for  the  purpose  of

assisting with Mr Hokianga’s rehabilitation and reintegration I will allow the appeal to the extent that the total sentence is reduced to three years imprisonment.  I do this by reducing the sentence of m vehicle theft to 12 months to be served cumulatively upon the burglary sentence.  Such sentence I believe properly meets the balance of

factors required in this case.

Andrews  J