Hotene v Police
[2014] NZHC 2081
•29 August 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-62 [2014] NZHC 2081
BETWEEN WILLIAM JOHN HOTENE
Plaintiff
AND
NEW ZEALAND POLICE Defendant
Hearing: 26 August 2014 Appearances:
S J Taylor for appellant
K S Grau for respondentJudgment:
29 August 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, William Hotene, pleaded guilty to two charges of burglary and was sentenced by Judge Ellis in the District Court at Hutt Valley to three years and five months’ imprisonment.1
[2] Mr Hotene now appeals against that sentence as being manifestly excessive. Mr Hotene says that the starting point of five years identified by the Judge was too high and that insufficient credit was given to him for the assistance he provided to the police both before and after sentencing. Mr Hotene also says that reparation is now available for his victims, which should also result in a reduction of sentence.
Mr Hotene’s offending – the facts
[3] The two burglaries occurred on 20 April and 19 May 2014.
1 Police v Hotene DC Hutt Valley CRI-2014-096-001495, 25 June 2014.
HOTENE v POLICE [2014] NZHC 2081 [29 August 2014]
[4] On 20 April 2014, in the early afternoon, Mr Hotene with two associates went to the victim’s address in a car. No-one was home. Mr Hotene and one of his associates walked up the stairs to the victim’s address and pulled open French doors, breaking the lock in the process. Mr Hotene and his associates removed a large
amount of property including:
a 42 inch Toshiba flat screen TV and remote;
a Toshiba satellite notebook and charger;
a PS3 games console, two controllers, cables and one game;
associated cabling and adaptors;
a black laptop bag containing study notes;
a Panasonic camera; and
$100 cash.
[5] Mr Hotene placed the items on the rear seat of a white Honda motor vehicle before getting back into the vehicle and leaving with his associates.
[6] These actions were recorded on CCTV footage. Police were unable to identify Mr Hotene’s two associates.
[7] Reparation of some $3,300 was sought, reflecting the value of the items stolen.
[8] On 19 May 2014 Mr Hotene went to an address in Stokes Valley, Lower Hutt. He went to the side and rear doors of the property, knocking loudly to ascertain if anyone was at home. When he got no answer he entered a room under the house via a closed unlocked door. He spent some time there before exiting.
[9] The owner arrived home to find Mr Hotene exiting the downstairs room. The police were called and Mr Hotene was subsequently arrested.
[10] Mr Hotene has a large number of previous convictions, including 34 for burglary and 64 for dishonesty. Until these events, Mr Hotene’s most recent conviction for burglary dated back to events in late 2006 and early 2007. In the interim, Mr Hotene has a number of further convictions, including four for theft, one for shoplifting and two for receiving.
The challenged sentencing decision
[11] For the 20 April 2014 burglary the Judge identified a starting point sentence of four years. He would have set that starting point at five years, but for the four year sentence imposed on Mr Hotene in September 2007 for his most recent spree of four burglaries. That four year starting point was also set by reference to Mr Hotene’s 35 previous burglary convictions. The Judge added a further year on account of the second burglary. A 25 per cent discount (15 months) from that starting point was then allowed on account of Mr Hotene’s guilty plea, and a further four months in recognition of remorse, of the fact that Mr Hotene had not offended as a burglar for some time and of an offer to pay reparation.
[12] That resulted in Mr Hotene’s end sentence of three years and five months.
Case on appeal
[13] In arguing this appeal for Mr Hotene, Mr Taylor referred to a large number of cases. They included the leading High Court decision of Senior v Police and a 1999 decision of Chambers J Kingi v Police, which Mr Taylor submitted had a number of similarities to Mr Hotene’s situation.2 In terms of the burglary offending, Mr Taylor noted that on 20 April no-one was in the residence robbed, significant sums of money were not taken and no extensive damage was done. The burglary was not part of a highly-organised criminal plan, rather it would appear to have been something of a spur of the moment decision. As for the second burglary, although
the owner was confronted, nothing was in fact stolen and no damage was done.
2 Senior v Police (2000) 18 CRNZ 340 (HC); Kingi v Police HC Rotorua AP44/99, 25 August
1999.
[14] On that basis, the effective five year starting point was too high. A starting point of between two and three years for the first burglary would have been more appropriate, with an uplift for the second.
[15] Additionally, Mr Hotene had given the name of one of his co-offenders to the police on the date of his arrest. Subsequent to the burglary his partner, Ms Nuku, found the laptop bag containing student notes in the car that had been used when that car was returned by the police. Ms Nuku returned that property to the police who were able to return it to its rightful owner. That person was very appreciative of getting their student notes back.
[16] Furthermore Mr Hotene had, following his sentencing, advised the police on a confidential basis of the names of his two co-offenders and the whereabouts of the rest of the stolen property. Mr Taylor referred to a number of cases where credit was given for assistance to the authorities, including after sentence.3
[17] Finally, Mr Taylor explained to the Court that Ms Nuku was willing to pay reparation at the rate of $100 per week, notwithstanding her limited means. The appeal had been advanced initially on the basis Ms Nuku had borrowed sufficient money to pay some $3,200 reparation in a lump sum. But, unfortunately, that loan had not eventuated.
[18] I understand Mr Taylor’s submission to be that, taking all these matters into consideration, an end sentence of somewhere between two and three years would, in all the circumstances, be appropriate.
[19] For the Crown, Ms Grau accepted that the sentencing was a stern one. Nevertheless she submitted the end sentence arrived at was within range. Approached on the basis of considering previous history in setting the starting point as the Judge had, the starting point of four years for the first burglary was within
range, given Mr Hotene’s significant history of burglaries. The uplift for the second
3 R v Accused CA443/97, 4 March 1998; R v Urlich [1981] 1 NZLR 310 (CA); R v Crime Appeal CA224/91, 20 September 1991; R v Accused (1993) 10 CRNZ 397 (CA); ABC v Police [2013] NZHC 1487.
burglary was also appropriate, and sufficient discounts had been provided for
Mr Hotene’s guilty plea and other matters.
[20] Taking the approach to the sentencing of recidivist burglars suggested by the Court of Appeal in R v Columbus, a starting point for the first burglary of two and a half years would be appropriate.4 Given Mr Hotene’s previous offending, an uplift of one year on that account would also be appropriate, together with an uplift of a further year for the second burglary. On that basis, a starting point similar to that arrived at by the sentencing Judge would be reached, supporting the proposition that, whilst stern, that starting point was itself was not manifestly excessive.
[21] The further assistance Mr Hotene had provided was not particularly real or meaningful. The delay in providing information to the police had reduced its usefulness. Moreover, the Court should be careful before giving too much credit for any offers of reparation that might now be made: the Court could not order Ms Nuku to pay reparation and there were obvious risks associated with the offer of reparation at $100 a week for a considerable period of time.
Analysis
[22] There is no guideline or tariff decision for burglary sentencing. As the Court of Appeal has acknowledged on a number of occasions, that is because the range of circumstances in which the offence can be committed are so varied.5 Different approaches have also been taken to the effect of previous convictions, particularly in the case of recidivist burglars. In the past, such previous offending was often reflected in the starting point sentence identified. Difficulties with this approach
were discussed by a divisional Court of Appeal in R v Columbus. The Court observed:
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to
4 R v Columbus [2008] NZCA 192.
5 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
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 (2000) 18 CRNZ 340 at [27]-[30] (HC).
[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[23] I think it is helpful in assessing Mr Hotene’s challenge to his sentence to take the approach of fixing a starting point sentence for the two burglaries and then uplifting that to take account of Mr Hotene’s previous offending, before taking account of mitigating factors personal to Mr Hotene.
[24] In Arahanga v R the Court of Appeal observed:6
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.
[25] In identifying that range of sentences, the Court of Appeal referred to a number of High Court and District Court sentencing decisions. Arahanga itself, and those decisions, therefore provide useful guidance.
[26] In Arahanga the Court of Appeal upheld a starting point of four years for two burglaries of dwelling-houses in the early hours of the morning by two burglars. The Court observed that one of the burglaries took place while the victims were asleep in the house; the offending involved the unlawful taking of a motor vehicle; other high- value items were taken from the houses; and there was a significant risk of violence throughout particularly as the offenders returned to one of the homes and issued threats to the occupants, aggravating the harm to the victims. That offending is
considerably more serious than Mr Hotene’s.
6 Arahanga v R, above n 5, at [78].
[27] Four of the cases referred to in Arahanga adopted, either at first instance or on appeal, an 18 months starting point for the burglary of a residential dwelling. By my assessment, the gravity of the offending in those cases is very similar to that of Mr Hotene. For example, in Dudley v Police an offender entered a dwelling in the early hours of the morning and stole CDs, shoes, a wooden elephant, two watches,
keys and a camera.7 The offender was disturbed by the occupier and the police were
called. An 18 months starting point was upheld on appeal. The offending in Wilson v R, Police v Vincent and Snowden v Police is not dissimilar.8
[28] By contrast, in Arps v Police where a two and a half year starting point was upheld on appeal, an offender had burgled two residential dwellings taking a laptop, television and camera valued at around $4,300.9 He was also charged with intentional damage arising from an incident in which he smashed holes in the wall of his partner’s apartment, and with being unlawfully in a boat yard with cannabis in his possession.
[29] On that basis, by my assessment a starting point sentence of 18 months for the first burglary would have been appropriate.
[30] Given the relatively minor nature of the second burglary, albeit recognising that – again – it did involve a dwelling house and a confrontation with the home owner, I think an uplift of nine months would be appropriate.
[31] I turn then to the significance of Mr Hotene’s previous convictions. By any assessment Mr Hotene has a significant record of burglary offending. In not dissimilar circumstances, Columbus, there had been a five year gap between burglary convictions, 89 previous convictions, 13 for burglary and another 34 for property related offences. There an uplift of 12 months was seen as appropriate. In my view, that is also an appropriate uplift here. Whilst here there has been a slightly longer period without burglary offending during that period Mr Hotene has, as Ms Grau
observed, been convicted for dishonesty offending.
7 Dudley v Police HC Christchurch CRI-2009-409-1, 26 February 2009.
8 Wilson v R [2012] NZHC 65; Police v Vincent DC Palmerston North CRI-2008-054-4634,
21 April 2009; Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.
9 Arps v Police HC Christchurch CRI-2010-409-167, 2 September 2010.
[32] On that basis, my assessment is that the appropriate starting point sentence for Mr Hotene before taking account of mitigating factors, is three years and three months. I therefore agree that the starting point of five years fixed by the Judge was manifestly excessive.
[33] Turning to mitigating factors, I think the approach taken by the Judge was correct. In my view a discount of four months for the mitigating factors of remorse, offer of reparation and the time for which Mr Hotene had not offended as a burglar, along with a 25 per cent discount for Mr Hotene’s guilty plea (nine months), properly assesses their significance (one year and one month in all).
[34] I do not think further recognition is required for the information Mr Hotene has provided to the police after his sentencing. As Ms Grau submitted, that was provided after the offending in question, in circumstances which materially reduced its helpfulness. I do acknowledge that Ms Nuku returned some of the stolen property, and would appear to be willing to pay reparation. That reflects Ms Nuku’s commitment to Mr Hotene. I do not think it materially mitigates Mr Hotene’s offending. Nor do I think I can take account of Ms Nuku’s willingness to pay reparation. I cannot order her to do so. Moreover, I think there is considerable uncertainty, notwithstanding what I accept are her good intentions, as to her ability to make a material payment of reparation at the end of the day.
[35] On that basis, I consider that the appropriate end sentence for Mr Hotene is two years and two months.
[36] I therefore allow this appeal, quash the sentence imposed on Mr Hotene in the District Court of three years and five months’ imprisonment and substitute a sentence of two years and two months’ imprisonment.
“Clifford J”
Solicitors:
Heretaunga Law, Upper Hutt for appellant. Crown Solicitor, Wellington respondent.
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