Ikahihifo v Police
[2012] NZHC 3553
•18 December 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2012-419-000067 [2012[ NZHC 3553
GARFIELD IKAHIHIFO
v
NEW ZEALAND POLICE
Hearing: 18 December 2012
Counsel: L Walkington as Agent for P J Morgan QC for the Prisoner
R B Annandale for the Crown
Judgment: 18 December 2012
[ORAL] JUDGMENT OF WYLIE J
Distribution:
L Walkington: [email protected]
R B Annandale: rba@ almaodouch.co.nz
IKAHIHIFO V POLICE HC HAM CRI 2012-419-000067 [18 December 2012]
[1] Having pleaded guilty to one charge of burglary, on 30 July 2012, the appellant, Mr Ikahihifo, was sentenced by Judge Ruth in the District Court at Hamilton to 21 months’ imprisonment in respect of one charge of burglary committed at the Te Kuiti New World Supermarket on 6 March 2012.
[2] Mr Ikahihifo appeals against the sentence on the ground that it is manifestly excessive.
[3] The notice of appeal also asserted that a four month uplift applied by Judge Ruth was excessive, that a reparation order should not have been made and that special release conditions should not have been imposed. Further, it requested that this Court should remit outstanding fines at the same time as determining the appeal. Ms Walkington, appearing for the appellant, has confirmed that these other aspects in the notice of appeal are not pursued. The only matter at issue is whether or not the sentence of imprisonment imposed by Judge Ruth was manifestly excessive.
Background
[4] On 6 March 2012, at about 4.00 am, Mr Ikahihifo and an associate entered the carpark of the New World Supermarket on Te Kumi Road, in Te Kuiti. They had driven from Auckland. They got out of the vehicle and, using a jemmy bar, forced open the front doors of the supermarket, knocking the entire door out of its track and breaking the glass. They entered the supermarket and made their way to the Lotto counter. They also forced open various cabinets containing cigarettes, tobacco and other items. They had brought a woolsack with them from Auckland, and they filled the woolsack with cigarettes and tobacco valued at over $20,000, and put the woolsack in the back of their vehicle. They then left the scene.
[5] Following a report to police of suspicious activity, Mr Ikahihifo and his associate were stopped in their vehicle between Otorohanga and Pirongia. Mr Ikahihifo was driving. They were arrested. The supermarket goods were recovered in their totality. As I have noted above, Mr Ikahihifo pleaded guilty to the charge of burglary.
[6] Mr Ikahihifo came before the Court for sentence on 30 July 2012. Judge Ruth noted the Crown submissions that the burglary was a planned operation. He noted that disguises were found in the possession of Mr Ikahihifo and his associate. He noted the time of day, the fact that Mr Ikahihifo and his associate drove from Auckland to Te Kuiti to commit the burglary, and that they targeted specific items in the supermarket. He noted that the appellant appeared to think of the offending as a way of doing business and making money. He observed that commercial burglaries have traditionally been regarded as being not as serious as house burglaries, but suggested that they should also be regarded as a serious target and that there could be confrontation with people such as security guards.
[7] In imposing sentence, Judge Ruth took into account that this was a planned operation, a significant burglary with the possibility of confrontation with security officers and that property of significant value was stolen. He accepted that this latter factor was neutralised by the fact that full recovery of the goods was obtained. He adopted a starting point of two years’ imprisonment.
[8] The Judge then took into account personal features and in particular, the fact that Mr Ikahihifo had previous convictions for aggravated robbery. He uplifted the sentence by a period of four months to take into account those personal aggravating features. He noted that Mr Ikahihifo was willing to pay reparation and that he had entered an early guilty plea. He gave a discount of 25 per cent for the guilty plea, and that led to the end sentence of 21 months’ imprisonment. In addition, the Judge imposed release conditions for six months for participation in a residential programme for alcohol and drug abuse and other counselling needed. He imposed reparation of $2,305.65 for the damage caused to the supermarket entrance and disqualified Mr Ikahihifo for driving for six months pursuant to s 124 of the Sentencing Act 2002.
[9] As I have noted, Mr Ikahihifo appeals his sentence on the basis that the sentence was manifestly excessive.
[10] Ms Walkington, appearing on his behalf, on instructions from Mr P Morgan QC, submitted that the starting point adopted by Judge Ruth was too high. She accepted that the uplift for previous convictions was appropriate. She submitted that on the basis of comparable case law, the starting point should have been in the vicinity of 18 months’ imprisonment and that this was appropriate to reflect the gravity of the offending.
[11] Mr Annandale, on behalf of the Crown, submitted that the starting point was not manifestly excessive. He referred to the decision of White J in Moses v Police[1] and suggested that the offending in that case was, in many respects, similar to the present case. He noted the aggravating features of the offending, namely the degree of planning involved, the targeting of commercial premises, the fact that there were two offenders, the amount of damage caused to the supermarket and the significant
value of the goods stolen. He also submitted that the four-month uplift was appropriate to take into account the principles of deterrence and protection of the public.
Approach to Appeal
[1] Moses v Police HC Whangarei CRI 2011-488-6, 24 March 2011.
[12] An appeal against sentence is a general appeal, which proceeds by way of rehearing.
[13] Section 121(3)(b) of the Summary Proceedings Act 1957 provides that this Court may quash or vary a sentence where it is clearly excessive or inadequate or inappropriate, or if the Court is satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing
sentence.
[14] The approach to be taken to appeals under s 121(3) is set out in Yorston v
Police,[2] where the Court noted:
[2] Yorston v Police HC Auckland CRI 2010-404-164, 14 September 2010 at [13]–[15] (footnotes removed).
(a) There must be an error vitiating the lower Court’s original sentencing
discretion. The appeal must proceed on an error principle;
(b)To establish an error in sentencing, it must be shown that the Judge in the lower Court made an error, whether intrinsically or as a result of additional material submitted to the appeal Court;
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
The Court emphasised that it should not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Analysis
[15] There is no tariff case for burglary.
[16] In Senior v Police,[3] a full Court of this Court considered burglary offending. It distinguished between first time burglars, recidivist burglars and spree burglars. It suggested that a different sentencing approach should be applied depending on which category a burglar fell into. In R v Columbus,[4] the Court of Appeal approved the Senior approach but went on to emphasise that the starting point, when considering any offending, including burglary, should identify the culpability inherent in the offending by reference to its circumstances. The Court referred to R v Taueki,[5] and noted that the principles there discussed apply in burglary sentencing where the intrinsic nature and gravity of the offence charged is the primary consideration. It noted that sentencing Judges must guard against the risk of placing
undue emphasis on past dishonesty convictions in fixing a starting point.
[3] Senior v Police (2000) 18 CRNZ 340 (HC) at [25]–[40].
[4] R v Columbus [2008] NZCA 192 at [15].
[5] R v Taueki [2005] 3 NZLR 372.
[17] Mr Annandale relied primarily on R v Moses. That was the only case referred to by Judge Ruth in his sentencing notes. In that case, Mr Moses broke into a supermarket using his feet and wrists. He smashed his way through a window at the front of the store, cutting his hands in the process. Once inside, he stole cigarettes and tobacco worth $2,687. None of the items were recovered. He had a number of previous convictions, including 26 for burglary. On appeal from the District Court, White J found that the five-year starting point imposed by the District Court was too high. White J found the nature of the entry to the premises, the value of the unrecovered goods and the absence of any violence, justified a starting point of two years and six months’ imprisonment. He uplifted the sentence by one and a half years to take into account previous convictions and gave a further three-month uplift for other charges. He then gave a 33 per cent discount for the guilty plea and a one- month deduction for rehabilitation, arriving at an end sentence of two years and nine months’ imprisonment.
[18] In contrast, Ms Walkington referred me to the decision of Adams v R.[6] In that case, Mr Adams and a co-offender jemmied open a second-storey office window. Boxes of personal belongings of the business owners were opened and the contents were strewn around. A large amount of property was taken with a value of over
$25,000. All of the stolen items were recovered. Mr Adams had 19 previous convictions for dishonesty, including three for burglary. In the District Court, the Judge found that the appropriate starting point was one year and nine months’ imprisonment, taking into account the fact that the value of the items taken was high, that Mr Adams had committed a burglary on the previous night, but also allowing for the fact that the goods had been recovered. The matter went to the Court of Appeal. The appeal was primarily against the refusal to grant home detention, rather than against the sentence itself, but it is noteworthy that the Court of Appeal did not criticise the starting point adopted by the Judge.
[6] Adams v R [2012] NZCA 515.
[19] Ms Walkington also referred me to a number of other cases involving the burglary of residential dwellings, including Hale v R,[7] Wirepa v Police[8] and Pluim v
[7] Hale v R [2012] NZHC 1708
[8] Wirepa v Police [2012] NZHC 512
.
Police,[9] where starting points significantly lower than that adopted by Judge Ruth were upheld on appeal.
[9] Pluim v Police [2012] NZHC 1592.
[20] If this case were to be compared only with the decision of White J in Moses, I accept that there might be some justification for saying that the sentence imposed by Judge Ruth was in line with current sentencing levels. However, there are differences between Moses and the present case:
(a) In Moses, the goods stolen were not recovered. I accept the point made by Mr Annandale that the fact that the goods were recovered in this case is a result of early police intervention. Nevertheless, it remains a distinguishing factor.
(b)Further, Mr Moses had an extensive list of previous burglary convictions, although I note that White J adopted a starting point of two years and six months’ imprisonment before taking that factor into account.
[21] The offending in Adams was similar to that in the present case, in that Adams also concerned a burglary of commercial premises, with a co-offender. The value of goods stolen was higher. Mr Adams had more previous convictions than Mr Ikahihifo. He had also just committed a burglary on the previous evening. The starting point of one year and nine months’ imprisonment was significantly lower than that adopted in Moses.
[22] I must consider the circumstances of the burglary committed by Mr Ikahihifo. There was some planning and premeditation, but it was not sophisticated. Commercial premises were targeted and two offenders were involved. Mr Ikahihifo caused damage to the supermarket premises, but to some extent, the reparation order made by Judge Ruth can be set off against the weight to be given to that factor. Compared to spree burglary of residential premises, in my view, the present
offending is less serious. There was only one burglary in the present case. There
was little or no risk of confrontation with occupiers. The stolen property was recovered.
[23] In my view, the appropriate starting point should have been a term of imprisonment of 20 months, and not two years as identified by Judge Ruth. Ms Walkington accepted that it was appropriate to uplift that sentence by a period of four months to take into account Mr Ikahihifo’s previous convictions for aggravated robbery. She also accepted that the discount of 25 percent applied by Judge Ruth was appropriate; indeed, that discount is in line with the Supreme Court’s decision in
Hessell v R.[10]
[10] Hessell v R [2010] NZSC 40.
[24] It follows that in my judgment, the end sentence should have been a sentence
of 18 months’ imprisonment.
[25] The difference between a sentence of 21 months’ imprisonment and a sentence of 18 months’ imprisonment is significant to a person in Mr Ikahihifo’s position, and I am satisfied that the sentence imposed by Judge Ruth was manifestly excessive. Accordingly, the appeal is allowed. I substitute a term of imprisonment of 18 months’ imprisonment. In all other respects, the sentence imposed by
Judge Ruth is upheld.
Wylie J
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