Iketau v Police

[2013] NZHC 1161

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000097 [2013] NZHC 1161

SIONE IKETAU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 May 2013

Counsel:         Y Lee for Appellant

F Nazim for Respondent

Judgment:      20 May 2013

JUDGMENT OF WOOLFORD J

Solicitors/Counsel:

Y B Lee, PO Box 33718, Takapuna, Auckland 0740. Crown Solicitors (Meredith Connell) Auckland.

IKETAU V NZ POLICE HC AK CRI-2013-404-000097 [20 May 2013]

[1]      On 1 March 2013, Mr Iketau was sentenced to 75 hours community work and ordered to pay $500 reparation after pleading guilty to three charges – taking a motor vehicle, interfering with a motor vehicle and theft of its mag wheels and stereo.

[2]      He now appeals against sentence on two grounds.   Firstly, that the District Court Judge erred in not granting him a discharge without conviction.  Secondly, that the order to pay $500 reparation was disproportionate to the order to pay $120 imposed on his co-offender following a defended hearing.

Facts

[3]      At some stage late on the evening of 26 April 2012, the appellant and his associate stole a Honda Integra motor vehicle from outside a private address in Edmonton Road, Te Atatu South.   Mr Iketau then drove the stolen car while his associate drove his own car.   They took both cars to a reserve in Avondale Road, Avondale. The reserve was secluded and not visible from the road or nearby houses.

[4]      The appellant and his associate ransacked the interior of the stolen car using various tools.   They removed the stereo and placed it on to the front seat of the associate’s car.  Using a car jack the appellant and his associate lifted the stolen car off the ground and began removing its silver mag wheels.  They then placed two of those wheels into the boot of the associate’s car.

[5]      At around 4.45 am that morning, Police arrived at the scene to find the appellant carrying or rolling a third wheel to the associate’s car.  The associate fled as soon as he saw the Police and was located later in bushes nearby.  The appellant was apprehended in possession of the third mag wheel.  Located in the appellant’s pants pocket was a screwdriver.  On the ground around the stolen car was a crowbar, a club hammer and a wheel brace.  Inside the associate’s car was a pair of vice grips and a crow bar.

[6]      When spoken to by the Police, the appellant denied any knowledge of his actions and said he was wasted after drinking five to six boxes of bourbon and cola with 18 cans in each box.  When questioned as to why he did not appear intoxicated, the appellant stated “Ask my mum, I can drink for three days.”

[7]      The summary of facts sought $1,000 reparation, which was the estimated damage to the stolen car.

Personal circumstances

[8]      The appellant is now aged 20.  He was aged 19 at the time of the offending. He has a number of previous convictions, notably for assault with intent to injure in

2010. The pre-sentence report referred to it as a limited criminal history, unrelated to the present offending.  The report recommended community work and reparation.  It noted the circumstances of the appellant and his co-offender differed significantly. The appellant’s co-offender was treated more harshly. According to the pre-sentence report he received a term of intensive supervision and community detention for his part in the offending.

[9]      The report also notes that Mr Iketau was undertaking a course of study at Unitec, which he should complete this year.  It states that, while he expressed some concern as to the effect a conviction would have on his future employment prospects in the automotive industry, Mr Iketau was prepared to accept any sentence imposed by the Court.

[10]     The report concluded that Mr Iketau’s risk of re-offending was considered to be low.  It stated:

Mr Iketau’s current risk of reoffending is considered as low.  This is based on  his  previous  conviction  history,  current  personal  circumstances  with regard to accommodation and training/employment and presentation at interview.  Mr Iketau has good pro-social support at home, primarily from his mother and is considered to be remorseful and have insight into his offending and its effects.

[11]     An application for discharge without conviction was made in the District Court on the basis that a conviction of this sort would make it difficult, if not impossible, to find a job in the automotive industry.   Judge Callander thought an inference could be drawn that that was likely to be case.  Although he was of the view that the appellant may well find an employer who would see good in him and was prepared to give him a chance.

[12]     Judge Callander commented that the appellant had limited his options by being foolish enough to go and do what he did.

[13]     In terms of the test to be applied, Judge Callander characterised the offending as serious.  The maximum penalty for unlawful taking of a motor vehicle is seven years imprisonment.  He also referred to the serious impact of the offending on the victim.   Judge Callander accepted that the appellant was going to have trouble in getting employment but that was almost universal when it came to persons having convictions for dishonesty.  Judge Callander could not see that it put the appellant into a special category.  He was of the view that the fact of conviction was not out of all proportion to the gravity of the offending and so dismissed the application.

[14]     Judge Callander adopted the recommendation of the pre-sentence report and accordingly imposed a sentence of 75 hours community work and $500 reparation. He thought it unfair for the appellant to pay the full amount of the reparation sought in the summary of facts of $1,000.   He ordered him to pay half of that amount, namely $500.

Approach to appeal

[15]     An appeal against a sentence is a general appeal which shall be by way of re- hearing.  Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court make 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”.[1]

[1] Summary Proceedings Act 1957, s 121(3)(b).

[16]     The approach to be taken to appeals under s 121(3) was set out in Yorston v

Police where the Court said: [2]

[2] Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].

(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.

[14]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  There is nothing in the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar, which deals with the proper approach to be taken by an appellate court in general appeals, to show that decision was intended to apply in appeals against sentence: see D v Police[3]and Wright v Police.[4]

[3] D v Police HC Tauranga CRI-2008-470-22, 9 September 2008.

[4] Wright v Police HC Whangarei CRI-2009-488-47, 20 October 2009.

Appellant’s submissions

[17]     Counsel for the appellant submits he is a young man aged 20 years old and father of a two year old boy with a good Christian partner who left him because he had been convicted of a dishonesty offence.  He is the first in his family to have gone to Unitec and completed a certificate in engineering.   He says that this will allow him to break free of the “Islander kid” stereotype which is that kids follow in their parents’ footsteps by getting cleaning jobs.

[18]     As to the offence itself, counsel submits that it is fair to say that, had the co- offender not given him a ride and had he not been in a drunken state wanting to buy

more  alcohol,  the  misdemeanour  would  not  have  happened.    Mr  Iketau,  in  his

intoxicated state, made an error of judgment and became involved as an accessory to the crimes.

[19]     As to the prospects of future employment, counsel submits that he took on Judge Callendar’s  challenge and  surveyed  a random  sample of motor mechanic companies to assess the employment opportunities open to a person such as Mr Iketau.  The common answer, he submits, is, first, if everything is equal they will employ someone who has no criminal record.   Furthermore, before they would consider employing him they would need to assess whether Mr Iketau has genuinely changed.   One employer commented that Mr Iketau would have to have a stand down period of three years and a clean record before he would consider hiring him. Overall, counsel submits it is a grim scenario for Mr Iketau in these tough economic times of high unemployment.

[20]     Counsel for the appellant then referred to the three-stage test set out in the R v

Hughes.[5] As to the three stages, counsel submits:

[5] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

(a)       The offending was at the lower end of the scale;

(b)The consequences of the conviction are drastic as Mr Iketau has been unable to get practical work training and any plans to travel abroad would be blocked; and

(c)      Those drastic consequences are out of all proportion to the seriousness of the offending.

[21]     As to reparation order, counsel for the appellant submits that there is little material loss for the victim.  Rather, damages were the costs of reinstalling the stereo and putting the wheels back on the car.  This, submits counsel, was reflected in the

sum of $120, which the co-offender was ordered to pay.

[22]     Counsel  submits  in  the  absence  of  evidence  of  actual  loss,  the  logical reparation ought to have been reimbursement to the co-offender for a half share of the $120 reparation required of the co-offender, that is, $60.

Discussion

[23]     Having carefully read all the material and considered counsel’s submissions, I am not satisfied that the sentence of 75 hours community work and $500 reparation is clearly excessive or inadequate or inappropriate.  I am of the view that Mr Iketau’s offending  is  moderately  serious.    The  unlawful  taking  of  motor  vehicles  is  a prevalent offence causing the community significant economic loss and often real hardship to victims.   It is a price all motorists bear through increased insurance premiums.

[24]     Although I accept that Mr Iketau has been unable to find work training, I am not satisfied that there is a direct link between the entry of convictions in the present case and his  current status.   Mr  Iketau does  not graduate  with a Certificate of Automotive Engineering until June or July of this year.  He already has a number of convictions, including one for assault with intent to injure.   It is unclear whether counsel’s unscientific survey included telling employers that, in addition, the person seeking employment had a conviction for violence and whether a conviction for unlawful taking of a motor vehicle would make any difference if the conviction for violence was also disclosed.

[25]     Counsel for Mr Iketau acknowledged that these are tough economic times of high  unemployment.     I  can  also  take  judicial  notice  of  the  fact  that  the unemployment rate among Island youths is higher than most other categories.  But that does not make imposition of convictions in the present case wrong.

[26]     In the present case, I am not satisfied that the consequences of conviction are drastic as is submitted by counsel for the appellant.  If Mr Iketau does graduate in due course from Unitec this year with good qualifications that will greatly increase his chances of securing employment as a mechanic.

[27]     In  those  circumstances,  I  am  not  satisfied  that  the  consequences  of  a conviction outweigh the seriousness of the offending.  In that regard, I agree with the assessment made by the learned District Court Judge.

[28]     As to reparation, I am of the view that if issue was to be taken as to the amount of reparation sought, it needed to be taken in the District Court on or before sentencing.    Summaries  of  fact  regularly  contain  sums  of  reparation  which  are sought.  If those sums are to be disputed, notice should be given to the prosecution so that proof can be provided of actual loss or if the sum is significant and still disputed then a disputed facts hearing held.

[29]     Counsel for Mr Iketau referred to little material loss for the victim and refers just to the cost of reinstalling the stereo and putting the wheels back on.  However, significant  damage  may  well  have  been  caused  when  the  car  was  stolen,  as  a common method of stealing cars involves pulling out the ignition barrel and hot wiring it.  There is then a cost in replacing the ignition barrel.  In addition, although there is no evidence in this case about insurance, if a stolen car is insured, there is often a significant excess and the victim may well also lose his or her no claims bonus and be forced to pay a significantly increased premium.

[30]     But all of these matters should have been canvassed in the District Court if they  were  in  dispute.    In  fact,  I  note  that  on  one  of  the  informations,  CRN

12004006442, the Judge has entered the following notation following the pleas of guilty:

Pay reparation to [named complainant] of $500 by consent (Police to provide address).

[31]     In all the circumstances, therefore, I am not prepared to vary the reparation order on the basis that the co-offender was only ordered to pay $120.  He was treated more harshly, receiving at least a sentence of 18 months intensive supervision. According to Crown counsel, he also received a sentence of two months community detention.  However, that is not reflected in the certificate of conviction provided by counsel for the appellant.  Notwithstanding that, a sentence of intensive supervision

for 18 months is a harsher sentence than 75 hours community work.    In those

circumstances, the appellant’s overall sentence was more lenient.

[32]     In all the circumstances, the appeal against sentence is dismissed.

……………………………….

Woolford J