Inamata v Police

[2014] NZHC 3099

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000362 [2014] NZHC 3099

WALLY INAMATA Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	1 December 2014
Appearances:	Annabel Ives for the Appellant Tracey Hu for the Respondent
Judgment:	5 December 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by  on 5 December 2014 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

INAMATA v NEW ZEALAND POLICE [2014] NZHC 3099 [5 December 2014]

Introduction

[1]      In March 2014 a jewellery shop in the Botany Town Centre was burgled.  A large amount of jewellery including watches, rings, necklaces and bracelets were stolen. The retail value of the items stolen was $400,000.

[2]      Two months later the Police executed a search warrant on the home of the appellant, Wally Inamata.  In the course of their search they located a large quantity of  high  end  jewellery  items  including  18  rings,  a  necklace,  a  watch  and  four bracelets.

[3]      These  items  of  jewellery  were  positively  identified  as  coming  from  the burglary.  The combined value of the items in Mr Inamata’s possession is estimated at $32,000.

[4]      When spoken to by the Police Mr Inamata was not prepared to disclose where the items came from or how it was they came into his possession.  He simply said:

Charge me if you want to me charge me.  I’m going to plead guilty to all the jewellery.  It’s me.  You don’t need to involve my family.  It’s all mine.  I’ve got nothing to say.

[5]      Mr Inamata was charged with a single count of receiving, an offence which carries  a  maximum  penalty  of  seven  years.1    At  the  time  of  this  offending Mr Inamata was on bail having been charged with aggravated burglary.

District Court decision

[6]      On 25 July 2014 Mr Inamata appeared in the District Court at Auckland for sentence.   His Honour set a starting point of 18 months’ imprisonment which he uplifted by six months to reflect Mr Inamata’s previous criminal history and the fact that the offending occurred while Mr Inamata was on bail.  He then discounted the nominal sentence by six months in recognition of the early guilty plea and for

immediately taking responsibility for the offending.

1 Crimes Act 1961, ss 246 and 247.

[7]      This led to an end sentence of 18 months’ imprisonment.  That being a short term sentence of imprisonment his Honour expressly turned his mind to whether an electronically monitored sentence would be appropriate but discounted that course given the seriousness of the offending, Mr Inamata’s previous convictions and the fact that the present offending occurred whilst he was on bail.

Appeal against sentence

[8]      Section 250 of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)      for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[9]      In any other case, the Court must dismiss the appeal.2 This section confirms the approach taken by the courts under the Summary Proceedings Act.

[10]     Section 250 confirms the approach taken by the courts under the former

Summary Proceedings Act 1957.3 This approach was set out in R v Shipton:4

(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.

2 Criminal Procedure Act 2011, s 250(3).

3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].

4 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

[11]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Grounds of appeal

[12]     Ms Ives, for Mr Inamata, submits that the sentence imposed was manifestly excessive because:

(a)       the starting point of 18 months was too high; and

(b)the uplift of six  months’ imprisonment for Mr Inamata’s previous convictions and the fact that the present offending occurred whilst on bail was excessive.

Discussion

Starting point too high

[13]     As Ms Ives notes there is no tariff case for receiving.  She submits that the present case is distinguishable from most of the cases dealing with sentencing levels for receiving because Mr Inamata was sentenced only in relation to a single or one off incident of receiving.  As she pointed out, most authorities involved facts where the offending involves multiple incidents of receiving.

[14]     She submits that because the wording of the charge in the charging document specifies the mens rea element of recklessness rather than actual knowledge that the property had been stolen5 the level of culpability is somewhat less.  She also submits that the sentencing Judge placed too much emphasis on the value of the jewellery.

[15]     As noted there is no tariff case for receiving or conspiracy to receive in New Zealand.    However,  Asher  J’s  judgment  in  R  v  Lasike  is,  in  my  view, instructive.6   There his Honour discussed sentencing ranges by reference to decisions of this Court and the Court of Appeal.  For completeness I set out the extract of the

relevant part of the judgment in full:

5 Crimes Act 1961, s 246(1).

6 R v Lasike HC Auckland, CRI-2004-044-7103, 7 September 2006 at [63]-[66].

[63]      The maximum sentence for receiving is seven years’ imprisonment, and if the receiving is for goods to a value of less than $1,000.00, it is three months’ imprisonment. On the receiving counts, three, counts 45, 46 and 47, involve  amounts  in  excess  of  $1,000.00.  The  total  value  of  the  goods received by you was between $15,000 - $20,000.

[64]      There is no tariff case for receiving. In R v Bom (CA 209/96) 18

October 1996, a six-year term of imprisonment was upheld following guilty verdicts on four counts of receiving and one count of conspiracy to receive.

It seems in that case that Mr Bom was running an illicit supermarket for the

clearance of stolen property. It was of a duration, scale and sophistication, far in excess of what is demonstrated in this case.

[65]      Police v Som (CRI 2005-485-141, 4 November 2005, Ronald Young J) was more similar. There were 11 charges of receiving items totalling in the region of $30,000.00. There was $7,000.00 worth of property outstanding. Mr Som was a first offender having no relevant convictions, and had entered a guilty plea. An overall sentence of two years’ imprisonment was assessed on appeal, with leave to apply for home detention declined. It was noted that the methodical nature of the receiving for commercial gain made it more serious. The burglar was stealing to the order of the receiver in that case. It was described as being in the moderately serious category. The starting point was fixed on appeal at three years and three months.

[66]      It can be seen from these two cases that sentences of six years or more will result if the receiving is sophisticated and on a large scale, with property stolen to order. Starting points of three to four years may be appropriate where the receiving is at a lower level, where  the receivers nevertheless  have  a  close  relationship  with  the  burglars,  and  specific property is targeted, and the amounts received are in the $15,000 - $50,000 area.

[16]     From that analysis, particularly given that Mr Inamata was in possession of

$32,000 worth of goods, a starting point in excess of that given in the present case may have been justified.

[17]     I accept  Ms  Ives’ submission  that  it  is  unclear how  close  Mr  Inamata’s relationship with the burglars was or how soon after the goods were stolen that Mr Inamata was first in receipt of them.  Ms Hu for the Crown strongly submits that given the nature of the goods that whoever supplied them to Mr Inamata did so in the knowledge that he had some form of special knowledge of disposing of valuable jewellery.  She submits that it can be inferred that Mr Inamata was perceived to have specialty knowledge and thus his connection with the burglars is more likely to be close.   As I indicated in the course of argument I am not persuaded by that submission.   I do not regard it as the irresistible inference pressed upon me by Ms Hu.

[18]     Likewise, I also do not accept Ms Ives’ submission that the fact the charging document alleges recklessness rather than actual knowledge this necessarily means the Police regarded Mr Inamata received the goods in the context of wilful blindness, rather than actual knowledge and he is thus less culpable.  In the circumstances of this case at least, I do not regard the distinction as supporting an assessment of lessened culpability.

[19]     Ms Ives referred me to a number of authorities which she submits indicate that the starting point set by the Judge was too high.  However, on close analysis I am not satisfied that these cases assist Mr Inamata’s case.

[20]     In R v Collier a 12 month end sentence was imposed on a charge of receiving a car worth $14,000.7     No starting point was stipulated by the Court of Appeal. However, given that 12 months was the end sentence and the Court took into account the early guilty plea, it is likely that a starting point of around 18 months was arrived at before the deduction of discounts.   This indicates that the starting point in the present case was well within the available range.

[21]     In Ellis v R the Court  of Appeal upheld an  18 month  starting point  for receiving $5,000 worth of goods.8   Whilst the relationship between the burglars and the receiver in that case was closer9 the value of the goods in the present case is very much greater.

[22]     In  Aurupa  v  Police  the  appellant  received  a  computer  worth  $2,000.10

Ms Ives submits that Aurupa supports her proposition that a lower starting point is justified where the offending involves a single, rather than multiple, incident of receiving.  While I accept that submission in its generality, the goods in question in the present case are multiple items of high end jewellery with a value of some 16 times greater than in Aurupa.  I also accept the submission made by Ms Hu that a laptop is a ubiquitous item which is relatively easy to dispose of as compared to 24

items of jewellery.

7 R v Collier CA170/03, 21 August 2003 at [7].

8 Ellis v R [2012] NZCA 513.
9 The property was received within hours of the burglary.

10 Aurupa v Police [2012] NZHC 2750.

[23]     Ms Hu referred me to a number of cases where higher starting points were set in circumstances which she submits were of lower criminality.

[24]     In Sinclair v Police miscellaneous items with a total value of $10,000 were recovered in the appellant’s possession hours after the burglary. A starting point of two years six months’ was set.  On appeal the starting point was described as stern but within range.11

[25]     In Vansilifhout v Police Priestley J examined comparable sentences in the context of an appeal where the goods were valued at between $4,000 and $4,500.12

The sentencing Judge had adopted a starting point of three years’ which, on appeal, was  regarded  as  excessive.    A starting  point  between  18  and  21  months’ was regarded as appropriate.

[26]     It is apparent from these authorities that the starting point of 18 months’ imprisonment was well within the sentencing discretion of the Judge.   It is also apparent that the value of the items received is a significant, albeit not determinative factor in assessing the level of criminality for the purposes of setting the starting point.   I do not accept the Judge placed too much emphasis on the value of the goods. In fact his sentencing notes make no reference to their monetary value and the only reference to value is to be found in the first paragraph of the notes where the Judge considered the value as “substantial”.   In coming to the conclusion that the starting point in this case was within range I do not overlook the appellant’s submission that the Judge in setting the starting point, improperly took into account the fact that the offending occurred whilst the appellant was on bail for aggravated burglary.  It is submitted the Judge may have taken this irrelevant factor into account and wrongly concluded that the appellant may have been involved in the burglary of the jewellery shop or that he had received stolen goods on previous occasions.

[27]     In my view there is no substance to this claim.  It is speculative.  The relevant

parts of the Judge’s comments in relation to aggravated burglary were made in the context of his observation that the index offending occurred while Mr Inamata was

11 Sinclair v Police [2014] NZHC 1332.

12 Vansilifhout v Police HC Rotorua, CRI-2006-470-2, 7 March 2006.

on bail for aggravated burglary.  Whilst it is correct he made reference to the charge being  a  serious  one,  that  comment  was  referable  only  to  his  consideration  of offending on bail. The Judge also made reference to a “robber” but this was in the context of a discussion about burglars and robbers being incentivised in their offending by the existence of receivers to whom they are able to dispose stolen goods.  It was a perfectly proper comment to make and one which repeated similar observations of this Court.

Uplift

[28]     Ms  Ives  submits  that  the  six  month  uplift  for  Mr  Inamata’s  previous convictions and the fact that the present offending occurred whilst on  bail was excessive.  I shall deal with these issues in order.

[29]     Ms  Ives  submits  that  the  uplift  was  excessive  because  the  overseas convictions were historic and not sufficiently similar or relevant to justify the up lift given.  She further submits that since returning to New Zealand in 2010 Mr Inamata has only been convicted of the relatively minor offence of being unlawfully in an enclosed yard for which he was ordered to come up for sentence if called upon.

[30]     However,  Mr  Inamata  has  an  extensive  list  of  previous  convictions  in

Australia which pre-date this.  It would appear he left New Zealand for Australia in

1991 when he was aged 17.   His Australian previous convictions commenced in January 1992.  Between then and 2000 he was convicted of a variety of dishonesty, burglary and robbery charges.  He spent time in custody as a sentenced prisoner.  In

2000 he was convicted of robbery while armed with a dangerous weapon.  He was sentenced to eight years and six months’ imprisonment with a five year non-parole period concluding on 18 October 2008.  He was deported back to New Zealand in early 2010 following his release.

[31]     Ms Ives accepts that Mr Inamata’s list of relevant previous convictions is extensive but submits that this aggravating factor needs to be considered in the light of the fact that at end of his prison sentence and following his return to New Zealand Mr Inamata has largely kept out of trouble with the exception of the minor lapse earlier this year.

[32]   An analysis of comparable cases involving convictions for dishonesty demonstrate that the six month uplift in the present case was well within the Judge’s sentencing discretion.

[33]     In Ellis v R the appellant had amassed over 40 dishonesty convictions.13   He received a 12 month uplift for these convictions and offending while on parole.

[34]     In Sinclair v Police Mander J upheld a six month uplift where there was a pattern of convictions for dishonesty although the judgment does not specify the nature or number of the charges.14   However, Mander J considered that the offending disclosed a continuation of the appellant’s unlawful conduct when not incarcerated.

[35]     In the present case a six month uplift, considering the previous conviction history consisting of well in excess of 20 dishonesty convictions, added to the fact that the substantial gap in the conviction history from 2000 is, at least in part, attributable  to  the  lengthy  incarceration  following  Mr  Inamata’s  conviction  for armed robbery, the uplift for previous convictions was well within the sentencing Judge’s discretion.

[36]     Ms Ives properly accepted that it was appropriate for the Judge to give an uplift for the previous convictions and offending on bail but submitted that the uplift should have been three months rather than six.

[37]     As noted above the appellant in Ellis had over 40 dishonesty convictions and received a 12 month uplift for those convictions and the fact that the offending was committed while the appellant was parole.

[38]     In Vansilflout v Police Priestley J uplifted the starting point available to 18 to

20 months by six to nine months where there was both the element of previous convictions and offending while subject to release conditions.

13 Ellis v R, above n 8.

14 Sinclair v Police, above n 11.

[39]     I am satisfied that the uplift of six months’ imprisonment for Mr Inamata’s previous convictions and the fact he was on bail at the time of this offending, was entirely appropriate and within the range available to the sentencing Judge.

Result

[40]     The appeal is dismissed.

Moore J

Solicitors:

Ms Ives, Auckland
Crown Solicitor, Auckland