Iwikau v Police

[2012] NZHC 2027

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000030 [2012] NZHC 2027

BETWEEN  COLE ANDREW OWEN IWIKAU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 August 2012

Counsel:         J C Hannam for Appellant

S A Law for Respondent

Judgment:      15 August 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      On 1 June 2012 Mr Iwikau pleaded guilty in the Huntly District Court to one charge of burglary (s 231 of the Crimes Act 1961).  He was sentenced in the Hawera District Court to one year and nine months’ imprisonment in relation to that charge on 26 June 2012.

[2]      Also on 26 June 2012 Mr Iwikau pleaded guilty to driving while disqualified

(s 32(1)(a) and (4) of the Land Transport Act 1998) and a charge of theft (ss 219 and

223(d) of the Crimes Act 1961).   A concurrent sentence of nine months’ imprisonment was imposed in relation to the driving while disqualified offence. Mr Iwikau was convicted and discharged in relation to the theft matter.

[3]      Mr Iwikau appeals against the sentences of imprisonment that were imposed by the District Court at Hawera on 26 June 2012.  He submits that those sentences

were manifestly excessive.

IWIKAU V NEW ZEALAND POLICE HC NWP CRI-2012-443-000030 [15 August 2012]

The offending

Burglary

[4]      At about 10.40pm on 7 June 2011, Mr Iwikau broke into the Te Kauwhata Sports Club.  He entered the Sports Club by smashing a window and unlatching the window stay.  He then entered through the window space.  Once inside he stacked a number of tables on top of each other.   He climbed to the top of those tables and removed a projector from the ceiling.   He then left the premises.   The equipment which Mr Iwikau took was worth approximately $2,500.   The equipment has not been recovered.  Mr Iwikau was apprehended after his fingerprints were detected at the scene.

Driving whilst disqualified

[5]      On 11 February 2012 Mr Iwikau was seen driving into a petrol station in Stratford.    He  was  apprehended  and  charged  with  driving  whilst  disqualified. Mr Iwikau had previously been convicted of driving whilst disqualified:

(1)       on two occasions on 14 June 2005; (2) on 8 February 2006;

(3)       on 12 October 2010;  and

(4)       on 8 November 2011.

Previous convictions

[6]      In  addition  to  his  previous  five  driving  whilst  disqualified  convictions, Mr Iwikau has a total of 27 convictions for offences such as shoplifting, driving with excess breath alcohol, taking motor vehicles, assault, cultivating cannabis and breaching community work conditions.  He was also convicted of burglary:

(1)       on  10  January  2005  for  which  he  was  sentenced  to  200  hours’

community work;  and

(2)       on  20  September  2005,  when  he  was  sentenced  to  160  hours’

community work and given a final warning.

Pre-sentence report

[7]     The pre-sentence report recommended the imposition of a sentence of imprisonment together with an order for reparation.

District Court sentencing decision

[8]      In determining a starting point for the burglary offence, the District Court Judge assessed that Mr Iwikau’s offending fell within category 2 of the High Court decision in Senior v Police.1   The District Court Judge adopted a starting point of 18 months’ imprisonment.   In setting the starting point the District Court Judge took into account that the burglary was targeted, that there was a significant loss, and that the sentencing principles of protection of the public, denunciation and deterrence needed to be addressed in this case.   The District Court Judge also noted that the starting point reflected Mr Iwikau’s previous convictions.

[9]      The   District   Court   Judge   adopted   a   starting   point   of   ten   months’ imprisonment in relation to the offence of driving whilst disqualified.  In setting this starting point, the District Court Judge took into account the fact that the appellant had five previous convictions for driving whilst disqualified.  In relation to his last conviction, on 8 November 2011, Mr Iwikau was given a final warning.

[10]     The District Court Judge combined the two offences and adopted an overall starting point for both offences of two years and four months.  Thus from the outset of his sentencing, the District Court Judge appears to have adopted a cumulative approach to sentencing Mr Iwikau.  From there the District Court Judge reduced the

period of imprisonment to two years to reflect the totality of the offending.   The

1      Senior v Police (2000) 18 CRNZ 340 (HC).

District Court Judge then made a further deduction of three months to account for

Mr Iwikau’s guilty pleas.

[11]     As a consequence, the District Court Judge sentenced Mr Iwikau to one year and nine months’ imprisonment for the burglary charge.  Mr Iwikau was sentenced to nine months’ imprisonment in relation to the driving whilst disqualified charge.  This sentence was stated to be a concurrent sentence.

[12]     Mr Iwikau was disqualified from driving for 12 months starting on 20 May

2012.

Sentencing principles

[13]     This Court’s jurisdiction to hear and determine the appeal is derived from s 121 of the Summary Proceedings Act 1957.   In the circumstances of this appeal, the Court may allow the appeal if it considers that the sentence imposed by the District Court was “clearly excessive or inadequate or inappropriate” (“manifestly excessive”).

[14]     In  R  v  Monkman,  the  Court  of  Appeal  explained  the  term  “manifestly excessive” in the following terms:2

Whether a sentence can be said to be manifestly excessive turns on the maximum  sentence  prescribed  by  law  for  the  offence;     the  level  of sentencing customarily observed with respect to that offence;   the place which  the  conduct  in  question  assumes  on  the  scale  of  seriousness  of offences of that type;  and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[15]     When  considering  if  the  sentence  imposed  by  the  District  Court  was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached.  As the Court of Appeal recently observed in Ripia v R:3

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly

2      R v Monkman CA445/02, 3 March 2003 at [6].

3      Ripia v R [2011] NZCA 101 at [15].

excessive.   The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

Relevant authorities

Burglary

[16]     In  Senior  v  Police,  a  Full  Bench  of  the  High  Court  considered  tariff sentencing levels for burglary.   The Court considered that the following features aggravate burglary offending:4

(1)Behaviour  which  involves  actual  danger  to  or  confrontation  with occupiers, or the risk of such danger and confrontation;

(2)         Behaviour which is likely to make the victim feel targeted; (3)          Wanton destruction of property and acts of vandalism;

(4)         The theft of items of high monetary or sentimental value; (5) Sophisticated planning and execution;  and

(6)Offending while on bail, while on parole or in close proximity to court appearances on other charges, particularly of burglary.

[17]     The Court considered guilty pleas, remorse and genuine co-operation with the Police to be mitigating factors.

[18]     The Court in Senior categorised burglary cases by reference to whether the offender was a first time burglar, a recidivist burglar or a spree burglar.   The first category is that of the “first time burglar”.   The Court noted that a sentence of

imprisonment may be imposed in those cases, but frequently that was not the case.

4      Senior v Police (2000) 18 CRNZ 340 at 344.

[19]     The second  category is  the “recidivist  burglar”,  where the  length  of  the sentence will largely depend upon the number of previous convictions, the number of offences for which the offender appears for sentence and the presence of aggravating and mitigating factors.  In cases that fall within the second category, the protection  of  the  public  is  a  significant  factor  in  determining  the  appropriate sentence.  The Court noted that, in these cases, Judges are likely to impose sentences which are more severe than those imposed on the offender on previous appearances for the same offence, but there are limits to this.  The Court stated that a typical case falling within this category will involve a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions for burglary) and who is appearing for sentence on only one or a limited number of offences, where the burglar is probably a professional in the sense of being a person who burgles for a living, often to sustain a drug habit.  The Court considered that a recidivist burglar who pleads guilty to a single offence, or two or three offences, is unlikely to receive

a sentence which exceeds three years.  In Tihema v New Zealand Police,5 Clifford J

interpreted this guidance to mean that implicitly an offender could receive less than three years imprisonment, and that the starting point for such offending (depending on the seriousness of the offending and the credit for guilty plea) could be between three and four years’ imprisonment.

[20]     The third category was that of the “spree burglar”.  Offending will fall within this category where the burglar appears for sentence on a large number of burglaries all committed within a short space of time and usually having admitted at interview a number of burglaries which the police, without such admissions, would not have been able to solve. The Court sets out cases it considered to be “spree” cases.

[21]     It is important to note that when the Court in Senior referred to a “starting point”, that starting point took into account earlier convictions for burglary (whereas now, the sentencing approach is to set a starting point which reflects the seriousness

of the offending, with uplifts for relevant previous convictions).

5      Tihema v New Zealand Police [2012] NZHC 1329.

[22]     However, it is important to note the comments of the Court of Appeal in R v Southon.6    In that case, the Court noted that Senior should not be regarded as more than a very helpful analysis of historic sentencing patterns for burglary offending, and that recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years’ imprisonment.7

[23]     The Court of Appeal noted in R v Lowe, that previous dishonesty convictions, while aggravating personal  circumstances,  are  often treated as  components  of a burglary starting point.8    The Court in R v Columbus explained this rationale.9    It explained that, while prior dishonesty offending is not in itself an element of the offence, it is directly relevant to assessing the degree of the offender’s culpability within the gravity of the particular offending and to the purposes of deterrence and community protection.10   It noted that the justification for this greater weighting for prior offending was explained in Senior v Police.  However, it noted that:11

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.

[24]     In Appendix 1 of this judgment I summarise four cases I have considered when assessing sentences imposed in comparable cases.

6      R v Southon (2003) 20 CRNZ 104 (HC).

7 At [13].

8      R v Lowe CA62/05, 4 July 2005 at [31].

9      R v Columbus [2008] NZCA 192.

10 At [14].

11 At [15].

Analysis

Starting point for burglary offence

[25]     In my assessment, Mr Iwikau’s burglary offending falls within the upper level of category 1 of the Senior categories, and the bottom end of category 2 of that case. The reasons for reaching this conclusion are:

(1)       The burglary was premeditated;

(2)       The premises in question appear to have been targeted; (3)     The property that was stolen has not been recovered;

(4)Mr Iwikau has only two previous convictions for burglary.  He is not yet a recidivist burglar.

[26]     I agree with the District Court Judge when he held that a prison sentence was necessary. A prison sentence is required in this case to:

(1)       hold Mr Iwikau accountable for the harm he has done;12

(2)       make Mr Iwikau accountable for his offending;13

(3)       denounce Mr Iwikau’s behaviour;14

(4)       deter others from offending in a similar way;15   and

(5)       protect the community from Mr Iwikau.16

12     Sentencing Act 2002, s 7(1)(a).

13     Sentencing Act 2002, s 7(1)(b).

14     Sentencing Act 2002, s 7(1)(e).

15     Sentencing Act 2002, s 7(1)(f).

16     Sentencing Act 2002, s 791)(g).

[27]     Because the District Court appears to have over-assessed the seriousness of Mr Iwikau’s burglary offending, I propose to adopt a slightly lower starting point for the prison sentence that should be imposed in this case.   A starting point of 15 months’ imprisonment appropriately reflects:

(1)       The gravity of the offending;17

(2)       The seriousness of this type of offence;18

(3)       An acceptable level of consistency with comparable cases;19

(4)       The need to ensure the least restrictive outcome;20

(5)       The extent of the loss caused by Mr Iwikau’s offending;21   and

(6)       The level of premeditation involved in this offending.22

Deduction for guilty plea

[28]     From the starting point of 15 months I will provide a ten per cent reduction to reflect Mr Iwikau’s plea of guilty.   In this case there were delays in Mr Iwikau acknowledging his guilt.  A more generous reduction would have been considered had Mr Iwikau disclosed the whereabouts of the property he stole.

[29]     The end result is a sentence of 13 and a half months’ imprisonment for the

burglary offence.

17     Sentencing Act 2002, s 8(a).

18     Sentencing Act 2002, s 8(b).

19     Sentencing Act 2002, s 8(e).

20     Sentencing Act 2002, s 8(g).

21     Sentencing Act 2002, s 9(d).

22     Sentencing Act 2002, s 9(i).

Starting point for driving whilst disqualified

[30]     In Appendix 2 of this judgment I summarise three cases I have considered when assessing the sentences imposed in comparable cases.

[31]     In my assessment, the authorities to which I have referred strongly indicate that the District Court Judge adopted a starting point that was well beyond the normal range that should be considered for a person in Mr Iwikau’s position.

[32]     The District Court Judge calculated an overall starting point of two years and four months’ imprisonment.   However, he then adjusted this figure downwards by four months to reflect the totality of the offending.  This approach might lead one to conclude that the actual starting point for the driving whilst disqualified charge was only six months.

[33]     The District Court Judge then reduced the overall sentence by three months to take account of Mr Iwikau’s guilty pleas.  Thus, assuming that the District Court Judge did not give any discount for the belated plea of guilty to the burglary charge, the effective starting point for the driving whilst disqualified offence may have ultimately ended up being just three months.

[34]     If  the  overall  end  point  was  that  the  driving  whilst  disqualified  offence resulted in a concurrent sentence of three months’ imprisonment then, it could not be considered excessive.

[35]     However, the reasons given by the District Court Judge leave me speculating as to what actually transpired in the sentencing process.  Accordingly, to avoid any further confusion I determine:

(1)       That the end point for the burglary conviction is 13 and a half months’

imprisonment;

(2)       The  end  sentence  for  driving  whilst  disqualified  is  three  months’

imprisonment.

Both sentences are to be served concurrently.

[36] The appeal is allowed. The prison sentences imposed by the District Court are replaced with those set out in [35].

[37]     The  12  month  period  of  disqualification  imposed  by  the  District  Court remains in force.           That period of disqualification commences from the date that

Mr Iwikau is released from prison.

D B Collins J

Solicitors:

Hannam & Co Lawyers, New Plymouth for Appellant

Crown Solicitor, New Plymouth for Respondent

Appendix 1

(1)Brown v New Zealand Police:23       Mr Brown was convicted of one charge of burglary, two charges of theft, two charges of driving while disqualified and one charge of failing to answer bail.  The burglary offending involved Mr Brown burgling a house, stealing a television, laptop computer, camera and a jewellery box, valued at $1,700 in total.  Mr Brown had no previous convictions   for   burglary.      Mr Brown’s   driving   while   disqualified convictions were his sixth and seventh convictions of that type.   The sentencing Judge adopted a starting point of 18 months’ imprisonment for the burglary.  The Judge regarded the driving while disqualified matters as entirely separate from the burglary and imposed a cumulative sentence.  The Judge  adopted  a  starting  point  of  six  months’ imprisonment  for  those charges. These starting points were upheld on appeal.

(2)       Curry v R: 24     Mr  Curry  and  an  associate  burgled  a  residential  property.

They stole a 42 inch plasma television and two stereo speakers valued at approximately $2,500 in total.  The sentencing Judge adopted a starting point of 15 months’ imprisonment.   He considered an aggravating factor of the offending to be the burglary of a residential dwelling.  The Judge added three months to reflect Mr Curry’s previous convictions for burglary, leading to an end  sentence  of  18 months’  imprisonment.    The  starting  point  and  end sentence were upheld on appeal.

(3)Daw v R: 25     Mr Daw forced a window in a motel complex, climbed into a unit and stole a television set worth $599.  At the time the room was unoccupied  and  the  television  set  was  not  recovered.    Mr  Daw  had  31 previous convictions, one of which was for burglary.  The sentencing Judge adopted a starting point of 16 months’ imprisonment, and increased this by four months to reflect Mr Daw’s previous convictions.  The end sentence was

upheld on appeal.

23     Brown v New Zealand Police [2012] NZHC 396.

24     Curry v R [2010] NZCA 491.

25     Daw v R [2011] NZCA 581.

(4)McCormick v New Zealand Police:26   Mr McCormick and an associate went to a seafood store where Mr McCormick had been working on a casual basis. They cut through a chain fence and used a key to unlock a storage chiller and remove boxes of seafood to the value of $2,000.   Mr McCormick was co- operative  with  Police.    Mr McCormick  had  29  previous  convictions  for burglary.  The sentencing Judge set a starting point of three and a half years’ imprisonment to reflect the breach of trust and Mr McCormick’s previous convictions.   On appeal, Mr McCormick argued that the sentencing Judge had put disproportionate weight on his previous convictions.   Gilbert J considered that a starting point of 21 months’ imprisonment was appropriate, taking into account the breach of trust, the value of seafood taken, that the address was not residential, there was little prospect of any confrontation and the offending did not involve any significant degree of planning or sophistication.  This starting point was then uplifted by six months to reflect

Mr McCormick’s previous convictions.

26     McCormick v New Zealand Police [2012] NZHC 309.

Appendix 2

(1)Paparoa  v  New  Zealand  Police:27      Mr  Paparoa  pleaded  guilty  to  eight charges, two of which were for driving while disqualified.  Mr Paparoa was sentenced to six months on the first driving while disqualified charge (his seventh conviction of that type), and nine months on the second (his eighth conviction of that type), imposed cumulatively.  On appeal, these sentences were substituted for four and a half months’ imprisonment and six and three quarter months’ imprisonment respectively.

(2)Vhigakeni v New Zealand Police:28   Mr Vhigakeni pleaded guilty to a charge of driving while disqualified, his fifth conviction of that type.  Mr Vhigakeni was sentenced to three months’ imprisonment.  This sentence was upheld on appeal.

(3)Tiopira v New Zealand Police:29    Mr Tiopira was sentenced on two charges of driving while disqualified, failure to answer District Court bail and failure to answer police bail.   The disqualification charges were Mr Tiopira’s fifth and sixth conviction of that type.  The sentencing Judge took a starting point of  two  months’  imprisonment  for  the  first  of  the  two  driving  while disqualified charges, noting that it was the fifth of its kind for which Mr Tiopira had been convicted.  She added three months for the further driving while disqualified charge.  The sentencing Judge added a further one month

for failing to answer court bail. This sentence was upheld on appeal.

27     Paparoa v New Zealand Police HC Auckland CRI-2009-404-189, 18 August 2009.

28     Vhigakeni v New Zealand Police HC Auckland CRI-2011-404-299, 3 October 2011.

29     Tiopira v New Zealand Police HC Hamilton CRI-2011-419-103, 6 March 2012.