Kahotea v Police HC Tauranga CRI-2011-470-18
[2011] NZHC 1600
•15 August 2011
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2011-470-18
BETWEEN CAINE KEREAMA KAHOTEA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 15 August 2011 (Heard at Hamilton)
Counsel: B Nabney for Appellant
H Booth for Respondent
Judgment: 15 August 2011
(ORAL) JUDGMENT OF POTTER J
on sentence appeal
Solicitors: Crown Solicitor, Tauranga – [email protected]
Copy to: B Nabney, Tauranga – [email protected]
KAHOTEA V NEW ZEALAND POLICE HC TAU CRI-2011-470-18 15 August 2011
[1] Caine Kahotea entered guilty pleas to:
(a) One charge of aggravated burglary which carries a maximum penalty of fourteen years imprisonment.
(b)One charge of possessing explosives (shotgun, cartridges) except for lawful, proper and sufficient purposes under s 45(1) of the Arms Act
1983, which carries a maximum penalty of four years imprisonment.
[2] On 12 April 2011 Judge Wolff[1] sentenced the appellant to three years imprisonment on the aggravated burglary charge. He imposed a sentence of four months imprisonment on the possession of explosives charge to be served concurrently with the sentence of three years imprisonment (which is not challenged).
[1] New Zealand Police v Kahotea DC Tauranga CRI-2010-070-010294, 12 April 2011.
[3] Mr Kahotea appeals against the sentence of three years imprisonment on the basis that the starting point of four and a half years imprisonment taken by the Judge for sentencing on the aggravated burglary charge was too high given the circumstances and the appellant’s actual involvement in the offending and the Judge failed to provide an appropriate discount to reflect his early guilty plea. As the result the appellant maintains the end sentence is manifestly excessive.
[4] Mr Kahotea also seeks an extension of time for appeal which was not opposed by the Crown and is granted.
Approach on appeal
[5] Section 121(3)(b) of the Summary Proceedings Act 1957 governs the approach to appeals against sentence. If the sentence is clearly excessive or inappropriate the Court on appeal may quash the sentence and pass such other sentence in substitution the Court considers ought to have been passed. Generally
the Court will not interfere with the sentence unless the sentence is manifestly
excessive or wrong in principle.[2] In reaching an assessment the Court will examine the terms of the sentence given rather than the process by which the sentence is reached.[3]
[2] R v Brooks [1950] NZLR 658 (CA) at 659.
[3] R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].
Background facts
Aggravated burglary
[6] At about midnight on 2 December 2010, the appellant drove to an address in Meadowland Street, Matua, Tauranga with two associates. There were three people residing at that address. The appellant’s associates armed themselves with a pistol and a machete and walked down the driveway of the address where they found that the lights were on in the garage and the front door to the house was wide open.
[7] One of the associates entered the house and stole a 32-inch Sony LCD flat screen television from the lounge. He took the television back to Mr Kahotea’s waiting vehicle. The television was valued at $1,800. While this occurred, Mr Kahotea and his other associate remained outside the house.
[8] They realised that the garage to the house had been left partially opened. They opened the garage door, which alerted two of the occupants who had been inside a roof cavity of their garage tending their cannabis plants. Those two people were pulled down by one of Mr Kahotea’s associates while he remained outside. The second associate pointed the pistol at both victims while the first associate was carrying the machete.
[9] During the course of the incident Mr Kahotea picked up a digital camera from the garage and put it in his pocket. It belonged to one of the occupants and had a value of approximately $130. One of Mr Kahotea’s associates then entered the roof cavity and removed a number of cannabis plants. One of the occupants
announced that she would call the police. Mr Kahotea and his two associates ran
from the address taking with them at least a dozen cannabis plants, a cellphone and the other items they had removed.
[10] Mr Kahotea was spoken to on 22 December 2010. He admitted his role in the aggravated burglary. He said he was just the driver of the vehicle and had been told that they were addressing a drug debt owed to one of his associates. He pleaded guilty on 17 February 2011.
Possession of Explosives
[11] At 12.40 a.m. on 30 December 2010, police executed a search warrant at Mr Kahotea’s home address. Located in the bedroom were four 12-gauge shotgun cartridges in a toilet bag containing male toiletries and documentation belonging to Mr Kahotea. Drug-related items also were found in the bedroom, the ownership of which was claimed by Mr Kahotea’s partner.
[12] He admitted to owning the ammunition and said that he had no lawful reason for its possession. He entered a guilty plea on sentencing date, 12 April 2011.
Personal circumstances
[13] The pre-sentence report says that Mr Kahotea expressed some remorse and insight, stating that he gets into trouble via his associates. However, he expressed no empathy for his victims. He is assessed as being of low risk of re-offending if he engages in rehabilitative programmes but if not, he is assessed as being of high risk of harm to the community.
[14] He has twenty five previous convictions dating from 2004. These are predominantly dishonesty and drug offences. In 2004 he was convicted of unlawfully taking a motor vehicle and attempting unlawful taking. In 2005 he was convicted on sixteen counts of burglary committed between 2004 and 2005 and was sentenced to two years imprisonment. He was granted leave to apply for home detention. In 2008 he was convicted of a number of cannabis related offences for which he was sentenced to one years imprisonment, again with leave to apply for
home detention. He also has three previous convictions for breaching community work.
[15] In a letter to the Court Mr Kahotea expressed remorse for his “irresponsible and unacceptable behaviour” and said he wished to apologise to his victims. Other references were presented to the Court on his behalf.
Sentencing
[16] Judge Wolff assessed that Mr Kahotea’s participation by driving his associates to the address, adding his presence to the weight of numbers and taking a camera, demonstrated a clear involvement on his part in the offending. He considered the appellant knew what was to happen and it could not have escaped him that the others were armed. The Judge acknowledged that an offender who is just a driver may warrant being treated more leniently as a lesser party, but said that to describe Mr Kahotea’s activities in this way was to give him more credit than he deserved.
[17] The Judge adopted a starting point of four years six months imprisonment, by reference he said to “a number of cases”, although he did not identify those cases. He then took into account Mr Kahotea’s immediate co-operation with the police and reduced the sentence by nine months. He allowed a further nine months for his guilty plea, in all a discount of thirty three per cent from the starting point. That produced the end sentence of three years imprisonment.
[18] The Judge said he saw no reason to uplift the sentence on account of Mr Kahotea’s offending history. He said that would counter-balance the co-operation expressed for which he had given credit. He also recognised the appellant’s stable circumstances. He said for that reason he did not consider a cumulative sentence necessary for the possession of ammunition. He declined to impose home detention stating there was no proper basis to reduce the sentence below three years imprisonment.
Submissions
[19] Mr Nabney submitted that the starting point of four years six months imprisonment was manifestly excessive. He acknowledged that the appropriate approach was to follow R v Mako.[4] He suggested a starting point of something under three years. He referred to the decisions in R v Masters[5] and O’Donnell v R[6] where starting points of three years and two years were adopted and submitted on the
basis of those authorities, a starting point here should be something less than three years.
[4] R v Mako [2000] 2 NZLR 170 (CA).
[5] R v Masters CA474/99, 16 December 1999.
[6] O’Donnell v R [2011] NZCA 50.
[20] Secondly, he submitted that on the authority of Hessell[7] a full twenty five per cent discount should have been afforded the appellant for his early guilty plea and that a further discount was appropriate for the remorse shown and the co-operation. Mr Nabney submitted that an end sentence of something around two years, or just in excess of two years, would have been appropriate.
[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607
[21] Ms Booth submitted that the Court should focus on the end sentence. In essence her submission was that a sentence of three years imprisonment, while stern, is not out of the available sentencing range, especially having regard to Mr Kahotea’s previous convictions and also the separate and distinct charge of possessing explosives.
[22] She noted that on the basis of R v Watson,[8]the tariff case of Mako is applicable for aggravated burglary offending and provides guidance for sentencing. Ms Booth referred to the category at [58] of Mako which relates to forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted, which would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home
[8] R v Watson CA224/03, 24 October 2003.
invasion provisions to around ten years. At the other end of the scale in Mako, is the
category of street robbery where a starting point between eighteen months and three years is indicated.
Discussion
[23] Clearly this offending is not at the serious end, in the first of the two Mako categories mentioned. There was no violence against the victims but dangerous weapons were taken and there is the aggravating factor that a private house was the scene of the offending. In addition, there was a degree of planning and preparation, three participants were involved with Mr Kahotea’s participation clearly not limited to driving. As I have mentioned, there were two weapons (a pistol and a small machete) taken to the scene, though Mr Kahotea did not personally carry a weapon. Property was stolen and not recovered. At least one of the victims expressed fear and worry about the offending and the possibility of return by the offenders, but the other two occupants did not file victim impact statements.
[24] I consider the cases of Masters and O’Donnell to be less serious than this offending. In Masters the offender was aged eighteen. He was coerced into being the getaway driver and did not know what was planned. The starting point taken by the sentencing Judge was three years imprisonment. The final sentence on appeal was fifteen months imprisonment, suspended for one year.
[25] In O’Donnell there was a guilty plea to aggravated robbery. Two offenders drove to a residence where they confronted a female at home alone and threatened her. They were said to be carrying a baseball bat, although there was apparently a dispute concerning this fact and the Judge did not sentence on the basis that a baseball bat was carried. O’Donnell argued that he played only a limited role, standing in the rear and was not involved in taking any items from the property. The Court of Appeal considered the Judge was entitled to take the view that this was group offending for which each offender must shoulder equal blame. The starting point of two years imprisonment was upheld. The final sentence of two years imprisonment on appeal, reflected O’Donnell’s reliance on a sentencing indication.
[26] Another relevant authority is Holmes v R[9] referred to by both counsel. Holmes and two co-offenders travelled to the victim’s home. They demanded money and made threats. Holmes drew the curtains at the request of one of his associates who began to strike the victim with a blunt end of a tomahawk axe. Holmes attempted to intervene and asked his associate to stop, while the other associate encouraged the offender who was waving the tomahawk. Holmes was found guilty of being a party to aggravated robbery and injuring with intent to cause grievous bodily harm following trial. The Court of Appeal held the starting point of five years imprisonment adopted for the principal offender to be too high for Holmes and revised it to three years six months imprisonment, with the end sentence of two years six months imprisonment being upheld, which it considered to be lenient.
[9] Holmes v R [2010] NZCA 47.
[27] I have found analysis of the structure of the sentence imposed to be difficult. I agree that the starting point of four years six months was too high and that a more appropriate starting point would have been in the range of three years six months. However, I do not conclude that the end sentence is manifestly excessive. No uplift was applied for Mr Kahotea’s previous convictions nor was a cumulative sentence imposed for the separate offence of possession of explosives, which would have been well available in the circumstances. The discount of thirty three and a third per cent, while constructed by the Judge in two tranches of nine months, could equally be viewed on the basis of twenty five per cent for the guilty plea and six months for co-operation. In essence I consider the discount very generous and the final sentence, though stern, not manifestly excessive.
[28] For the purposes of comparison, I reconstructed the sentence as I might perhaps have approached it: from a starting point of about three years six months, applying an uplift of six months for previous convictions, a maximum discount of four months for remorse and co-operation, giving a revised starting point of forty four months, a discount of twenty five per cent for the guilty plea, to produce an end
sentence of around thirty three months or two years nine months imprisonment.
[29] As I have stated, it would have been available to the Judge to impose a cumulative sentence in respect of the possession of ammunition offending. Thus a sentence of three years on my re-assessment is not one with which the Court should interfere on the basis that it is manifestly excessive.
Result
[30] The extension of time to appeal is granted but the appeal is dismissed.
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