Kalauni v Police
[2015] NZHC 55
•3 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2015-404-000007 [2015] NZHC 55
MILLY TEVINA KALAUNI
v
POLICE
Hearing: 3 February 2015 Appearances:
Appellant in Person
L Mills for RespondentJudgment:
3 February 2015
ORAL JUDGMENT OF WHATA J
Solicitors: Crown Solicitor, Auckland
Copy To: Appellant
KALAUNI v POLICE [2015] NZHC 55 [3 February 2015]
[1] Ms Kalauni was sentenced to ten months imprisonment in relation to five charges of theft, two of possession of cannabis and one of possession of a pipe for methamphetamine. Ms Kalauni appeals against that decision on the basis that an uplift in relation to prior offending of six months was manifestly excessive.
Background
[2] The sentencing notes of Judge E N Aitken succinctly set out the background facts. As the Judge noted, even though the maximum penalty on each of the theft charges is a term of three months imprisonment, the offending was serious.
[3] The relevant facts are identified as follows:
[3] Between 17 August and 10 September you stole cash from four elderly victims. The first was 91 years old, you knocked on her door on the pretence that you needed to use the bathroom. You went into her house and took her wallet.
[4] The second was 88 years old. She befriended you; you returned to the property with her and again found a pretence to get inside and took money from her wallet. She confronted you when she realised what was happening. You left but you took her cash tin with you.
[5] The third victim was 93 years old. You knocked on the door, you asked for some personal female items and you were invited in to be assisted by the 93 year old, you took $500 in cash.
[6] The fourth was 74 years old. You took your child with you. The elderly woman resided with her 87 year old husband. Again you complained of having some female problems. You asked to use the bathroom and you took $220 from her purse and $35 from her husband’s wallet.
[4] As the Judge further noted Ms Kalauni was found in possession of cannabis in October and again in November and on a second occasion a small plant was found at her house.
[5] The Judge accurately described the course of conduct as appalling. The Judge was critical of the fact that Ms Kalauni targeted elderly people and conned her way into their houses. The Judge notes that methamphetamine explains the offending and accepted that Ms Kalauni was deeply remorseful about it. The Judge then noted that aggravating matters while on bail for these offences, Ms Kalauni again persuaded a 93 year old woman to let her into her house and again took cash
from her. Ms Kalauni’s house was searched again and she was found in possession
of a pipe for methamphetamines.
[6] The Judge then approached starting point in this way:
[11] In determining the appropriate starting point it has to be a term of imprisonment, and I regard each of these separate incidents as a separate and discrete premeditated offence targeting our most vulnerable and playing on their natural compassion for people, particularly a woman with children (as some of them refer to), who appeared to need their support. They feel utterly distraught about what happened, they feel used and abused and some of them felt fearful for a while in their own home. So a significant impact on the victim. I take as a starting point the maximum of three months on each of the five charges of theft because I cannot comprehend a more serious charge of theft under $500 than what has happened on this occasion.
[12] That is the starting point; 15 months imprisonment. I do not add to that because of the possession of drugs or paraphernalia charges. You are clearly drug addicted, or at the time, and I take that factor and those charges into account.
[7] The Judge turned to an uplift for prior convictions. The Judge counted no less than 38 burglaries or dishonesty offences. The Judge described Ms Kalauni as a prolific and dishonest offender but noted that there had been a marked change since
2008. The Judge formed the view that despite that change a minimum uplift in the order of six months sentence was appropriate taking the starting point to 21 months imprisonment.
[8] The Judge then essayed at length personal mitigating factors, including Ms Kalauni’s rehabilitation and her remorse. The Judge placed significant weight on the fact that Ms Kalauni had attended the Grace Foundation’s Solution Addiction program for the previous 12 months. The Judge also placed some significance on the connection between Ms Kalauni’s methamphetamine abuse and the dishonesty offending.
[9] She also notes an offer of reparation of $741.30 and the fact that Ms Kalauni appeared to be remorseful. The Judge applied a five month discount for those factors and a further four months for the guilty pleas once the charges were amended. That had the effect of reducing the sentence to one of 12 months
imprisonment. The Judge then reduced the sentence by a further two months as a
degree of compassion to Ms Kalauni’s children.
[10] A cumulative sentence of ten months was therefore imposed but leave was (it appears) also granted to apply for home detention if a suitable location could be found.
Jurisdiction
[11] This Court has broad jurisdiction to correct error pursuant to s 250 of the Criminal Procedure Act 2011. It is now settled principle that a manifestly excessive sentence is an appealable error.1
Appellant’s case
[12] Ms Kalauni essentially challenges an uplift of six months on a starting point of 15 months as manifestly excessive. She does not seek to challenge the starting points which are maximum sentences for each of the theft offending.
[13] Turning then to an uplift of six months, I have had the benefit of submissions on the same issue in a case I will hear this afternoon, Manuel v Police2. Three Court of Appeal authorities dealing with uplift are apposite to this case, namely Brown v R, Julian v R and Coulson v R.3 Those cases are authority for the proposition that any uplift should not be disproportionate to the starting point or to the sentence imposed in relation to the prior offending.
[14] There is however a more immediate problem; as maximum sentences were imposed on each of the theft charges, any uplift for prior similar offending could not be added to the starting point in relation to those sentences. The Judge appears to have lost sight of this limitation, though I note that no sentence or uplift was imposed in relation to the drugs and other charges. Be that as it may, I consider that
I must examine the sentence afresh.
1 Tutakangahau v R [2014] NZCA 279.
2 Manuel v Police HC Auckland CRI-2014-404-000429, 3 February 2015.
3 Brown v R [2014] NZCA 93; Julian v R [2012] NZCA 453; Coulson v R [2012] NZCA 420.
[15] As to starting point, I accept that this is a case where each instance of theft is serious and justifies a maximum sentence. Ms Kalauni preyed on the most vulnerable in our society and it is difficult to envisage a more serious form of theft simplicter. I reach the same view when I examine the totality of the theft offending – it is a crime spree deserving of a maximum sentence of 15 months overall.
[16] The other offending is separate offending warranting a distinct sentence, though I agree with Judge Aitken that the offending overall must be seen as the product of drug dependency. Possession of cannabis carries a maximum sentence of three months while the maximum sentence for possession of a pipe carries a maximum sentence of one year. There is scant information available to me on the quantum of the cannabis that could have been produced or as to the broader context of the offending and I agree with the Judge that these charges are properly described as paraphernalia. Therefore a sentence of two months on the possession charges is appropriate in the circumstances. I do not consider that an uplift for this offending is warranted. This results in a starting point of 17 months which I think is also proportionate to the totality of the offending including the offending while on bail.
[17] I agree with the Judge that there must be a discount to take into account the steps taken by Ms Kalauni to turn her life around in what appears to be a battle with drug abuse. I also consider that a discount for remorse is appropriate. This was further confirmed to me today on the presentation of a letter by Ms Kalauni. It also reflects well on her that she accepts that she should receive the maximum sentence for the theft. I further consider that Ms Kalauni’s personal circumstances and that of her children is relevant to the assessment of proportionality. Plainly a 25 per cent discount for an early guilty plea is also appropriate. But I think that the Judge’s total discount on sentence of 11 months is too generous when the revised starting point is used. I am prepared however to apply a combined discount of 50 per cent to broadly mirror the Judge’s assessment which I endorse.
[18] In the result, I allow the appeal and replace the sentence of 10 months imprisonment with a sentence of 8.5 months imprisonment. For completeness I do not consider that a 10 or so per cent reduction in sentence is tinkering, especially given Ms Kalauni’s personal circumstances and her separation from her children.
[19] I also wish to record that home detention should be given urgent re- consideration. Ms Kalauni is a mother of two children. This factor strongly supports, in my view, a sentence of home detention if a suitable location can be found.
Addendum
[20] As Ms Kalauni was discharged without conviction on the possession charges, it is necessary to explain the effect of my judgment. A total sentence of 8.5 months is imposed comprised of the following:
(a) CRN 13004015189 (189) 2 months concurrent;
(b) CRN 14092010163(163) 2 months cumulative on 189; (c) CRN 13004014219 (219) 2 weeks cumulative on 163; (d) CRN 13004014216 (216) 2 months cumulative on 219;
(e) CRN 13004015190 (190) 2 months cumulative on 216.
Whata J
0
4
0