Karetu v Police
[2012] NZHC 2370
•14 September 2012
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2012-412-000033 [2012] NZHC 2370
BETWEEN BOYCEE LINTON JUNIOR KARETU Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 13 September 2012
Counsel: A M Dawson for Appellant
R D Smith for Respondent
Judgment: 14 September 2012
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 9.30am on the 14th day of September 2012.
RESERVED JUDGMENT OF COLLINS J
Introduction
[1] On 3 April 2012 the appellant was sentenced to a total period of two years
and three months’ imprisonment in relation to the following offences:
(1) Unlawfully getting into a motor vehicle contrary to s 226(1) of the
Crimes Act 1961;
(2)Refusing an officer’s request for a blood specimen contrary to s 60(1)(a) of the Land Transport Act 1998;
(3) Careless driving causing injury contrary to s 38 of the Land Transport
Act 1998;
KARETU V NEW ZEALAND POLICE HC DUN CRI-2012-412-000033 [14 September 2012]
(4) Unlawful possession of a firearm and ammunition contrary to s 45(1)
of the Arms Act 1983;
(5) Receiving stolen property under $500 in value contrary to ss 246 and
247 of the Crimes Act 1961; and
(6)Breaching release conditions on two occasions contrary to s 96(1) of the Sentencing Act 2002.
The appellant appeals against this total sentence. He says it was manifestly excessive.
[2] In imposing the sentence of two years and three months’ imprisonment the
District Court Judge:
(1)imposed a one year period of imprisonment for unlawfully getting into a motor vehicle, to which an additional three months’ imprisonment was imposed to take account of the appellant’s previous convictions. A further one month period of imprisonment was imposed for the refusal to provide a blood specimen, and a further one month period of imprisonment was imposed for the careless driving causing injury. This created an end starting point of one year five months’ imprisonment for the offences referred to in [1(1)-(3)] above;
(2)imposed a cumulative one year three months’ period of imprisonment for unlawful possession of a firearm and ammunition. A one month concurrent period of imprisonment was imposed for receiving stolen property; and
(3) imposed a cumulative six months’ period of imprisonment for
breaching release conditions.
[3] This resulted in an end starting point of three years and two months’
imprisonment. A reduction of 25 per cent was granted in response to the appellant’s
guilty pleas. This resulted in the end sentence of two years three months’
imprisonment.
The offending
[4] On 14 January 2012, a Mazda motor vehicle was unlawfully taken from its owner in Porirua, and ended up in the possession of the appellant, who was found to be driving it on 27 January in Dunedin. The appellant was driving at speed on Orr St, Dunedin when he lost control of the vehicle and hit a parked car on the side of the road before colliding with a concrete wall. He then ran from the vehicle until the police apprehended him. The police noticed the appellant was affected by alcohol, and subsequent requests to undergo a breath test and a blood test were refused.
[5] As a result of the crash, the two cars involved suffered extensive damage and the appellant’s associate who was in the passenger seat at the time was taken to hospital suffering right-side rib contusions.
[6] The remaining charges are linked to a burglary that occurred in May 2011. Five firearms, including a Browning five shot semi-automatic shotgun, were taken from a rural Milton address during the burglary. When the Police went to check on the appellant’s bail curfew on 13 February of this year, they located the Browning shotgun and shotgun shells in the appellant’s bedroom.
[7] The breaches of release conditions charges relate to the appellant’s breach of release conditions at Hastings in December 2010, and failure to report to the Dunedin Service Centre in February 2012 as a condition of release.
Sentencing Judge’s decision
[8] The District Court Judge estimated the risk of reoffending as high because of the appellant’s gang affiliations and antisocial pattern of behaviour. His Honour noted the appellant was unmotivated to make changes to his lifestyle. The District Court Judge noted the appellant’s string of serious convictions, breach of release
conditions and inferred from those matters that the appellant was holding the shotgun and ammunition for nefarious purposes, as part of a continuing antisocial trend. The District Court Judge determined that a sentence of imprisonment was required to send a strong deterrent message.
Appellant’s submissions
[9] In his very helpful submissions Mr Dawson urged me to find that the overall sentence imposed was excessive because the sentence adopted in relation to the getting into the motor vehicle charge was manifestly excessive.
Crown submissions
[10] In his very responsible submissions, Mr Smith for the Crown acknowledged that the learned District Court Judge may have proceeded on the erroneous assumption that Mr Karetu had been responsible for taking the motor vehicle from Porirua. For this reason Mr Smith submitted that the one year period of imprisonment for getting into a vehicle was out of line with other sentencing decisions. Mr Smith strenuously submitted, however, that the overall decision reached by the learned District Court Judge was well within the bounds of what was reasonable in the circumstances of this case.
Sentencing principles
[11] 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”).
[12] In R v Monkman, the Court of Appeal explained the term “manifestly excessive” in the following terms:[1]
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).
[1] R v Monkman CA445/02, 3 March 2003 at [6].
[13] 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 observed in Ripia v R:[2]
[2] Ripia v R [2011] NZCA 101 at [15].
... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.
Were cumulative sentences appropriate in this case?
[14] Sections 83-84 of the Sentencing Act 2002 allow a Judge to impose cumulative sentences in respect of multiple offending. Generally, that will be appropriate where the offending is of a different nature.[3] In this instance, the three sets of offending that were subject to separate and cumulative sentences were of a different nature and separated in both time and place. The vehicle related offending involved a car that was stolen in Porirua in January 2012, which the appellant
became in possession of in Dunedin later that month; and the later Arms Act charges were committed while the appellant was on bail for that offending in February 2012. The two breaches of conditions are quite unrelated and span from December 2010 in Hastings to February 2012 in Dunedin. Cumulative sentences were justified as the offences were sufficiently discrete and cannot reasonably be described as a continuing course of conduct.
Were the individual sentences too long?
[3] Sentencing Act 2002, s 84.
[15] The approach to cumulative sentencing does not displace the totality principle, that the overall sentence must reflect the total criminality of the offending.[4]
The starting point of one year five months for the vehicle related offending is nearing
the maximum sentence of two years’ imprisonment. The offence of unlawfully getting into a motor vehicle is considerably less serious than unlawfully taking a motor vehicle, which attracts a maximum sentence of 7 years’ imprisonment. There is no allegation here that the appellant was responsible for taking the vehicle which he came to be in possession of.
[4] Sentencing Act 2002, s 85(2).
[16] In most comparable cases, the charge of unlawfully getting into a motor vehicle is accompanied by a charge of unlawfully taking that vehicle. In Singh v R,[5] where the appellant had a similar pattern of anti-social behaviour, the Court of Appeal held that a starting point of two and a half years was “at the top of the range” for both unlawfully taking and unlawfully getting into a motor vehicle. In Prasad v Police,[6] the appellant’s sentence of six months imprisonment for unlawfully getting into a motor vehicle was upheld by Gendall J on appeal. The appellant had a similar history to the present appellant, with 18 previous convictions, including unlawfully taking and getting into motor vehicles. In the absence of a charge of also taking the motor vehicle from its owner, the starting point sentence of one year five months was very high.
[5] Singh v R [2011] NZCA 139.
[6] Prasad v Police HC Napier AP50/01, 13 December 2001.
[17] I acknowledge that the aggravating factor in this case is the dangerous situation that the appellant created by driving the car in a careless manner and injuring his associate. That escalates the seriousness of the vehicle offending.
[18] In my assessment when the driving and vehicle incidents are viewed as a whole, an end starting point of one year’s imprisonment is justified for all three offences.
[19] The starting point of one year and three months on the possession of firearms charges was also high, as there was only one firearm involved, it was stored in a private residence, and did not appear to be loaded (although ammunition was located
nearby).
[20] In R v Flay,[7] the offender was sentenced to nine months' supervision and
50 hours community work in respect of one charge of unlawful possession of a firearm. In that case the firearm was inoperable and there was no ammunition. Similar non-custodial sentences were made in Solicitor-General v Matoe[8] and
Morgan v Police.[9] However this case is distinguishable as the firearm was operable
and ammunition was located in close proximity to it.
[7] R v Flay HC Auckland CRI-2007-090-7023, 28 May 2009.
[8] Solicitor-General v Matoe HC Auckland CRI-2003-404-1331, 24 June 2004.
[9] Morgan v Police HC Wellington AP174/95, 13 September 1995.
[21] The Court of Appeal indicated in R v Corner[10] that in the absence of special circumstances, possession of firearms will normally lead to imprisonment, especially if there is evidence to suggest that their use might have been contemplated in a criminal connection. Due to the appellant’s gang connections and the related burglary where this firearm was obtained, one can infer that the use of this firearm had some criminal connection. In Solicitor-General v Lyon[11] a starting point in the range of 12 to 18 months was identified as appropriate for possession of firearms that are held in connection to criminal activity. However, in that case there were a
large number of aggravating features which are not present in the current matter, including consumption of methamphetamine whilst in possession, the firearm being carried in a public place, the firearm being loaded, and more than one weapon involved over two separate incidents. The only aggravating factors present here are the firearm’s connection to gang-related criminal activity, and the fact that it was operable and found with ammunition. I assess this case as less serious than Lyon, and warranted a starting point of 14 months’ imprisonment.
[10] R v Corner CA291/87, 17 March 1988.
[11] Solicitor-General v Lyon HC Auckland CRI-2004-404-77, 11 July 2006.
[22] I cannot fault the cumulative sentence of six months’ imprisonment imposed by the District Court Judge in relation to the breaches of conditions of the appellant’s
release.
Summary
[23] I adopt the following cumulative sentences which reflect the seriousness of
the offending in each instance and Mr Karetu’s previous convictions: (1) One year imprisonment for:
(a) getting into a motor vehicle;
(b) refusing to provide a blood specimen; and
(c) careless driving causing injury.
(2)14 months’ imprisonment for possession of a firearm and ammunition;
(3) Six months’ imprisonment for breach of release conditions.
[24] This produces an end starting point of two years eight months’ imprisonment. I apply the same 25 per cent reduction as the District Court Judge for the appellant’s guilty plea. This produces an end sentence of two years’ imprisonment.
Conclusion
[25] The appeal is allowed and the sentence of two years three months’
imprisonment is substituted for a period of two years’ imprisonment All other orders and sentences made by the District Court are upheld.
D B Collins J
Solicitors:
Public Defender Southern for Appellant
Crown Solicitor, Dunedin for Respondent
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