Karetu v Police HC Dunedin CRI 2010-412-5

[2010] NZHC 233

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

CRI 2010-412-000005

BOYCEE LINTON KARETU

Appellant

v

POLICE

Respondent

Hearing:         11 March 2010

Counsel:         L Herbke for Appellant

R D Smith for Respondent

Judgment:      11 March 2010

JUDGMENT OF FOGARTY J

[1]      Mr Karetu appeals his sentence  of  one  year  eight  months  imprisonment

imposed by Judge Coyle in the Dunedin District Court on 21 January following his guilty   pleas   to   charges   of   burglary,   breach   of   release   conditions,   breach   of community work (x 2) and possession of an offensive weapon.

[2]      The appeal is on the grounds that the sentence imposed was manifestly excessive; that the Judge adopted a starting point that was too high; that he erred in taking  account  of  the  appellant’s  previous  convictions  when  assessing  a starting point  in  addition to  applying an  uplift  for  those  previous  convictions;  and,  that  he erred in assessing unlawful entry as an aggravating feature.

KARETU V POLICE  HC DUN CRI 2010-412-000005  11 March 2010

[3]      The  response  of  the  Crown  was  to  acknowledge  that  the  Judge  should  not have assessed unlawful entry as an aggravating feature when it was an element of the offence.

[4]      As to the way in which the Judge took account of previous convictions when assessing the starting point and applying  an  uplift,  there  is  room  for  a  degree  of different approaches taken by sentencing Judges. The Crown relied on the decision of the Court of Appeal in R v Columbus [2008] NZCA 192 for guidance.

[5]      The Court acknowledges that when sentencing burglars who have a number

of previous burglary and  related dishonesty convictions the starting point can take the appellant’s prior history into account. There is nothing in Columbus, however, which suggests that the same features can be taken into account a second time.

[6]      In this regard the learned Judge was entitled to take account of the appellant’s previous convictions at some stage in the sentencing process.   Inasmuch as he had five  previous  convictions  for  burglary  in  the  District  Court  and  one  in  the  Youth Court, the Judge is entitled to take that into account, in my view, when considering the  starting  point  on  the  basis  of  sentencing  as  a  burglar,  perhaps  not  a  recidivist burglar  in  one  sense.        As  Mr  Herbke  points  out,  he  had  not  been  convicted  of burglary since 2004.

[7]      The Judge was also entitled to take into account the appellant’s long criminal history  and  the  fact  that  he  had  just  been  released  from  prison  for  offences  of violence in  April of 2009.   He was still associating with criminal  elements and in short, he has had a number of prison sentences and does not appear to be learning.

[8]      Mr Herbke submitted that the starting point should be 12 months but argued that  the  uplift  for  previous  offending  should  have  been  three  months,  and  for offending while on bail, another three months, a total of 18 months.

[9]      As a way of considering whether or not the sentence was excessive I think that  this  is  a  case  where  a much higher uplift for previous offending is justified, whether that is built into the starting point or added. In my mind it does not matter.

But either way, I think the Judge was entitled to take a starting point of around two years  imprisonment  as  he  did.  My  own  preference  would  have  been  to  take  a starting point of 12 months and provide for an uplift of 12 months.   I would have been  inclined  to  then  allow  a  discount  from  a  two  year  imprisonment  as  the offending on bail could be built into the overall uplift of 12 months.  It is agreed that there  is  a  discount  of  33%.      That  would  indicate  a  sentence  of  16  months  as compared to the end sentence of 20 months which the Judge imposed.

[10]     The question I have to consider is  whether  the  sentencing Judge’s  analysis which led him to amend the sentence of 20 months is manifestly excessive against an alternative approach that I have taken, as a hypothetical were I the sentencing Judge,

of ending up with 16 months.    There would be room to adjust the sentence.   But I am  simply not  satisfied  it  is  manifestly excessive  because  I  can  readily appreciate that  two  different  sentencing  Judges  dealing  with  the  same  facts  might,  on  these facts, differ to a reasonable degree as to what the appropriate sentence is.   I do not see in the reasoning of Judge Coyle any error of principle.  I regard the sentence as a severe one but within the range that he was entitled to reach having regard to all the criteria in the Sentencing Act.

[11]     Accordingly, this appeal is dismissed.

Solicitors:

Aspinall Joel, Dunedin, for Appellant

Wilkinson Adams, Dunedin, for Respondent