Kati v Police HC Napier CRI-2011-441-000019
[2011] NZHC 1008
•11 July 2011
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2011-441-000019
BETWEEN MARLEY JAMES KATI Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 7 July 2011
Appearances: M J Phelps for Appellant
J D Lucas for Respondent
Judgment: 11 July 2011 at 5:00 PM
JUDGMENT OF COURTNEY J
Solicitors: Elvidge & Partners, P O Box 609, Napier 4140
Fax: (06) 835-0557 – J Lucas
Counsel: M J Phelps, C/o Tony Snell Barrister, 305 Market Street South, Hastings 4122
Fax: (06) 870-3301
KATI V NZ POLICE HC NAP CRI-2011-441-000019 11 July 2011
[1] Mr Kati appeals his sentence of 18 months imprisonment imposed in the District Court at Napier on charges of burglary, breach of community work and breach of bail. The lead charge of burglary related to Mr Kati’s burglary of his neighbour’s property. He forced entry into the property and stole items with a total value of about $900. Although a relatively modest amount these items represented the only items of value owned by the victim.
[2] Judge Adeane, citing R v Columbus[1] and Senior v Police,[2] took a starting point of two years imprisonment for the burglary which he described as a very deliberate burglary of a private dwelling house with a motive of stealing for profit. A discount of 25% was allowed for Mr Kati’s guilty plea with the result of a final effective term of 18 months imprisonment.[3]
[1] R v Columbus CA608/07, 27 June 2009.
[2] Senior v Police (2000) 18 CRNZ 340.
[3] Sentences of one month imprisonment on each of the charges of breach of community work and breach of bail to be served concurrently were also imposed.
[3] The Crown acknowledged that the starting point of two years was too high. However, Mr Lucas, for the Crown, took the position that the sentencing Judge could have, but did not, uplift the starting point to reflect Mr Kati’s previous convictions for burglary and other offences and, as a result, the final result was not manifestly excessive.
[4] For Mr Kati, Mr Phelps argued that a starting point of 12 months with an uplift of three to four months to reflect previous convictions would have been appropriate and that, after reduction for a guilty plea, the appropriate end sentence would therefore have been in the range of 12 months imprisonment. It follows, in Mr Phelps’ submission, that the final sentence imposed was manifestly excessive.
[5] I begin with the issue of the starting point. Although Mr Lucas has acknowledged that the starting point taken by the sentencing Judge was too high, there is still difference beween he and Mr Phelps as to what the appropriate starting point would have been. Mr Lucas contends for 18 months and Mr Phelps for 12
months.
[6] The burglary was an opportunistic one and did not involve vandalism or wanton damage to the property. Nor were the items taken of significant value and they were recovered by the police. On the other hand, the burglary was of a residential address (compared, for example, to Columbus) and did involve forced entry. Mr Phelps referred me to a number of burglary cases having some similar
characteristics in which sentences of 12 months or less had been imposed.[4]
Mr Lucas, by comparison relied on Snowden v Police.[5]
[4] Pearse v Police HC Hamilton CRI-2005-419-000117, 13 October 2005; Pecka v Police HC Napier
CRI-2004-441-000056, 14 February 2005; Whatarau v Police HC Napier CRI-2008-441-000024, 25
September 2008; Muriwai v Police HC Palmerston North CRI-2011-454-000010, 11 May 2011.
[5] Snowden v Police HC Hamilton CRI-2010-419-000052, 15 July 2010.
[7] In terms of the nature of the offending, this could not be said to be at the worst end of the continuum by any means. There were, however, aggravating features about the offending namely the forcing of entry and the fact that the victim was Mr Kati’s close neighbour (they both lived in the same duplex complex). Although the victim’s belongings were recovered the victim impact statement shows a understandable sense of grievance at the fact that Mr Kati was asked when the burglary was discovered if he had seen anything and lied at that stage.
[8] In these circumstances I consider that an appropriate starting point for this burglary would have been 14 months.
[9] I accept, as does Mr Phelps, that an uplift would have been open to the sentencing Judge to reflect Mr Kati’s previous convictions. Mr Kati also has 12 proved offences in the Youth Court which include shoplifting and three counts of burglary, which would have been available to be taken into account on any uplift.[6]
Further, Mr Kati has over 20 previous convictions in the District Court. Most of these are minor, including a number of driving-related offences. However, they do include several property-related offences including theft, wilful damage and unlawful taking of a motor vehicle. I consider that an appropriate uplift for the offending would have been four months which would have left a sentence, before reduction for the guilty plea, of 18 months. A reduction for the guilty plea would
have reduced this to 14 months.
[6] Kohere v Police (1994) 11 CRNZ 442 (HC).
[10] Although the difference is only a matter of a few months, Mr Kati is relatively young, at 22 years old and has had no prior sentences of imprisonment imposed. In the circumstances, I consider that the sentence was manifestly excessive. The appeal is allowed.
[11] The sentence for burglary is quashed and substituted with a sentence of 14 months.
P Courtney J
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