Kauwhata v The Queen

[2010] NZCA 437

IN THE COURT OF APPEAL OF NEW ZEALAND

CA192/2010
[2010] NZCA 437

BETWEENHEMI HEREMAIA KAUWHATA

Appellant

ANDTHE QUEEN

Respondent

Hearing:8 September 2010

Court:O'Regan P, Stevens and Simon France JJ

Counsel:E J Forster for Appellant

A Markham for Respondent

Judgment:24 September 2010 at 12.30pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]        This is a somewhat unusual sentence appeal.  Judge McIntosh sentenced Mr Kauwhata to a term of two years, nine months’ imprisonment in relation to four burglary charges.  He accepts the sentence was available and in accordance with authority.  However, he says that three days earlier the same Judge treated a similar offender much more leniently and therefore his sentence is unfair and should be reduced.

[2]        In this judgment we examine first why the two cases are not comparable, and then comment briefly on the availability of a disparity argument based on the sentences of unconnected offenders.

The two cases

(a)         Mr Kauwhata

[3]        Mr Kauwhata faced charges in relation to four burglaries.  He pleaded guilty to one, and was found guilty, following jury trial, of the others.  Three of the premises were commercial in nature, and the fourth was of a Golf Club.  The total reparation bill over the four burglaries was $6,082.61. Mr Kauwhata maintains his innocence in relation to the charges, to which he pleaded not guilty.

[4]        Mr Kauwhata is 31 years old and in a stable relationship.  He has a number of previous convictions, although the prior offending stopped ten years ago.  The offending, which occurred in Australia, involves “stealing” (x 6), burglary (x 6), receiving (x 2) and miscellaneous other offending, the most significant of which was armed robbery.

[5]        For the four offences the Judge took a total starting point of four years, noting that there was a gang connection to the offending.  There was next a six month uplift for the previous record.  The Judge then reduced the sentence to two years, nine months to reflect the guilty plea, and some co‑operation with the police.  The police do not accept the latter point in that seemingly the information Mr Kauwhata provided was incorrect.

[6]        Mr Kauwhata’s sentence is a classic example of the principle that on appeal the focus must be the end sentence.  Whilst one might debate the correctness of four years as a starting point, there was then applied a reduction of 40%.  Yet, Mr Kauwhata pleaded guilty to only one of the four counts, showed no remorse in relation to the others, and at best tried to assist police.  In such circumstances an overall reduction of 20% would have been generous; 40% was unavailable.

(b)         Mr Robert Kemp

[7]        Mr Kemp was sentenced on one charge of burglary, two counts of theft and four charges of breach of release conditions.  Concerning the burglary, Mr Kemp broke into a house where he knew the occupants.  He stole a laptop.  It was recovered.

[8]        There is no summary of facts concerning the other charges which relate to theft from a vehicle, with property of a value less than $500 taken each time.  The sentencing remarks likewise do not elaborate on the offending.

[9]        Mr Kemp is 29 years old.  The Judge described his pre-sentence report as making sad reading.  He has numerous previous convictions, and in October 2006 received a three year jail term on four counts of burglary.  Taking together shoplifting, theft, and unlawfully on premises, there are 11 other convictions of this type.  His miscellaneous other convictions have none of the seriousness of Mr Kauwhata’s aggravated robbery, but are more numerous in terms of bail breaches and the like.

[10]       Mr Kemp was reported as recognising the role of addiction in his offending, and as being willing to address this.  He had tried to go straight after being released from prison, but had failed to control his drinking.  He was remorseful and frustrated by his failure to keep out of trouble.

[11]       The Judge noted Mr Kemp had been doing well on parole until the present offending.  She took a starting point of 18 months, uplifted it for previous offending by one year and then gave a one third discount for the very early plea.  The final sentence was one year ten months.

(c)         A comparison?

[12]       Putting aside the individuals, the cases offer no proper basis for comparison, or concern.  Mr Kauwhata appeared on four burglaries; Mr Kemp on one, plus some comparatively minor offending that attracted a one month concurrent sentence.  Mr Kemp received twice the uplift for his past offending that Mr Kauwhata did.  If one focussed only on the vastly different starting points, there might be an argument, although we doubt it. However, the reality is that if Mr Kauwhata’s starting point is inflated, it is then immediately offset by an equally inflated discount.

[13]       At the end of the day Mr Kauwhata received less than a year more than Mr Kemp despite being been sentenced on three extra burglaries, and, unlike Mr Kemp, not having pleaded guilty.  He has no basis for complaint.

[14]       If one factored in the offenders themselves, the case for comparison becomes even less meritorious. Mr Kemp had insight into his offending, was remorseful and was willing to attack his addictions. Suffice to say Mr Kauwhata did not present such a picture.

Disparity on unrelated cases

[15]       Given the lack of any concern about the particular cases, we consider it unnecessary to more than briefly comment on the appeal ground itself.  Mr Forster relied on R v Wimmer.[1]  At issue there were two young offenders aged 19 and 20 respectively.  Each had committed arson.  Ms Wimmer was sentenced to 12 months’ imprisonment.  Three days later a different High Court Judge sentenced the other offender to a sentence of eight months periodic detention and 12 months supervision.

[1]      R v Wimmer CA408/90, 7 February 1991.

[16]       The Court of Appeal admitted to disquiet as to the disparate outcomes.  It observed Ms Wimmer had spent three weeks in prison and considered a similar term of eight months periodic detention could now be imposed.

[17]       Hall’s Sentencing

refers to three High Court appeals where approaches

similar to Wimmer have since been taken.[2]  It is neither necessary nor appropriate to comment on those particular cases.  We do observe, however, that the relative paucity of such cases highlights the difficulty of making good this ground of appeal.  A high degree of similarity in circumstances will be necessary before it can be said that justice appears to have miscarried in the sentencing process of unrelated offending and offenders.

[2]Geoffrey G Hall (ed) Hall’s Sentencing (loose-leaf ed, Lexis Nexis) at [APPII.6.8].  In addition to the Wimmer type cases, the text mentions two other categories as being comparable to Wimmer.  They are drug sentencings arising from the same undercover operation, and separate offending by family members on the same victim.

[18]       It is important to recall that what is at issue is the correctness of the sentence under appeal.  That correctness is almost always to be measured by reference to the relevant binding authorities.  Accordingly, whilst we accept that disparity between unconnected cases is an available basis for appeal, we emphasise the need for that high degree of similarity in the circumstances of each case and each offender before it can be advanced as a valid concern.

Solicitors:

Crown Law Office, Wellington