Kikoro v Police HC Whangarei CRI 2010-488-24
[2010] NZHC 1759
•6 October 2010
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2010-488-000024
BETWEEN TAPUTOA KIIKORO Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 6 October 2010
Appearances: R Bowden for Appellant
E P Henderson for Respondent
Judgment: 6 October 2010
(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]
Counsel: R J Bowden, P O Box 1862, Whangarei 0140
Solicitors: Marsden Woods, Inskip & Smith, P O Box 146, Whangarei 0110
KIIKORO V NEW ZEALAND POLICE HC WHA CRI 2010-488-000024 6 October 2010
Introduction
[1] Mr Kiikoro appeals against an overall sentence of two years and six months imprisonment imposed in the District Court at Kaitaia on 22 April 2010, on one charge of unlawfully taking a motor vehicle, one charge of burglary, three charges of theft, and one charge of resisting arrest.
Relevant facts
[2] The relevant facts are that on 8 December 2009 the appellant went to a car yard in Manurewa and inquired about a Toyota Hilux vehicle, valued at $20,000, indicating that he wanted to take it for a test drive. The salesman gave the appellant the keys and allowed him to drive off. The appellant did not return the vehicle but instead drove it north. He stopped at the Silverdale Rugby Club and smashed the rear window of a car and removed several CDs, together with the rear number plate and licence label for the car.
[3] Then on 4 January 2010, the appellant went into a liquor outlet in Kaitaia and attempted to shoplift four cans of a premix drink by hiding them in his clothing. He was stopped by staff and had two cans taken from him. He then walked up the road to another liquor outlet, went into the chiller room, took a can of beer and drank it in the chiller room.
[4] On 6 January 2010 the appellant was stopped by Police for a routine licence check. The Toyota Hilux was displaying the stolen licence label. When Police attempted to discuss this with him the appellant became aggressive and gave a false name and date of birth. He was then arrested for giving a false name. As he was being escorted to the Police car the appellant became violent, thrashing about and attempting to escape. On being placed in the Police car, he made himself vomit and spat that vomit throughout the Police car.
[5] The appellant was granted Police bail. However, on 10 January 2010 he then, in the Judge’s words, “had some difficulties with the man next door”. As a
result he broke into the neighbour’s house and removed a wallet and a cellphone. He discarded the wallet shortly thereafter but used the cellphone until its credit ran out.
Decision under appeal
[6] The District Court Judge placed emphasis on the need for accountability, denunciation, deterrence and, to some extent, protection of the community. He also noted that he was required to impose the least restrictive outcome, and that he must have regard to consistency in sentencing levels.[1] The sole aggravating factor was identified as the appellant’s “appalling” previous record, and the sole mitigating factor was the appellant’s guilty plea.[2] The Judge noted that the pre-sentence report described the appellant as a self-assured man who had survived with minimum personal responsibility and was likely to offend in the same way in the future.[3]
[1] At [8].
[2] At [9]–[10].
[3] At [11].
[7] The Judge then considered s 16 of the Sentencing Act 2002. That section sets out mandatory considerations when a sentence of imprisonment is being considered. The Judge reaffirmed the need for denunciation and deterrence. The Judge then set a starting point for the burglary at two years and six months imprisonment. That starting point encompassed the appellant’s previous convictions for burglary. An uplift of one year was then applied for the unlawful taking of the motor vehicle. The Judge then noted that a further, but unspecified, uplift would be appropriate for the appellant’s other offending. The Judge then noted that the theft and the burglary were quite separate so that there must be a cumulative aspect. A full one-third
discount was recognised as appropriate for the guilty pleas.[4]
[4] At [12].
[8] The Judge then observed that, in accordance with the principles of sentencing, a community-based sentence could not be imposed. On the charge of unlawfully taking a motor vehicle, he sentenced the appellant to one year’s imprisonment. He sentenced the appellant to 18 months imprisonment on the burglary charge, cumulative on the sentence for unlawfully taking. Finally, the Judge sentenced the appellant to one month’s imprisonment on the theft charges, and
one month’s imprisonment for the resisting Police charge, to be served concurrently.[5]
Submissions
[5] At [13].
[9] In his written submissions, Mr Bowden relied on three broad grounds. First, that the unlawful taking sentence was manifestly excessive. Secondly, that the burglary sentence was similarly excessive; and thirdly that the imposition of cumulative sentences failed to take into account the totality principle. In his written submissions, leave to apply for home detention was also sought but that was abandoned at the appeal hearing.
[10] In his oral submissions, Mr Bowden acknowledged that a sentence of 12 months imprisonment while, as he submitted, harsh, was available to the Judge for the unlawful taking. Further, he acknowledged that cumulative sentences were appropriate for the unlawful taking and the burglary.
[11] The main thrust of Mr Bowden’s submissions on appeal was that the sentence of 18 months imposed for the burglary was manifestly excessive. He submitted that the Judge had not followed the approach set out in R v Columbus,[6] in that he had not properly considered the facts and circumstances of that offending. He submitted that had the Judge done so then the starting point for the burglary sentence should have been seen at the very lower end of the scale. Mr Bowden submitted that an
appropriate cumulative sentence for the burglary would have been no more than six to nine months imprisonment. He acknowledged that the appellant’s previous convictions for similar offending could be taken into account, but would not have required any substantial uplift.
[6] R v Columbus [2008] NZCA 192 at [12]–[15].
[12] On behalf of the Crown, Ms Henderson submitted that the starting point adopted by the Judge for the burglary was appropriate, that the end sentence imposed was well within range, and that the total sentence of 2 ½ years imprisonment imposed on the appellant was appropriate.
[13] Specifically, with respect to the burglary sentence, Ms Henderson submitted that whether considered in the context of an uplift to a starting point, as indicated in R v Columbus, or in the categorisation of the appellant as a “recidivist burglar” in terms of Senior v Police,[7] those previous convictions were properly taken into account and did not result in an excessive sentence.
Discussion
[7] Senior v Police (2000) 18 CRNZ 340.
[14] As noted earlier, it is acknowledged that cumulative sentences were appropriate. The only issues for consideration are whether the sentence imposed for the burglary was clearly excessive; and whether the overall sentence should available been reduced on account of totality.
[15] In his written submissions Mr Bowden referred to further factual matters offered by the appellant in respect of the burglary charge. He accepted that there is some difficulty for him in raising new facts, when this is not an appeal against conviction. I note that those matters did not form part of the summary of facts to which the appellant pleaded guilty.
[16] The Judge’s sentencing methodology was somewhat unorthodox in some respects, particularly so in that he applied an uplift to the starting point for the sentencing on the burglary charge to take account of the charge of unlawfully taking all motor vehicle, and then imposing a discrete cumulative sentence on that charge.
[17] When the sentencing judgment is read carefully, it appears to me that the Judge approached sentencing of the appellant on a global basis, looking at the totality of the appellant’s offending. The Judge then made adjustments required for matters such as the appellant’s previous convictions, before then applying the appropriate discount for the appellant’s guilty plea. Having arrived at an end sentence in this manner for the totality of the appellant’s offending, the Judge appears then to have apportioned the sentence between the burglary and unlawful taking charges, to be served as consecutive sentences, with short concurrent sentences being imposed for the remaining charges.
[18] It is also arguably incorrect for the Judge to have reached a starting point for the burglary that encompassed the appellant’s previous convictions in light of such decisions as R v Columbus, where the Court of Appeal stated that the correct approach to burglary sentencings is to assess a starting point that focuses on the elements of the offending, rather than the offender, and then to make any uplift from that starting point to reflect the extra criminality disclosed by previous convictions.
[19] In accordance with R v Columbus the correct approach would have been to fix a starting point, by reference to the offending itself, followed by uplift for the appellant’s previous offending. That would avoid difficult questions as to whether the appellant is properly categorised as a recidivist burglar.
[20] The overall focus however, must be on whether the end sentence is reflective of the totality of the appellant’s criminality. As was noted in the judgment in Horne v Police:[8]
[20]That said, there is clear authority that, although there may be different judicial approaches to a particular sentencing methodology, the end result must focus on the principle of totality.
[8] Horne v Police HC Whangarei CRI-2008-488-75, 5 February 2009.
[21] Accordingly, the most appropriate course, for this appeal, is to consider the appropriate sentences for the offending in accordance with R v Taueki,[9] and then to compare that result to the Judge’s result in this case.
[9] R v Taueki [2005] 3 NZLR 372 (CA) at [42]–[44].
[22] Taking the burglary charge as the lead offence, that charge involved two aggravating factors. It involved an unlawful presence in a dwelling place, and it was committed while the appellant was on bail. The maximum penalty for burglary is ten years imprisonment. I have concluded that a conservative starting point of two years imprisonment would have been appropriate in this case, bearing in mind the aggravating factors.
[23] Some uplift would then have to be made to reflect the appellant’s three previous convictions for burglary, one for unlawfully being in a yard, and for shoplifting. For those an uplift, again conservative, of three months would have
been appropriate taking the adjusted starting point to, at least, two years and three months imprisonment on the burglary charge.
[24] After a discount of one-third for the appellant’s guilty plea, that would take the end sentence on the burglary charge to around 18 months imprisonment.
[25] The unlawful taking charge involved aggravating factors. The offending was clearly premeditated, given the appellant’s acknowledgement that he had been planning to travel to the north and had no other means by which to get there. It is also the case that the appellant was abusing a position of trust in that the car salesman had trusted him to return the car following the test drive. The maximum penalty for unlawful taking is seven years imprisonment. In the light of the premeditation and abuse of trust, I have concluded that this was not a minor offence of unlawful taking. A conservative starting point of 18 months imprisonment would have been appropriate.
[26] I would not have made any uplift for previous convictions, so as to avoid double counting or the uplift already given in respect of the burglary charge. However, some uplift would have to be made to reflect the fact that the appellant was receiving concurrent sentences on the three theft charges and the charge of resisting arrest.
[27] In particular the theft involving the car at Silverdale requires recognition. It shows a continuing course of criminal conduct linked to trying to cover up the unlawful taking. Further, the conviction for resisting arrest also requires recognition and denunciation. I have concluded that an uplift of at least three months would have been appropriate to recognise the appellant’s additional offending, to take the sentence for the unlawful taking to 21 months imprisonment. Again, applying a full one-third discount that would take the end sentence, on the unlawful taking charge, to around 14 months imprisonment.
[28] A straight addition of the two sentences would then take the effective end sentence, which I have assessed conservatively, to 32 months imprisonment, that is two years and eight months. Making an adjustment for totality that result, in my
view, clearly suggests that the Judge’s end sentence of 2 ½ years imprisonment which was reached in a somewhat unorthodox manner, was clearly within the range available to him. I do not think that any further adjustment for totality could justify the sentence falling to such an extent that it could be said that 2 ½ years imprisonment was clearly excessive.
[29] Having gone through the process of re-calculating the sentence imposed on the appellant, I cannot conclude that there is any compelling reason to depart from the sentence imposed in the District Court.
[30] I am not able to conclude that the sentences were clearly excessive, whether taken individually or in total, and I am satisfied that the appropriate discounts have been applied.
[31] Accordingly, the appeal is dismissed.
Andrews J
0
2
0