Kingi v Police HC Auckland CRI-2011-404-255
[2011] NZHC 1622
•17 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-255
ADRIAN FLOYD KINGI
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 3 October 2011
Counsel: J Edgar and G Vear for Appellant
WN Fotherby for Respondent
Judgment: 17 October 2011 at 4:00 PM
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 17 October 2011 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
J Edgar, G Vear, Public Defence Service, Auckland: [email protected]
W Fotherby, Meredith Connell, Auckland: [email protected]
KINGI V NEW ZEALAND POLICE HC AK CRI-2011-404-255 17 October 2011
Introduction
[1] Mr Kingi has appealed against a total sentence of three years and four months’ imprisonment on three charges of burglary, three charges of theft of petrol and two charges of unlawfully getting into a motor vehicle. Although Mr Kingi has seven previous convictions for burglary and previous convictions for a number of other offences, it is argued on his behalf that the sentence was clearly excessive when taking all relevant factors into account, and that the term of imprisonment
ought to be reduced.[1]
The offending
[1] Summary Proceedings Act 1957, s 121(3)(b).
[2] The summaries of facts which were accepted by Mr Kingi described offending which occurred between 17 November 2010 and 11 January 2011.
[3] On 17 November 2010, the appellant jemmied open the front door to a house in Avondale and took a large amount of electrical equipment and jewellery of an unspecified value. On 23 December 2010, Mr Kingi entered a flat in New North Road by breaking a toilet window. He rummaged through the house and removed property valued at $3,606.00. Then, on 11 January 2011, the appellant jemmied open the front door of a house in Henderson and removed from inside several electronic items and pieces of jewellery, also of an unspecified value.
[4] On 7 December 2010, a Mitsubishi Pajero motor vehicle was stolen from a house in Manurewa. It was located two days later in a damaged condition and subsequent DNA sampling provided a positive match to Mr Kingi.
[5] On 19 September 2010, a Toyota Estima Station Wagon was stolen from Papatoetoe; Mr Kingi claimed that he had purchased the vehicle from an associate for $1,500.00. Between 31 December 2010 and 11 January 2011, while using the stolen vehicle, Mr Kingi stole petrol worth $244.05 in total by driving away from the
service stations without paying.
[6] Mr Kingi told the probation officer that he committed the burglaries in order to raise money to pay for his methamphetamine habit. Although reparation was sought by the victims, it was clear from the pre-sentence report that Mr Kingi was in no position to make any payments, among other things, he owed a significant sum in unpaid fines. No doubt taking account of the sentence of imprisonment imposed, no reparation payments were ordered.
[7] While some of the victims, but not all, were insured, all of them suffered loss to a greater or lesser degree. In relation to the burglaries and thefts from what the Judge described as properties in ordinary working class districts in West Auckland, the victims, which included young children, lost irreplaceable items of sentimental value, among other things. They also suffered a sense of intrusion and violation and understandable distress.
The appellant
[8] Mr Kingi is an apprentice carpenter aged 34 years. He is said to have had a tumultuous upbringing leading to his running away from home and beginning a criminal lifestyle. It is said that periods of work in menial roles during Mr Kingi’s adult years were interrupted by spells of unemployment and imprisonment. To his credit, Mr Kingi was studying carpentry at Auckland Unitec at the time of the offending, and was hopeful of finding employment once his qualifications were complete, notwithstanding the difficulties presented by his long history of previous convictions of a total of more than 30 offences.
[9] Although Mr Kingi was living in a supportive environment with his sister and her young family, he was said to have succumbed to a harmful and ongoing habit of illicit drug use.
[10] When interviewed for the pre-sentence reports, Mr Kingi displayed no evidence of victim empathy.
What occurred on initial sentencing date
[11] Before turning to the Judge’s reasons for the sentence he imposed, I record that Mr Kingi was due to be sentenced on 25 May 2011 on the motor vehicle and petrol charges. A pre-sentence report had been provided on those charges but, on the day he was due to be sentenced, Mr Kingi also pleaded guilty to the three burglary charges. He had been advised before the case was called that the sentencing would have to be deferred pending the preparation of a further pre-sentence report dealing with those offences. Ms Vear told me, however, that the Judge indicated he was not prepared to defer the burglary sentencing to another date, but stood the case down so that counsel could take further instructions and make submissions in respect of the additional offences. During the adjournment, Mr Kingi fled from the Court.
[12] He subsequently contacted counsel and said that he realised with the additional convictions he was likely to be sentenced to imprisonment, rather than home detention or a community-based sentence as had been suggested on the lesser charges, and needed to make arrangements. They included explaining to Unitec why he would not be completing his course.
[13] Although Mr Kingi made arrangements to make a voluntary appearance at a later date, he was instead arrested and remanded in custody until 7 July 2011 when Judge Gibson sentenced him.
The Judge’s remarks on sentencing
[14] In his sentencing notes, the Judge recorded the appellant’s personal circumstances, including his previous history of offending. He referred to the circumstances of the offending, particularly the burglaries, and noted the distress to victims, the lack of empathy, and the inability to pay reparations. The Judge said:
[5] The purposes of sentencing are set out in s 7(1) Sentencing Act 2002. They include the need to hold the defendant accountable for the harm to the community and instil in him responsibility, denounce his conduct so that the sentence might act as a deterrent not only to himself but to others, and also to protect the community which in the context of burglary is a significant factor and, as it is often said, that the community is entitled to
a rest from burglars and the West Auckland community is entitled to a rest from Mr Kingi.
[15] The Judge noted that, in respect of the lead offences of burglary, the Courts do not apply a tariff-based approach to sentencing but suggested that Mr Kingi would fit within Category 2 of the burglars described in Senior v Police.[2] That category comprises recidivist burglars of which Mr Kingi would appear to represent a typical case as described at [30]:
[30] The more typical case in this category is likely to involve a burglar who has appeared on previous occasions (with perhaps 20 or 30 previous convictions for burglary) and who is appearing for sentence on only one or a limited number of offences. This burglar will probably be a professional burglar in the sense of being a person who burgles and steals for a living and often enough to sustain a drug habit but at what might be regarded as a subsistence level.
[2] Senior v Police (2000) 18 CRNZ 340.
[16] The Court said in Senior, after analysing a number of sentences imposed in cases falling into that category, that apart from one, the starting point did not exceed four years and the maximum sentence imposed was three years.
[17] Judge Gibson also referred to Guest v Police [3] in which he said White J had adopted a starting point of two-and-a-half years for a relatively unsophisticated burglary of commercial premises that did not have the aggravating feature present here of burglary of dwelling houses, and imposed an uplift of 18 months where the list of previous convictions was not dissimilar to that which the appellant has.
[3] Guest v Police HC Whangarei CRI-2010-488-63, 24 March 2011.
[18] The Judge then said he would take a slightly higher starting point than that in Guest, on account of the fact that he was also sentencing for the charges of unlawfully getting into a motor vehicle and the theft of petrol. He adopted the previous convictions as an aggravating feature and also took into account the fact that there were burglaries of dwelling houses over a period of a few months. He said that he would set the starting point at three years’ imprisonment and then added a further one year’s uplift on account of the previous convictions. With regard to the previous convictions, he said he took account of their number and the fact that they
included a number of previous convictions for burglary.
[19] That got the Judge to the point of what he described as “the end sentence before discounts are applied” of four years’ imprisonment.
[20] Applying a discount of 15 percent for the guilty plea, without explaining how he had reached that figure, the Judge sentenced Mr Kingi to three years and four months’ imprisonment on the burglary charges with concurrent sentences of one month imprisonment for each of the petrol theft and one year’s imprisonment for the unlawfully getting into charges.
The grounds of challenge to the sentence
[21] In comprehensive and helpful submissions, Ms Vear argued three principal grounds in support of the submission that the sentence was clearly excessive:
(a) an excessive uplift for previous convictions;
(b)a failure to take into account restrictive bail conditions imposed on Mr Kingi during the approximately four month period leading up to the imposition of the sentence; and
(c) a failure to adequately recognise Mr Kingi’s early guilty pleas.
[22] Ms Vear also argued that the Judge had failed to stand back and consider the totality principle in imposing the final effective sentence.
[23] In support of her argument, she suggested that the comparison which the Judge drew with Guest was inaccurate, in that one of the two burglary charges in Guest did involve a dwelling house. It was said in that case that the appellant and an associate gained access as a result of deceiving the boarder of the home and that at least one person was home, and distracted, at the time of the offence. Ms Vear submitted that, given that there was no one home at the time of any of the offences committed by Mr Kingi, and that those offences did not involve the same degree of premeditation, planning and active deception as was involved in Guest, it was not correct to categorise the present case as being more serious than Guest.
[24] Further, Ms Vear made a comparison with R v Columbus,[4] in which the Court of Appeal reduced a sentence of two years and three months’ imprisonment to a period of one year and 10 months for offending which involved a residential burglary, theft of a lawnmower from a residential property, petrol theft and possession of a cannabis pipe and cannabis. Ms Vear acknowledged that Columbus involved fewer offences, but said the gravity of the offending was comparable and that the case might provide some assistance.
[4] R v Columbus [2008] NZCA 192.
[25] In Columbus, the appellant had initially pleaded not guilty and had been committed for trial on the indictable charges. It appeared the District Court Judge who imposed the initial sentence had double-counted the offender’s previous convictions when both setting the starting point and including an uplift for prior convictions.
[26] The burglary in that case was described as being at the minor end of the scale and the Court of Appeal took 12 months’ imprisonment as the starting point. The Court added six months because the offences had been committed while on bail, and added a further 12 months for the previous offending. This latter uplift was added not as punishment, a second time, for the prior offending but to recognise the characteristic for Category 2 offending, into which Mr Columbus fell, as requiring an additional element of prevention given the recidivist nature of the offending. From what the Court in Senior described as the end starting point of two-and-a-half years’ imprisonment, the Court of Appeal considered that the Judge had over-compensated for the guilty plea by allowing 35 percent and considered a discount of just above
25 percent appropriate, leaving an end sentence of one year and ten months.
[27] Ms Vear submitted that Judge Gibson failed to give any consideration to the impact of restrictive bail conditions on the proper sentence for Mr Kingi. The appellant had been bailed between 19 January 2011 and 15 February 2011 on a 24- hour curfew, without breach. The curfew was relaxed to an overnight curfew for a further four months during which the appellant was subjected to disruption by night- time Police checks. She acknowledged that there were two breaches, which I infer to
have been of a relatively minor nature given that bail was not revoked. In the end
Ms Vear put her submission, realistically, on the basis that the restrictive bail condition was a matter which might rightly have given rise to a discount on sentencing, although not a significant one.
[28] As to totality, Ms Vear suggested that the Judge had failed to stand back and take a broad look at the totality of the appellant’s criminal behaviour. She argued that while the submitted failures of the Judge to adequately recognise the appellant’s early guilty pleas and restrictive bail conditions, and the excessive uplift for previous convictions, may not have resulted in an excessive sentence when taken individually, the cumulative effect of these purported errors resulted in a sentence which was clearly excessive in the circumstances.
The respondent’s submissions
[29] For the respondent, Mr Fotherby emphasised the approach taken in Yorston v Police,[5] in which Andrews J summarised the Court of Appeal’s approach in R v Shipton,[6] which was applicable to appeals under s 121 Summary Proceedings Act, as follows:
[5] Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010.
[6] R v Shipton [2007] 2 NZLR 218.
(a) there must be an error vitiating the lower courts original sentencing discretion: the appeal must proceed on an “error” principle;
(b) to establish an error in sentencing it must be shown that the Judge in the lower court made an error, whether intrinsically or as a result of additional material submitted to the appeal Court; and
(c) it is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
[30] Mr Fotherby submitted that this approach had been endorsed by the Supreme Court in Kacem v Bashir,[7] where the Court said, referring to its earlier judgment in Austin, Nichols & Co v Stitchting Lodestar,[8] that:
[7] Kacem v Bashir [2010] NZSC 112, at [32].
[8] Austin, Nichols & Co v Stitchting Lodestar [2007] NZSC 103.
... those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general approach is to be distinguished from an appeal against
a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.
[31] Mr Fotherby submitted that the Courts have always treated sentencing as involving the exercise of a discretion and said that proceeding on the basis of error correction precluded “tinkering” with sentences which fell within a suitable range. He submitted that a sentence appeal is not an opportunity for an appellant to have “a second shot at sentencing”.[9]
[9] Polyanszky v R [2011] NZCA 4, at [17]-[18].
[32] It was argued for the respondent that the case fell within the range available to the District Court Judge, bearing in mind overall the nature of the offending and the appellant’s previous convictions. Mr Fotherby noted that, although the appellant had pleaded guilty, the pre-sentence report recorded that there was no evidence of victim empathy, a questionable motivation to change, and an assessment that the appellant represented a moderate risk of reoffending.
The correct approach to a sentencing appeal
[33] In the course of argument, Mr Fotherby engaged with my suggestion that, in the light of the Supreme Court’s views in Austin, Nichols, it may not be entirely appropriate to describe a sentencing appeal as being wholly one against the exercise of a discretion. Mr Fotherby reminded me of the approach taken by other Judges of this Court suggesting that nothing in Austin, Nichols was intended to apply to appeals against sentence.[10]
[10] See, for example, D v Police HC Tauranga, CRI-2008-470-22, 9 September 2008, and Shortland v Police HC Hamilton, CRI-2009-419-57, 8 December 2009.
[34] In keeping with Simon France J in Palmer v Police,[11] I do not think it appropriate for me to ignore binding authority and hold, at this level, that sentencing is not to be seen as an exercise of discretion. Nevertheless, I agree with the
[11] Palmer v Police HC Wellington, CRI-2008-485-112, 30 October 2008.
following sentiments of Simon France J, where he said: [12]
[12] at [61].
[61] ... It is difficult to see that most aspects of the sentencing exercise are any more of a discretionary process than the issue in Stichting Lodestar where the decision maker had to decide if two trade marks were likely to cause confusion. The sentencing exercise is one that is governed by many rules and principles. Statute fixes the initial ambit, binding case law often sets more precise ambits, and the Act sets out a series of mandatory factors that must be considered. The analysis in Rajamani, not a sentencing case, suggests many of the decisions that lead up to the fixing of the sentence fall with the Stichting Lodestar approach. The reality will then be that the ambit of any discretion is severely curtailed by those prior decisions. The correct answer may be that some aspects of a sentencing are subject to a Stichting Lodestar approach, and other aspects to an “appeal from the exercise of discretion” approach.
[35] It is strongly arguable that a sentencing Judge’s determination of how much of a discount should be allowed for a guilty plea, bearing in mind the particular circumstances in which a the plea was entered, is more strictly a discretionary exercise than the value judgment involved in determining an appropriate starting point by reference to either a sentencing tariff or a categorisation such as that required for burglary cases. A similar view might be taken of the determination of the uplift for offending having been committed while on bail.
[36] In the end, however, it may not make much difference how the approach is characterised; an appellate court will interfere if satisfied that the lower court has erred in its approach and produced an outcome which falls outside the range of sentences, or the type of sentence, which was properly available.
Discussion of the present case
[37] In the present case, I consider the District Court Judge was entitled to regard the nature of the offending and the appellant’s history of offending as justifying a starting point, before the application of a discount on account of factors personal to the appellant, of not less than four years. In order to support his own drug use, the appellant simply resorted to invading the homes of private citizens to steal their personal belongings and dispose of them, no doubt at prices much less than their true value, causing losses for which they could never be adequately compensated. The pre-sentence report indicated that he presented a moderate risk of offending in the same way in the future. It appears that previous sentences of imprisonment for similar offending have failed to achieve any deterrent effect and the Judge was right
to consider that a significant term of imprisonment was necessary to protect the community from this particular offender.
[38] I agree with Mr Fotherby that the restrictive terms of bail over a relatively short period did not warrant any discount when considered in balance with the breaches of bail terms and the appellant’s absconding from Court.
[39] The one aspect of the Judge’s approach which troubled me is that he did not explain why a greater discount than 15 percent should not have been allowed for the appellant’s guilty pleas, which were entered at early stages in the prosecution process. A reduction of 25 percent on account of the guilty pleas may have been well merited and that would have produced an end sentence of three years’ imprisonment, rather than the three years four months imposed.
[40] Nevertheless, standing back and looking at the totality of the offending, including the unlawful getting into of motor vehicles and the petrol thefts, I do not think it can be said that the end sentence imposed in this case, while tending to the higher end of the range, was outside the range available to the District Court Judge.
[41] On the basis of careful consideration, therefore, I have concluded that I would not be justified in saying that there was any error in the Judge’s approach which produced a sentence which was not available to him in the circumstances.
[42] The appeal is dismissed accordingly.
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Toogood J
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