Kiri v Police
[2012] NZHC 2099
•17 August 2012
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2012-441-0017
CRI-2012-441-0018 [2012] NZHC 2099
BETWEEN TERIKA WILLIAM CHARLIE KIRI Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 14 August 2012
Appearances: E J Forster for Appellant
N M Graham for Respondent
Judgment: 17 August 2012
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 17 August 2012 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Elvidge & Partners, Crown Solicitor, Napier: [email protected]
Counsel: E J Forster, Napier: [email protected]
KIRI V POLICE HC NAP CRI-2012-441-0017 [17 August 2012]
Introduction
[1] The Appellant appeals against a sentence of two years, seven months’ imprisonment imposed by a District Court Judge at Napier in May 2012.1 The sentence was imposed in respect of one charge of aggravated burglary, one of receiving, one of theft and four of failing to appear to answer bail.
[2] The Appellant appeals on the ground that the Judge did not reduce the sentence on account of his youth. A further contention, namely that the Judge failed to reduce the sentence on account of the Appellant’s remorse, was abandoned at the hearing. The Crown is opposed to any variation of the sentence imposed by the Judge.
Approach to appeal
[3] The Appellant has a general right of appeal against sentence.2 Such an appeal is by way of rehearing.3 The powers of the High Court on hearing an appeal against sentence are as follows:4
121 High Court to hear and determine appeal
(3) In the case of an appeal against sentence, the High Court may—
(a) Confirm the sentence; or
(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) quash the sentence and either pass such other sentence warranted in law (whether more or less
1 R v Kiri DC Napier CRI-2012-020-0604, 17 May 2012.
2 Summary Proceedings Act 1957, s 115.
3Ibid, s 119.
4 Ibid, s 121.
severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) quash any invalid part of the sentence that is severable from the residue; or
(iii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
[4] Accordingly, the High Court may vary a sentence only if it is shown to be clearly excessive or inadequate or inappropriate, or to have been imposed without jurisdiction or in the absence of substantial facts. The High Court is not entitled to substitute a sentence which it considers might have been appropriate. The High Court will not intervene if the sentence is within a range that can properly be justified by accepted sentencing principles.
Facts and District Court sentence
[5] The most serious offence was the aggravated burglary, which was committed in February 2012. It followed an incident at a party the night before, at a Hastings residence. A fight broke out between the Appellant and two others. At 3 pm the following afternoon the Appellant and two associates returned to the house, armed with a steel pole and a hammer. They stood outside the house and demanded that the two others involved in the fight come outside. A woman inside the house told them to leave. The Appellant and his associates kicked down the front door and searched the house for the two people for whom they were looking. The Police were called but the Appellant and his associates fled before they arrived.
[6] The receiving charge arose as follows. The complainant’s vehicle was stolen in December 2011. The Appellant was an occupant of the car when the Police stopped it on 3 January 2012. The Appellant stated that he had received the car from a friend but admitted that he had been reckless in the knowledge that the vehicle might have been stolen. The car was badly damaged and the complainant uninsured.
[7] The theft charge was very much at the minor end of the scale. The Appellant stole a bag of chips and some hair wax from a supermarket. The total value of the goods involved was approximately $14.00.
[8] Lastly, the Appellant failed to answer bail on four occasions. [9] The Judge imposed the following sentences:
(a) Aggravated burglary – starting point of three years’ imprisonment.
Reduced by nine months’ imprisonment for early guilty plea. End sentence of two years, three months’ imprisonment.
(b)Receiving – starting point of four months’ imprisonment. Reduced by one month for early guilty plea. End sentence of three months’ imprisonment, to be served cumulatively on the aggravated burglary sentence.
(c) Theft – 14 days’ imprisonment, to be served concurrently.
(d)Failing to appear in court – one month’s imprisonment, to be served cumulatively.
[10] The end sentence was two years, seven months’ imprisonment.
Submissions
[11] Counsel for the Appellant submits that the Judge erred in failing to take account of the Appellant’s age as a mitigating factor. Section 9(2) of the Sentencing Act 2002 provides that the Court must take into account particular mitigating factors to the extent that they are applicable in a case. One such factor is the offender’s age (s 9(2)(a)).
[12] Crown counsel submits that the Judge acknowledged the Appellant’s youth and that the reduction in sentence that the Judge gave on account of the Appellant’s
guilty plea reflected that youthfulness. Counsel also submits that, in any event, the end sentence did not fall outside the acceptable range for the Appellant’s offending.
Discussion
[13] The Judge was aware of the Appellant’s youth.5 The Judge referred to the fact that the Appellant was 19 and to counsel for the Appellant’s submission that the Appellant was naive and had no idea of the seriousness of the offending.
[14] The Judge said that the Appellant must have been aware of the wrong his conduct entailed. The Judge characterised the Appellant’s actions as “extreme” and said:6
… I cannot really take account of naivety. Most people would know this is just something you would not do. I accept you are 19 years of age, you are young, you do not have previous serious convictions and that is something that needs to be taken into account as well.
[15] As I read that passage the Judge was saying that he proposed to take account of the Appellant’s youth and good character to date, the latter as a result of the Appellant’s lack of previous serious convictions. Despite that, the Judge did not reduce the sentence on account of youth, although he gave substantial discounts for the Appellant’s guilty plea.
[16] The Court of Appeal has discussed the rationales for youth discounts in cases such as R v Mahoni,7 R v Mako8 and Churchward v R.9 These rationales include consideration of the welfare of the young person, the greater benefit to the community in ensuring that rehabilitative prospects are not shut out and a desire to reduce the chances of a youthful offender “emerging from prison a more hardened
criminal than when he went in”.10
5 R v Kiri, above n 1 at [1].
6 Ibid at [11].
7 R v Mahoni (1998) 15 CRNZ 428 (CA).
8 R v Mako [2000] 2 NZLR 170 (CA).
9 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.10 R v Mahoni, above n 7 at 437.
[17] However, a reduction in sentence on account of youth is not automatic. Factors which bear on the decision include the number of convictions which the offender may have accumulated, the nature of the offending that is the subject of the sentencing, and the person’s motivation to reform.11
[18] As the Judge recognised, the aggravated burglary offending was very serious, given that it involved the Appellant arriving at the house with two armed associates, terrifying its occupants and kicking down the front door. There was a substantial risk of further escalation and of serious injury to the person, given that, to the Appellant’s knowledge, weapons were carried by his associates. Also, there was a lapse in time between the initial fight the night before and the commission of the offence the following afternoon. There was time for the Appellant to think better of any renewal of hostilities.
[19] That said, some characteristics of youth might be seen in the offending. The most obvious is the fact that it was inevitable that the Police would apprehend the Appellant and his associates quickly, with serious repercussions.
[20] In the circumstances, I propose to reduce the Appellant’s sentence on account of his age. That is principally because of the matter referred to in [15]. It is possible that the Judge intended to make a reduction but simply overlooked doing so. That said, I consider a discount of about 10 per cent to be the maximum available, given the matters I have referred to in [18].
[21] Allowing a reduction of five months, but otherwise maintaining the Judge’s approach, reduces the end sentence to two years, three months’ imprisonment.
Result
[22] The appeal is allowed in part.
[23] The sentences imposed by the Judge are varied as follows:
11 R v Mako, above n 8 at [65]-[66].
(a) the sentence imposed on the charge of aggravated burglary is reduced
to two years’ imprisonment;
(b) the sentence imposed on the charge of receiving is reduced to two
months’ imprisonment.
[24] In all other respects the Judge’s decision is confirmed.
[25] That means that the Appellant’s total end sentence is two years, three months’
imprisonment.
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M Peters J