Kunaiti v Police
[2015] NZHC 3342
•21 December 2015
IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
CRI 2015-454-24
[2015] NZHC 3342
BETWEEN SAMUEL HEMI KUNAITI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 December 2015 Counsel:
D J Flinn for Appellant
B D Vanderkolk for Respondent
Judgment:
21 December 2015
JUDGMENT OF CLARK J
I direct that the delivery time of this judgment is 3.30pm on the 21st day of December 2015
KUNAITI v THE QUEEN [2015] NZHC 3342 [21 December 2015]
Introduction
[1] The appellant pleaded guilty to five charges under s 228(b) of the Crimes Act 1961 of dishonestly using a document to obtain pecuniary advantage. The appellant also pleaded guilty to two charges of breaching his release conditions. The District Court Judge sentenced the appellant to a term of 13 months imprisonment.1 The appellant appeals his sentence on the basis that it is manifestly excessive.
[2] The appeal raises issues about the Judge’s uplift for previous criminal convictions and the weight given to the effect on the victim of the theft of his property when the appellant was not charged with that offence.
Factual background
[3] On 26 January 2015 Samuel Kunaiti was released on nine months parole. He was subject to two special conditions: not to contact or associate with any victims of his previous offending and not to enter the Taranaki area during the period of his parole without approval.
Dishonesty offences
[4] On 28 May 2015 Mr Kunaiti twice bought fuel for a car he was driving with a stolen paywave debit card. The value of the two purchases was $60. A paywave card is a bank card which requires no PIN number for purchases up to $80. These events give rise to one of the five dishonesty charges.
[5] On 19 June 2015 the second complainant and his wife arrived in Palmerston North from Tauranga to visit their son. Their car was parked in the driveway on the property. Between 7.30pm on the 19th and 6.30am on the 20th the car was broken into and a number of personal items were stolen including an ASB paywave debit card. At about 6.23am Mr Kunaiti purchased fuel, tobacco and food at the Caltex service station nearby. There were three separate purchases of $40.00, $46.50 and $12.25. This represents the second dishonesty charge. Mr Kunaiti said the debit card was left
1 Police v Kunaiti [2015] NZDC 19704.
at his house by an unknown person, and he used it because he needed fuel to drive his children home.
[6] Between the evening of 16 July and the following morning the third complainant parked his work vehicle in the driveway of his home address. The vehicle was broken into and his ANZ paywave debit and credit cards were taken. At 1.43am on 17 July Mr Kunaiti used the credit card to top up a cell phone with $20 credit. This is the third charge.
[7] The fourth charge relates to a $60 fuel purchase at 1.56am at the Caltex station on Main Street in Palmerston North.2 The fifth charge relates to a $20 fuel purchase on the debit card at BP Connect on Rangitikei Street in Palmerston North at 2.06am, and a further $44.30 purchase for tobacco. Mr Kunaiti said he found the stolen cards on the road.
Breach of release conditions
[8] On 18 July 2015 Mr Kunaiti visited his ex-partner, who had been the victim of his offending. This followed an earlier attempt to contact the same victim on 13 February which resulted in a written warning from the Probation Officer.
[9] On 22 July 2015 Mr Kunaiti was pulled over by police in New Plymouth thus breaching the second special condition.
District Court sentencing
[10] In relation to the five dishonesty offences the Judge adopted a starting point of six months imprisonment. The Judge did not make an uplift for the number of charges because they had all occurred in a relatively short period of time for multiple relatively small sums. But the Judge uplifted his initial starting point by six months on account of the appellant’s previous convictions.
2 A further purchase of $87.40 was attempted at the Caltex but the card declined.
[11] In respect of the breach of release conditions a further four months imprisonment in relation to each charge was imposed making a total of one year and one month.
[12] The Judge did not regard a community-based sentence as appropriate. He noted the pre-sentence report recommendation and advice that the appellant posed a high risk of reoffending and a high risk of harm to the community.
Grounds of appeal
[13] The appellant appeals his sentence as being manifestly excessive for the following reasons:
(a)the uplift of six months for previous convictions was excessive;
(b)the Judge should not have imposed a cumulative sentence for the charges of breaching release conditions.
[14] In particular the appellant challenges the uplift of six months for the five charges of using a document. It goes beyond mere augmentation. The uplift has had the effect of doubling the starting point and the appellant submits this risks an effective “resentence” of the appellant in respect of offending for which he has already completed his sentence.
Approach on appeal
[15] Section 250 of the Criminal Procedure Act 2011 requires a first appeal court to allow a sentence appeal if it is satisfied that for any reason there is an error in the sentence and a different sentence should be imposed.
[16] The Court on appeal must concern itself with whether the end sentence imposed is within range, as opposed to focusing on the process by which the sentence was reached.3
3 Tutakangahau v R [2014] NZCA 279 at [36].
[17]In any other case, the Court must dismiss the appeal.
Analysis
Starting point
[18] In Rako v R the Court of Appeal recently noted that there is no tariff judgment for s 228 offending given the wide range of circumstances in which it may occur.4 The Court of Appeal, while acknowledging the limited utility in comparing sentencing decisions, reviewed a number of High Court decisions involving credit/debit card theft comparable to the facts of the case before it.
[19] Of particular relevance to this appeal is the Court’s observation that culpability in s 228 offending is not to be measured “solely or even primarily” in relation to the amount lost. It cited Varjan v R, a case involving use of a document with intent to defraud, in which the Court of Appeal said of dishonesty offending:5
[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[20] In Rako, the Court considered a starting point in the range of 12 to 18 months imprisonment was justified for offending in which credit/debit cards are used on multiple occasions resulting in loss in the order of $2,000 to $6,000.
[21] Turning then to cases where the offending is over a confined duration and the consequent loss comparatively minor, the following cases suggest the starting point adopted by the District Court Judge was unobjectionable.
(a)Barakat v Police:6 MacKenzie J on appeal found a 12 month starting point was appropriate for the use of two bank cards for several transactions during one day totalling approximately $1,000.
4 Rako v R [2015] NZCA 463 at [9].
5 Varjan v R CA97/03, 26 March 2003.
6 Barakat v Police HC Palmerston North CRI-2008-454-35, 14 August 2008.
(b)Gorrie v Police:7 Woolford J on appeal imposed an end sentence of six months imprisonment for two separate occasions on which bank cards stolen from tourists were used to make purchases with the combined total of less than $1,000, following conviction at a judge-alone trial.
(c)Te Au v Police:8 Wild J on appeal adopted a starting point of eight months imprisonment for each of seven charges involving the use of a stolen chequebook to pay for goods and deposit money into personal accounts totalling around $2,000.
[22] These comparative authorities support the adoption by the District Court Judge of a six months starting point on the dishonesty charges. The appellant’s main concern is the uplift of six months to “reach a 12 month revised start point for a term of imprisonment”.9
[23] An uplift is justified in light of the Mr Kunaiti’s extensive record of dishonesty offences but six months was excessive. It reflected a 100 per cent uplift over the Judge’s initial six month starting period.
[24] The Court of Appeal has recently emphasised caution in this area and the care that courts must take so that a “prisoner is not sentenced again for an offence which he has already expiated”.10 An uplift is not justified by the mere existence of previous convictions alone but should reflect the principles of deterrence and protection of the public.
[25] In this case an uplift of two months could not be criticised. This second ground of appeal is upheld.
7 Gorrie v Police [2015] NZHC 359.
8 Te Au v Police HC Nelson CRI-2007-442-19, 12 December 2007.
9 Police v Kunaiti [2015] NZDC 19704 at [5].
10 Tamihana v R [2015] NZCA 169 at [27]; citing Tiplady-Koroheke v R [2012] NZCA 477 at [24].
Cumulative sentence
[26] The Judge imposed a sentence of four months imprisonment for the two charges of breaching conditions cumulative on the nine month end sentence for the dishonesty charges, totalling 13 months imprisonment.
[27] Not only was the uplift excessive but the Judge, although acknowledging that the appellant was not charged with breaking into the vehicles or with theft, nevertheless suggested a strong connection between those offences and the appellant’s previous convictions for theft from cars and unlawfully taking motor vehicles. The Judge described the previous convictions for theft from cars as “signature offences”.11 As well, the victim impact statement before the Judge contained this line: “I hope he gets a very long sentence”.12
[28] I have read that victim impact statement. The entire statement refers to the “devastating” effects on the family of the theft of valuables including a high end Canon digital SLR camera and lenses, work laptop, three pairs of expensive Bose headphones, radar detector, wallet, credit cards and so on. It is important to highlight that no matter how suspiciously close he was thought to be to the action the appellant was not charged with the theft of these items.13
[29] The effect of the offending on the victim should be distinguished from the victim’s views as to sentence. The views of the victim as to an appropriate sentence may be taken into account on sentencing as one of a number of factors, but they do not have to be and they are not determinative.14
[30] Of course, the bankcard was one of the items stolen from the car and the victim impact statement speaks to the inconvenience, worry and distress in the loss of all valuables from the car. But the weight the Judge gave to the effect on the victim was disproportionate to the charges for which the appellant was being sentenced. It is clear from the Judge’s final remark that he was sentencing the appellant as the person who
11 At [3].
12 At [8].
13 At [3]: “… though you are not charged with it at your place, there seems to me to be some explaining to do in relation to that.”
14 Adams on Criminal Law – Sentencing (online looseleaf ed, Westlaw) at [18.02].
represented “the closest that the victim gets” to the person who actually broke into the car and stole the items. To the extent that the sentence appears to punish for culpability that is not actually reflected in the charges, it is in error.
[31] I do not agree, however, that the Judge was in error in imposing a term of imprisonment rather than home detention. The probation report was unequivocal in its assessment of the appellant as being at high risk of reoffending and posing a high risk of harm to the community. Nor was any rehabilitative sentence recommended because the appellant’s motivation to engage in rehabilitation was low.
[32] The Judge imposed cumulative sentences. The appellant submits the sentence of imprisonment is contrary to s 8(g) of the Sentencing Act 2002 which requires the Court to impose the least restrictive sentence. Given the extensive history of similar offending and that release conditions had been breached twice, a non-custodial sentence was inappropriate.
Result
[33]The appellant succeeds on his appeal.
[34] The sentence of 13 months imprisonment is quashed and an overall sentence of eight months is substituted. The sentence comprises eight months imprisonment for the five dishonesty offences15 to be served concurrently with the sentence of four months imprisonment for breaching release conditions.16
Karen Clark J
Solicitor:
Crown Law Office, Wellington for Respondent
15 Represented by CRNs ending 051, 052, 053, 054 and 304.
16 Represented by CRNs ending 756 and 757.
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