Kura v Police

[2014] NZHC 2730

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000263 [2014] NZHC 2730

BETWEEN

ROBERT KURA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 November 2014
Appearances:	C Wright for Appellant S Navott for Respondent
Judgment:	3 November 2014

ORAL JUDGMENT OF VENNING J

Solicitors:           Public Defence Service, Auckland

Meredith Connell, Auckland

KURA v NEW ZEALAND POLICE [2014] NZHC 2730 [3 November 2014]

[1]      The appellant Mr Kura pleaded guilty to six charges of burglary, 13 charges of unlawfully taking a motor vehicle, other charges in relation to unlawful interference  with  motor  vehicles,  breach  of  community work,  breach  of  release conditions, a charge of obtaining a document for a pecuniary advantage and a charge of failing to answer District Court bail.

[2]      On  25  July  2014  in  the  District  Court  at Auckland  Judge  David  Sharp sentenced Mr Kura to an end sentence of three years imprisonment on the burglary charges and 12 months on the unlawful interfering with motor vehicles charges, sentences to be concurrent.  Mr Kura was sentenced to three months concurrent on the charge of obtaining a document for pecuniary advantage.  On all other matters he was either simply convicted or convicted and discharged.

[3]      The Judge structured the sentence in the following way.  He took a starting point for the more serious offending of four years imprisonment and then uplifted that by three months to take account the offending occurred whilst Mr Kura was on bail whilst still subject to a sentence.  He then provided a reduction of 30 per cent to take account of the two mitigating factors in this case, the early guilty plea and youth.   That led to the end sentence of three years imprisonment from which Mr Kura appeals.

[4]      In his helpful and full submissions Mr Wright has identified the principal grounds for appeal are that the allowance for youth was insufficient and that a more appropriate allowance for youth, taken in conjunction with the early guilty plea would have led to a reduction in sentence of between about 30 and 40 per cent, which he quantified as allowing a reduction of up to nine months for the youth factor before taking account of the guilty plea.  That would have led to an end sentence in the region of 30 to 32 months imprisonment.

[5]      In his full sentence notes Judge Sharp noted the extent of the offending, that the pre-sentence report recorded Mr Kura being a high risk of offending, that Mr Kura apparently did not like being told what to do by the supervisor at Community Work and had not complied with his release conditions.  The Judge observed that sadly imprisonment was the only realistic sentence.

[6]      The  Judge  correctly identified  the  purposes  and  principles  of  sentencing appropriate to this particular case and the relevant authorities relating to burglary, noting that some $91,000 worth of property was involved in the burglary and unlawful taking.   For those reasons the starting point of four years was fixed.  As noted Mr Wright responsibly accepted the starting point was open to the Judge.  The Judge then uplifted the starting point for three months for Mr Kura’s personal circumstances, particularly offending whilst on bail and in breach of the post release conditions.  In the circumstances and given Mr Kura’s past history it has to be said the three month uplift could be regarded as modest.

[7]      It appears the Judge then intended to give a full credit of 25 per cent for the guilty plea and five per cent for youth.  It is that last factor, the extent of the discount for youth, the appeal is largely directed at.

[8]      As a matter of principle of course the Court of Appeal acknowledged in Churchward v R1  that the age for a defendant can be relevant to sentencing and a mitigating factor in a number of ways, including:

(a)       age related neurological differences between young people and adults; (b)     the effect of imprisonment on young people;

(c)       young people may have greater capacity for rehabilitation;

(d)offending by a young person might be a phase which passes fairly rapidly;  and

(e)       criminal  convictions  may  have  a  disproportionate  impact  on  their ability to gain meaningful employment later.

[9]      However, as the Court of Appeal also observed in the case of R v Huata2

there is no presumption in favour of the discount for youth.   Each case must of

1      Churchward v R [2011] NZCA 531.

2      R v Huata [2012] NZHC 2735.

course depend on the circumstances of the offending before the Court and the particular circumstances of the offender.

[10]     In  the  present  case  Mr  Kura  was  aged  18  when  most  of  the  offending occurred, which does support an allowance for his youth.  However, balanced against that,   are   the   particular   circumstances   of   his   offending   and   his   personal circumstances.   As  noted,  on  Ms  Navott’s  submission  the first  of these  current offences occurred about a week after his release from imprisonment for previous burglary offences.  He had 15 previous convictions, excluding Youth Court notations, and relevantly five of those were for burglary.

[11]     Those  are  relevant  factors  in  relation  to  the  prospects  of  Mr  Kura’s rehabilitation prospects as is the negative aspect of the pre-sentence report which has been noted.  Mr Wright submitted that despite that negative report, Mr Kura had now undertaken  further assessments and courses in  prison.   That may be so but his capacity for rehabilitation must have a question mark over it given his previous offending, his previous response to the sentence of imprisonment at a young age and his failure to comply with the post release conditions.

[12]     The impulsive nature of offending is often a factor with young offenders. This is not a case of one-off impulsive behaviour or offending while under the control of another.  This offending occurred over a number of months.  It may have been relatively unsophisticated and Mr Kura may not have gone to very great steps to conceal his offending but nevertheless it was an extensive period of offending.

[13]     There is a related factor which is relevant to the overall end sentence, bearing in mind that the ultimate question for the Court is not how the sentence is structured as such but whether the end sentence can be said to be manifestly excessive.  In this case a full discount of 25 per cent for the guilty plea might be regarded as generous.

As the Supreme Court observed in Hessell v R3  that full allowance will only be

allowed for a guilty plea at an early stage but it must depend on an evaluation of all the circumstances, which includes the strength of the Crown case.   In this case it

appears, at least in relation to a number of the offences, the Crown case was strong.

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[14]     The matter could be tested another way.   From the starting point of four years, three months, which as  I have noted might be itself  regarded  as modest enough given the uplift of only three months for the previous offending, offending whilst on bail and subject to release conditions, six months might have been allowed for  youth,  reducing  the  starting  point  to  45  months.    From  that  a  20  per  cent reduction for the guilty pleas, which would have been appropriate in this case given the strength of the police case, would have led to the same end result of 36 months or three years imprisonment.

[15]     Despite Mr Wright’s  careful  and  thoughtful  submissions  in  this  case  the appellant fails to satisfy the Court that the sentence imposed was manifestly excessive.

[16]     This is not one of those sentences that this Court describes from time to time as stern or harsh but nevertheless within range.  On the information before the Court in relation to this offending the sentence would seem to be an appropriate one.

[17]     The appeal is dismissed.

Venning J