Lamatoa v The Queen
[2017] NZHC 2375
•29 September 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2017-412-000037 [2017] NZHC 2375
BETWEEN JAMIE ALBERT LAMATOA
Appellant
AND
THE CROWN Respondent
Hearing: 11 September 2017 Appearances:
S Saunderson-Warner for the Appellant
R D Smith for the CrownJudgment:
29 September 2017
JUDGMENT OF NATION J
[1] Between 10 October 2016 and 29 October 2016, Mr Lamatoa’s brother, Mr Bell, drove from Oamaru to Waimate and to an address in Moeraki. He forced his way into five residential properties and stole property worth at least $13,500. At the first of those properties, he broke the lock of an exterior door and ripped off wooden framing, doing damage that was going to cost an estimated $1,107 to repair. He used a jemmy bar to smash an exterior door at three further properties. The items he took from the properties included electrical goods, personal effects, jewellery and, from one property, four firearms.
[2] On 2 November 2016, Mr Bell and Mr Lamatoa travelled from Oamaru to Waimate and were involved in the burglary of two further residential properties. At the first of those properties they stole items worth $1,100. At the second, they stole
items worth more than $5,000.
LAMATOA v R [2017] NZHC 2375 [29 September 2017]
[3] On 3 November 2016, the Police executed a search warrant at the offenders’ address in Weston, near Oamaru. They recovered a small number of items from the earlier burglaries in which Mr Bell was involved.
[4] On 4 November 2016, a member of the public handed to the Police a suitcase containing stolen property from three earlier burglaries in Waimate. It had been abandoned on a rural roadside near Oamaru. The Police also found other items including a jemmy bar. Subsequent enquiries identified Mr Lamatoa as the person responsible for the disposal of the suitcase and the other items located, and that he did this on the day the search warrants were executed at his home address.
[5] Mr Bell subsequently pleaded guilty to eight charges of burglary. He was sentenced on 9 August 2017 by Judge Phillips,1 the sentence imposed being consistent with a sentencing indication he had given on 11 May 2017. The starting point sentence adopted for his offending was three years and six months. After an uplift for his previous criminal record and a credit for guilty pleas, Mr Bell’s end sentence was three years’ imprisonment.
[6] In March 2017, Mr Lamatoa pleaded guilty to two charges of burglary, committed jointly with Mr Bell, in connection with the two burglaries that occurred at Waimate on 2 November 2016. He also pleaded guilty to a charge that, between
10 October 2016 and 3 November 2016, at Oamaru, he received a suitcase containing various items of stolen personal property valued at over $3,000 from Mr Bell, knowing that suitcase of property had been stolen.
[7] On 1 June 2017, Mr Lamatoa was sentenced by Judge Phillips. The Judge adopted a starting point for his sentencing on three offences of two years and six months. His end sentence was two years and four months’ imprisonment.
[8] Mr Lamatoa appeals against his sentence.
1 R v Bell [2017] NZDC 17606.
Principles to be applied
[9] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied there has been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.2
[10] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the
Judge’s discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of
Development:4
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[11] The focus on most appeals is thus on the end sentence. In Tutakangahau v R, the Court of Appeal held that:5
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
District Court decision
[12] Judge Philips began his sentencing remarks by observing that the appellant was “a man with talent and ability”.6 However, drugs and the appellant’s propensity to commit serious crimes “throws all that away”. After traversing the facts of the appellant’s offending, the Judge noted the appellant’s prior matters in the Youth Court and criminal convictions in the District Court. The Judge said that Mr
Lamatoa was a recidivist offender.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Ripia v R [2011] NZCA 101 at [15].
4 Larkin v Ministry of Development [2015] NZHC 680.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Police v Lamatoa [2017] NZDC 11888 at [1].
[13] Judge Philips adopted an overall starting point of two years and six months’ imprisonment for all three charges and a further uplift of three months’ imprisonment for the appellant’s previous offending. His Honour then allowed 15 per cent discount for a guilty plea as suggested by the appellant’s then counsel Mr Rayner, to arrive at an end sentence of two years and four months’ imprisonment. The Judge then turned his mind to the principle of totality and concluded that the end sentence was proportionate to the appellant’s overall criminal conduct.
Submissions
[14] For Mr Lamatoa, Ms Saunderson-Warner argued there was an error with the sentence imposed on Mr Lamatoa because of the disparity with the sentence imposed on Mr Bell, given what she submitted was Mr Bell’s more serious offending.
[15] Ms Saunderson-Warner referred to a number of factors which made Mr Bell’s
offending more serious:
(a) Mr Bell’s offending was significantly worse involving eight residential burglaries over the course of two months, as opposed to Mr Lamatoa’s two on a single day;
(b) Mr Bell was responsible for stealing the property that Mr Lamatoa received in the suitcase;
(c) one of Mr Bell’s burglaries resulted in four firearms being taken. The sentencing notes recorded that, at the time of sentencing, those firearms had not been recovered;
(d) in one of the burglaries, Mr Bell stole irreplaceable items and his offending had a very high impact on his victims; and
(e) Mr Bell was serving a sentence of community work at the time he committed his burglaries, that sentence having been imposed for his first burglary of a dwelling house on 8 September 2016 where items worth over $50,000 were taken.
[16] Ms Saunderson-Warner also argued the uplift of three months for previous offending was not justified. She submitted it should have been two months. She submitted Mr Lamatoa should not have been sentenced as a recidivist.
[17] She submitted the limited guilty plea discount of 15 per cent was open to the Court although at the lowest end available. She also suggested the Judge did not have sufficient regard to the fact this would be Mr Lamatoa’s first sentence of imprisonment. Ms Saunderson-Warner suggested an end sentence of 22 months’ imprisonment would be appropriate.
[18] For the Crown, Mr Smith argued the starting point was within range given the
Court of Appeal’s statements in Arahanga v R.7
[19] Mr Smith first addressed in detail the sentence imposed on Mr Bell. He referred to the High Court’s discussion as to the appropriate sentence where the offending involved burglary and the theft of rifles,8 and the Court of Appeal’s discussion as to sentencing for multiple burglaries.9 Mr Smith noted that Mr Bell was sentenced following a sentencing indication on 11 May 2017 where a different
Crown solicitor had referred Judge Phillips to a High Court decision of Wishnowsky v Police, where a starting point for seven burglaries involving $47,000 was three years and six months.10 He had also referred to the way the Court of Appeal had said High Court decisions would normally be of limited assistance to the Court of Appeal where there was already Court of Appeal authority.11
[20] Mr Smith said that, based on the Court of Appeal’s judgment in Arahanga12 and their observation in Senior v Police13 where effective end sentences typically ranged from three to four years’ imprisonment in the case of a spree burglar, Judge Phillips had adopted a starting point of three years and six months’ imprisonment for
Mr Bell’s offending.
7 Arahanga v R [2012] NZCA 480.
8 Shierney v Police [2014] NZHC 2963.
9 Harrison v R [2011] NZCA 80; Senior v Police (2008) 18 CRNZ 340.
10 Wishnowsky v Police HC Palmerston North CRI-2009-454-000026, 4 August 2009.
11 Harrison v R, above n 9, at [10].
12 Arahanga v R, above n 7.
13 Senior v Police, above n 9.
[21] Mr Smith however submitted errors were made in sentencing Mr Bell and the end sentence was unduly lenient. First, the sentencing Judge erred by relying on the High Court decision of Wishnowsky v Police in adopting his starting point; second, insufficient weight was placed on Mr Bell’s burglary involving firearms as being distinctly aggravating; third, the Judge had not recognised that, in Senior v Police, the Court of Appeal’s reference to the range of sentences for spree-type burglaries, being three to four years’ imprisonment, was as to the end point sentences rather than starting points, with substantial credits for cooperation typically being applied.
[22] Mr Smith argued that Mr Bell’s offending could have justified a starting point in excess of five or even six years’ imprisonment with a distinctly greater uplift than the three months adopted by Judge Phillips, given Mr Bell’s relevant criminal history and that he was subject to a sentence at the time of the offending.
[23] Mr Smith submitted that, with a credit of 20 per cent to reflect Mr Bell’s guilty plea, the end sentence for him should have been in excess of four years’ imprisonment.
[24] Mr Smith referred to various judgments in which the Court of Appeal had cautioned against reducing an otherwise appropriate sentence on account of disparity where it was apparent a co-defendant had been treated too leniently.
Discussion
[25] In Arahanga v R, the Court of Appeal indicated a broad sentencing range for burglaries of dwelling houses:14
This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied. Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants. Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months to two years and six months imprisonment.
(Citations omitted)
14 Arahanga v R, above n 7, at [78].
[26] As the Judge noted, Mr Lamatoa, with Mr Bell, had travelled from Oamaru to Waimate to commit the first burglary. They entered the property through an unlocked door. This was at 11.00 am when there was a risk of confrontation with the property owner. That owner in fact drove past the address, noted their car parked in the driveway but did not realise anything was amiss. From that home, they stole a laptop and a Samsung tablet worth $1,100. They then drove to another residential address in Waimate, forced open the locked back door and entered the house. From there, they stole a laptop, a post-hole borer, a Makita radio and alcohol which they loaded into their car. This property was worth in excess of $5,000. Again, there was a risk of confrontation with the owner. The property owner did arrive home and observed them parked in his driveway. The offenders drove off at speed, pursued by the property owner until he lost sight of their vehicle.
[27] Both burglaries were premeditated. Mr Lamatoa explained to the probation officer that he had been pressured into it and he finally succumbed to jealousy when he saw how much he stood to gain were he to become involved in the offending himself.
[28] Although only two burglaries occurred on 2 November 2016, they were in the nature of a spree. It was reasonable for the Judge to sentence Mr Lamatoa on the basis that he and Mr Bell had travelled from Oamaru to Waimate on a mission to burgle residential properties in Waimate. That mission may well have ended when it did because the owner of the second property came upon them when the burglary was committed.
[29] The burglary charges were filed in the District Court on 12 November 2016. Mr Lamatoa pleaded guilty to those charges on 9 March 2017. The receiving charge against Mr Lamatoa was filed in the District Court on 8 March 2017 and he pleaded guilty to that charge on the same day. I infer from the summary of facts that Mr Lamatoa was originally charged jointly with Mr Bell in respect of three of the earlier burglaries at Waimate but those charges were not pursued when Mr Lamatoa agreed to plead guilty to the receiving charge.
[30] During the period of this offending, Mr Lamatoa and Mr Bell shared the same home at Weston. They are brothers or half-brothers. Mr Lamatoa was directly involved with Mr Bell in the 2 November 2016 burglaries. The receiving was, in time, close to the earlier burglaries carried out by Mr Bell. The items received included a jemmy bar such as was likely to have been used in those earlier burglaries. Mr Lamatoa’s receiving is the more serious and the more brazen, given the likely detailed knowledge he had as to how the property received was stolen.
[31] A starting point for all three offences of two years and six months was, in my view, well within range.
[32] The uplift of three months for Mr Lamatoa’s previous criminal offending was also justified. Mr Lamatoa was aged 26 when he was sentenced. He had a conviction for shoplifting from 21 May 2016, convictions in the District Court from
2011 and 2012 when he was 21 for receiving and burglary, and three convictions for burglary and three other convictions for dishonesty offences from the Youth Court when he was 16. The Judge may have overstated matters in describing Mr Lamatoa’s record as that of a recidivist if he had meant to say that Mr Lamatoa was a recidivist burglar. There had been a significant gap in such offending, according to his criminal record, between the burglary offence committed in 2012 and this offending in November 2016. Nevertheless, there was a history of previous dishonest offending which justified the uplift adopted of three months.
[33] At the age of 26, Mr Lamatoa could not expect to be treated as a youthful offender. He had previously received sentences of community work but in 2012 he was sentenced on two separate occasions for four separate breaches of that sentence.
[34] Mr Lamatoa did not plead guilty to the two burglary charges until four months after those charges had been laid. Given the information in the summary of facts, the Police case against him on those charges was strong. Mr Lamatoa pleaded guilty to the charge of receiving promptly after it had been laid. As Mr Lamatoa’s counsel acknowledged, a discount of 15 per cent for the guilty pleas was open to the Judge.
[35] Judge Phillips acknowledged the letter which Mr Lamatoa had written to the Court. In that letter, Mr Lamatoa acknowledged the harm he had done, the stupidity of his actions and his determination to change his life. The probation officer’s advice to the Court however questioned the validity of declarations he had made as to remorse and having learnt lessons from his offending. The report assessed there being a medium likelihood of reoffending, given his conviction history and his attitude. It referred to his conviction history over the last 10 years as reflecting self- entitled and dishonest offending.
[36] On appeal, the emphasis has to be whether or not the end sentence imposed was manifestly excessive. Putting the sentence imposed on Mr Bell to one side, I do not consider there was any error in the end sentence imposed for Mr Lamatoa’s offending of two years and four months.
[37] However, I accept the difference in the sentences imposed on Mr Bell and Mr Lamatoa did not adequately reflect the difference in the seriousness of their offending. There was thus a disparity in the sentences imposed which requires me to consider whether, on that basis, the sentence imposed on Mr Lamatoa should be reduced.
[38] As Mr Smith pointed out, the Court of Appeal has repeatedly cautioned against reducing an otherwise appropriate sentence on the basis that a co-defendant was treated too leniently. In R v Nathan the Court of Appeal observed the principles enunciated in R v Rameka and R v Lawson that:15
To warrant interference by this court, the disparity must be gross and unjustified and be of kind that would lead an observer, aware of all the circumstances, to the conclusion that something had gone wrong with the administration of justice.
[39] The Court acknowledged that the disparity between the sentences imposed upon the appellant and his co-defendant could be described as gross but nonetheless
dismissed the appeal, stating:
15 R v Nathan CA378/90, 24 April 1991; R v Rameka [1973] 2 NZLR 592 (CA); R v Lawson
[1982] 2 NZLR 219 (CA).
The disparity must be regarded as gross, but we think nevertheless that it is justified. The Judge clearly saw the other sentence as being quite inadequate and we agree with that conclusion. The fact that the Crown did not appeal against it does not alter that assessment. In this situation the impartial observer may well think there is something wrong with a system of justice which requires a proper – perhaps even a lenient sentence – to be reduced in order to match one that in our view, and with respect to the Judge concerned, falls a long way short of meeting the total criminality of the offending.
[40] All of this was also emphasised by the Court of Appeal in Mau’u v R16 and in
Frank v R.17
[41] I consider that, for reasons advanced by Mr Smith, the sentence imposed on Mr Bell was unduly lenient. It was imposed on him following an earlier sentencing indication given by Judge Phillips. That indication reflected the submission then made by the Crown as to the appropriate starting point, a submission which was accepted by Mr Bell’s counsel. In that sentencing indication, Judge Phillips allowed a credit of 20 per cent for Mr Bell’s guilty pleas but described that as being at the higher end.
[42] When Mr Bell was sentenced, Judge Phillips described in some detail the nature of Mr Bell’s offending, involving as it did the burglary of various residential properties, the “boldness and temerity” of that offending, including the items taken and their value. He referred to the theft of four firearms and the inability of one victim of the offending to recover the memory card from a camera and those stolen firearms back for the benefit of the terminally ill person who owned them. The Judge spoke of other items which had been taken which were of considerable sentimental value and of the impact Mr Bell’s offending had on the people whose properties had been burgled. He also referred to Mr Bell’s previous conviction for burglary and the fact he was under sentence when these latest offences were committed. He referred to, what appeared to be, the unwarranted entering of not guilty pleas originally to the charges that Mr Bell had faced.
[43] Having done all that, it would seem Judge Phillips recognised that the sentence he had arrived at with his indication may well have been unduly lenient. In
16 Mau’u v R [2011] NZCA 385 at [28]-[29].
17 Frank v R [2013] NZCA 447 at [35].
his sentencing remarks, he said that he had “no doubt” that “the starting point overall for [Mr Bell’s] offending of three years and six months’ imprisonment was a merciful starting point” when he had regard to other decisions. He also said he considered the uplift of three months for Mr Bell’s prior history and the fact he was on sentence at the time also to be merciful. At the conclusion of his sentencing remarks, Judge Phillips said he had “no hesitation at all in saying … that a sentence of three years’ imprisonment, as per [his] sentencing indication, [was] a merciful sentence overall”.
[44] There was a difference in the end sentences imposed on Mr Lamatoa and Mr Bell. Mr Bell was fortunate that Judge Phillips gave the sentencing indication which he did on 11 May 2017 before Mr Lamatoa was sentenced. As I think Judge Phillips himself recognised, the sentence ultimately imposed on Mr Bell in line with that indication was unduly lenient.
[45] For reasons discussed, the sentence imposed on Mr Lamatoa was otherwise appropriate, given all his circumstances and the offending which he acknowledged.
[46] This is a situation where to now reduce the sentence on Mr Lamatoa because of the sentence which Mr Bell received would be to compound a mistake that has already been made. It would “risk further insult to the integrity of the criminal justice system”.18
Conclusion
[47] For all these reasons, I have not been persuaded there was any error in the sentence imposed on Mr Lamatoa or that a different sentence should have been imposed. Mr Lamatoa’s appeal is accordingly dismissed.
Solicitors:
S Saunderson-Warner, Barrister, Dunedin
R P Bates, Crown Solicitor, Dunedin.
18 An outcome to be avoided where a disparity issue such as this arises, as articulated by the Court of Appeal in Frank v R, above n 17, at [39].
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