Lopa v Police HC Auckland CRI 2010-485-109

[2010] NZHC 2021

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-109

KILITA LOPA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 November 2010

Counsel:         Ms S Inley for Appellant

Ms J Murdoch for Respondent

Judgment:      16 November 2010

JUDGMENT OF MALLON J

[1]      Ms Lopa was sentenced in the District Court to a total term of eight months’ imprisonment on charges of possessing an offensive weapon, breaching bail, breaching post-detention conditions (x2) and breaching community work, to which she had pleaded guilty.  She appeals against her sentence on the grounds that it was manifestly excessive.  After hearing from counsel I dismissed the appeal on the basis that I was not satisfied that the sentence was manifestly excessive.  I now set out my reasons.

[2]      The lead charge was the possession of an offensive weapon charge which carried a maximum penalty of 2 years’ imprisonment.  The facts were that Ms Lopa

LOPA V NEW ZEALAND POLICE HC WN CRI-2010-485-109  16 November 2010

returned to her home in the early morning on 2 February 2010.   She initiated an altercation with her father’s partner who also resided at the address.  She brandished a  bread  and  butter  knife  at  the  woman,  threatening  her  in  the  presence  of  the woman’s two young children.   She then prevented the woman from calling the police.  The woman and her two children were frightened by the incident.

[3]      The post-detention condition breaches related to conditions which applied to a sentence of home detention for earlier offending.   They occurred on 26 March

2010 and 13 May 2010 when Ms Lopa failed to report as directed by the Department of Corrections.  The breach of community work related to a sentence of community work imposed in relation to four breaches of home detention conditions.  She failed to report for community work without reasonable excuse on 23 March 2010.  The breach of bail charge was for Ms Lopa’s failure to appear in relation to the offensive weapon charge.

[4]      The District Court Judge adopted a starting point of 6 months’ imprisonment. That starting point appears to have been in relation to all the offending considered together.  She then said:

[20]     The aggravating factors relating to you are that these offences were committed while you were on bail and subject to a sentence.   Also your previous convictions.   For that I consider an uplift of three months to be appropriate, which takes the sentence to nine months’ imprisonment.  There are no mitigating factors relating to you.

[5]      Counsel for Ms Lopa does not take issue with the 6 months’ starting point. She does, however, take issue with the three months uplift.  She submits that the fact that the offending was committed while Ms Lopa was on bail and subject to a sentence were already represented by the charges Ms Lopa was facing.   She further submits that Ms Lopa’s previous convictions were also represented before the Court.

[6]      I do not accept these submissions.     That offending has occurred while a person is subject to a sentence on other matters is aggravating.   It indicates a particular need for individual deterrence because the offender has not shown that they have learnt from their previous offending and the sentence imposed for that offending.   Offending on bail is similarly aggravating because it indicates that the

offender has not responded to having being brought before the Court on the charge for which bail is granted.    The breach of bail (through failing to appear) and the breach of conditions of a sentence on other offending are separate offences for which she is able to be charged.

[7]      Further, it would have been open to the Judge to have applied a 6 months starting point to the offensive weapon charge and to have uplifted that by 3 months for the other charges, and to have thereby reached a sentence of 9 months’ imprisonment, before mitigating factors, without applying any uplift for the fact that Ms Lopa was on bail and subject to a sentence when this offending occurred.

[8]      Moreover, the uplift of three months could have been justified with reference to Ms Lopa’s previous convictions alone.    Ms Lopa has a conviction for possession of  an  offensive  weapon  in  2007,  a  conviction  for  wounding  with  intent  to  do grievous  bodily harm in 2007, and 5  convictions for breach of home detention conditions.   Those convictions also indicated as appropriate a sentence at the upper end of the range available to the Judge because of the particular need for individual deterrence.

[9]      Turning to mitigating factors, counsel for Ms Lopa submits that the Judge ought to have considered Ms Lopa’s age as a mitigating factor.   I do not agree. Youth alone does not automatically justify leniency.   Here Ms Lopa was 20 years old.      She appears to have had the benefit of leniency in respect of the earlier possession  of  an  offensive  weapon  charge  because,  in  respect  of  that,  she  was ordered to come up for sentence if called upon within 6 months.  There was nothing here to indicate that leniency should be extended to her on this occasion.

[10]     That leaves the guilty plea.  The Judge said she was applying a 20% discount but ended up applying a one month discount.    Counsel for Ms Lopa refers to the apparent error in one month being deducted if a 20% discount was being applied and further submits that the 20% discount was too light.   Her point is based on the submission that the offensive weapon charge was under the pilot scheme in the Porirua District Court in respect of which pleas are only able to be entered at the

status hearing and so her guilty plea on the lead charge was entered at the first opportunity.

[11]     I accept the respondent’s submission that a 20% reduction could be viewed as generous and that a one month deduction was appropriate.  That is because, as the Court of Appeal said in Hessell v R1 a reduction for a guilty plea may be smaller if the offender prolonged proceedings before entering a guilty plea, for example by failing to appear for scheduled court appearances.   The Supreme Court has since held2 that the appropriate discount for a guilty plea depends on all the circumstances. That must include such matters as failures to appear.

[12]     Here, in relation to the offensive weapon charge, Ms Lopa failed to appear on four   occasions   (once   before   the   guilty   plea   was   entered   and   three   times subsequently).   She was charged only with one breach of bail for these non- appearances (although she was remanded in custody prior to sentencing because of her non-appearance).   Part of the rationale for a discount for a guilty plea is the savings in public expenditure and demands on state resources that results from early guilty pleas.  Where a person fails to appear and further appearances then need to be arranged, these savings are somewhat undone.

[13]     For these reasons I do not agree that the Judge erred in the respects alleged. When the end sentence of eight months’ imprisonment is looked at overall it was not manifestly excessive.

Mallon J

Solicitors:

Margaret L Overton, PO Box 17-100, Karori, Wellington for Appellant,  [email protected]

Crown Solicitor, Wellington for Respondent,  [email protected]

1 [2009] NZCA 450; [2010] 2 NZLR 298 at [45].

2      Hessell v R [2010] NZSC 135.