Mareraki v Police
[2023] NZHC 3096
•2 November 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-201 CRI-2023-409-202
CRI-2023-409-203 [2023] NZHC 3096
BETWEEN BERNINA AUNZHER-LEENA MARERAKI
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 26 October 2023 Appearances:
A J Greaves for the Appellant
J H Whitcombe for the Respondent
Judgment:
2 November 2023
JUDGMENT OF HARLAND J
[1] Bernina Mareraki appeals against the sentence of 25 months’ imprisonment imposed in the Christchurch District Court by Judge Phillips on 29 September 2023. She contends that the sentence is manifestly excessive because the starting point adopted on the lead charge and the uplift for offending on bail were too high and the credit for personal mitigating factors was insufficient.
[2]The appeal is opposed by the Crown.
[3] I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.
MARERAKI v POLICE [2023] NZHC 3096 [2 November 2023]
The charges and the offending
[4] Ms Mareraki was before the District Court for sentence on 22 charges of shoplifting, together with one charge of driving whilst forbidden). Mr Greaves for Ms Mareraki provided a useful schedule outlining the charges and the value of the items stolen. The items stolen range in value from $42.80 to $1,319.89. For three of the charges, the value of the items stolen was over $1,000.1 For four charges of shoplifting the items stolen had a value of between $500 and $1,000,2 and for the remaining 16 charges the items stolen had a value of under $500.3
[5] Ms Mareraki accepted the various summaries of facts. The offending typically involved Ms Mareraki entering commercial retail premises, picking up items and leaving the store without paying for them. The total value of the goods stolen amounted to $9,425.23. The offending spanned a period of approximately 13 months, from 29 May 2022 until 27 June 2023. Mr Greaves submitted that the offending, while occurring over a lengthy period, was, of itself, unsophisticated, did not involve a breach of trust and the total loss was moderate. I largely agree with his assessment apart from as it relates to the total value of the goods stolen. When looked at in totality, the value of the goods stolen is significant.
[6] The various reports that were available at sentencing indicate that the offending was primarily motivated by Ms Mareraki’s addiction to alcohol and her desire to provide for her family and those around her.
District Court decision
[7] Judge Phillips adopted a global starting point of three years’ imprisonment. This was reached by adopting a starting point of 18 months’ imprisonment on the lead offence of shoplifting over $1,000 (CRN ending 0279), uplifted on a totality basis by a further 18 months.
1 Maximum penalty is a term of seven years’ imprisonment.
2 Maximum penalty is a term of one year’s imprisonment.
3 Maximum penalty of three months’ imprisonment.
[8] Further uplifts (equating to 16 per cent) were imposed of three months for offending whilst on bail, and a further three months for prior convictions. This resulted in an adjusted starting point of three years and six months’ or 42 months imprisonment.
[9] Judge Phillips then allowed 20 per cent for guilty plea, 15 per cent for personal background factors, and five per cent for addiction. This resulted in a reduction of 17 months.
[10]The result was a sentence of two years and one month imprisonment.
[11] Judge Phillips also remitted Ms Mareraki’s fines and declined to order reparation as he was of the view that Ms Mareraki did not have any prospect of paying it.
Discussion
[12] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.4
[13] As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Was the starting point adopted by the Judge on the lead charge too high?
[14] The challenge on appeal is to the starting point adopted by the Judge on the lead charge (CRN ending 0279) one of the charges laid under s 223(b) of the Crimes Act 1961, which carries a maximum penalty of seven years’ imprisonment.
4 Criminal Procedure Act 2011, s 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
[15] The lead charge concerned a theft from Farmers to the value of $1,319. The items taken were eight pairs of jeans, two tops and a jacket. All items, apart from the jacket, were concealed in reusable shopping bags. Ms Mareraki’s co-defendant and partner wore the jacket. Both left without paying for the items.
[16] While there is no guideline judgment for dishonesty offending, in R v Varjan, the Court of Appeal stated:7
[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.
[17] I was also referred to other judgments by both counsel to help me assess whether the starting point adopted by the Judge on the lead charge was out of range.8 I have been helped by their analysis but it goes without saying that each case will depend on its own facts. Despite this observation I also acknowledge that consistency is an important sentencing principle.9
[18] I have read all the judgments carefully. The cases cited by the appellant all resulted in overall starting points of 14 months’ imprisonment and the cases cited by counsel for the Crown resulted in starting points of between 14 and 18-months’ imprisonment. In my view the cases of Colman v Police and Ralph v R are most comparable. Colman involved a lead charge of theft to the value of $1,580 and a starting point of 14 months. In Ralph, the value of the property taken for the lead charge was $1,659 and a starting point of 15 months’ imprisonment was within range. Ralph involved seven other charges of theft of a nature materially similar to Ms Mareraki’s offending. The remaining cases are distinguishable. In particular Torbarina, when identifying the starting point, considered the three theft charges together, instead of identifying a lead charge. Davies involved a similar quantum of
7 R v Varjan CA97/03, 26 June 2003.
8 Colman v Police [2014] NZHC 3215, Ralph v R [2021] NZHC 1434 and Aerenga v Police [2012] NZHC 1375 (for the Crown) and Davies v Police [2019] NZHC 3081, Torbarina v Police [2014] NZHC 3221 (for the appellant)
9 Sentencing Act 2002, s 8(e).
items stolen however the total five charges are not comparable to the 23 that Ms Mareraki is facing.
[19] The Crown’s position is that a starting point of 18 months’ imprisonment on the lead charge was within the available range, albeit it at the upper end, whereas Mr Greaves submits that the offending only justified a starting point of 12 months imprisonment.
[20] Having assessed the authorities, in my view the starting point adopted by the judge on this charge was out of range, however the starting point nominated by Mr Greaves is too low. Based on Colman, which is in my view comparable, a starting point of 14 months would have been justified.
[21] However, it is the overall starting point that must be looked at in the round, and in my view the uplift of 18 months on the remining charges was generous and could have been higher.
[22] The relevant purposes of sentencing engaged in this case required a sentence that focussed on individual deterrence and denunciation and one that encouraged Ms Mareraki to take responsibility and be accountable for the recidivist nature of them. A starting point at this level was in my view required to meet these purposes. The Judge recognised this and referred to it in various ways in his sentencing remarks.
[23] In my view, the overall global starting point adopted by the Judge was within range and should not be interfered with on appeal.
Were the global uplifts for applied too high?
[24] Mr Greaves submitted that the global uplifts totalling six months were too high and ought to have been in the vicinity of three to four months, but in effect his real challenge was to the uplift the Judge applied to reflect the fact Ms Mareraki’s offending was, for some charges, while she was on bail.
[25] Mr Greaves’ point that it is difficult to assess what offending was on bail and what was not, is properly made, but the breach of bail history assists to an extent, as
do the charges themselves. Using these as reference points, I consider there are likely to be eight offences that were committed on bail.
[26] It would have been preferable for the police to have provided a summary of this for the sentencing judge and this Court, however stepping back and looking overall at the global uplift, in my view it cannot be said to be excessive or out of range given the recidivist nature of the offending. The three months for offending on bail was within range and although it was applied at this stage of the sentencing process could equally have been applied in setting the starting point.
[27]There is no basis to interfere with the global uplift applied.
Was sufficient credit provided for personal mitigating factors?
[28] Mr Greaves submitted that a credit of 20 per cent rather than 15 per cent was appropriate to reflect the nexus between Ms Mareraki’s personal background and the offending. As well, he submitted that a further discount in the region of 10 per cent would be appropriate to reflect the interests of Ms Mareraki’s children.
[29] The Crown submits that the discount of 15 per cent applied to reflect Ms Mareraki’s background was generous, noting that several of the critical matters referred to in the reports were based on self-reporting.
[30] There is an undoubted nexus between Ms Mareraki’s background and her offending. There is likely to be trauma in her background. There is however hope for her to change as the pre-sentence report writer noted, provided she is given the right support. The relationship with her co-defendant partner appears to be problematic. The pre-sentence report writer refers to each influencing the other in a negative way and both have similarly difficult backgrounds.
[31] Despite all of this, it is clear the Judge took these matters into account in the discount he applied. The Judge allowed 15 per cent for background factors and 5 per cent for addiction – in the round 20 per cent. I am not persuaded that the discount of 15 per cent applied by the Judge was insufficient or out of range when this is
considered with the discount allowed for addiction as all of these matters are mitigating and effectively intertwined.
[32] In relation to the discount to reflect the interests of Ms Mareraki’s children (aged 6 and 13) and while acknowledging the recent observations by the Court of Appeal in Sweeney v R,10 Mr Whitcomb submitted there was no evidence that the children were adversely affected by their present circumstances. It was submitted that care needs to be taken with this discount because Ms Mareraki and her co-defendant used their children as cover while committing some of the offences. It appears there are three occasions when this occurred.
[33] Counsel for the Crown highlighted that the early introduction of the children to a criminal lifestyle is likely to have a long-term impact on them and runs counter to their interests, as would experiencing their mother’s incarceration. Reference was also made to the fact that the children’s lives and care arrangements have already been disrupted due to her previous periods of imprisonment. As was submitted in Sweeney however, Ms Mareraki chose to run the risk of further offending even though previous sentences have kept her away from her children.11
[34] The crux of the Court of Appeal’s reasoning in Sweeney was that Mr Sweeney was an important presence in the lives of his young children and it was in their best interests to grow up in a familial environment. It was concluded that the impact on the children, and the effect on the rehabilitative prospects of Mr Sweeney indicated a discount of 10 per cent was justified but it would not tip the balance far enough to make home detention the least restrictive outcome. This conclusion was reached even though the children concerned were four and six years of age and Mr Sweeney was their sole caregiver, their mother having died in a car accident.
[35] A discount for these matters was not addressed by the Judge because no submissions were received in relation to the topic. Presumably this is because Sweeney v R was only released some three weeks before Ms Mareraki’s sentencing.
10 Sweeney v R [2023] NZCA 417.
11 At [26].
[36] I am not persuaded a discount is appropriate in this case. There was no evidence provided on appeal to assist me to assess the link between Ms Mareraki’s rehabilitation and her relationship with her children or any evidence to suggest they have been traumatised. But, overall, I consider the discounts allowed would encompass these matters.
[37] Even if I am wrong about this, as was the case in Sweeney, I would not find the least restrictive outcome justified a sentence of home detention. The recidivist nature of Ms Mareraki’s offending required the imposition of a term of imprisonment.
Conclusion
[38] Ultimately, I am not persuaded that the sentence imposed by the Judge was manifestly excessive which is the legal test that must be applied. The overall global starting point was within range, there is no basis to interfere with the global uplift required and I am not persuaded that the discounts for personal mitigating factors were insufficient.
Result
[39]The appeal is dismissed.
Harland J
Solicitors:
Walker Street Chambers, Christchurch Raymond Donnelly & Co., Christchurch.
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