Moeroa v Police

[2015] NZHC 2226

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000211 [2015] NZHC 2226

IN THE MATTER OF	an appeal against sentence
BETWEEN	TUAINEKORE MOEROA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 September 2015
Counsel:	D M M Dickinson for the Appellant S B C O'Connor for the Respondent
Judgment:	15 September 2015

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 15 September 2015 at 4.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     D M M Dickinson, Auckland

Solicitors:    Meredith Connell, Auckland

MOEROA v POLICE [2015] NZHC 2226 [15 September 2015]

Introduction

[1]      Mr Moeroa was sentenced to two years, four months imprisonment for one charge of burglary and one charge of unlawfully being in an enclosed yard.

[2]      Mr  Moeroa  appeals  on  the  ground  that  the  District  Court  Judge  double counted his previous convictions and erred in failing to allow any discount for remorse.  He says this resulted in an end sentence that was manifestly excessive.  He suggests an end sentence of between 16 and 21 months imprisonment would be appropriate.

Background

[3]      The burglary charge relates to an incident on 5 February 2015.  On that day, Mr Moeroa went on to a property in Mt Eden and was confronted by a neighbour. He told the neighbour he was picking flowers.  He tried to enter the property through a window but was seen by the occupant.  He left in his car.

[4]      The unlawfully being in an enclosed yard charge relates to an incident on

25 January   2015   where   Mr   Moeroa’s   car   was   parked   in   a   driveway   on St John’s Road.   The owner of the property came home to find his car there and sounded her horn.  He drove away.

[5]      Mr Moeroa was arrested on 5 March 2015 following Police enquiries.   He initially pleaded not guilty, but then changed his plea to guilty.

District Court sentencing

[6]      The Judge identified the fact that dwelling houses were involved as an aggravating feature and noted that the occupants were put in danger.  The Judge also noted that the pre-sentence report recorded that Mr Moeroa was at a high risk of re- offending.  His Honour also noted the letter of apology written by Mr Moeroa, but expressed scepticism of it, saying that he thought the apology “rang a little hollow”.

[7]      Judge Ronayne canvassed Mr Moeroa’s previous criminal history at various points during the sentencing.  Counsel for Mr Moeroa, Mr Dickinson, notes that the Judge’s discussion of previous convictions runs to six paragraphs of the sentencing notes.

[8]      His Honour referred to Senior v Police and imposed a starting point of two years six months for the burglary, uplifted by six months to recognise previous convictions, and allowed a discount of approximately eight months for the guilty plea.1   A concurrent sentence of one month was imposed for the charge of being in an enclosed yard.

Approach on appeal

[9]      Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)       For  any  reason  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      A different sentence should be imposed.

[10]     In any other case the Court must dismiss the appeal.

[11]     An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning or as a result of additional material submitted on appeal, which vitiates the sentencing decision of the court below.2

[12]     The High Court will not intervene where the sentence is within the range that can be properly justified by accepted sentencing principles.  Whether a sentence is

manifestly excessive, wrong in principle, or incorrectly calculated by the Judge’s

1      Senior v Police (2000) 18 CRNZ 340 (HC).

2      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010, at [13].

own arithmetic, is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.3

Analysis

[13]     I  am  unable  to  discern  from  the  Judge’s  sentencing  notes  whether  the sentence was imposed as a result of double counting the convictions by following the Senior v Police approach in a way that is inconsistent with R v Taueki, or whether Senior simply provided a useful way of categorising Mr Moeroa’s offending.4   I note however that the Judge specifically mentioned that he was conscious of the need not to double count when sentencing; the lenient uplift for previous convictions (as discussed below) suggests that he did not do so.

[14]     In any respect, as the focus of the appeal is on the end sentence, rather than the process used to reach it, I have undertaken the sentencing approach afresh to see whether the sentence imposed can be said to be manifestly excessive in the circumstances.  I have followed the three step approach set out in Taueki.5

Starting point

[15]     The Judge adopted a starting point of two years six months.  The Police say this was stern but within the available range.  The appellant says a starting point of between 14 and 16 months imprisonment would be consistent with other sentences imposed for similar offending.

[16]     There is no tariff decision for burglary because the range of circumstances in which the offence can be committed is so varied.  The Court of Appeal in Arahanga v R observed that dwelling house burglaries at the relatively minor end of the scale tend  to  attract  a  starting  point  of  18  months  to  two  years  and  six  months

imprisonment.6

3      Tutakangahau v R [2014] NZCA 279 at [26]-[35]; Ripia v R [2011] NZCA 101 at [15].

4      Senior v Police, above n 1; R v Taueki [2005] 3 NZLR 372 (CA).

5      At [26]-[45].

6      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 (CA) at [78].

[17]     Blissett v Police involved an appeal against two charges of burglary.7    The burglaries involved one failed attempt to take property, and one successful entry into a house with an accomplice where $2,000 worth of goods were taken.  On appeal, Duffy J set a starting point of 17 months imprisonment with an uplift of three months for the failed burglary.

[18]     In Matika v Police, Lang J adopted a starting point of one year for charges of burglary and unlawfully taking a motor vehicle.8    In that case the appellant and an accomplice had gone onto a speedway and stole a car, which was subsequently burned. An uplift of nine months was imposed for damage to the truck.

[19]     A starting point of 22 to 24 months imprisonment was adopted in Tepania v Police.9     The appellant had climbed through an open bedroom window into the bedroom of the victim during the night and a struggle had ensued. The appellant was restrained and no property was taken.

[20]     During oral submissions, counsel for the appellant also referred me to Wilson v R, where Wylie J found the starting point of 20 months too high and indicated 18 months was more appropriate.10   In that case, the appellant had entered a residential dwelling and was found by a female resident standing in her room.  He left the house without taking any property.   Counsel for the appellant submits that the factors in that case were more aggravating than this one.

[21]     The respondent relies on the case of King v Police in which Andrews J adopted a starting point of two years six months for two charges of burglary.11    In that case the appellant had entered two separate addresses on consecutive nights.  On one occasion the occupant had noticed the appellant in her bedroom and he then fled. Although no property was actually taken, some property had been moved within the

house.

7      Blissett v Police [2013] NZHC 156.

8      Matika v Police [2013] NZHC 2806.

9      Tepania v Police [2013] NZHC 2327.

10     Wilson v R [2012] NZHC 65.

11     King v Police [2014] NZHC 2946.

[22]     The cases canvassed by counsel in their submissions, and those considered by the Court of Appeal in Arahanga v R involved offending more serious than this case. In  this  case  the  offending  was  during  the  day;  there  is  no  suggestion  that  the appellant actually entered the dwelling; he acted alone; and no property was taken or damaged.

[23]     Taking all these factors into account, I consider a starting point of 15 months imprisonment is appropriate in this case.  Whilst that is lower than the starting point adopted in the District Court, it does not necessarily mean that the sentence imposed is manifestly excessive.  It is the end sentence which is relevant.

Personal aggravating features

[24]     The Judge referred to Mr Moeroa’s previous convictions as numbering over

70, with 31 convictions for burglary spanning a 20 year period.  His Honour referred to Mr Moeroa as a “career burglar”.  The Judge allowed an uplift of six months to reflect previous convictions.

[25]     Counsel for Mr Moeroa accepts that an uplift between six and 12 months for previous convictions would be appropriate.  The Police say that an uplift of 12 to 18 months could be considered within the reasonable range and in that context the six month uplift was light.

[26]     In Blissett v Police, Duffy J adopted a 12 month uplift for a total of 20 previous burglary convictions, and in Johnstone v Police, a 12 month uplift was adopted for 26 previous convictions for burglary, although Woolford J stated that an uplift of 12 to 18 months imprisonment could have been appropriate in the circumstances.12     In King v Police, an uplift of 12 months was imposed for 45

previous convictions for burglary, and 14 other relevant dishonesty convictions.13

[27]     I agree with the Crown that the uplift of six months was light.   I adopt an uplift of 12 months to reflect prior convictions.

12     Blissett v Police, above n 7; Johnstone v Police [2012] NZHC 551.

13     King v Police, above n 11.

Personal mitigating features

[28]     The appellant criticises the Judge for not providing any discount for remorse and suggests five per cent would be appropriate in this case.

[29]     I see no basis to interfere with the Judge’s assessment of the genuineness of

the apology in this case and do not allow any further discount for remorse.

Discount for guilty plea

[30]     The Judge allowed a discount of approximately 22 per cent for the guilty plea.  The Judge noted that there was delay in entering the guilty plea on the charge of being unlawfully in a yard without reasonable excuse due to it being amended, but there was no adequate explanation for the delay in pleading guilty to the charge of burglary.14   I see no basis to interfere with the Judge’s discount for the guilty plea.  I consider a discount of 22 per cent to be appropriate in this case for the entry of a guilty plea.

End sentence

[31]     In total, that results in an end sentence of one year, nine months for the burglary charge.

[32]     Adopting this approach,  I am satisfied that the sentence imposed of two years, four months was manifestly excessive and should be set aside.

Result

[33]     The appeal is allowed.

[34]     The  sentence  of  two  years  four  months  imprisonment  is  quashed  and  a

14     Police v Moeroa [2015] NZDC 14046 at [1].

sentence of one year and nine months is substituted.  The concurrent sentence of one

month for unlawfully being in a yard remains.

Edwards J