Nikora v Police

[2020] NZHC 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-205

[2020] NZHC 2013

BETWEEN

VANESSA PAMELA NIKORA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 August 2020
Appearances:	G P Timms for the appellant D B Dow for the respondent
Judgment:	10 August 2020

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

G P Timms, Barrister, Auckland

Meredith Connell, Crown Solicitor, Auckland

NIKORA v NEW ZEALAND POLICE [2020] NZHC 2013 [10 August 2020]

[1]    Vanessa Pamela Nikora appeals against her 24 months’ imprisonment sentence on her guilty pleas to various theft and dishonesty-related charges, imposed by Judge PJB Winter in the District Court at Auckland on 26 May 2020.1 These include two charges of theft (under $500),2 one charge of theft ($500–$1,000),3 five charges of using a document for pecuniary advantage,4 and one charge of burglary (under $500).5 The last is the lead offending.

Background

[2]    The charges on which Ms Nikora was convicted and sentenced arose from offending in March, July and September 2019, notably using victims’ bank and credit cards to obtain cash, goods, and services for herself, in sum exceeding $7,600. The cards were obtained from a stolen wallet, and from a residential mail box. Ms Nikora also stole from a hotel’s reception desk an envelope containing two Australian passports, and from a department store a handbag and wallet. Together with another person, she forced entry into an apartment building’s mail room and broke into several mail boxes to take items of indeterminate value from them before fleeing. The last is the burglary charge.

Judgment under appeal

[3]    The Judge noted Ms Nikora had been in custody for some eight months, with an intermediate release on electronically-monitored bail to a drug rehabilitation facility, but from which she absconded, to be returned to custody. At the time of sentencing, she was subject to intensive supervision due to expire on 24 August 2020, with which her compliance had been poor.6

[4]    With reference to the Court of Appeal’s observation a starting point of 18 to 30 months’ imprisonment was usual for residential burglaries,7 although Ms Nikora’s

1      Police v Nikora [2020] NZDC 9376 [Sentencing decision].

2      Crimes Act 1961, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.

3      Sections 219 and 223(c). Maximum penalty: one year’s imprisonment.

4      Section 228. Maximum penalty: seven years’ imprisonment.

5      Section 231. Maximum penalty: 10 years’ imprisonment.

6      Sentencing decision, above n 1, at [10]–[11].

7      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

offending was “not so serious as to place it in [that] usual range”,8 the Judge nonetheless took an 18-month starting point, uplifted it by six months for the “dishonesty charges”, and by a further nine months for “the other offending and for [Ms Nikora’s] extensive previous  convictions”,  bringing  the  initial  sentence  to  33 months’ imprisonment. While noting her single prior burglary conviction, the Judge also noted her 153 prior convictions, 90 for dishonesty offences, 67 for taking or using documents, and 22 for theft.9 The Judge deducted 25 per cent for Ms Nikora’s pleas of guilty and other mitigating factors, including remorse and drug addiction, leading to a discount of 8 and a quarter months, rounding the sentence down to 24 months.

[5]    In light of Ms Nikora’s short-term imprisonment sentence, the Judge remitted outstanding fines, cancelled the sentence of intensive supervision imposed special release conditions relating to the counselling and drug and alcohol-related programmes, and granted her leave to apply for home detention. On 29 June 2020, the Judge granted Ms Nikora’s application for home detention at a drug rehabilitation facility, adjusting her sentence to eight months’ home detention.10

[6]    Ms Nikora’s counsel, Graeme Timms, argues the Judge’s 24-month sentence adopted too high a starting point,11 asserting a 12-month starting point to be more consistent with appropriate sentencing levels and similar offending (while accepting the combined 15-month uplifts to be appropriate in the circumstances),12 and failed adequately to consider Ms Nikora’s drug addiction and genuine remorse as mitigating factors.

Approach to appeals against sentence

[7]    I must allow Ms Nikora’s appeal only if I am satisfied there is error in her sentence, and a different sentence should be imposed.13 In any other case, I must

8 At [15].

9      Sentencing decision, above n 1, at [13].

10     Police v Nikora [2020] NZDC 12236 [Home detention decision].

11 By reference to Arahanga v R, above n 7; R v Columbus [2008] NZCA 2506; Heywood v Police [2013] NZHC 2506; Bates v R [2016] NZCA 456; Stepancic v R [2015] NZCA 211; Byles v Police [2016] NZHC 56; Hotene v Police [2014] NZHC 2081; Nelson v Police [2012] NZHC 2266; McKee v Police [2012] NZHC 2684; and R v Nguyen CA110/01, 2 July 2001.

12 Sentencing Act 2002, s 8(e).

13 Criminal Procedure Act 2011, s 250(2).

dismiss the appeal.14 The approach previously taken by courts on sentencing appeals continues to apply,15 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.16 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.17

Discussion

—starting point

[8]    This Court recently has considered, in some detail, the approach to setting starting points in burglary cases,18 noting common 12–18-month starting points.19 There is no guideline decision for burglary offending. In sentencing for burglary, as for other offences, the circumstances of the offending ought to predominate when fixing the starting point.20 I rely in particular on relevant considerations identified in other cases.21

[9]    In the present case, the burglary was committed at the mail room of a residential apartment block at an early hour. I acknowledge there are differences between the present offending in a communal area of a residential complex and burglaries of residential dwellings. But there was premeditation in seeking to access likely depositories of personal documentation, with forceful entry and damage to property, even if with low risk of confrontation given the isolated nature of the mail room and the time at which the burglary was committed. While the value of the property is unknown, there is no dispute property was stolen. This was not opportunistic offending, but distinctly facilitative of Ms Nikora’s long-standing dishonesty. It is not offending at the lowest end of the available range.

14     Section 250(3).

15     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

16     At [33] and [35].

17     Ripia v R [2011] NZCA 101 at [15].

18     Connell-McDowell v Police [2019] NZHC 3370 at [16]–[18].

19     At [23], citing Nelson v Police [2019] NZHC 2434 at [28]–[33].

20     R v Columbus, above n 11, at [14].

21     R v Nguyen, above n 11, at [17]; and Luke v Police [2013] NZHC 3175 at [13]–[14].

[10]   In those circumstances, having regard for consistency with other cases, the Judge’s initial starting point is at the higher end, but not outside, the range of appropriate sentences.22

—personal mitigating factors

[11]   Mr Timms contends – above the standard 25 per cent discount for Ms Nikora’s early guilty plea – distinct one-month discounts for each her reduced culpability by reason of her drug addiction,23 and her genuine and insightful remorse as addressed to the Judge, should have been adopted by him.

[12]   Equally, however, their mitigating impact may have been diminished or cancelled had the Judge uplifted for Ms Nikora’s aggravating factors of offending while subject to a sentence of intensive supervision and absconding while on EM bail. The Judge’s actual discount also exceeded 25 per cent in rounding his initial 33-month starting point down to 24 months’, which may be taken to acknowledge the overall impact of aggravating and mitigating factors in minor favour of the latter.

[13]   In the end, I am not satisfied the Judge erred, or a different sentence should be imposed. The Judge’s sentence is not manifestly excessive, and can properly be justified by orthodox sentencing principle, as I have demonstrated.

Result

[14]The appeal is dismissed.

—Jagose J

22     See also Sawtell v Police [2013] NZHC 364.

23     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [137].