Peita v Police

[2020] NZHC 2098

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-34

[2020] NZHC 2098

BETWEEN

HENRY LIONEL PEITA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

17 August 2020

Appearances:

T Spencer for the Appellant

R Annandale and C Taylor for the New Zealand Police

Judgment:

21 August 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 21 August 2020 at 4 pm Registrar/Deputy Registrar

Date:

PEITA v NEW ZEALAND POLICE [2020] NZHC 2098 [21 August 2020]

[1] On 20 May 2020 the appellant, Henry Peita, pleaded guilty to a wide range of offending committed between November 2019 and May 2020: two charges of burglary;1 two charges of failing to answer bail;2 attempting to take a vehicle;3 escaping custody;4 wilful damage;5 providing false details to the Police;6 and failing to remain stopped.7

[1]    On 2 July 2020 Judge Orchard in the District Court sentenced Mr Peita to two years and one-month imprisonment on the lead burglary charge. Her Honour then imposed lesser concurrent sentences on the remaining burglary charge, the wilful damage charge and the charge of attempting to take a motor vehicle.8 Judge Orchard also ordered Mr Peita to pay reparations in the sum of $3,000. On the remaining charges Mr Peita was convicted and discharged.

[2]    Mr Peita appeals against his sentence on the lead charge on the grounds it was manifestly excessive. Specifically, Mr Peita contends that Judge Orchard erred by:

(a)adopting a starting point that was too high;

(b)failing to adjust the starting point to reflect the totality principle; and

(c)providing insufficient credit for the guilty pleas.

The offending

[3]    On 20 November 2019 Mr Peita unlawfully entered the garage of a residential property in Kerikeri and took an outboard motor, a drill set, a petrol can and scuba diving gear, to the value of $5309 (“the November burglary”).

1      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.

2      Bail Act 2000, s 38(a). Maximum penalty 1 year imprisonment.

3      Crimes Act 1961, s 226(2). Maximum penalty 7 years’ imprisonment.

4      Section 120(c). Maximum penalty 5 years’ imprisonment.

5      Summary Offences Act 1981, s 11(1)(a). Maximum penalty 3 months’ imprisonment.

6      Land Transport Act 1998, s 44. Maximum penalty $10,000 fine.

7      Sections 52A(1)(b) and 114. Maximum penalty $10,000 fine.

8      On the remaining burglary charge Mr Peita was sentenced to 6 months’ imprisonment. On the wilful damage charge Mr Peita was sentenced to one month imprisonment, and on the charge of attempting to take a motor vehicle a sentence of two months’ imprisonment as imposed.

[4]    Sometime between 8 pm on Friday, 13 December 2019 and 8:30 am on Saturday, 14 December 2019, Mr Peita burgled a building located on a residential property in Kerikeri; entering through a locked door and taking a wallet, fishing gear, camera equipment and clothing to the value of some $22,357 (“the December burglary”).

[5]    On 10 February 2020 Mr Peita entered a Toyota motor vehicle that did not belong to him and drove a short distance. Later that day Mr Peita was located by Police and advised he was under arrest. In response Mr Peita ran from Police through the gate of a residential property causing it to break.

[6]    On 17 April 2020 Mr Peita was driving on State Highway 1 in Kaitaia when he was stopped by the Police. Mr Peita identified himself using his brother’s details. Subsequent checks identified these details were false, and Mr Peita was asked to step out of the vehicle. Instead, Mr Peita took off at speed.

[7]On 17 March and 12 May 2020 Mr Peita failed to answer bail.

District Court decision

[8]    Judge Orchard identified the December burglary as the lead offence.9 Her Honour regarded the offending as serious due to the significant amount of property stolen, and the fact it involved a residential burglary, bringing with it the risk of an “encounter with a home owner”.10 Her Honour also found the offending had an element of premeditation as Mr Peita took a vehicle to the address.11 With regard to these factors Her Honour adopted a starting point of 18 months’ imprisonment.12

[9]    Judge Orchard then addressed the November burglary. Again, she identified that this was a burglary, by day, of a residential address and risked a confrontation.13 Again, property of a significant value was stolen. Judge Orchard was also cognisant that as a result of the offending the elderly victim feared for her safety in her own

9      Police v Peita [220] NZDC 12625 at [7].

10 At [7].

11 At [7].

12 At [7].

13 At [8].

home. Her Honour uplifted the starting point by nine months to reflect this offending, an uplift she described as “merciful”.14

[10]   Judge Orchard made a further uplift of three months to reflect the charges of attempting to take a vehicle, intentional damage and escaping Police.15 A final three- month uplift was applied to account for Mr Peita’s “significant history of previous dishonesty offending”, bringing the total starting point to 33 months’ imprisonment.16

[11]   As Mr Peita’s guilty pleas did not come at the first available opportunity, Judge Orchard gave a discount Her Honour described as “a little more than 20 per cent”. However, as eight months was deducted from the starting point the final deduction was in fact equivalent to 24.24 per cent.17 The result was an end sentence of two years and one month imprisonment; a sentence on the cusp of eligibility for home detention. However, Her Honour was of the view that home detention would be entirely inappropriate:18

Even if you were ultimately to be in the range of home detention, which you are not, in my view the time has come for it to be brought home to you that you will be held accountable for your offending, particularly when it is serious offending like residential burglaries, and in my view, the principles of accountability, denunciation and deterrence would not have been able to be met by a sentence of home detention and particularly, as I say, since such sentences have been totally ineffective in bringing about change in the past.

Appellant’s position

[12]   Ms Spencer, on behalf of Mr Peita, submits that the starting point adopted for the lead burglary charge, and for the two burglaries together was too high. She submits Judge Orchard was wrong to characterise both burglaries as residential and was also wrong to identify the December burglary as involving premeditation, rather, she submits that Mr Peita arriving at the dwelling house in a vehicle, in rural Northland was indicative of opportunistic offending. Having regard to these errors, to other

14 At [9].

15 At [10].

16 At [12].

17 At [14].

18 At [13].

comparable cases,19 and to the totality principle, Ms Spencer submits that a starting point of no more than 12 months ought to have been adopted for the lead charge, and an uplift of no more than six to eight months should have been applied to reflect the second burglary. Ms Spencer takes no issue with the further uplifts, and on her submissions a total starting point of between 24 and 26 months’ imprisonment was appropriate.

[13]   Ms Spencer also submits the credit given for Mr Peita’s guilty pleas was insufficient and that the sentence has the appearance of being “crafted to fall outside two years’ imprisonment to avoid the Court necessarily considering a home detention sentence”. She submits that if a 25 per cent deduction, the deduction she submits is appropriate, was applied, this would have resulted in an end sentence of 24 months’ imprisonment rendering Mr Peita eligible for a sentence of home detention.

Discussion

[14]   Mr Peita’s appeal against sentence is governed by the Criminal Procedure Act 2011, and s 250(2) provides that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss his appeal.20 The measure of error that must be shown, is that the sentence is “manifestly excessive”.21 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.

[15]   I begin my analysis with the starting point. First, I see no error with Judge Orchard’s characterisation of the burglaries as burglaries of residential properties. The November burglary involved a garage on a residential property, and the December burglary, although ultimately involving a workshop or storage room, was part of a complex of buildings at a residential address and clearly resembled a residential

19 Ms Spencer refers to Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189; Nelson v Police  [2019] NZHC 2434; Waenga v Police [2019] NZHC 2922; Komene v Police [2019] NZHC 1651 and R v Columbus [2008] NZCA 192.

20 Section 250(3).

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

dwelling in its own right. In both cases I am satisfied there was a high risk of a confrontation occurring, particularly given Ms Spencer’s submission that the December burglary had occurred in daylight, most probably on the Saturday morning when the residents may well have been preparing to use their boat parked next to the building burgled with the boat equipment being the target of the burglary. Given the nature and quantity of material stolen and the presence of a vehicle I also see no error with Her Honour’s assessment that the December burglary involved an element of premeditation.

[16]   The submissions of both counsel have in large focused on the appropriate starting points with regard to comparable cases. There is no tariff case for burglary, however, the Court of Appeal in Arahanga v R identified that “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”.22 Although there is more recent authority to suggest that “a more realistic range [of starting points] might be [between] one year to two and a half years’ imprisonment”, 23 this does not mean that either of the starting points adopted by Judge Orchard for both the November and December burglaries fall outside this updated range.

[17]   The December burglary in particular was clearly more serious than Nelson v Police relied upon by Ms Spencer. While in that case the offending involved a residential burglary in the early hours of the morning, it was unclear if the offender had actually entered the building or taken anything and the starting point adopted was nonetheless 14 month’s imprisonment. In contrast the December burglary involved actual forced entry and the taking of property to the value of $22,357. The December burglary in fact bears similarity to Tairi v Police24 and Blissett v Police,25 two of the cases surveyed by Hinton J in Nelson, where starting points of 16 and 17 months’ imprisonment were adopted respectively. However, the value of the property taken in the December burglary substantially exceeds that in both Tairi and Blissett, rendering

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

23     Nelson v Police [2019] NZHC 2434.

24     Tairi v Police [2015] NZHC 187.

25     Blissett v Police [2013] NZHC 156.

the 18 month starting point adopted by Judge Orchard well within the available range.26

[18]   Likewise, I accept Mr Taylor’s submission on behalf of the Police that the November burglary is comparable to that in R v Columbus, where a starting point of 12 months’ imprisonment was adopted.27 As a result the 9 month uplift adopted by Judge Orchard was entirely within range and self-evidently took into account the totality principle.

[19]   As Ms Spencer takes no issue with the further uplifts applied by Judge Orchard, I see no reason to interfere with these. The total starting point of 33 months adopted by Her Honour was therefore appropriate and within the range available.

[20]    Lastly, I turn to the guilty plea deduction. As noted the deduction of 8 months, amounted to 24.24 per cent. As Mr Taylor submitted, in circumstances where Mr Peita failed to attend court on two occasions and did not enter pleas at the earliest opportunity, the deduction awarded by Judge Orchard can only be described as generous. The sentence was also clearly not crafted to avoid home detention, as had a 20 percent discount been applied as proposed, the end sentence would have been substantially short of the maximum 24 months required for Home Detention to be considered. In any event Judge Orchard made it clear why she considered home detention would have been inappropriate even if it had been available.

[21]   In conclusion the end sentence of two years’ and one month imprisonment on the December burglary was entirely within the available range. Accordingly, the appeal must be dismissed.

[22]   For completeness I note that Ms Spencer did not raise any concerns with the lesser concurrent sentences nor with the reparation orders imposed by Judge Orchard, thus I can see no reason to disrupt these either.

26 In Tairi goods to the value of $370 were taken, and in Blissett goods to the value of $2,000 were taken. I emphasise that this is much less than the $22,357 taken by Mr Peita in the December burglary.

27 R v Columbus [2008] NZCA 192.

Decision

[23]The appeal against sentence is dismissed.

Powell J