Pitihira v Police

[2012] NZHC 1690

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-470-000021 [2012] NZHC 1690

JOHN RAWIRI PIRIPI PITIHIRA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 July 2012

Counsel:         J Holmes for Appellant

J Rhodes for Respondent

Judgment:      13 July 2012

ORAL JUDGMENT OF WOOLFORD J

Solicitors:

Crown Solicitor, Rotorua

Counsel:

J Holmes for Appellant

PITIHIRA V NZ POLICE HC ROT CRI-2012-470-000021 [13 July 2012]

[1]      This is an appeal against a sentence imposed in the District Court at Tauranga on 24 May 2012 in respect of convictions after a guilty plea on a number of charges

– one charge of unlawful taking of a motor vehicle, two of theft or shoplifting, one of wilful trespass, one of receiving stolen property and  three charges of breach of community work.   Fifteen months imprisonment was imposed on the charge of unlawfully taking a motor vehicle.  Three months imprisonment was imposed on the charge of receiving.   On the charges of theft and breach of community work, the appellant received two months imprisonment.   Finally, on the charge of wilful trespass, the appellant was convicted and discharged.

[2]      At the outset I note that the criminal record is incorrect, in that it shows that the appellant received sentences of two months imprisonment for both the receiving charge and the charge of wilful trespass.  I direct that these be amended to reflect the actual sentences imposed, which were three months imprisonment on the charge of receiving and a conviction and discharge on the charge of wilful trespass.

Facts

[3]      The most serious offence was the charge of unlawful taking of  a motor vehicle.  At about 4:50am on Saturday 7 January 2012, the appellant was passing through the Bayfair shopping complex in Mt Maunganui.  He had been drinking and was intoxicated at that time.   He saw a motor scooter parked outside a shop.   He approached the scooter, broke the steering lock and tried to kick-start it but was unsuccessful in doing so.  He then decided to push the motor scooter down the road to a relative’s house, where he left the scooter in the carport to pick up at a later date. Reparation of $736.60 was sought for damage that had been done to the scooter.

[4]      One of the charges of theft related to the shoplifting of a $20 pair of shoes from the Warehouse, which was recovered.  The other charge involved the theft of a

$21 bottle of wine from PAK’nSAVE.  The trespass charge was also in respect of PAK’nSAVE.  The receiving charge involved the receipt of a pair of jeans from an associate, knowing the jeans to have been stolen, while the three charges of breach of

community work related to the appellant’s failure to report to a probation officer on three successive Fridays.

Pre-sentence report

[5]      The pre-sentence report revealed that Mr Pitihira was living in Papamoa with his mother and two sisters prior to his remand in custody.   He told the probation officer that he shared a good relationship with his whanau, adding that he had two young children who resided with his former partner.   He was not currently in a relationship.  The appellant’s mother described him as “being a good kid who has issues, he needs a fresh start”.

[6]      The pre-sentence report recommended imprisonment with release conditions relating to the attendance at an alcohol and drug counselling facility, a psychological assessment and the attendance and completion of an assessment for a Tikanga programme.

District Court decision

[7]      The District Court Judge noted the appellant’s previous history of offending as dating back to 2003 and involving 36 convictions for offences involving dishonesty, drugs, driving and non-compliance with Court orders.  There were three previous  convictions  for  breach  of  community  work,  10  for  theft  and  two  for burglary,  according to the Judge.   The Judge acknowledged a letter of remorse written to him by the appellant.   In the letter, the appellant said that he had real remorse for his previous offending,  that he was ashamed  of the crimes he had committed and he was sorry for the effect on the victims.  The Judge thought that that may well be case but those words had an empty ring for someone who continued to offend on a constant basis like the appellant.

[8]      The District Court Judge noted that the appellant’s use of alcohol, and to a lesser degree cannabis, was a real problem that he needed to address.  He noted the pre-sentence report as assessing the appellant as being high risk of reoffending due

to his alcohol use, his attitude of entitlement, his poor choice of friends and his unstructured lifestyle.

[9]      The District Court Judge considered that an appropriate starting point on a global basis was one of 18 months imprisonment to which he added two months to take account of his previous convictions.   He then deducted five months as an allowance for his guilty pleas and remorse, which led to a total term of imprisonment of 15 months.  Accordingly, on the charge of unlawful taking he was sentenced to

15 months imprisonment.   He was also ordered to pay reparation of $736.60.   He was also ordered to pay reparation in respect of the bottle of wine of $21 to PAK’nSAVE.   At the same time the Judge cancelled his existing sentence of community work noting that of the 100 hours community work ordered the appellant had only completed 34 hours.

[10]     Finally, the District Court Judge remitted fines in the sum of $532.89 so the appellant would have something of a clean slate when he was released from prison, but he would still need to pay the reparation ordered.   The standard and special release conditions as per the pre-sentence report were to apply for six months from the sentence end date as follows:

(a)      Attend an alcohol and drug assessment at any such alcohol and drug counselling facility, and complete any recommended treatment, counselling or programme to the satisfaction of the probation officer and programme provider.

(b)Attend for a psychological assessment.   Attend and  complete any treatment, counselling or programme as recommended by the psychological assessment to the satisfaction of the probation officer and treatment provider.

(c)      Attend and complete an assessment for a Tikanga programme and if found suitable to complete the programme to the satisfaction of the programme facilitators and the probation officer.

Appellant’s submissions

[11]     Counsel for the appellant submits that the District Court Judge adopted a starting point which was too high and out of proportion to the gravity of the offences and which was not consistent with other cases.   He also submitted that the Judge failed to identify any basis for the starting point and failed to give sufficient credit for mitigating factors.

[12]     Counsel for the appellant referred to the sentencing approach in R v Taueki.[1]

He submitted that on this basis, a starting point needs to be adopted in proportion to the gravity of the offence with an assessment of the features that add to or reduce the seriousness  of  the  conduct  in  the  criminality  involved.     It  is  the  particular combination of these variable features which require assessment for sentencing in each case.  This requires consideration of the gravity of the offending for a particular offender first, then aggravating and mitigating factors relating to that offending.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[13]     Counsel for the appellant submits that he has not been able to identify any tariff case for unlawful taking of motor vehicles but on the basis of a review of previous sentencing decisions, he submits that the starting point for unlawful taking of a motor vehicle rarely exceeds 12 months imprisonment.

[14]     After  reviewing  case  law,  counsel  for  the  appellant  submits  that  the appropriate starting point for sentence should have been one of 12 months imprisonment in respect of the unlawful taking of a motor vehicle.  With discounts a net sentence of 9 months imprisonment could be appropriate.

Respondent’s submissions

[15]     In   essence,  the  respondent  submits  that  the  sentence  of  15  months imprisonment was within the range available to the District Court Judge, although counsel did acknowledge there was not a lot of transparency in the way that the Judge reached the starting point of 18 months imprisonment.  Notwithstanding that,

the respondent submitted that when looked at overall, the sentence was one which

was fully justified in the circumstances of an offender who offended again soon after his release from prison for previous dishonest offending.

Decision

[16]     There is no guideline case for sentencing on unlawful taking of a motor vehicle but in the scale of offences it rates below burglary and robbery.   The maximum sentence of imprisonment for burglary and robbery is 10 years, which can be compared to 7 years imprisonment for unlawful taking.

[17]     The appellant has three previous convictions for burglary.  In June 2009, he received five months imprisonment on two charges of burglary and was granted leave to apply for home detention.  In July 2009, he received a concurrent sentence of six months imprisonment on one charge of burglary.   He has no other burglary convictions.

[18]     The appellant also has one previous conviction for robbery.  In May 2011, he received a sentence of one year’s imprisonment on one charge of robbery, which had occurred 18 months earlier.

[19]     The appellant only has one previous conviction for unlawful taking.  In May

2011,  he  received  a  sentence  of  three  months  imprisonment  on  one  charge  of unlawful taking, which was cumulative on the sentence for robbery.

[20]     In  the  present  case,  the  District  Court  Judge  considered  an  appropriate starting point on a global basis was one of 18 months imprisonment.  However, it is my view that the other offences upon which the appellant was to be sentenced, can only be characterised as minor – theft of a $20 pair of shoes, theft of a $21 bottle of wine, receiving a pair of jeans, trespass and failure to report to a probation officer. By themselves, they may not have attracted a sentence of imprisonment.

[21]     With respect, these offences do not elevate the starting point on a global basis to one of 18 months imprisonment.  That starting point is greater than any previous

sentence imposed on the appellant for more serious offences, such as burglary and robbery.

[22]     In addition, the lead offence of unlawful taking was not the most serious of its type.   There was no particular planning involved.   The offending was opportunistic.  The appellant was intoxicated at the time.  The motor vehicle taken was a scooter, valued at $2000.

[23]     I am therefore of the view that the maximum starting point on a global basis that could have been adopted by the District Court Judge was one of 12 months imprisonment.  I also do not believe that an uplift was warranted on account of the appellant’s previous convictions.  He has only one previous conviction for unlawful taking.   Although the appellant does have a substantial number of previous convictions, they are mostly shoplifting or driving offences.

[24]     As to the appropriate discount to be adopted from the maximum starting point of 12 months imprisonment, I agree with the District Court Judge that a 25% discount should be granted for the early guilty pleas and remorse.

[25]     The offences all occurred between 1 December 2011 and 26 February 2012. Informations were sworn on different dates and were first called in Court variously on 20 February 2012, 22 February 2012, 2 March 2012 and 15 March 2012.  Guilty pleas were entered to all offences on 11 April 2012, after legal aid was granted and instructions received and less than one month after the date of the last information was called in Court.  I am of the view that the District Court Judge was in the best position to assess remorse and, accordingly, agree with the discount of 25% which he adopted.   A 25%  discount  brings  the  final  sentence  down  to  one  of  9  months imprisonment.

[26]     Accordingly, the appeal is allowed. The sentence of 15 months imprisonment is quashed and replaced with a sentence of 9 months imprisonment on the charge of unlawful taking.   The other sentences remain the same.   The orders regarding reparation and post-detention conditions also remain.

[27]     Finally, counsel for the appellant sought leave to apply for a substituted sentence of home detention should the appellant wish to make application for such a sentence.  In the circumstances of the case however, given the appellant’s previous criminal history and the length of time he has already served in respect of the sentence of imprisonment, I do not believe that leave should be granted.

……………………………..

Woolford J