Police v Palaimaea HC Auckland CRI 2006-404-439
[2007] NZHC 1986
•10 August 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-404-439
NEW ZEALAND POLICE
Appellant
v
MAKANANI PALAIMAEA
Respondent
Hearing: 10 August 2007
Appearances: HD Lawry for Crown
T Patea for Respondent
Judgment: 10 August 2007
ORAL JUDGMENT OF ASHER J
Solicitors:
Meredith Connell, PO Box 2213 Auckland
T Patea Barrister, PO Box 200168 Papatoetoe
NZ POLICE V PALAIMAEA HC AK CRI 2006-404-439 10 August 2007
Introduction
[1] This is an appeal against a sentence imposed in the District Court at Manukau. It is brought with the consent of the Solicitor-General by the New Zealand Police who submit that the penalty imposed of 100 hours’ community service and $1,666 of reparation was manifestly inadequate. Mr Palaimaea had been convicted of a single charge of theft and faced a maximum penalty of seven years’ imprisonment: s 223A of the Crimes Act 1961.
The summary of facts
[2] The summary of facts, which was not contested, stated that between
1 April 2006 to 25 May 2006 Mr Palaimaea was employed by Mainfreight Logistics Limited as a storeman in their Mangere distribution centre. In this role he would receive the details of orders, pick the relevant goods off the shelves and package them for delivery.
[3] Between 1 April 2006 and 25 May 2006 Mr Palaimaea stole goods from his employer on three occasions. He did this by manually generating a false consignment note and creating a sticky label to put on a pallet. He would make up pallets of JVC plasma televisions and wrap them in the usual way for delivery and then place the false consignment notes on them. He would then contact an associate who was working as a delivery driver for the same company who would pick up the pallets containing the stolen goods and deliver them to a third associate’s address.
[4] The total retail value of the goods stolen was $120,000. The victim impact report shows that the cost price for the televisions and therefore the loss to Mainfreight was $85,000. However, there had also been a private investigation in relation to the losses of televisions, which had cost $30,000. It appears that insurance covered all Mainfreight’s losses save for an excess of $5,000 that had to be paid.
[5] The sentence was delivered on 7 November 2006. The learned Judge referred to the fact that the pre-sentence report recommended that Mr Palaimaea be sentenced to imprisonment. The Judge stated that there were two things which prevented him from doing so. He stated:
One, your counsel is correct, the issue of parity with your co-offenders must bring that down a bit, and secondly you have agreed and it has been agreed by consent of both counsel and the prosecution that the amount of reparation is $1,666.00 and you have agreed to pay that.
The Judge made some further remarks which indicated that he regarded the sentence as extremely lenient.
Counsel’s submissions
[6] Mr Lawry who appeared for the appellant, submitted that the sentence was manifestly inadequate and erroneous in principle. He submitted that the starting point for sentence should have been two years’ imprisonment and that even with a generous discount for a guilty plea, remorse and good character, a sentence of over
12 months’ imprisonment should have been imposed. He submitted that given the particular circumstances of this appeal the appropriate sentence to be imposed today should be 12 months’ imprisonment. He acknowledged that Mr Palaimaea has repaid all but $400 of the reparation and has completed 84 hours of his community work. Because of matters to which I will refer in more detail later in this judgment, Mr Lawry took the step, which he acknowledged was unusual, of not opposing, if the appeal was allowed, the granting of leave to apply for home detention and deferment of the starting of the sentence.
[7] Mr Patea, who in his written submissions sought to support the decision, before me focused his submissions rather on the sentence that should now be imposed by the Court assuming the appeal was allowed. He submitted that assuming a sentence of imprisonment was inevitable, that the Court should grant leave to seek home detention and deferment of the sentence start date
[8] It appears to have been central to the learned Judge’s decision that a sentence should be imposed which was consistent with the sentences imposed on Mr Palaimaea’s co-offenders. They were each sentenced to 100 hours’ community work and $1,666 reparation.
[9] Parity was certainly a matter to be considered in terms of s 8(e) of the Sentencing Act 2002. However, Mr Palaimaea’s co-offenders in terms of s 8(e) were not convicted of similar offences in similar circumstances as is required for parity to arise. They were both convicted of receiving, not theft. It is clear from the uncontested summary of facts that they did no more than assist Mr Palaimaea to remove the televisions that he had stolen from his employer, and take them to a secure address.
[10] There can be no doubt that Mr Palaimaea was the primary offender and that his co-offenders were less culpable by a considerable margin. While the penalty for theft and receiving is the same, the offences are in their nature different and the circumstances, for the reasons I have outlined, were quite different. It was, therefore, an error to apply the parity principle. The co-offenders, who had been sentenced by the same Judge, had been given an identical sentence to that of Mr Palaimaea of 100 hours’ community work and $1,666 reparation. It was an error for the learned Judge to decide that the parity principle obliged him to impose the same penalty on Mr Palaimaea. Ordinary sentencing principles required a considerably more severe sentence for Mr Palaimaea given his greater culpability.
[11] The learned Judge was also in error in stating that the amount of reparation was $1,666. He had clearly divided the $5,000 excess payable by Mainfreight by three, which is understandable given that there were three offenders, but the error was in assuming that the total amount of loss that required reparation was only
$5,000. The total loss, as I have outlined, was over $100,000. The fact that the cost had fallen largely on the insurer did not mean that Mr Palaimaea’s culpability, or the loss that ideally should have been paid back by the wrongdoers, was reduced.
[12] Finally, I am quite satisfied that the sentence was manifestly inadequate. The maximum penalty was seven years’ imprisonment. I have considered a range of cases that have been put before me by counsel. I place particular weight on two relatively recent Court of Appeal decisions. In R v Robertson CA424/02
4 March 2003, there was an appeal in respect of a theft by an employee of $164,000. The Court of Appeal considered a starting point of four years was perhaps too high, at [43], but accepted that a final sentence of two-and-a-half years was within the sentencing range. In R v Kingston CA477/00 24 May 2001, there were two sets of charges involving $13,000 and $800. The defendant had numerous previous convictions. The Court of Appeal did not indicate an appropriate starting point but upheld sentences of 16 months’ imprisonment and a cumulative further term of six months’ imprisonment. These sentences indicate that a sentence of community service was, in this case, too low.
[13] In considering the starting point relating to the offending, the matters of particular importance were the abuse of the position of trust, the fact that the offending took place on a number of occasions over a period of time, and was clearly premeditated and indeed involved some sophistication. I consider that in the circumstances a starting point in the vicinity of two years’ imprisonment would have been appropriate.
[14] Mr Palaimaea was entitled to a discount for remorse and good character. This is his first offending of this type. He is a married man with children and in regular employment. He is very remorseful. For reasons I will refer to later, he has been of good character. He was young at the time of the offending, being aged 20. These factors in themselves would have warranted some discount from the starting point of two years. In addition the guilty plea would have warranted a further discount of up to one-third. It is possible then that a sentence as low as one year could have been justified. Clearly, however, a sentence of only 100 hours’ community service and modest reparation was well below the acceptable range.
[15] I therefore uphold the appeal.
The sentence to be imposed by this Court
[16] Under s 121(3) of the Summary Proceedings Act 1957 the Court has wide powers including the power to pass such other sentence as those “warranted in law (whether more or less severe)”, as the Court thinks ought to have been passed. It also has the power to deal with the offender in any other way that the Court imposing sentence could have dealt with the offender on conviction. Section 121(3)(b) has been interpreted in a flexible way by the Court of Appeal. New material can be received as relevant in any appeal against sentence: R v Barton [2000] 2 NZLR 459 and R v O’Neil CA117/02 7 June 2002 at [16].
[17] I consider that in all the circumstances the appropriate starting point is two years’ imprisonment. Taking into account the various mitigating factors I have mentioned, I consider a one-year term of imprisonment is an appropriate final sentence. I also reach that sentence taking into account the community work that has been carried out by Mr Palaimaea and the reparation that he had paid. I propose to leave the reparation order in force.
[18] Mr Patea, in his submission that I should grant leave to seek home detention and grant deferment of the starting period of imprisonment, has emphasised matters personal to Mr Palaimaea. He has secured another job since leaving his previous employer and has been working there for some time. It appears that the new employer, which is a national concern, is supportive of him despite his previous offending. He has recently been granted the award of Employee of the Month by his particular employer. I take into account the fact that he is relatively young, presently aged 21, and only 20 at the time of the offending. His wife, who is present in Court today, and child are dependent on him as the sole income earner. His good past record and present circumstances indicate that his offending was hopefully a single aberration.
[19] Under s 97 of the Sentencing Act 2002 I must take into account the three matters stated in that section:
(a) the nature and seriousness of the offence; and
(b) the circumstances and background of the offender; and
(c) any relevant matters in the victim impact statement in the case.
As I have indicated, the offence is serious of its type. However, the victim has not suffered severe impact because fortuitously insurance covered the losses. Nevertheless the insurance company itself is a victim.
[20] What is most relevant is Mr Palaimaea’s good background and his present circumstances. He has rearranged his affairs on the basis of a sentence of community work and reparation, and indeed has almost completed both those sentences. He has found new employment and arranged his life on the basis of the non-custodial District Court sentence, and that he would be able to continue to work. The combination of his past and present circumstances persuades me that this is an appropriate case to grant leave to Mr Palaimaea to apply for home detention.
[21] I am also persuaded to take the very unusual step of granting deferment. I do this on humanitarian grounds and because of the exceptional circumstances of his having already partly completed a sentence previously imposed. That in itself would not necessarily be enough and indeed has been taken into account in some further discount of the sentence. However, any sentence of imprisonment will mean that Mr Palaimaea will lose his job and the goodwill and opportunities that he has built up since he was sentenced in the District Court. This, combined with his past good character, remorse and co-operation, all persuade me that it is one of those rare cases where deferment is warranted.
Result
[22] The appeal is allowed.
[23] A substituted sentence of one year’s imprisonment, and reparation on the same terms as imposed by the District Court of $1,666 is imposed.
[24] Mr Palaimaea is granted leave to apply for home detention. The starting date of the sentence of imprisonment is deferred for a period of two months.
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Asher J
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