Puna v The Queen

[2010] NZCA 572

IN THE COURT OF APPEAL OF NEW ZEALAND

CA486/2010
[2010] NZCA 572

BETWEENSHIANNE ROSE PUNA

Appellant

ANDTHE QUEEN

Respondent

Hearing:25 November 2010

Court:Harrison, Ronald Young and Keane JJ

Counsel:A J Hamblett for Appellant

M E Ball for Respondent

Judgment:25 November 2010 

ORAL JUDGMENT OF THE COURT

A            The appeal is allowed.

BThe sentence of 18 months’ imprisonment is quashed.  A sentence of 14 months’ imprisonment is substituted.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]        Shianne Puna appeals against a sentence of 18 months’ imprisonment imposed upon her in the District Court in Hamilton in July 2010 following her pleas of guilty to 12 charges of using a document for pecuniary advantage, receiving, shoplifting, possessing methamphetamine and possessing a utensil for using methamphetamine.  The Court also cancelled Ms Puna’s existing sentences of 120 hours and 80 hours of community work respectively, and ordered her to pay reparation of $5,397.[1] 

[1]      R v Paki DC Hamilton CRI-2009-019-2400, 22 July 2010.

[2]        As this appeal is fact specific and does not raise any points of principle, it is appropriate to deliver judgment orally.

District Court

[3]        The relevant facts are not in dispute. 

[4]        In July 2008 Ms Puna’s co-offender, Ian Paki, stole a wallet from a woman at a shopping centre in Hamilton.  The couple used bank and retail cards taken from the wallet on 44 different occasions in the subsequent fortnight.  By this means they obtained property and cash to a total value of $10,690. 

[5]        In April 2010 the police visited the address of a property occupied by Mr Paki and Ms Puna in Hamilton.  They were looking for both of them for breaches of conditions of bail and failing to attend court.  As a result of Mr Paki’s attempts to prevent them from entering the house, the police conducted a search.  Ms Puna was found hiding underneath the house concealed by a mattress.  She refused to surrender voluntarily to the police and had to be forcibly removed. 

[6]        The police found a point bag of methamphetamine in Ms Puna’s handbag.  Elsewhere they located methamphetamine pipes in her jacket and in her bag which was hanging on the wall. 

[7]        Mr Paki and Ms Puna appeared for sentencing together.  The sentencing Judge, Judge Wolff, adopted different starting points for each; two and a half years for Mr Paki and two years for Ms Puna.  After allowing for pleas of guilty, he fixed Ms Puna’s end sentence at 18 months’ imprisonment, cancelled her existing sentence and ordered her to pay reparation.  Mr Paki was sentenced to two years’ imprisonment and does not appeal.

[8]        The Judge was not satisfied that home detention was an appropriate sentencing option for Ms Puna.  She did not have a suitable address and in any event the circumstances precluded that sentence.

Appeal

[9]        Ms Puna’s counsel, Mr Hamblett, submits that the starting point set by Judge Wolff for Ms Puna’s offending was excessive.  He says that it should have been 12 months at the most on the lead offences, but more appropriately six to nine months.  He says a further deduction should have been made for Ms Puna’s age, (she was then 23 years old), her pleas of guilty and lack of relevant previous convictions. 

[10]       Additionally, Mr Hamblett submits that Mr Paki was the primary offender; and that his culpability was greater than Ms Punas.  He describes the latter as a “relative novice”.  He points to the fact that Mr Paki stole the wallet and the credit cards, which he used 26 times and which formed the subject of the 25 charges to which he pleaded guilty.  By comparison, he says, Ms Puna used a card 14 times. 

Decision

[11]       Judge Wolff’s notes do not fully explain his method and reasoning in fixing the appropriate starting point for either Mr Paki or Ms Puna, or in making subsequent adjustments.  We are independently satisfied that the starting point adopted for Ms Puna was excessive.  So, instead of analysing the separate elements of the sentence addressed briefly by the Judge, we shall approach the exercise of sentencing afresh. 

[12]       Mr Hamblett cited numerous authorities in support of Ms Puna’s appeal.  But, as Ms Ball points out, this Court has recognised that there is no established benchmark for dishonesty offending given that the circumstances vary widely.  There are a number of relevant factors to be taken into account.  Included among them are the nature of the offending, its magnitude and its sophistication, coupled with the type, circumstances and number of the victims, the amounts involved in the period of offending and the impact on its victims.  Ms Ball says an appropriate starting point in this case for Ms Puna would have been between 18 months and three years.

[13]       We are satisfied that Ms Puna’s culpability was considerably less than that of her co-offender Mr Paki.  He stole the cards; and he used them much more frequently than Ms Puna.  Even though it was, as the Judge found, a joint enterprise, Mr Paki was plainly the leader.  His adoption of that role is consistent with his criminal background.

[14]       As noted, Judge Wolff fixed the starting point for Mr Paki at two and a half years’ imprisonment.  However, the Judge did not break this figure down between, first, the base attributable to the circumstances of the offending and, second, aggravating or uplifting features in the nature of Mr Paki’s extensive history of dishonesty offending.  On a reconstructive basis, we fix a notional two year starting point for Mr Paki for the offending itself, with an additional six months for aggravating features.  On a comparative basis, we are satisfied that the appropriate starting point for Ms Puna necessary to reflect her relative culpability and responsibility is 15 months’ imprisonment. 

[15]       There were also aggravating features in Ms Puna’s offending.  Principally, she had failed to comply with a community work order imposed for shoplifting offences.  She had also failed to appear at an earlier trial for these offences.  She had committed some drug-use offences but we accept that they would not normally of themselves have merited a term of imprisonment. 

[16]       In our judgment, considering the facts in totality, these features justify a modest increase in the starting point for Ms Puna’s sentence from 15 months to 18 months’ imprisonment.  Against that, a reasonable allowance must be made for pleas of guilty – while they were late they were nevertheless, in the particular circumstances, worthy of a reasonable discount. 

[17]       In our assessment that allowance would be in the range of 20 to 25 per cent.  Thus, we deduct four months from the adjusted starting point of 18 months to reach a sentence of 14 months’ imprisonment.  In our judgment a sentence of that length is appropriate to reflect the nature and effect of Ms Puna’s offending. 

Result

[18]       As a result, Ms Puna’s appeal is allowed.  The sentences imposed in the District Court of 18 months’ imprisonment on the charges of using documents are quashed.  Instead, a sentence of 14 months’ imprisonment is imposed on those charges.  In all other respects the sentences are unchanged. 

Solicitors:

Crown Law Office, Wellington for Respondent