Putua v Police

[2017] NZHC 103

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-49 [2017] NZHC 103

BETWEEN

KORO PUTUA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 February 2017
Counsel	A M Dooney for Appellant J W Wall for Respondent
Judgment:	8 February 2017

ORALJUDGMENT OF WHATA J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            A Dooney, Whangarei

PUTUA v POLICE [2017] NZHC 103 [8 February 2017]

[1]      Mr  Putua  appeals  against  a  sentence  of  four  years  and  six  months imprisonment imposed in respect of the following offences:

(a)       Two charges of burglary;

(b)      Two charges of theft of property valued between $500 and $1,000; (c)          Nine charges of receiving stolen property;

(d)      One charge of unlawfully possessing a sawn-off shotgun;

(e)       One charge of unlawfully possessing shotgun ammunition; and

(f)       One charge of possession of cannabis.

[2]      With the benefit of argument, the central issues on appeal are whether or not: (a)     A six-month uplift on the firearms charges was warranted;

(b)      A twelve month uplift for prior convictions was double-counting; and

(c)       Whether, overall, the sentence was proportionate to the offending.

Facts of offending

[3]      The facts of the offending are not disputed.  They are drawn from the police summary of facts as follows.

[4]      On 17 May 2016, Police executed a search warrant at the residential address of the appellant, Mr Putua. Property was recovered at the warrant from multiple burglaries and thefts ranging from October 2015 to the date of the warrant, and the firearm, ammunition and cannabis were also discovered at the residence.

The Burglaries

[5]      The first burglary occurred between the hours of 8.00am and 6.00pm on

15 April 2016, at 216 Fairway Drive, Whangarei. Mr Putua entered the house by smashing the garage window and climbing through. He conducted a search of the house and stole many items from the victim’s home. These items were discovered on

17 May 2016 following the search warrant. The second burglary occurred between

3.30pm and 5.00pm on 18 April 2016 at Suncourt Sushi, Whangarei. Mr Putua entered the store room of the shop through a back door and stole two bags belonging to the victim, an employee at Suncourt Sushi.

The Thefts

[6]      The  first  theft  occurred  between  10am  and  4.40pm  on  7 April  2016,  at Bigsave Furniture at the Okara Shopping Centre in Whangarei. Mr Putua stole the victim’s handbag containing numerous personal items and left the store. These items were located on 17 May 2016 at Mr Putua’s residence. The second theft occurred at around 12.00am on 20 April 2016 at Sabai Thai Restaurant, Whangarei. Mr Putua entered the premises and removed an exterior camera from the building, which is property of Sabai Thai Restaurant and valued at $500.

Other Offending

[7]      The nine counts of receiving stolen property all arise from missing property

that was located at Mr Putua’s residence after the search warrant was executed on 17

May 2016. The charges of unlawful possession of a firearm and ammunition were made after police found a sawn off double barrel shotgun sitting unsecured in the defendants bedroom on 17 May 2016. Finally, the cannabis charge relates to 22.1 grams of cannabis found in Mr Putua’s bedroom on top of his dresser drawers on 17

May 2016.

Sentencing

[8]      On the burglary offending, the Judge:

(a)       Viewed the intrusion of the home as an aggravating factor;

(b)      Took into account Mr Putua’s acknowledgement of wrongdoing and

the support of his partner;

(c)        Agreed with the presentence assessment of high risk of harm, (d)           Acknowledged the effect of his offending on the victims.

[9]      As to the firearms charges, the Judge notes there is no suggestion there was a cartridge in the firearm or that it was ready to fire, but that:1

…  possession  of  firearms  by  someone  like  you  who  has  an  extensive criminal history and a history of violence is a matter of great concern to the Court and no doubt to the community as a whole.

[10]     In fixing sentence, the Judge noted the offending was premeditated, one of the charges involved intrusion into a home and some of the victims suffered loss, including emotional consequences. The Judge referred to Mr Putua’s 68 previous convictions, 40 of them relating to dishonesty and noting that there have been eight jail sentences.

[11]     The Judge concluded the present offending is towards the higher end of the band of sentences in this area2 and that there was a significant risk of confrontation and of serious consequences resulting in a two and a half year starting point for the burglary offence. He said an uplift should be applied for the other burglary (though none are specified). An uplift of one year for the other offending is then added to what appears to be the start point, with a further uplift of twelve months for previous

criminal history. No discount is given for remorse.

[12]     In  relation  to  the  two  arms  charges,  the  judge  found  that  a  cumulative sentence  was  justified and  the firearms  charges  were  significant  because of his extensive  criminal  history  involving  violence.  A  two  year  starting  point  was adopted.3  A further uplift of six months was imposed given Mr Putua’s criminal history.  The sentence was then reduced from five years three months to four years

six months to take into account the totality principle.

1      R v Koro Putua [2016] NZDC 18322, 15 September 2016 at [9].

2      Referring to Arahanga v R [2014] NZCA 379.

3      Referring to R v Richardson CA450/02, 25 March 2003 and Torea v R [2011] NZCA 96.

Jurisdiction

[13]     This is an appeal pursuant to s 250(2) of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[14]     It is now settled that a sentence may be set aside as manifestly excessive. Whether a sentence is manifestly excessive is to be determined in terms of the sentence given, rather than the process by which the sentence is reached.4

[15]     As noted, the central issues are whether or not:

(a)       A six-month uplift on the firearms charges was warranted;

(b)      A twelve month uplift for prior convictions was double-counting; and

(c)       Whether, overall, the sentence was proportionate to the offending.

The six-month uplift

[16]     Mr Putua has no prior convictions for firearms charges.  Uplift then for prior conviction history is difficult to justify (there being no obvious propensity to engage in firearms offending), particularly given that a substantial uplift for prior offending had already been added to the base lead sentence by the Judge.  Subject to what I have to say below about the totality reduction, an additional six months to the

sentence (which is to be served cumulatively) in this context  appears excessive.

4      Ripia v R [2011] NZCA 101 at [15] and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR

482 at [26] – [27].

Double counting

[17]     As  Mr  Wall  properly  highlighted  to  the  Court,  the  Judge  took  into

consideration the appellant’s criminal history at three stages:

(a)       The thirty-month starting point for the lead residential burglary. (b)    The uplift by twelve months for the burglary offending.

(c)       The uplift for the Arms Act 1983 offences.

[18]     Mr Wall also concedes that it is arguable that the Judge embarked on an illegitimate double-counting by factoring in the appellant’s history twice when determining the lead sentence.   But some care must be taken in construing the sentencing by the number of references to prior offending.  Multiple references to prior history does not necessarily mean that the Judge double counted the relevance of prior convictions. A defendant’s propensity to commit burglary and to violence are validly separate considerations, adding to the culpability of the offending and the long term risk presented by the defendant to the public. I prefer therefore to focus my analysis, for the purposes, on the uplift and whether or not, in the circumstances of the case, the twelve-month uplift was proportionate to the circumstances and to the background of the appellant.

[19]     I consider that there is some force to Mr Wall’s submission that bearing in mind this class of offending concerned twelve separate offences, the bulk of which were serious crimes in and of themselves, that a twelve-month uplift for a person with  68  previous  convictions,  40  of  which  relate  to  dishonesty  and  property offending, is well within range.

[20]     The central residual issue is whether the Judge was wrong to adopt a starting point at the high end of the range as well as a twelve-month uplift.  The Court of Appeal in Singh v R5  set aside a sentence when it appeared the Judge had done exactly that, adopted a high starting point as well as a very high uplift for previous

offending.  In that case, Mr Singh had 90 previous convictions spanning a 15-year

5      Singh v R [2011] NZCA 139 at [15].

period.  The appeal was allowed and the sentence reduced by three months (against a nine month uplift).

[21]     Overall, it is then arguable that the combination of a high starting point together with a high uplift for prior criminal convictions, suggests that the Judge may have erred in this respect.

Proportionality

[22]     The Judge in this case examined the totality of the offending and reduced the sentence by nine months. This is a substantial discount.

[23]     Approaching the matter afresh, I was referred to the decision of Jones v R,6 where a sentence was handed down to the appellant of four years, seven months, relating to two charges of burglary.   The appellant in that case had multiple prior convictions.  The Court, in evaluating sentence, referred to a number of authorities and observed that a five-year starting point was well within the range available in respect of multiple charges of burglary and of a recidivist burglar.   The Court, nevertheless, went on to hold that the sentence imposed was manifestly excessive, adopting a three-year starting point with uplift of 18 months for personal aggravating features. After a discount for a guilty plea, it was considered that an end sentence of four years and two months’ imprisonment was appropriate.

[24]   Returning to the present case involving two burglary charges, firearms offending, multiple other charges and a recidivist offender, a cumulative starting point  of 30  months  for  the burglaries,  18  months  for the fires  arms  offending, together with an addition of six months for the balance of the offending is justified. The  remaining  issue  is  the  level  of  uplift  for  the  offending  in  light  of  prior convictions for both burglary and theft offending.

[25]     To my mind, an uplift in this context of 18 months, to take into account the prior offending of both kinds (which reveal burglary recidivism and a propensity to

theft) and a history of violence offending, is proportionate overall. This would result

6      Jones v R [2012] NZCA 273.

in an end sentence of 54 months after discount for guilty plea or 4 years 2 months. While this may appear to be coincidental, it was developed independently of the Judge’s reasoning.

[26]     On that basis, the appeal is dismissed.