R v Inia
[2015] NZHC 873
•30 April 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2014-019-003858 [2015] NZHC 873
THE QUEEN
v
TOOTS INIA
Hearing: 30 April 2015 Appearances:
M J Robb for Crown
C Bean for DefendantJudgment:
30 April 2015
SENTENCING NOTES OF ANDREWS J
R v INIA [2015] NZHC 873 [30 April 2015]
Charges
[1] Mr Inia, you appear for sentencing today having pleaded guilty to one charge of burglary. As Mr Bean will have told you, that charge carries a maximum penalty of ten years’ imprisonment.
Relevant facts
[2] On the morning of 29 March 2014, you and another person went to a residential address. In the driveway of the house, you found an unlocked car which contained the keys to the garage on the property. Using the keys the two of you entered the garage and located a gun safe which was inside the garage. The two of you then used tools to break open the safe and took its contents, which apparently included, according to the summary of facts, nine firearms and ammunition, together with gun accessories such as scopes and suppressors. According to the owner of the firearms, the stolen equipment had a combined value of about $9,000. Your presence at the property was confirmed by fingerprints which you left on the gun safe.
[3] The owner of the firearms identified one of them as having been used in an aggravated robbery some ten days later, and that has led to people associated with you facing charges of aggravated robbery and attempted murder.
[4] You first appeared on 30 May 2014, facing a number of charges including the present charge of burglary. There was a trial call-over on 16 December 2014. Later that month you absconded from EM bail. I record at this point Mr Bean’s submission that you simply went next door, but the fact is that you were outside your EM bail area and you therefore must be treated as having absconded.
[5] At a pre-trial hearing on 12 March 2015, from which of course you were absent, a charge of aggravated burglary against you was dismissed.
[6] A warrant was issued for your arrest and you were subsequently arrested and brought before the Court on 18 March 2015. Bail was refused. You subsequently pleaded guilty to the charge of burglary.
Victim impact statements
[7] I have been given a victim impact statement from the owner of the stolen firearms. He described them as a collection of quality sporting rifles. He cannot afford to replace them. He has had to repair his gun safe, replace all the locks on his house and garage, and install an alarm system. He was a recreational hunter, but without his own rifles he can no longer do this unless he is able to borrow a rifle. He seeks a reparation order for $10,900, being the value of the rifles and the costs of repairs.
Pre-sentence report
[8] Your pre-sentence report records that your father is associated with the Black Power gang. You admitted to the report writer being affiliated to the Westside Outlaws, a local street gang. You left High School in year 11, and have been unemployed since then. According to the report, you did not appear to have sought work. Despite this, and to your credit, you are involved in club rugby and you have done some volunteer work within the community and on the marae.
[9] You are assessed as showing little insight into your offending and you are considered to be at a medium to high risk of reoffending, largely on the basis of your gang affiliation and your decision to abscond from bail.
[10] This morning I have been given two letters written by you, one to me and one to the victims of your offending. In your letter to me you say that you are truly remorseful for the crime you have committed and you state that you think it is time to search now for a good and better life. You apologise to the Court and to the victims. You know that you cannot take back what you have done, although you wish you could. You do not consider prison is the place for you and when you are released you are going to put a 100 per cent effort into getting a job and a 100 per cent effort into staying away from criminal activity. In the letter to the victims (which I won’t go into in any detail), you apologise for what you have done, and express your remorse.
Sentencing process
[11] In the sentencing process the first step in sentencing you is to establish what we refer to as a starting point. The starting point is the sentence that I would impose on the charge of burglary, if I were sentencing you after you had been convicted after a trial in court. The second step is then to adjust that to arrive at the right sentence for you, for your offending. I look at whether there are any aggravating or mitigating factors about the offending that makes it more (or less) serious, and I consider matters that relate to you, personally, these can also lead me to adjust the sentence up or down.
[12] When I sentence you I have to take into account the purposes and principles of sentencing. Regarding the purposes, I have to hold you accountable – that means you are responsible for your offending. I have to consider deterring you and others and I have to consider protecting the community. I also have to tell you, very clearly, that your offending is not acceptable. At the same time when I sentence any offender I am looking to help the offender get back into the community and be a useful member of it.
[13] Then on the principles of offending I look at how serious it is, and your own responsibility in the offending, I compare how serious this offending is in comparison with other types of offences, and I also consider how to keep consistency in sentencing levels for this sort of offending. I am also directed to impose the least restrictive outcome that is appropriate in all the circumstances
[14] It is desirable to keep offenders in the community as far as that is practicable. The Court can impose, however, a sentence of imprisonment if that is necessary to achieve the purposes of sentencing. Mr Bean has accepted, in his submissions, that in the particular circumstances here a prison sentence is the only option available to me. What I have to decide is how long it should be.
Starting point
[15] There is no tariff case for burglary, which tells me what the starting point should be, and understandably that is because the range of circumstances in which a
burglary happens can be very, very varied. In your case there are certain aspects of your offending which are relevant to setting the starting point.
[16] The first thing is that you and your co-offender burgled a garage on a residential property. While that is less serious than burgling the actual dwelling house it is nonetheless a matter that adds to the seriousness of your offending.
[17] Secondly, is the value of the firearms you and your co-offender stole. It is around $9,000 and it is a significant sum. There is also the cost of the repairs the owner had to undertake to his garage and the safe. It is also significant that the items stolen were firearms – they were guns - and again this makes your offending more serious.
[18] Thirdly, I accept Mr Robb’s submission that you and your co-offender together targeted this address in particular with a view to taking guns. Nothing else was taken from the property and your deliberateness in breaking open a secure safe indicates that you meant to take the guns in particular. This again increases the seriousness of the offending.
[19] Finally, I note that you were on bail for other offending when you committed this burglary.
[20] Mr Robb submitted for the Crown that I should count your gang association and the fact that the firearms you stole were used ten days later in an aggravated robbery, as further matters adding to the seriousness of your offending.
[21] As to your gang association, Mr Bean submitted for you that there is no evidence that your offending involved a “gang” targeting of a residential address. I also have noted his submission that you were discharged on a charge of participating in a criminal group and he also submitted that there was no evidence of your dealing with the guns after the burglary.
[22] As to what the firearms were later used for, I do take into account that you have not been charged with any offence relating to dealing with the firearms after the
burglary. Where an offender takes firearms, it is reasonable to assume that they will later be used in criminal activity, either by people who are connected with the offender or by people who later buy the firearms on the black market. In any event, I have concluded that this is inherent in the fact that it was firearms that were stolen, and I have already taken that into account.
[23] Mr Robb submitted that the starting point for your sentence should be two to two and a half years’ imprisonment. He referred me to two other cases involving stolen firearms. First, Shierney v Police, where two offenders went into a private residence through an unsecured garage and took jewellery and electronics. They went back early the next morning with two other associates and again went into the residence where they broke into a gun safe and tried to take a number of rifles. When they saw that someone had seen them doing this, they fled the scene with three rifle cases. In that case, in the High Court, a starting point of two years and six
months’ imprisonment was upheld.1 That offending (being on two occasions) was
more serious than yours.
[24] The second case Mr Robb referred to was Yukich v R, in which three offenders entered a farm house and shed and took a number of firearms along with food. A starting point of 20 months’ imprisonment was upheld on appeal.2 That is more similar to your case.
[25] Mr Bean submitted for you that the starting point should be 12 to 15 months’ imprisonment. He referred me to the sentence of Newton v Police in which it was held on appeal that a starting point of 15 months should have been adopted for an offender who had entered a house and stolen a television and some jewellery.3 That offender had 20 previous convictions, although none for burglary. He was on bail at the time of the offending. It appears to me that the offending in Newton was opportunistic rather than planned, and the stolen property was of a smaller value, and
of course it was not firearms.
1 Shierney v Police [2014] NZHC 2963.
2 Yukich v R [2010] NZCA 499.
3 Newton v Police [2012] NZHC 2829.
[26] Other cases involving burglaries in which firearms were taken, in which the circumstances were similar to your offending, have had starting points of 15 months (Miller v Police4), and two years (Nicol v Police5). In Miller the two offenders broke into a firearms shop and took firearms valued at $2,500 and caused damage valued at about $8,000. Your offending involved going into the garage of a residential property, so in some respects is more serious than that in Miller.
[27] In Nicol, five offenders, broke into the home of an elderly man and stole his collection of antique firearms valued at over $13,000. In the District Court a starting point of two years’ imprisonment was applied, and it was not disturbed on appeal. The offending in Nicol is slightly more serious than yours because the burglary involved going into a dwelling house.
[28] Considering these cases together, and all of the circumstances of your own offending, I have concluded that the starting point for your sentencing should be 20 months’ imprisonment.
Personal factors
[29] I now come to consider matters that relating to you, personally. There are three to be considered: your prior offending, your age, and your guilty plea.
Prior offending
[30] You have four previous convictions and a notation in the Youth Court. You have no previous convictions for burglary, but three of your convictions are for property offending (robbery, theft and receiving). One of those convictions was on a charge of robbery by assault.
[31] You have never been sentenced to imprisonment; rather, you have received sentences of community work. The pre-sentence report records that your response to those sentences was poor. You were not motivated to complete your first sentence
of 40 hours, imposed in February 2014, and it took home visits to achieve that. You
4 Miller v Police [2012] NZHC 3237.
5 Nicol v Police [2013] NZHC 3326.
completed only 16 hours of the 80 hours imposed in April 2014. Corrections records note that you failed to obey lawful instructions of Corrections staff while on remand, and you were cited in two misconduct reports.
[32] Mr Robb submitted that I should increase the starting point because of your previous convictions, and your failure to respond to the community-based sentences. Mr Bean submitted that as you do not have a previous conviction for burglary, I could give you the benefit of a previous good character. I do not accept either of those submissions. The effect of that is that I have concluded that there is no reason to increase the starting point on account of your previous convictions.
Youth
[33] Mr Bean submitted that I should decrease the starting point on account of your youth – you were just over 17 at the time of this offending. He also referred to the fact that you were remanded in custody at Waikeria Prison for a period of four months and you have been in custody for a further two months more recently. Mr Robb accepted your young age, but submitted that any discount for your youth should take into account the fact that you have already been convicted on serious offences, and that the Court should consider your genuine prospects of rehabilitation.
[34] The Court of Appeal in Churchward v R discussed the considerations that will influence the Court when deciding whether to allow a discount for youth.6 The first was that it is recognised that there are neurological differences between young people and adults (this is often referred to as an undeveloped brain in a young person), which makes a young person more impressionable and impulsive. Secondly, it is recognised that longer prison sentences tend to have a greater negative
effect on young people. Thirdly, young people are generally more able to be rehabilitated and reintegrated into the community. Fourth, for young people, offending is often a short-lived thing, with offenders growing out of a tendency to offend. Finally, criminal convictions when a person is young may have a
disproportionately greater effect on the person’s future prospects.
6 Churchward v R, [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]-[92].
[35] You are now 18 years old, and on the evidence of the pre-sentence report apparently still affiliated to a street gang. It is possible that both your under- developed mental capacity and also your impressionability have contributed to your offending. Further, I can accept that an extended sentence of imprisonment is likely to be particularly harsh on any young person, and that a shorter prison sentence may give you a better chance of being successfully rehabilitated and reintegrated into the community. I have concluded that a discount of 20 per cent should be applied because of your youth. This would reduce the sentence down to 16 months’ imprisonment.
Guilty plea
[36] You pleaded guilty to the charge of burglary after you were arrested on
18 March 2015, around ten months after you were first charged. The summary of facts notes that you admitted taking part in the burglary when you were first arrested. Yet you later absconded for a period of three months. I accept that your guilty plea came only a few days after the other charges against you were withdrawn, but you delayed that by your own action in absconding.
[37] Because of that, and given that the Crown case against you for the burglary was strong, the discount for your guilty plea will be three months (which I calculate as being between 15 and 20 per cent). That brings the sentence down to 13 months’ imprisonment.
[38] Mr Inia, you present to me in Court today as someone, unfortunately, with the traits of a person beginning a criminal career. At this stage you have several convictions, and the present offending appears to show an escalation in seriousness from your prior offending. I see this also particularly given what appear to be continuing gang connections. As I understand it, as a result of the periods you have already spent on remand in custody, the sentence that I intend to impose of 13 months’ imprisonment will, in effect, have already been completed or nearly completed. That is, as I understand it, you will be released very shortly.
[39] You should realise that you are now facing what could well be a last chance to turn your life around. This is now up to you, and the conditions that I am going to
impose are not intended as further punishment, they are intended to help you with your rehabilitation and your getting back into the community to be a useful member of it.
[40] Would you please stand.
Sentence
[41] On the charge of burglary you are sentenced to 13 months’ imprisonment.
[42] The order to complete community work insofar as it is not yet completed, is cancelled.
Release conditions
[43] Pursuant to s 93(2) of the Sentencing Act 2002, and in order to assist in your rehabilitation and reintegration, I also impose the following special release conditions in addition to standard release conditions as set out in the pre-sentence report to apply until six months after the sentence expiry date. They are:
(a) To undertake an assessment and if assessed as suitable, complete the Short Motivational Programme and/or any other Departmental programme deemed appropriate to the satisfaction of your Probation Officer and the programme facilitators; and
(b)To undertake and complete any assessment, treatment, counselling, programme deemed appropriate to address identified offending behaviour to the satisfaction of your Probation Officer and the service provider.
Reparation
[44] An order for reparation is sought in the sum of $10,900. Mr Bean submitted that as there were two offenders involved any responsibility on your part should be halved. Mr Bean also advised me that you accept that I should make an order for reparation in the sum of $5,000.
[45] I have to say that I am not sure that I accept Mr Bean’s submission as to simply halving the reparation order but I do accept that a sum of $5,000 is appropriate for you to be ordered to pay and I recognise, as I am told you do, that this will be an extremely difficult task for you to meet. I order you to pay reparation in the sum of $5,000.
[46] Would you please stand down.
Andrews J
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