R v Kaukau

[2007] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND

CA390/06

[2007] NZCA 66

THE QUEEN

v

JOEY BARRY KAUKAU

Hearing:7 March 2007

Court:Ellen France, John Hansen and Williams JJ

Counsel:G Tomlinson for Appellant

K B F Hastie for Crown

Judgment:14 March 2007 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe sentence of four years imprisonment is quashed.

CA sentence of three years and four months imprisonment is substituted, concurrent with the other sentences fixed by the District Court.

REASONS OF THE COURT

(Given by John Hansen J)

Introduction

[1]       The appellant pleaded guilty to one charge of aggravated burglary, one of aggravated injury, ten of burglary, three of unlawfully taking a motor vehicle, one of possession of cannabis, and a charge of driving whilst forbidden.

[2]       On the aggravated burglary he was sentenced to four years imprisonment; on the aggravated injury two years imprisonment; on each of the burglaries two years imprisonment; on each of the unlawfully taking a motor vehicle, one years imprisonment; on the possession of cannabis one months imprisonment; and for the driving whilst forbidden he was convicted and discharged.  He was also ordered to make total reparation payments of $11,543.00 at $25.00 per week.  At the date of sentencing the appellant had just turned 18 years of age.

Background

[3]       On 23 August the appellant entered two houses in Matamata.  He took property to the value of $350.00 from the first, and $5,700.00 from the second.  On the same day he was stopped by the police in his vehicle and it was found he was forbidden from driving.  He was searched and found to be in possession of some cannabis. 

[4]       Sentencing on these matters was delayed to enable the appellant to complete a residential drug and alcohol programme.  On 13 May 2006, in breach of bail, he decamped from the residential treatment centre and thereafter committed eight burglaries and took three vehicles in the upper North Island between 17 May and 9 June. 

[5]       On 9 June the appellant entered the victim’s house in Whakatane through a rear window.  The victim heard the noise and saw the appellant’s arm.  He turned on the light of the room and the appellant ran away, chased by the victim.  The appellant was caught by the victim, who tried to hold him down.  The victim noticed at this stage that the appellant was holding a knife and he managed to take the knife off him.  The appellant briefly escaped, and when he was again caught by the victim, bit him on the hand.  He was detained until the police arrived.

The sentencing

[6]       After referring to the relevant provisions of the Sentencing Act 2002 and appropriate appellate authority, the Judge noted the substantial impact on the various victims.  He found there to be aggravating features in the actual and threatened violence and the use of a weapon.  The burglaries were, in the main, of dwelling houses, and a number of the offences were committed while the appellant was subject to Court sentences of different kinds.  The Judge noted the considerable loss, damage and harm, and the fact the offending was premeditated.  He took into account the lengthy list of prior appearances in the Youth Court. 

[7]       The Judge accepted that the appellant was entitled to a credit for his guilty plea, and that his age was a mitigating factor.  He did not attach much weight to the appellant’s claimed remorse.

[8]       The Judge took the aggravated burglary as the most serious matter, and took a starting point of five years imprisonment.  He allowed a credit of 12 months for the mitigating factors.  On the injuring with intent to facilitate flight, he took a starting point of three years imprisonment and gave a 12 months credit.  On the burglary, no starting point was mentioned and the Judge imposed sentences of two years for each offence.  For the taking of the motor vehicles the Judge took a starting point of 18 months, allowing a six month credit for mitigating factors.  On the possession of cannabis he imposed a sentence of one months imprisonment, and convicted and discharged the appellant for driving while forbidden.  Although it is not specifically stated, the sentences were all concurrent.

Submissions

[9]       Mr Tomlinson, on behalf of the appellant, advanced two grounds of appeal.  The first was that the starting point taken for the lead offence was too high.  The second was that there was insufficient allowance made for the various mitigating factors.

[10]     Mr Tomlinson submitted the starting point of five years for the aggravated burglary was too high when compared to relevant appropriate authority.  He referred to R v Povey CA205/87 20 November 1987 where a sentence of four years imprisonment for an aggravated burglary was upheld on appeal.  Mr Tomlinson distinguished that decision on the basis that Mr Povey had more burglary convictions; had been subject to sentences of imprisonment on six previous occasions; and was an older and slightly more mature person than the appellant.  He also submitted in that case there was a higher level of culpability as Mr Povey fully entered the house, and when confronted, brandished a weapon at the occupier to assist his escape.

[11]     Mr Tomlinson said the discount allowed of 20 per cent was wholly inadequate to properly recognise the early guilty plea, the eventual co-operation with the police, the appellant’s genuine remorse, his youth, and troubled personal circumstances. 

[12]     Ms Hastie, for the Crown, submitted that the guideline judgment for aggravated robbery, R v Mako [2000] 2 NZLR 170 (CA), applies equally to aggravated burglary. She accepted this offending fell short of the category described in Mako at [58] that requires a starting point of seven years or more.  But she said it was offending at night in search of property, and involving a weapon.

[13]     Further, she submitted it must be recognised that the starting point of five years was to reflect not only the aggravated burglary, but the totality of the offending.  She submitted the sentence was well within the available range, given the aggravating features. 

[14]     Ms Hastie accepted that youth was a relevant mitigating factor, but submitted it was not one that outweighs all other factors.  She submitted that R v Mahoni (1998) 15 CRNZ 428 (CA), was authority for the proposition that leniency will be more likely to be extended to youthful offenders where the offending could fairly be described as a youthful indiscretion, or plainly resulting from immaturity or an impulsive action.

[15]     However, she submitted that in Mako this Court reiterated the need to balance the gravity of the offending against the offender’s background and any prospects of rehabilitation.  She submitted that given the appellant’s history of Youth Court appearances, and the totality of the offending spread over nearly a year, the appellant could not be described as a first time offender.  There was little motivation for change recorded in the pre-sentence report, and it was not offending that could be described as impulsive.  The Crown questioned the appellant’s motivation to reform.

[16]     While Ms Hastie accepted a discount of 20 per cent for the appellant’s youth and guilty pleas was not generous, she submitted it was within the available range. 

Discussion

[17]     In our view, the Judge was correct to identify the aggravated burglary as the lead offence for sentencing purposes.  Although R v Mako deals with aggravated robbery, this Court has held that by analogy it can be applied to aggravated burglary (R v Watson CA224/03 24 October 2003).  The Judge has correctly considered the relevant tariff cases for both aggravated burglary and for burglary (Mako  and Senior v Police (2000) 18 CRNZ 34 (HC)).  The submission from the appellant that focuses on the starting point for the aggravated burglary in isolation ignores the other significant offending.  As this Court has repeatedly said, we are concerned with the totality of the sentence, rather than the way it was arrived at (R v Williams CA91/00 31 May 2000).

[18]     In this case, in addition to the aggravated burglary and injuring with intent to facilitate flight, there were both the earlier burglaries and the spree offending that occurred after the appellant decamped from the residential drug treatment centre.  While the sentencing Judge referred to the fact that the offences were committed while the appellant was still subject to court sentences of various kinds, he did not specifically state the serious aggravation of these offences occurring while the appellant was on bail.  It also appears that the appellant was subject to a supervision order imposed in the Youth Court when he committed the earlier set of offences.  We accept that the aggravated burglary was at the lower end of the scale.  But it is necessary to factor in the ten burglaries, three taking of motor vehicles, and the two minor offences.  While a starting point of five years is at the top of the range for the aggravated burglary alone, when the other offences are taken into account it cannot be said to be manifestly excessive.

[19]     The allowance given by the sentencing Judge for the mitigating factors of the appellant’s guilty plea, age, and personal circumstances, amounted to 20 per cent.  While the sentencing Judge was entitled to be somewhat sceptical of the claimed remorse of the appellant, we do note that the appellant made some progress in the course of the time he spent at the residential drug treatment centre.  He decamped from there when the mother of his child ended their relationship, but it is to his credit that he had arranged for his benefit allowance to be paid by direct credit to her.

[20]     The appellant’s plea to the first set of offending did not come at the earliest possible opportunity.  However, it did come before depositions and the appellant must be entitled to a significant allowance for that.  It must also be recognised that his guilty plea to the latter set of offending came at the earliest practical opportunity.

[21]     In  R v K (2003) 20 CRNZ  62 (CA) at [22] this Court observed:

The gravity of a young offender’s offending has necessarily to be balanced against the need to consider his rehabilitation and reintegration into society and the outcome should be the least restrictive in the circumstances of the case.

[22]     There is no precise arithmetical allowance for guilty pleas or other mitigating factors (R v Crammond CA306/01 29 November 2001).  However, in this case we consider the allowance made was insufficient.  The appellant was entitled to a significant discount for his guilty pleas.  It would not be uncommon for that alone to attract a greater allowance than the Judge gave.  In our view, the Judge also needed to make an allowance for the fact that the appellant had made some progress while at the residential drug treatment centre, showed a responsibility towards his child, was just out of the jurisdiction of the Youth Court, and had never previously been sentenced to imprisonment.  We are satisfied when all those mitigating factors are combined the allowance made is insufficient.

[23] In all of the circumstances of this case, we consider an allowance of one third would be appropriate to recognise the factors set out at [22]. Accordingly the appeal is allowed and the sentence of four years imprisonment is quashed. In substitution we impose a sentence of three years and four months imprisonment.

Solicitors
Crown Law, Wellington