R v Taiepa

[2009] NZCA 120

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/2009
[2009] NZCA 120

THE QUEEN

v

HEMI WHAREPAPA TAIEPA

Hearing:2 April 2009

Court:Robertson, Gendall and Keane JJ

Counsel:A M Simperingham for Appellant

N P Chisnall for Crown

Judgment:6 April 2009 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Hemi Taiepa appeals against a sentence of 12 months’ imprisonment with special conditions for six months beyond the sentence, namely:

(a)to be assessed and, if the applicable criteria are met, to attend and complete the departmental rehabilitation programme to the satisfaction of the service provider and the probation officer; and

(b)to attend any other programmes or counselling if directed by the probation officer.

This was imposed after he was convicted on a charge of receiving a Subaru Forrester car.

[2]       He appeals on the basis that the sentence was manifestly excessive and wrong in principle.

[3]       In particular it was argued that he should not have received a full-time custodial sentence and that there was not parity between the sentence imposed upon him and that imposed on others involved in the incident.

[4]       Judge Kiernan, who sentenced Mr Taiepa, had presided at trial.  In her sentencing notes she described the factual background thus:

[2]       The evidence that the jury heard was that the Forrester was stolen from outside the home of its owner between Saturday night and early Sunday morning when it was seen up Gaddums Hill with two people.  One of those people in fact gave evidence at trial, Mr Tibble, and he was one of the thieves, as was a Mr Bridgeman.  Both of them have been dealt with by the Court and I am going to refer to that shortly.

[3]       The evidence the jury heard was that apart from the car being seen early on that Sunday morning, you were seen driving that vehicle in the afternoon of that same day, the Sunday, in town.  The jury also heard that the interior of the stolen car had been installed in your car, also a Subaru, by the Friday of the same week.  The jury also heard of course that the stolen car was found burnt out, out of town, by the end of the week.

[4]       Your defence at trial was that you were not, first of all, driving the car around town on the Sunday.  The interior was indeed installed in your car but you had bought the seats and door panels from someone who you were not able to identify or name, who had come around to your place with those items in a van.  Other evidence was called from your partner, and indeed from a young relative, which supported that.

[5]       The jury, by its verdict, must have been satisfied beyond reasonable doubt that you did receive the Forrester knowing it was stolen, or being reckless as to whether it had been.  Given the small time-gap between the theft of the vehicle, you being seen driving it in town (which I find the jury must have accepted) on that Sunday, and the fact that its interior was installed in your car, there must have been, as the Crown have suggested, a real likelihood that the car was stolen to order for you or certainly stolen because you were a willing receiver of it.  I am going to sentence you on the basis, not that the car was stolen to order for you, but that you were a willing receiver of it.  That seems to be to be a fair basis on which to sentence you given the information before the jury, the further information that Mr Simperingham has given me this morning, and the other material that I have today.

[5]       Initially a charge of theft was laid against Mr Taiepa in respect of the vehicle.  This was deleted from an amended indictment prior to trial.  He did face trial on a charge of arson but the jury was unable to reach a verdict.  By the time of sentencing, the Crown had indicated that they would not retry Mr Taiepa on that count.

The sentence imposed

[6]       The Judge’s starting point in respect of the offending was nine months’ imprisonment which was increased to twelve months in light of previous convictions.

[7]       Mr Taiepa’s offending commenced in 2000 when he was 18 years of age.  In June 2002 he was sentenced to an effective sentence of four years and six months’ imprisonment for a variety of burglaries and assault with intent to rob.

[8]       After release from prison, he received convictions for cannabis offences, receiving stolen property and other offences of dishonesty. 

[9]       In January 2007, when the appellant received a community-based sentence for dishonestly using a document for pecuniary advantage, the Judge specifically warned that harsher penalties were likely if Mr Taiepa offended in the future.  Notwithstanding, in March 2008, on more receiving charges, Mr Taiepa was again sentenced to community work.  It was hardly surprising that Judge Kiernan concluded that an uplift was necessary from the nine month starting point.

Discussion

[10]     There is no basis upon which it could be concluded that the Judge’s assessment that there should be a 12 month term of imprisonment was in any way wrong in principle.  As Judge Kiernan noted, the offending was “brazen receiving”.

[11]     In a case which had all the hallmarks of obtaining to order, the jury was satisfied that Mr Taiepa received the vehicle knowing that it had been dishonestly obtained, and within days he had installed the interior of the vehicle into his own car.

[12]     Mr Taiepa is 26 years of age.  Notwithstanding his previous convictions previously outlined at [7] to [9], he has continued to operate outside of the law, even after he was given a further final warning on a breach of a community work order.  That breach, as recently as April 2007, demonstrates ongoing contempt by Mr Taiepa towards the law.

[13]     The point had been reached in Mr Taiepa’s offending trajectory when anything other than a term of imprisonment as a starting point would have been totally unrealistic.  

[14]     The next phase is to consider whether there is anything in the appellant’s particular circumstances which permitted some other sentencing outcome to be realistically considered.

[15]     Although Mr Taiepa’s pre-sentence report was favourable, in light of the warnings and the assistance which he would have received upon his release from prison, the Judge was entitled to be sceptical as to the possibility of his responding positively to a rehabilitative approach.  The contents of the report were, in any event, recognised in the conditions, and the opportunity for assistance will be available when Mr Taiepa is released.

[16]     The Judge noted the supportive references which had been filed, but the starting point of nine months’ imprisonment already reflects recognition of these advantages.  We agree with the Crown’s approach that, although the sentence is stern, it is clearly within the available range.

Home detention

[17]     The Judge specifically turned her attention to whether, instead of a term of imprisonment, home detention was an option and said:

[18] … I cannot see that a community based sentence is appropriate.  With your record, even a term of home detention, which is effectively a term served in your own home under very strict conditions, would not, in my view, be appropriate for a repeat offender.

[18]     In R v D [2008] NZCA 254, this Court made it clear that in the hierarchy of sentences set out in s 10A of the Sentencing Act 2002 community based sentences are ordinarily imposed where the primary sentencing objectives are rehabilitation and re-integration. The Court said:

[66]     In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending.  The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.  In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[19]     We are in no position to second-guess the sentencing Judge who was in the best position to determine on which side of the line this offending fell.

[20]     Despite frequent references by defence counsel to the decision of this Court in R v Hill [2008] 2 NZLR 381 (although not directly in this appeal) it has been made clear that where denunciation and specific and general deterrence are of particular significance, the Court will seldom interfere in a sentencing Judge’s assessment of home detention as a realistic alternative. There is no basis for doing so in this case.

[21]     In light of the circumstances of the offending and the history and attitude of the appellant, we would have reached the same conclusion if we had been assessing the matter afresh.

Disparity

[22]     There is no substance in the issue of unjustified disparity.  In circumstances such as those in this case, there is no substantial difference in culpability between the thief and the receiver.  Mr Tibble was 19 years old and had a small list of previous convictions including one for receiving.  Mr Bridgeman was 18 years old and was being sentenced on other charges.  They both pleaded guilty.  An objective observer, knowing all the facts, would not think something had gone awry with the system because of the difference of approach.

Result

[23]     The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington