Rakena v The Queen

[2004] NZCA 209

IN THE COURT OF APPEAL OF NEW ZEALAND

CA58/04

THE QUEEN

v

CLEM MICHAEL RAKENA

Coram:Glazebrook J
W Young J
O'Regan J

Counsel:R A B Barnsdale for Appellant

H D Lawry for Crown

Judgment (On the Papers):     1 September 2004 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]       On 20 October 2003 Mr Rakena pleaded guilty to two counts of breach of parole and one count of burglary. This was the same day on which he was due to stand trial on the burglary count, having earlier entered and subsequently confirmed a not guilty plea. Mr Rakena was sentenced in the District Court to three and half years imprisonment on the burglary charge, and a three months concurrent sentence of imprisonment for the parole offences.

[2]       This appeal is against the sentence imposed for the burglary. It was filed out of time. A notice of appeal, that was not in the proper form, was filed within time, however. In the circumstances, leave to appeal out of time is granted.

[3]       The appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Background

[4]       On 21 May 2003 Mr Rakena and an associate were found by police inside the Nawton Pharmacy in Hamilton. The front door had been kicked open, and Mr Rakena was in the process of filling a pharmacy bag with pseudoephedrine based products. He was arrested and found to be carrying $680.00 in cash.

[5]       Mr Rakena was on parole at the time of this offending, having been released on nine months parole on 31 July 2002 from a sentence of two and a half years imprisonment imposed on 12 April 2001 for an earlier burglary.  The Parole Board imposed the standard release conditions (as set out in s14(1) of the Parole Act 2002) as well as a special release condition relating to attendance at the “Straight Thinking” programme. Mr Rakena had breached his parole conditions by failing to attend the programme and failing to report to his probation officer as directed.

The sentence

[6]       During sentencing, Mr Rakena contended that he simply came upon a burglary which was already underway and decided to join in. This was rejected by the sentencing Judge, Judge Spear, who had no doubt that Mr Rakena had targeted the pharmacy for the purpose of obtaining products that could be turned into methamphetamine (or “P”).

[7]       The sentencing Judge considered that the circumstances of this case were “of particular concern” as they related to the “plague on this country at the moment arising from the use of methamphetamine and P”. The Judge also noted Mr Rakena’s failure to comply with parole conditions and to accept treatment for his drug addiction.

[8]       The Judge stated that he found it difficult to understand why Mr Rakena had not pleaded guilty to the charge earlier, as, even if Mr Rakena’s account of events was accepted, an amended or alternative charge of unlawful entry would have been entered. The Judge did, however, give Mr Rakena a six month reduction in sentence due to the fact his late guilty plea saved the cost of a trial.

[9]       The Judge concluded that, having regard to the totality of the offending and taking into account the discount for the guilty plea, a sentence of three and half years was appropriate.

Appellant’s submissions

[10]     Mr Rakena appeals on the grounds that the sentencing Judge used an incorrect starting point for the sentencing, gave insufficient credit for his guilty plea and did not adequately acknowledge the nature of his drug problem or his efforts to combat it.

[11]     Mr Barnsdale, for Mr Rakena, refers to R v Senior (2000) 18 CRNZ 340, a decision of a Full Court of the High Court, which identified three categories of burglary offenders. He accepts, however, that this decision does not limit the sentences that can be passed on recidivist burglars. Mr Barnsdale instead relies on the principles of sentencing in the Sentencing Act 2002 and several decisions of this Court, namely: R v Southon (2003) 20 CRNZ 104; R v Binnie CA261/99, 6 September 1999 and R v McAllister (2001) 18 CRNZ 606.

[12]     Mr Barnsdale submits that, when those cases are analysed, it is clear that the starting point taken by the Judge was manifestly excessive. Mr Rakena, in contrast to the offenders in those cases, had only two convictions for offences of a similar nature to burglary. He submits that the majority of Mr Rakena’s previous convictions are for lower level offending – including 12 convictions relating to the use of cannabis, three for minor violent offending, two for wilful damage and two for breach of periodic detention.

[13]     Mr Barnsdale refers to R v Orchard CA123/03, 24 October 2003 and R v Wilson CA485/03, 11 May 2004 in support of his submission that insufficient credit was given for Mr Rakena’s guilty plea. Furthermore, Mr Barnsdale submits that the Judge’s comments regarding the wisdom of failing to enter an earlier guilty plea were misguided and were not a basis for the reduction of any credit due to Mr Rakena for the entry of a guilty plea. This is because, if his explanation was accepted, there was the possibility of his conviction being for the lesser offence of entering with intent to commit a crime, carrying a lower maximum penalty of five years imprisonment.

[14]     Further, Mr Barnsdale submits that Mr Rakena should have been given credit for his attempts to confront his drug problems. Reference is made to R v Vrhovnik CA205/99, 29 July 1999 in this regard. Mr Barnsdale notes that, while a letter was presented to the Court expressing remorse and discussing Mr Rakena’s desire to change his lifestyle and address his drug habit, this was not mentioned in the sentencing notes.

Crown submissions

[15]     In the Crown’s submission, the key issue in this appeal is where Mr Rakena stands in relation to similar cases, bearing in mind the need to strike an appropriate balance between the protection of the public and the need to ensure that the sentence imposed bears a reasonable relationship to the gravity of the offending.

[16]     The Crown identifies the degree of premeditation present and Mr Rakena’s record of prior offending as aggravating factors in this case. In the Crown’s submission, while Mr Rakena has few prior convictions for dishonesty offences, they are significant enough to warrant treating him as a recidivist offender. As the Court was required to take into account the totality principle (there also being two breaches of parole), the Crown submits that a starting point of four years was within the range available to the Judge.

[17]     The Crown also submits that the discount in this case was adequate for a guilty plea entered at such a late stage. It refers in this regard to the decisions of this Court in R v Liava'a & Ors CA175-179/98, 17 August 1998 and R v Wong & Cheng CA 378-379/02, 25 March 2003. 

Discussion

[18]     In Senior the Full Court identified a “typical case” in the second category as one where the defendant would have “perhaps 20 or 30 previous convictions for burglary” (at para 30). It reviewed a number of such cases, and noted that, while in one case where there were five burglaries the starting point was five years, in none of the other cases did the starting point exceed four years.

[19]     If one looks merely at the categories identified in Senior the starting point in this case may be seen as stern but we do not consider it outside the available range. As this Court stated in Southon, at para [13], Senior should not:

be regarded as more than a very helpful analysis of historic sentencing patterns in this area, being thereby conducive to consistency in respect of similar offenders committing similar offences in similar circumstances, as mandated by s8(e) of the Sentencing Act 2002. As recent decisions of this Court demonstrate, recidivist burglars cannot assume that Senior may be relied upon to limit their sentences to three years imprisonment.

[20]     In Southon this Court upheld a starting point of six years imprisonment for someone with admittedly a much more serious record of dishonesty offences than Mr Rakena’s. On the other hand, in Southon, particular emphasis was placed on the inadequate deterrence of previous terms of imprisonment, and the “severely aggravating feature” of offending while on bail for a like crime.

[21]     Similar factors are present here. The offending occurred while Mr Rakena was on parole for a like offence, and he has, as his pre-sentence report notes, spent more of his adult life in prison than as a free man. In addition, we agree with the sentencing Judge that an additional aggravating feature in this case was the nature of the property stolen.

[22]     As the guilty plea was very late and in the face of a very strong case, the six month discount for a guilty plea cannot be seen as inadequate. Given Mr Rakena’s record and the fact that he had breached his parole conditions requiring attendance at a “Straight Thinking” programme, we consider it understandable that the Judge dismissed Mr Rakena’s professed willingness to rehabilitate himself. It is up to Mr Rakena now to prove him wrong.

Result

[23]     For the reasons set out, this appeal is dismissed.

Solicitors:
Crown Law Office, Wellington