Rangi v Police
[2023] NZHC 3617
•11 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-479
[2023] NZHC 3617
BETWEEN JOHN WILLIAM RANGI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 December 2023 Appearances:
A W Slipper for Appellant
R N T Thompson for Respondent
Judgment:
11 December 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 11 December 2023 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Public Defence Service, Auckland Meredith Connell, Auckland
RANGI v NEW ZEALAND POLICE [2023] NZHC 3617 [11 December 2023]
[1] Mr Rangi appeals against a sentence of 26 months’ imprisonment imposed by Judge K Muir on 8 August 2023 in respect of the following:1
(a)two charges of burglary;2 and
(b)five charges of shoplifting (under $500).3
[2] The appellant submits that the end sentence was manifestly excessive, and that a sentence of 20.2 months’ imprisonment should instead have been imposed, commuted to home detention.
[3]The grounds of appeal are:
(a)the starting point was too high;
(b)a two-month uplift for previous theft charges was excessive given the interests of totality (an uplift of only one month would have been more appropriate); and
(c)a further 20 per cent should be applied to reflect Mr Rangi’s personal circumstances and the role that drug addiction played in causing his offending.
Legal principles
[4] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.5 The focus is on the end sentence imposed, rather than the process by which it is reached.6
1 New Zealand Police v Rangi [2023] NZDC 16889.
2 Crimes Act 1961, s 231(1)(a).
3 Sections 219 and 223(d).
4 Criminal Procedure Act 2011, s 250.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
6 At [36].
[5] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.7
[6] Appellate courts do not indulge in mere tinkering with a sentence.8 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
District Court decision
[7] Judge Muir arrived at an end sentence of 26 months’ imprisonment, using the following analysis:
(a)a starting point of 30 months’ imprisonment for the Tokoroa vehicle burglary;
(b)an uplift of 10 months’ imprisonment for the burglary at a wastewater facility;
(c)an uplift of two months’ imprisonment for the theft charges;
(d)the above resulted in an adjusted starting point of 38 months’ imprisonment, after a four-month adjustment downwards was made to account for the totality principle;
(e)an uplift of two months’ imprisonment was added to account for Mr Rangi’s previous convictions;
(f)discounts were then allowed under stage two for the early guilty plea (20 per cent) and to take into account Mr Rangi’s personal circumstances (10 per cent); and
7 At [32].
8 R v Boyd (2004) 21 CRNZ 169 at [38].
(g)a final reduction of two months’ imprisonment to account for time spent on electronically monitored bail.
[8] The offending conduct is summarised in the sentencing notes.9 On five separate occasions Mr Rangi shoplifted from Countdown Tokoroa — in each case the value of the goods taken was less than $50. This offending took place in September and October 2022.
[9] Between 12 and 13 November 2022, Mr Rangi entered a wastewater facility and removed property from sheds and shipping containers at the site. This included a compressor, toolbox and a barbecue cover. The offending included Mr Rangi gaining entry to a parked utility vehicle by smashing the driver’s side window. Mr Rangi concealed the property at a fence line near the entrance of the facility, intending to uplift the items later.
[10] The most serious offending consisted of burglary of vehicles from a residential property in Tokoroa (the vehicle burglary offending). On 14 and 16 November 2022, Mr Rangi called up a scrap metal business and arranged for three vehicles to be uplifted from the victim’s address. On the second date, Mr Rangi went to the address and entered the victim’s yard where he met with the representative from the scrap metal business and represented he was the owner of the vehicles. He reached an agreement with that person that a payment of $340 would be made for the three vehicles. The vehicles’ combined value was approximately $21,500. The vehicles were ultimately scrapped.
Starting point
[11] Counsel for the appellant submits that the starting point of 30 months’ imprisonment was too high, comparing it with Rarere v Police,10 which Judge Muir considered analogous.
9 New Zealand Police v Rangi, above n 1, at [2]–[5].
10 Rarere v Police [2012] NZHC 779.
[12] In Rarere v Police, the defendant took a motorcycle valued at $37,000 from outside the complainant’s work. The motorcycle was placed onto a trailer and driven away. The alarm on the motorcycle was activated while it was being loaded onto the trailer, and Mr Rarere began to drive the vehicle recklessly through traffic and ultimately collided with another vehicle. The motorcycle was seriously damaged as a result of the collision. The High Court upheld a starting point of 30 months’ imprisonment for this offending.11
[13] Counsel for the appellant submits that a lower starting point should be adopted in this case, reflecting the fact that the $21,500 worth of cars taken in the vehicle burglary offending was worth less than the $37,000 motorcycle in Rarere.
[14] The respondent’s position is that the difference in the value of the goods is not material in terms of assessing the comparative culpability between Mr Rarere and Mr Rangi. Both cases involved significant premeditation and planning. In Mr Rangi’s case, he located the vulnerable vehicles then posed as owner on two different occasions to achieve the offending. This included entering onto private property, which should be regarded as an aggravating factor given the importance of privacy and security for a residential home.12 The sanctity of the home is recognised by s 9(1)(b) of the Sentencing Act 2002, which identifies unlawful entry or presence in a dwelling place as an aggravating factor. Although Mr Rangi did not enter the dwelling house in this case, the same sense of violation for a victim arises from entering a victim’s yard and taking cars from their home address.
[15] I agree with the respondent’s submission that the offending in this case is analogous with the offending in Rarere, and therefore a starting point of 30 months’ imprisonment is appropriate and not an error. It is also consistent with the guidance provided by the Court of Appeal in Arahanga v R.13
11 At [28].
12 Senior v Police HC Christchurch A139/00, 19 December 2000 at [18]–[19].
13 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
Adjustments and totality
[16] The appellant does not take issue with the uplift of 10 months’ imprisonment in respect of the burglary at the wastewater facility. However, counsel for the appellant submits that the two months’ imprisonment uplift for the theft charges was excessive given the interests of totality. These thefts fell at the lowest end of offending of their kind, being for low value, miscellaneous items. On that basis, an uplift of only one month’s imprisonment is suggested as appropriate.
[17] In terms of the previous convictions, counsel for the appellant again submits that a two-month uplift was excessive and proposes an uplift of one month’s imprisonment instead.
[18] Counsel for the appellant submits that an adjustment for the totality of the offending is warranted, and a global starting point of 32 months’ imprisonment is warranted, rather than 38 months’ imprisonment.
[19] Although the uplift for the burglary at the wastewater facility is not challenged by the appellant, the respondent emphasises that offending could properly have been met with a starting point of around 16 months’ imprisonment based on analogous cases.14 An uplift of only 10 months seems to reflect a form of totality adjustment, even if this was not articulated by the sentencing Judge.
[20] In terms of the uplift that was applied for the shoplifting charges, while the items are of low value, the respondent emphasises that this offending was repeated on five separate occasions in the same store. An analogous case is Tamaka v Police, where a starting point of three months’ imprisonment was considered appropriate for six charges of low-value shoplifting.15 Accordingly, an uplift of two months for the shoplifting charges was within range, particularly when further adjusted by the deduction of four months on totality grounds.
14 Elers v R [2018] NZHC 497; and Tilby v Police [2022] NZHC 3343.
15 Tamaka v Police [2012] NZHC 2340 at [8].
[21] I see no error in the approach adopted by the sentencing Judge in respect of these adjustments to arrive at the global starting point, including for totality reasons. Submissions that one-month adjustments should be made are in the nature of tinkering. Considering each adjustment separately and the global starting point of 38 months’ imprisonment in the round, I consider that the decisions made by the Judge are within range and justified by the facts and analogous cases.
Personal aggravating and mitigating features
[22] The respondent points out that Mr Rangi has previously been convicted on 128 offences, including over 60 dishonesty offences. While it should be acknowledged that the most recent burglary offence occurred in 2012, an uplift of only two months’ imprisonment is still lenient when considered against other cases.16 The submission that it should be adjusted by one month would be in the nature of tinkering and is not justified on the facts.
[23] Counsel for the appellant seeks a further 10 per cent discount for the role that Mr Rangi’s drug addiction played in his offending. In particular, the PAC report records an assertion made by Mr Rangi that the vehicle burglary offending was intended to settle a drug debt owed to an acquaintance. Counsel submits that this satisfies the requirements in Zhang v R and Berkland v R, that there is a causative link between the offender’s addiction and the offending, and that the state of addiction impairs the person’s decision-making to such an extent that it should be seen as a mitigating factor at sentencing.17 Counsel for the appellant submits that, without his addiction, Mr Rangi would not have offended in the manner that he did, therefore a 10 per cent reduction is warranted.
[24] The respondent takes the position that this has already been considered and taken into account in the discount of 10 per cent that was applied for the other factors in the appellant’s life such as deprivation and cultural factors. As set out in the
16 For example, uplifts of 12 months’ imprisonment were applied to take into account the offenders’ previous dishonesty offending in R v Columbus [2008] NZCA 192 at [20]; R v Stevens [2009] NZCA 190 at [15]; and King v Police [2014] NZHC 2946 at [16]–[17].
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143, [2022]
1 NZLR 509 at [108]–[109].
sentencing notes, the Judge took into account the background of drug abuse and possibly drug addiction.18
[25] In terms of the allegation that addiction was causative of the vehicle burglary offending, the respondent submits that this does not satisfy the key question outlined by the Court of Appeal in Ekeroma v R.19 The question is whether a pre-existing state of addiction contributed to the offending in a way that mitigates his moral culpability for the offending, or is otherwise relevant to the sentence to be imposed (for example, because it calls into question the effectiveness of deterrence, or engages the purpose of assisting rehabilitation and reintegration, or would render a term of imprisonment more severe than for other offenders).
[26] In this case, Mr Rangi’s evidence of addiction is self-reported. It explains the context of why he offended in the way that he did but does not substantiate mitigation of his moral culpability to an extent where a separate and additional discount should be applied. I am satisfied that the Judge took these general issues into account based on the evidence presented at the time, and there was no error in that approach, nor any evidence in this appeal that would substantiate grounds for intervening.
Result
[27] Counsel for the appellant has not satisfied me that there is any error in the approach taken by the sentencing Judge, or that the sentence is manifestly excessive or wrong in principle. Accordingly, I do not need to consider whether a term of home detention would have been appropriate if the end sentence had been two years’ imprisonment or less.
[28]The appeal is dismissed.
O’Gorman J
18 New Zealand Police v Rangi, above n 1, at [6].
19 Ekeroma v R [2021] NZCA 250 at [28].
12
1