Rapira v Police

[2015] NZHC 699

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-95 [2015] NZHC 699

BETWEEN

HARLEM PAUL RAPIRA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 March 2015
Counsel:	C J Nicholls for Appellant S W P Woods for Respondent
Judgment:	14 April 2015

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.30 pm on the 14th day of April 2015

Solicitors:           Crown Solicitor, Wellington, for Respondent

RAPIRA v NEW ZEALAND POLICE [2015] NZHC 699 [14 April 2015]

[1]      The appellant  pleaded  guilty in  the District  Court  at  Hutt Valley to  two charges of burglary, one charge of disorderly behaviour, one of supplying alcohol to a minor, and one of escaping custody.   He was sentenced to two years and nine months’ imprisonment.1   He appeals against that sentence.

[2]      The  facts  were  that  in  the  early hours  of  1  October  2014  the  appellant smashed the front door window of a bar in Lower Hutt.  He climbed in through the broken window and went to the bar area and took some alcohol, while the alarm was sounding.  He went out through the broken window.  He met up with a young person aged 15 and shared some of the alcohol with him.  He then went to another hotel nearby with that youth, where they both climbed over a fence and approached the hotel door.  The appellant pulled and pushed the door causing it to break open.  He and the youth went behind the bar and took more alcohol.  They left and walked to the river bank where they were tracked down by a police dog.

[3]      The   appellant   was   arrested   and   appeared   in   Court   later   that   day,

1 October 2014.  He was remanded in custody.  While the Judge was completing that process, the appellant ran from the dock and left the Court.   He was pursued and apprehended in the alleyway next to the Courthouse.

[4]      In sentencing, the Judge adopted a starting point of two and a half years’ imprisonment for the two burglaries and the related offences.  He allowed a discount of three months to reflect the guilty plea, to give an end sentence of 27 months for the burglaries.   On the charge of escaping custody, he imposed a sentence of six months’ imprisonment, cumulative on the 27 months.

[5]      In support of the appeal, Mr Nicholls submits that the sentence of two years nine months was manifestly excessive.  He submits that the 30 months starting point on the two burglary charges was stern, but concedes that it is within the available range  given  the  appellant’s  history.    His  principal  point  is  the  three  month,  or ten per cent, discount for the guilty pleas.  He submits that there was no principled

basis to reduce the discount from the 25 per cent indicated in Hessell v R for an early

1      Police v Repira DC Hutt Valley CRI-2014-096-003017, 28 November 2014.

guilty plea.2   On the six month cumulative sentence on the escaping charge, the only issue is the failure to allow a discount for the guilty plea.

[6]      Mr Woods for the respondent submits that the overall  end sentence was within the range available and that the lesser discount for the guilty plea was appropriate.  He submits that guilty plea discounts are not automatic or mechanical, but are to be assessed in all the circumstances of which the timing of the plea is only one  relevant  factor.     Sentencing  judges  are  required  to  undertake  an  overall evaluative assessment of the case without reference to a rigid scale of discounts. Counsel accepts that the guilty pleas were entered at an early stage and that looking at timing alone, a discount of 10 per cent is less generous than would usually be applied, but submits that in the overall circumstances of the case it was open to the Judge to adopt a lesser discount, for several reasons.   The prosecution case was strong.  The appellant’s conviction history involves recent and recurrent dishonesty offending.  The culpability of the appellant’s offending was relatively high and the appellant demonstrated a lack of motivation to address the underlying cause of his offending.  He submits that these factors, in particular the strength of the case and the appellant’s recent conviction history, meant it was open for the Judge to give the appellant a discount of only 10 per cent for the guilty plea.  He submits that in the light of all the circumstances the end sentence reached by the Judge was within the range available and was not manifestly excessive.

[7]      The sentencing Judge gave no reasons for adopting a three month discount for the guilty plea, or for not allowing any discount for the plea on the escaping from custody charge.   There is not a fixed scale for discounts for guilty pleas.   The Supreme Court in Hessell v R rejected a sliding scale approach, and emphasised the need for all circumstances in which the plea was entered to be addressed, not merely the timing.  However, the Court also recognised the need for transparency, and the desirability of  providing  a  degree  of  predictability which  will  assist  counsel  in

advising persons charged who have in mind pleading guilty.3

2    Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

3 At [73].

[8]      In this case, the sentencing Judge gave no reasons for adopting the particular discount which he did.  It is important to recognise the pressures facing a judge in a busy sentencing list, which mean that an extensive discussion of the reasons for adopting a particular level of discount may not always be expected.   However, transparency  requires  that  any  departure  from  what  might  be  a  reasonable expectation of counsel about the level of discount should be justified by reasons. The upper limit for a guilty plea discount should not exceed 25 per cent where the accused pleads guilty at the first reasonable opportunity.   Transparency and consistency in  the  sentencing  process  necessitate  that.    In  this  case  the  factors justifying the discount at significantly lower than that ought to have been identified.

[9]      In the absence of that, I must consider the level of discount afresh.  Of the factors identified by counsel for the respondent, only the strength of the prosecution case was potentially relevant to the extent of the guilty plea.  The other factors to which Mr Woods referred were factors which ought to have been taken into account elsewhere in the sentence calculation exercise.  I do not consider that factor alone justified   a   significant   departure   from   the   discount   which   would   ordinarily accompany a first opportunity guilty plea.

[10]     Mr Woods  is  correct  that  the  focus  on  this  appeal  must  be  on  the  end sentence.    I consider that the starting point for the burglaries and  the escaping custody charges were appropriate, having regard to both the circumstances of the offending and the personal circumstances of the appellant, but were not at the lower end of the range.  The consequence is that the limited allowance for the guilty pleas has led to a sentence which was manifestly excessive.

[11]     I see no reason to depart from a 25 per cent discount, from starting points totalling three years. That leads to an end sentence of two years and three months.

[12]     The appeal is allowed.  The sentences of 27 months on the burglaries and six months on the charge of escaping custody are quashed.   In their place, I impose

sentences of 23 months on the burglaries charges and four months on the escaping from custody charge. Those sentences are cumulative, to a total of 27 months.

“A D MacKenzie J”