Reihana v Police

[2015] NZHC 360

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000013 [2015] NZHC 360

BETWEEN

DWAYNE LANCE REIHANA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 March 2015
Appearances:	D Johnston for the Appellant A Hill for the Respondent
Judgment:	5 March 2015

JUDGMENT OF WOOLFORD J

Counsel/Solicitors:

Denise Johnston Lawyers, Taupo

Crown Solicitor, Rotorua

DWAYNE LANCE REIHANA v NEW ZEALAND POLICE [2015] NZHC 360 [5 March 2015]

Summary

[1]      Dwayne Lance Reihana appeals against a sentence imposed by Judge Weir in the Taupo District Court on 14 January 2015.  Judge Weir sentenced Mr Reihana to

15 months imprisonment on one charge of burglary of property worth over $5000.

[2]      Mr  Reihana  submits  that  the  sentence  was  manifestly  excessive  because Judge Weir uplifted the starting point by eight months for his previous convictions when the relevant dishonesty offending was over eight years ago.   He also argues that the sentence was manifestly excessive compared to his co-defendant, who received a nine month sentence of imprisonment.

Factual background

[3]      The facts of the offending are straightforward.  Mr Reihana stole a number of items including jewellery, electronic devices and gold coins from the home of his aunt.  He had gone with his partner, Ms Wrathall, to the victim’s home address in the middle of the day.  He entered the house through an unsecure window and took the items, with a combined value in excess of $5000.

[4]      He pleaded guilty, and did not dispute the facts.

Pre-Sentence Report

[5]      However,  in  the  pre-sentence  report  prepared  for  the  District  Court, Mr Reihana  stated  that  he  knew  nothing  of  the  offence  at  the  time,  and  only discovered it when his partner confessed as they were leaving his aunt’s home.  He states in the report that he pleaded guilty to get it over with.

[6]      Mr Reihana had been with his partner and co-offender only for a month prior to his arrest.  Although he had employment, this was through his aunt and uncle, the victims of this current offending.   He has expressed remorse and upset about the impact on his aunt, who had offered him a fresh start knowing of his extensive criminal history.

[7]      The report writer assessed Mr Reihana at a high risk of harm and a high risk of reoffending, given his past history and the current offence.  Although he has self- reported that he is drug free, his family members have refuted this.  Mr Reihana has breached release conditions seven times in the past, has breached community work sentence conditions and has failed to answer District Court bail ten times.  The report recommends a term of imprisonment, and rehabilitative programmes to reduce his offending risk.

Victim Impact Statement

[8]      Mr Reihana’s aunt has made a victim impact statement.  She saw Mr Reihana as breaking her trust in giving him a fresh chance in life, and states that she is not sure she will be able to rebuild her relationship with him and that she will not trust or try to help him again.  She comments that Mr Reihana’s mother now finds it hard face her, because of his actions.

[9]      Her engagement ring and another ring of sentimental value were stolen and she is particularly upset that Mr Reihana has been unable to help her locate them.

[10]     I am advised today from the bar by Mr Reihana’s counsel, Mrs Johnston, that in fact Mr Reihana’s aunt is now more forgiving of him.

District Court Decision

[11]     In sentencing Mr Reihana, Judge Weir said that the breach of his aunt’s trust was an aggravating factor in the crime.  Although counsel had argued that, as sentencing took place on 14 January 2015, and he had been on remand since his arrest in late October 2014, time served would be a sufficient penalty, Judge Weir thought otherwise.

[12]     The Judge  was  of the view  that  domestic burglaries  needed  to  be taken seriously, as did Mr Reihana’s history of 46 previous convictions for dishonesty.  He set a starting point of one year’s imprisonment, and uplifted it by eight months to take account of his previous convictions.  Applying full credit for the early guilty plea, the final outcome was 15 months imprisonment.

Appellant’s submissions

[13]     Mr   Reihana’s   counsel   accepts   that   a   starting   point   of   12   months imprisonment is appropriate.   She points out however that 45 of Mr Reihana’s 46 previous convictions for dishonesty were over 10 years ago and the two burglaries were each 13 and 14 years ago.  Mr Reihana only received sentences of six months and five months imprisonment for the two previous burglaries.  She also notes that since the dishonesty offending, Mr Reihana has served a sentence of six months imprisonment  on  a  charge  of  cultivating  cannabis,  while his  other  sentences  of imprisonment were for breaches of court orders, wilful damage and male assault female.

[14]     Counsel submits that in this case:

(a)	the dishonesty convictions are relatively old and do not relate directly to the burglary;
(b)	the need for personal deterrence and protection of the public is to be weighed  against  the  fact  that  it  is  at  least  eight  years  since
Mr Reihana’s last dishonesty conviction; and
(c)	the  uplift  of  eight  months  imprisonment  is  too  high,  even  if  the
previous convictions go to his character.
[15]	She	also  submits  that  there  is  little  to  distinguish  the  culpability  of

Mr Reihana and his co-offender, who received nine months imprisonment.

Respondent’s submissions

[16]     The Crown  submits  that  a 15  month  end  sentence  of imprisonment  was within range.   Although it concedes that the eight month uplift for previous convictions was stern, it submits that it is not outside the available range.  It points to commentary in  Adams on Criminal Law in support of the premise that higher uplifts

have been applied for recidivist burglars in the past.1

1      Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers ) at [SA9.15(6)].

[17]     The Crown relies on the Court of Appeal decision in R v Columbus in which a one year uplift was adopted in respect of a one and a half year starting point.2   In Hayward v Police, the High Court dismissed an appeal where an appellant had also received a one year uplift for previous convictions on a two year starting point.3

[18]     Mr Reihana’s co-offender, Ms Wrathall, received a nine month sentence of imprisonment.  The notes of her sentencing indicate that the same sentencing Judge started with one year’s imprisonment, which was uplifted by four months for her previous dishonesty convictions.  He then gave Ms Wrathall a significant discount for her guilty plea and some personal factors.  The Crown submits that the discount given to Ms Wrathall was exceptional and that Mr Reihana’s sentence need not be reduced to match it.

Appeal against sentence

[19]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[20]     In any other case, the Court must dismiss the appeal.4

[21]     The  Court  of Appeal  in  Tutakangahau  v  R  has  recently  confirmed  that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.5     Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s

approach to sentence appeals.6

2      R v Columbus [2008] NZCA 192 at [20].

3      Hayward v Police [2014] NZHC 2286 at [14].

4      Criminal Procedure Act 2011, s 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

6      At [33], [35].

[22]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton:7

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[23]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  Whether a sentence is manifestly excessive is to be examined in terms of the end sentence, rather than the process by which the sentence is reached.8

Analysis

[24]     There is no challenge to the starting point adopted.

[25]     The maximum penalty for burglary is 10 years imprisonment, and no tariff judgment operates because of the varied range of circumstances in which burglary occurs.9    The burglary of a house is a generally accepted aggravating factor.10    In Arahanga  v  R,  the  Court  of Appeal  held  that  dwelling-house  burglaries  at  the relatively minor end of the scale tend to attract starting points of 18 months to two years and six months imprisonment.11

[26]     In this case the typical risk associated with burglary of a home – the risk of confrontation with the occupants – is not present.  That is because Mr Reihana knew

7      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

8      Ripia v R [2011] NZCA 101 at [15].

9      Tutakangahau v R [2014] NZCA 279 at [26] – [27].

10     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

11 At [78].

the occupants would be out, as they were well known to him.  However, the case law demonstrates that this does not minimise the offending.12   In fact, the breach of trust that occurs when the offender is a trusted person often balances out the lessened risk of confrontation.

[27]     In Heywood v Police, the defendant had burgled the property owned by his godfather, who had previously supported him.13  As in this case, the defendant knew the victim was going to be away at the time and targeted the property, forcing his way in by breaking a window.   He stole property to the value of $5000.   The sentencing Judge adopted a starting point of 15 months imprisonment.

[28]     In Zimmerman v Police, the defendant went to the victims’ house with his half-brother while the victims were away.  The victims had been grandparent figures to him. He stole jewellery, a chainsaw, alcohol and some meat.  Thomas J identified the  aggravating  features  of  the  offending  as  including  the  fact  there  were  two burglars, the significant breach of trust involved, the damage to the property (in smashing a window to get in), and the taking of high-value items from the house, the fact the jewellery had not been recovered and the financial loss to the victims.

[29]     These aggravating features led to the imposition of an 18 month starting point.  However, this case differs from the present, in that there was property damage and the jewellery stolen was significantly more valuable, at around $18,000. However, the offending was similarly opportunistic – what was taken was just what was lying around the house.

[30]     In Toala v Police, the defendant went to a residential address during the day and broke in, causing damage to the front door.14   He stole three television sets, two laptop computers, a stereo, two cameras and other electronic items, valued at around

$5000.  On appeal, Lang J saw the reasonably extensive damage to the property, the value of the property stolen and the fact that the risk of data loss from the computers added to the significant financial and sentimental value of the property taken as

aggravating features.  He adopted a starting point of two years imprisonment.

12     See Kopara v Police [2014] NZHC 2222; Zimmerman v Police [2014] NZHC 3233.

13     Heywood v Police [2013] NZHC 2506

14     Toala v Police [2013] NZHC 3270.

[31]     These cases indicate that similar cases have warranted significantly higher starting points than the one year’s imprisonment adopted in this case.   I take into account that there was no property damage here, and the value of the goods taken was far lower than in Zimmerman.  However, the items taken were of sentimental value and have not been recovered.   Mr Reihana also breached his aunt’s trust, as evident in the victim impact statement.

[32]     I am therefore of the view that the starting point adopted by Judge Weir, although accepted as being appropriate by counsel, could have been a little more.

[33]     Turning now to consider the uplift of eight months for Mr Reihana’s previous convictions, it is important to note that the assessment in a sentencing appeal is towards the appropriateness of the end sentence, not the particular size or appropriateness of any uplift.  Mallon J recognised in Hancock v Police that making comparisons to cases with comparable uplifts is easily complicated by the presence

or absence of other aggravating features and the size of the sentences in question.15

Thus, the assessment should remain on the appropriateness of the end sentence.

[34]     Deterrence and protection of the public play a role in uplifting a starting point for previous convictions.16     In the case of recidivist burglars, this is noted as a particular factor in sentencing.17    In Hayward, in which an uplift of one year was added to a starting point of two years, the Court commented:

In this case, the appellant has a significant history of burglary convictions, even though those convictions are not themselves recent. In addition, there is a significant body of convictions for other types of offending which would in itself have justified some uplift.18

[35]     In that case the last recorded burglary by the defendant was in 2005, and all of his offending after 2008 had received community sentences so was decreasing in

seriousness. The sentencing in Hayward occurred in 2014.

15     Hancock v Police [2014] NZHC 3030 at [12].

16     Beckham v R [2012] NZCA 29 at [84].

17     Hayward, above n 3.

18 At [14].

[36]     In Hancock v Police, also a 2014 case, an eight month uplift was also seen as stern, but not excessive in the context of a starting point of two years and two months imprisonment.  Although Mallon J would have imposed a six month uplift, she saw eight months as appropriate given the “generous” starting point.19    In that case, the defendant had 140 previous convictions, including 13 burglary convictions (albeit  that  five  were  dealt  with  in  the Youth  Court  and  the  last  burglary  was

committed in 2008).

[37]     These  cases  make  clear  that  the  justifications  for  applying  an  uplift  for previous convictions which are at some distance from the current offending is not inappropriate.  Having regard to Mr Reihana’s criminal history, I am of the view that his previous convictions would still warrant some uplift.  Although the burglary and dishonesty convictions are somewhat historic, there is no evidence that he has reformed in the interim.  Instead, there is evidence that he has continued consistently to  offend  despite  numerous  short  terms  of  imprisonment.     As  in  Hayward, Mr Reihana’s other convictions, apart from the dishonesty offending, would warrant some uplift in isolation.

[38]     However, because of the historic nature of the dishonesty convictions, the sentencing Judge could have imposed a lesser uplift.   It is arguable that an eight month uplift is out of step with the scale of Mr Reihana’s offending in the recent past.  However, on appeal I am obliged to stand back and look at the end sentence.

[39]   There is no question that Mr Reihana’s previous non-compliance with community sentences and history of offending means that a community based sentence could not be considered in his case.   However, just as the starting point adopted of one year’s imprisonment could have been a little more, the uplift for previous convictions could have been a little less.   Overall, the end sentence of

15 months imprisonment is, in my view, not manifestly excessive.  It was within the range available to the sentencing Judge.   I note that in respect of his last burglary conviction in 2004, Mr Reihana received six months imprisonment cumulative on

nine months imprisonment for failing to answer Court bail and breach of Court

19     Hancock, above n 16, at [14].

release conditions.  The total sentence he then received appears to have also been one of 15 months imprisonment.

[40]     Moreover,  the  fact  that  Ms  Wrathall  received  a  greater  discount  than Mr Reihana in the sentencing process for factors specific to her does not require the Court to lower his sentence to match hers.

Result

[41]     The appeal is accordingly dismissed.

……………………………….

Woolford J