Renata v Police

[2018] NZHC 2673

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000276 [2018] NZHC 2673

BETWEEN

TAMATI RENATA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 October 2018
Appearances:	A M M Ives for Appellant I Murray for Respondent
Judgment:	17 October 2018

JUDGMENT OF LANG J [on appeal against sentence]

Thisjudgment was delivered by me on 17 October 2018 at 10 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RENATA v NEW ZEALAND POLICE [2018] NZHC 2673 [17 October 2018]

[1]      Mr Renata pleaded guilty in the District Court to charges of theft and burglary. On 28 February 2018, Judge Andrée Wiltens sentenced him to 30 months imprisonment.1  He appeals against sentence on the basis that the Judge erred in several respects and this caused the end sentence to be manifestly excessive.

[2]      Mr Renata requires leave because he filed his appeal well out of time.  The respondent has not been prejudiced by the delay and does not oppose leave being granted.  I make an order accordingly.

Background

[3]      The theft charge was laid as a result of an incident that occurred on the morning of 29 September 2017. On that day Mr Renata and a female associate went to an area where vehicles were parked at the Alexandra Park Raceway on Greenlane Road in Epsom.  There they found a vehicle with a Louis Vuitton handbag inside.  Mr Renata damaged the door lock of the vehicle in an unsuccessful attempt to enter it.  He then smashed a rear quarterlight window and thereby gained access to the vehicle.  He removed the handbag, which contained cosmetics and hairstyling equipment, and left the scene with his associate. The handbag and contents have not been recovered. They had a total value of $3,540.

[4]     The burglary charge was laid as a result of an incident that occurred approximately two weeks later, on 13 October 2017.  At about 1.45 pm on that day

Mr Renata and a male associate went to a residential address in Manurewa.  They gained access to the address by kicking a hole in an exterior wall.   Unknown to

Mr Renata and his associate, the address was occupied by the 13 year old daughter of the owner of the property.  She locked herself in her bedroom closet and telephoned her father. Her father then went to the property, where he saw two males jumping over the back fence and running away from the address.  A police dog handler was then called, and a police dog followed a track from the fenceline of the property into neighbouring properties, where he located a bag containing property stolen from the victim’s address.  Forensic examination revealed that a piece of black tape inside the

bag  contained  traces  of  DNA  matching  that  of  Mr  Renata.    When  the  police

1      New Zealand Police v Renata [2018] NZDC 4006.

interviewed Mr Renata, he made full admissions regarding the burglary.  He said he had bills to pay and was hoping to make “easy money”.

The sentence

[5]      The Judge took a starting point of two years imprisonment on the lead charge of burglary.  He then added an uplift of six months to reflect the theft of the handbag from the motor vehicle.   From that starting point of 30 months imprisonment, the Judge added an uplift of eight months to reflect the fact that Mr Renata has numerous previous convictions for burglary and theft.   He then applied a discount of eight months, or 20 per cent, to reflect early guilty pleas.   This resulted in the Judge imposing concurrent sentences of two years six months imprisonment on each charge. He gave no reasons for his decision to impose the same sentence on the theft charge as he had imposed on the burglary charge.

Grounds of appeal

[6]      On Mr Renata’s behalf, Ms Ives advances several grounds on appeal.   She acknowledges that, although it may be at the upper end of the available range, she cannot realistically challenge the starting point the Judge selected on the burglary charge.  She submits, however, that the uplifts applied to reflect the theft charge and Mr Renata’s previous convictions were excessive.

[7]      Ms Ives also contends the Judge ought to have applied a discount to reflect the fact that Mr Renata had written letters to the Court expressing his remorse, and had also offered to attend a restorative justice conference with the victims of his offending. In addition, he had offered to co-operate with the police by naming his co-offenders. Ms Ives submits the Judge erred in declining to provide him a discount to reflect that fact.

Decision

Uplift to reflect the theft charge

[8]      Ms Ives submits that, standing alone, the theft charge would have justified a community-based sentence.  Given that the Judge was adopting a starting point of

imprisonment on the burglary charge, however, she accepted he had little option but to increase that sentence to reflect the theft charge.  She argues, however, that given the starting point selected on the burglary charge an uplift of no more than three months was warranted to reflect the theft charge.

[9]      I do not accept this submission. The theft charge had two aggravating features. The first was that it was not a simple theft. Rather, it involved the intentional infliction of damage to the door lock and quarterlight window of the motor vehicle from which the handbag was stolen.  The second is that the bag and contents had considerable value and have never been recovered.  For those reasons, although I accept that the uplift was towards the upper end of the available range, it was nevertheless within that range.

Uplift for previous convictions

[10]     Ms Ives points out that, in applying an uplift of eight months, the Judge increased the starting point by approximately 26 per cent.  Given her submission that the starting point was already high, Ms Ives submits the uplift was outside the available range.

[11]     Ms Ives also reminds me that, although Mr Renata has numerous previous convictions for burglary, his last conviction on that charge related to offending in 2006. She therefore contends the Judge ought to have applied a lower uplift to reflect previous convictions.

[12]     This submission overlooks the fact that Mr Renata has numerous convictions since 2006 for offending involving dishonesty. These include convictions for stealing property from cars, unlawfully taking or getting into motor vehicles, receiving stolen property and shoplifting.   The most recent of these was a conviction in 2013 for receiving stolen property.   Furthermore, Mr Renata also has several convictions sustained since 2013, albeit not for offending involving dishonesty.

[13]     The learned authors of Adams on Criminal Law describe uplifts of up to 25 per cent as “common” in this context.2    Case law supports higher uplifts in relation to offences of dishonesty.  Andrews J adopted a 40 per cent uplift in King v Police;3 whilst Panckhurst J a 50 per cent uplift in Samuels v Police although the offending in that case occurred whilst the offender was on parole.4   An uplift of 66 per cent was employed by the Court of Appeal in R v Columbus.5  Although I accept another Judge may well have applied a lesser uplift, the cases show that the uplift of 26 per cent was not outside the available range.

Failure to provide a discount for remorse

[14]     Mr Renata was arrested on 2 November 2017 and two weeks later sought a sentence indication.   A sentence indication was given on 8 December 2017, and accepted by Mr Renata on 13 December 2017.  There was then a delay of more than two months before he was finally sentenced.

[15]     Ordinarily, a plea entered within this timeframe would justify a discount of around 25 per cent.   In the present case, however, the Judge noted that the DNA evidence and Mr Renata’s admissions meant he had no realistic defence to the burglary charge.   The Judge therefore applied a reduced discount of 20 per cent, albeit in relation to both charges.  It is obviously arguable that a full discount of 25 percent ought to have been applied to the theft charge but in the present case that would have a negligible effect on the end sentence.

[16]     Ms Ives acknowledges that the overall discount was within the available range, but submits the Judge failed to take into account the fact that Mr Renata had expressed sincere remorse. This was recorded in the pre-sentence report, and he had also written a letter of apology to the Court.  In addition, he had offered to attend a restorative justice conference with the burglary victim but the victim had declined to take up that offer.  Ms Ives submits the Judge ought nevertheless to have applied a discount to reflect this factor.

2      Simon France (ed) Adams on Criminal Law (online ed, Westlaw) [at SA9.15(6)].

3      King v Police [2014] NZHC 2946.

4      Samuels v Police [2014] NZHC 1134.

5      R v Columbus [2008] NZCA 192.

[17]     It is clearly open to a sentencing Judge to apply a discount to reflect genuine remorse because remorse is listed as a mitigating factor in s 9(2) of the Sentencing Act

2002. Whether or not the Judge does so, however, is very much a matter of discretion. The exercise of the discretion will depend on the nature of the offending, the offender’s background and the nature of the remorse as determined by the Judge.

[18]     Mr  Renata  faced  the  obvious  obstacle  that  he  has  numerous  previous convictions for both burglary and other offences involving dishonesty.   His expressions of remorse for the present offending were therefore likely to carry less weight than may have been the case if he had been a first offender or an offender with limited previous convictions for similar offending. If the Judge had expressly declined to apply a discount for these reasons it is unlikely I would have been prepared to interfere on appeal.  The Judge did refer to the issue at all in his sentencing remarks, however, so there remains a concern that he overlooked it.  To guard against that risk I propose to apply a discount on one month to reflect the expressions of remorse

Mr Renata had made prior to sentencing.

Offer to provide assistance to the police

[19]     Prior to receiving the sentence indication Mr Renata had indicated he may be prepared to name his co-offenders.  The Judge referred to this issue in his sentence indication as follows:

[5]       If you were to give evidence to assist the police into finding out who your co-accused was and to hold that person accountable for her conduct, then there would be a further 25 percent reduction by way of mitigation available to you.   That is significant, as that might get you down to where Home Detention would be available. In fact, it would. I do not know whether Home Detention would be appropriate or not, but that is a matter for you to think about.

[20]     Prior to sentencing, Mr Renata provided the police with a letter in which he named the associates who had been with him when he committed both offences.  In relation to the theft charge he named his partner, but said she had not been aware of what he was doing. In relation to the burglary, he had nominated a person by the name

of Mr Taitumu as being his co-offender. At sentencing, the Judge dealt with the issue in this way:6

[2]       The information I am told today is that you provided a letter but it is of no material assistance to the police. I really cannot go behind that because it is not for me to judge whether or not the person that you named is a possible or a likely suspect. I do not know.  I have not a clue. All I can do is say that the police are not taking your information any further, and it is of no assistance to them in terms of arresting anybody for the offending. I am afraid that even though you have provided a letter, the contents of which of course I have not seen, that is of no assistance in terms of further reducing the end sentence that needs to be imposed here.

[21]     Prior to the hearing in this Court, counsel for the respondent obtained further

information relating to Mr Renata’s offer of assistance in relation to the burglary charge. In a helpful memorandum filed on 12 October 2018 he provided the following advice:

2.        Counsel for the respondent also indicated that the officer-in-charge had been asked to speak with Steven Taitumu, the man the appellant stated also took part in the burglary with him, under caution, in order to ascertain Mr Taitumu’s response to the appellant’s claim.

3.        Counsel for the respondent was advised this morning that Police have made an enquiry at Mr Taitumu’s recorded address. They spoke with an occupant and were told that Mr Taitumu had not been seen for a while and that the occupant did not know where he was. Accordingly, Police have been unable to obtain Mr Taitumu’s response.

4.        Counsel for the respondent has been advised by the officer-in-charge that the reason Police did not consider the appellant’s letter purporting to name his co-offenders to be of material assistance, was because there  was  no  corroborating evidence linking  Mr Taitumu  to  the burglary.   Additionally, given the appellant’s history of similar offending, Police had concerns as to whether the appellant was using the letter as a means of obtaining a discount at sentencing alone.

[22]   Mr Murray now submits, based on the information contained in this memorandum, that the Judge was correct not to apply any discount in relation to the assistance provided by Mr Renata.

[23]     I have reservations about this approach.  I accept that the police have not yet been able to interview the person nominated by Mr Renata, and in practical terms the information he provided may ultimately prove to be of little value. On the other hand,

6      New Zealand Police v Renata, above n 1.

Mr Renata was prepared to name a person who is obviously not a fictitious entity. The Judge also referred openly in his sentencing remarks to the fact that Mr Renata had provided assistance to the police.   In endeavouring to provide the police with assistance Mr Renata has exposed himself to risk, particularly given the fact that he is presently serving a custodial sentence.  The Judge’s remarks have increased the level of risk.

[24]     The position may have been different if the police had been able to establish that the information provided by Mr Renata was false or misleading.  However, the fact that the information has not yet been shown to be incorrect means Mr Renata ought to have been given some credit at sentencing for exposing himself to risk by naming the person he says was his co-offender in relation to the burglary.  The level of discount obviously cannot be as great as would have been the case if Mr Renata was to give evidence against that person.   I am nevertheless satisfied Mr Renata’s gesture ought to have been recognised in a tangible way.   Furthermore, failure to provide any discount is hardly likely to encourage other persons in Mr Renata’s position to provide information to the police in the future.  I consider an additional discount of four months, or approximately ten per cent, ought to have been given to recognise this factor.

Result

[25]     The appeal is allowed to the extent that the sentence of two years six months imprisonment on the burglary charge is reduced to two years one month imprisonment. The sentence of two years six months imprisonment on the theft charge is reduced to a concurrent sentence of five months imprisonment.

Lang J

Solicitors:

Crown Law, Wellington

A Ives, Barrister, Auckland