Rota v R
[2012] NZCA 49
•29 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA463/2011 [2012] NZCA 49 |
| BETWEEN TUTEMAPU ROTA |
| AND THE QUEEN |
| Hearing: 13 February 2012 |
| Court: Arnold, Potter and Simon France JJ |
| Counsel: M J Phelps for Appellant |
| Judgment: 29 February 2012 at 11.00 a.m. |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe existing term of imprisonment of three years is quashed and substituted with the following sentences to be served concurrently:
(a)For the burglary offence 19 months imprisonment.
(b)For the offence of unlawfully getting into a motor vehicle, two months imprisonment.
(c)For each of the three breaches of release conditions, one month’s imprisonment.
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REASONS OF THE COURT
(Given by Potter J)
Introduction
Mr Rota pleaded guilty in the District Court at Napier to charges of burglary, unlawfully getting into a motor vehicle (indictably laid) and breaches of release conditions (three charges summarily laid). The guilty pleas to the charges of burglary and unlawfully getting into a motor vehicle were entered at the first callover on 24 May 2011.
These offences have maximum terms of imprisonment of ten years, two years and one year respectively.
Mr Rota appeals against a sentence of three years imprisonment imposed by Judge Adeane[1] on the ground that the sentence is manifestly excessive.
Factual background
[1]R v Hermaloto DC Napier CRI-2011-041-452, 1 July 2011.
On 8 February 2011 a Mazda double-cab trade vehicle was stolen from the premises of a Gisborne company. The next day, a week day, the appellant and three others, Messrs Hemaloto, Waiwai and Stephens, went in this vehicle to a residential property in Napier during daylight hours. The vehicle was driven to the back of the house and the back door was broken to gain entry, causing damage to the extent of $300. All except Mr Stephens entered the house and took items from it. Property valued at about $4,000 was taken including a large television screen, jewellery, a set of speakers, ipod, a docking station, car speakers and clothing.
A neighbour alerted the police who pulled over the vehicle. Mr Waiwai later drove it away in a dangerous manner. When subsequently stopped by police, an imitation pistol and roll of masking tape were found in the vehicle.
The offenders were apprehended. All the stolen property was recovered together with the motor vehicle, which was undamaged.
The breaches of release conditions related to the appellant’s failure to report to his probation officer on three occasions in March, April and May 2011. He had been released from prison on 28 April 2010 with 16 months of release conditions.
Personal background
Mr Rota is aged 20 years. He reports that his childhood developed around gang culture, members of his extended family being gang affiliates. He has previous convictions in the District Court and notations in the Youth Court. These relevantly include: in the Youth Court, four burglary offences in 2006 and 2007, and unlawfully taking a motor vehicle in 2006; and in the District Court, unlawfully taking a motor vehicle and three convictions for unlawfully interfering with a motor vehicle in 2008, together with assault with a weapon, resisting police, other aggravated assaults and other minor offending in 2009.
The probation report prepared for sentencing refers to Mr Rota’s transient state prior to his remand in custody and level of non-compliance with his release conditions. He is assessed as having a high risk of reoffending and is said to lack insight into the consequences of his actions.
The sentencing decision
Judge Adeane sentenced all four offenders. After reciting the facts he turned to the question of the starting point. He said there appeared to be “a feeling amongst you that the starting point realistically but at worst, is around about 18 months imprisonment”.[2] He referred to the authorities of Senior v Police,[3] R v Southon[4] and R v Columbus,[5] and to the reference in Snowden v Police[6] to a burglary of a private residence normally attracting a starting point of not less than 18 months imprisonment.
[2] At [4].
[3] Senior v Police (2000) 18 CRNZ 340 (HC).
[4] R v Southon (2003) 20 CRNZ 104 (CA).
[5] R v Columbus [2008] NZCA 192.
[6] Snowden v Police HC Hamilton CRI-2010-419-52, 15 July 2010.
The Judge then referred to recent evidence given in the District Court at Napier by Detective Inspector Anthony Dewhirst. He said:
[6] As I say, the starting point is important and that is why it is also important that I read to you the sworn testimony given in this Court within the last week by Detective Inspector Anthony Dewhirst who is the manager of Police Intelligence in this region. He informed the Court that in the past 12 months, Hawke’s Bay police have responded to approximately 2000 dwelling house burglaries. The true level of dwelling house burglary, however, has been assessed as being higher than that because a good deal goes unreported. Perhaps that is because of the resigned view which the victims take, either to the chances of apprehension or to the prospect of a sentence consonant with the available maximum being imposed. The detective goes on to say that burglary in Hawke’s Bay has been increasing steadily since 2001 and is now reaching what he calls “chronic levels”. He informs the Court that, to its shame, the Eastern District has the second highest rate of burglary per population after Auckland City and he tells us that the rate of burglary in the Eastern District is three times that to be found in the South Island districts of Southern and Tasman.
[7] The detective says that Intelligence indicates that these burglaries are largely committed by a small number of recidivist burglars. These are people who make burglary their business. He also says that there is an active and fluid receiving market. He says that the property typically stolen is laptops, widescreen TVs et cetera. He says that there is now a need if this problem is to be addressed, to interrupt both receiving networks and, necessarily, professional burgling groups. The Crown also points out (see R v Andrews & Edmonds) a number of common features to 27 recent dwelling burglaries which indicate that they are committed during work hours in back sections. While honest householders are out of their homes working, burglars go to work at their career, breaking into these homes. So you will see that there is a certain tension between the submissions made, not only by defence but to some extent by the Crown, and the view which this Court is now constrained to take in relation to the epidemic of burglaries of dwelling houses which is afflicting this district.
The Judge then said he considered the correct starting point for this burglary to be two and a half years imprisonment.[7]
[7] At [8].
He referred to the “innocuous trade-vehicle … ideally suited to a planned burglary adventure into a rear section in a built-up area” and said that the vehicle matter justified a cumulative starting point of nine months imprisonment.[8]
[8] At [9].
In sentencing each of the four offenders the Judge adopted these two starting points, except in the case of Mr Stephens who did not enter the dwellinghouse but picked up two speakers removed from the house by one of the other offenders, which he carried to the motor vehicle. For Mr Stephens, he adopted a starting point of two years imprisonment for the burglary and aggregated the nine months imprisonment as a starting point for the offence of unlawfully getting into the motor vehicle.
Mr Hemaloto, who was aged 29 years and described as a “recidivist criminal”, received an uplift of 12 months for his criminal history. After a discount of 20 per cent for his guilty plea the sentence imposed was three years and five months imprisonment. A minimum period of imprisonment of one year and ten months was ordered.
Mr Waiwai’s end sentence was two years nine months imprisonment. The end sentence for Mr Stephens was two years and two months imprisonment (against which he appealed, to which we shall shortly refer).
The Judge noted that Mr Rota was only 20 years of age. He said the same starting points were appropriate but he applied no uplift for previous offending because of Mr Rota’s youth, notwithstanding that he was “a cynical young repeat criminal – whether [he was] a recidivist burglar or not”.[9]
[9] At [12].
The Judge increased the starting point by a further six months for the three breaches of parole. He described these breaches as “something very serious indeed”.[10] From the revised starting point of three years and nine months imprisonment he allowed a discount of nine months for the appellant’s guilty pleas to reach the end sentence of three years imprisonment.
Appellant’s submissions
[10] At [13].
The appellant submits that:
(a)The starting point for the burglary offending was too high.
(b)The reference to Detective Inspector Dewhirst’s affidavit must have unfairly influenced the starting point.
(c)The cumulative sentences for the further offences were inappropriate and breached the totality principle. In all the circumstances, the sentence was manifestly excessive.
The appellant submits that an appropriate starting point for the burglary offending was in the range of 18 to 21 months, that the uplift to reflect the further offending should have been no more than three to four months imprisonment and that, with the 20 per cent discount as allowed by the Judge for the guilty plea, the end sentence should have been within the range of 17 to 20 months imprisonment. Hence, it was submitted, the sentence of three years imprisonment was manifestly excessive and wholly disproportionate to the gravity of the overall offending.
Crown’s submissions
The Crown submits the starting point was not too high taking into account the number of aggravating factors relating to the offending. These the Crown identified as the need for deterrence in relation to Mr Rota personally; the fact that the burglary was of a suburban house in Napier, which carried the risk of confrontation with occupiers (though none occurred); the presence of the imitation pistol and masking tape in the vehicle; the high value of the items taken from the house; and that the taking of the vehicle from Napier to facilitate the crime “indicates a degree of sophistication and premeditation”.
The Crown further submits that cumulative sentences were justified because the offending, including the breach of parole conditions, took place on different days and was of different types.
The Crown accepts that the Judge did not refer to the totality principle, but submits that the three year sentence imposed on Mr Rota did not offend against the totality principle given the significant number of aggravating features that were relevant to all of the charges. The Crown submits that while not lenient, the sentence was explicable because of the appropriate emphasis on the principle of deterrence and the significantly aggravated nature of each of the offences.
Detective Inspector Dewhirst’s affidavit
We understand the evidence of Detective Inspector Dewhirst referred to by Judge Adeane was given in an affidavit filed in the case of R v Andrews,[11] at a sentencing hearing before Judge Adeane about a week before this sentencing. In the passage quoted above[12] the Judge summarised from this affidavit and also referred to observations by the Crown in submissions made in R v Andrews.
[11] R v Andrews & Edmonds DC Napier CRI-2009-020-3923, 24 June 2011.
[12] See at [11] above.
Then in sentencing Mr Stephens the Judge said:[13]
I have already said a good deal about the dwelling house burglary in question and the similarities it bears to other dwelling house burglaries which are presently endemic in Hawke’s Bay. The evidence of a criminal intelligence officer of the police has been taken into account.
[13] At [18].
Clearly, the Judge relied on this intelligence in making the leap from a starting point for the burglary offending of about 18 months imprisonment as accepted by counsel, to a starting point of two and a half years imprisonment. This was not appropriate, as the Crown accepts. In the first place, no notice had been given to either counsel that the Judge proposed to consider, let alone rely on, this information. Therefore counsel had no opportunity to consider, test or make submissions about Inspector Dewhirst’s statements and conclusions. Nor was it appropriate to assume (as the Judge appears to have done) that the intelligence provided by Inspector Dewhirst in R v Andrews was applicable to the offenders in this case. There was no evidence of such a connection.
In particular, we note that Inspector Dewhirst said:
Intelligence indicates that these burglaries are largely committed by a small number of recidivist burglars.
Judge Adeane appeared to accept that Mr Rota could not be categorised as a recidivist burglar, describing him as “a cynical young repeat criminal – whether you are a recidivist burglar or not”.
There may be situations where the prevalence of a particular type of offending in a local area could be a relevant factor in sentencing, in relation to the need to protect the public and general deterrence. But it must be done on a principled basis. As this Court said in R v Christofides:[14]
[13] It is not difficult to envisage the emergence of offending that may be unique or peculiar to a particular locality. In such a case there can be no objection to judges in that locality adopting higher sentencing levels to meet the particular concern that has become apparent. Aggravated robbery is not, however, a crime that is unique to South Auckland, or to any other area in New Zealand. If there is to be a departure from the starting points prescribed by this Court for that offence, it should occur on a principled basis.
[14] We accept that judges at first instance may perceive that a particular type of offending has significantly increased in volume and/or scale in their locality. Before any such perception is acted upon, however, it is important to obtain information confirming that the perception is correct. Unless there is access to accurate and relevant statistical information, judges have no reliable means of ensuring that is the case. If sentencing levels are increased in a particular locality based on perception alone, there is a risk that sentencing levels in that locality will become out of kilter from those being applied in the remainder of the country, without any adequate justification. That could result in injustice for those offenders sentenced in that area.
[15] For that reason it should generally be for the Crown to indicate that it considers a prescribed sentencing level to be too low having regard to circumstances that have arisen in a particular locality. The Crown has access to national statistics, and will be able to provide the court with data justifying its stance. It will then be for the court to determine whether the submission has merit.
[14] R v Christofides [2011] NZCA 126.
The Court went on to observe that the affidavit filed by the District Commander in that case, which purported to provide statistical information, was deficient in several respects. In this case, in the absence of any opportunity for the information in Inspector Dewhirst’s affidavit to be tested on behalf of the appellant, it was not appropriate for the Judge to rely on the affidavit as providing sufficient, accurate, particularised information that was relevant to this offending. The process fell well short of an appropriate process such as that described in Christofides.
The Judge erred in placing reliance on this evidence. We set it aside in determining the appropriate sentence for Mr Rota.
Mr Stephens’ appeal
Mr Stephens appealed against his sentence of two years and two months imprisonment.[15] Woodhouse J referred to the reliance by Judge Adeane on Inspector Dewhirst’s affidavit and the conclusions he drew from it which he found to be inappropriate. He said that the appropriate approach on Mr Stephens’ appeal was therefore to assess the sentence de novo before considering whether the sentence imposed in the District Court was manifestly excessive.
[15] R v Stephens HC Napier CRI-2011-441-31, 28 September 2011.
Woodhouse J considered the appropriate starting point for Mr Stephens in relation to the burglary was 18 months imprisonment. He considered Mr Stephens’ degree of culpability to be less than the other offenders.
He then considered whether the starting point should be increased to take account of the other offence, unlawfully getting into a motor vehicle, or whether there should be a cumulative sentence for that offence. He considered the appropriate course was to impose a concurrent sentence for unlawfully getting into a motor vehicle and to uplift the starting point for the burglary. He said the uplift could not be much because the offence of getting into the motor vehicle, if considered in isolation, would properly have resulted in a non-custodial sentence.
Ultimately Woodhouse J uplifted the starting point for the burglary offence by two months to reflect the fact that the offending was while Mr Stephens was subject to a supervision order and a community work sentence and to take account of the offence of unlawfully getting into a motor vehicle. He allowed a discount for the guilty pleas of 20 per cent, as had been allowed by Judge Adeane, to reach an end sentence of 16 months imprisonment. He said that, when compared with that sentence, the sentence of 26 months imprisonment imposed by the District Court was manifestly excessive. He therefore allowed the appeal and substituted a sentence of 16 months imprisonment for the burglary and one month’s imprisonment for the offence of unlawfully getting into a motor vehicle, to be served concurrently.
This judgment was issued after Mr Rota’s appeal was filed but is relevant in relation to parity in sentencing for this offending.
The appropriate starting point
Before referring to the evidence of Detective Inspector Dewhirst, Judge Adeane seems to have accepted, on the basis of counsel’s submissions and the authorities to which he referred, that the appropriate starting point for the burglary offending was about 18 months imprisonment.
This was a burglary of a residential dwelling in which items to the value of $4,000 were taken. Those items were all recovered because of the timely intervention of an alert neighbour. The only loss was the $300 damage to the door.
There was undoubtedly some planning involved, but that is the case with most burglaries. This could hardly be described as a sophisticated undertaking. “Brash” and “unsophisticated” would be more apt descriptors.
Although an imitation pistol and masking tape were found in the vehicle, there was no evidence that Mr Rota knew of their presence. The Judge did not treat these items as an aggravating factor in sentencing.
The Crown submitted that personal deterrence of Mr Rota is an aggravating factor. While personal deterrence is frequently a relevant factor in sentencing, as it is here, it is not an aggravating factor of the offending.
The starting point of 18 months imprisonment taken by Woodhouse J for Mr Stephens’ part in the burglary offending reflected that he was slightly less culpable than his co-offenders. Mr Rota was fully involved. We consider an appropriate starting point for his part in the burglary offending to be 20 months imprisonment.
Cumulative or concurrent sentences
In relation to the offence of unlawfully taking a motor vehicle we agree with the observations of Woodhouse J.[16] The vehicle may have been taken on the previous day but it was an integral part of the burglary offending. The unlawful taking offence is properly reflected by a concurrent sentence and an uplift in the starting point for the burglary offence.
[16] At [33] above.
The three breaches by Mr Rota of his release conditions are concerning, but they occurred towards the end of his release period after substantial compliance for a period of six months. They did not warrant the six month cumulative sentence imposed by the Judge. This was excessive.
We consider that both sets of offending can be appropriately reflected by an uplift of four months to the starting point for the burglary offence.
Totality
Section 85(2) of the Sentencing Act requires the Court when imposing cumulative sentences to consider whether they “result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”. The sentencing Judge failed to consider totality. In this he erred. The end sentence of three years imprisonment was manifestly excessive, both because the starting points were too high and because the sentences were imposed cumulatively.
Resentencing
To a starting point of 20 months imprisonment for the burglary offending, we apply an uplift of four months for the other offending. The sentencing Judge allowed a discount of 20 per cent for the guilty pleas, with which no issue is taken. From the revised starting point of 24 months imprisonment, we allow a discount of five months to reach an end sentence of 19 months imprisonment for the burglary offence.
Result
The appeal is allowed. The sentence imposed in the District Court is quashed. There will be imposed the following sentences to be served concurrently:
(a)For the burglary offence, 19 months imprisonment.
(b)For the offence of unlawfully getting into a motor vehicle, two months imprisonment.
(c)For each of the three breaches of release conditions, one month’s imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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