Stevens v Police

[2012] NZHC 1004

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-18 [2012] NZHC 1004

ISAAC KEREHOMA STEVENS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 May 2012

Appearances: M Talbot for Appellant

P Cornege for Respondent

Judgment:      14 May 2012

ORAL JUDGMENT OF TOOGOOD J

Solicitors:

M Talbot, Talbot Law, Hamilton:  [email protected]

P Cornege, Almao Douch, Hamilton:  [email protected]

STEVENS V NEW ZEALAND POLICE HC HAM CRI-2012-419-18 [14 May 2012]

[1]      Isaac  Kerehoma  Stevens  has  appealed  against  a  sentence  of  12 months’ imprisonment imposed by Judge Burnett in the District Court at Hamilton after he pleaded guilty to four charges of theft.

[2]      The appellant and a number of associates stole cash from gaming machines by prising them open with a jemmy bar and taking the money inside.  It is clear that the appellant and his colleagues had embarked on a crime spree, committing the offences on the same day, and in the same manner, at Westfield Manukau (where they stole $400), Auckland Airport ($1,000), Burger King Te Rapa ($300), and Rotorua Airport ($38).  On the three charges involving less than $500, the appellant was liable to a maximum penalty of three months’ imprisonment.   The Auckland Airport  charge,  involving  $1,000,  carried  a  maximum  penalty  of  12 months’ imprisonment.

[3]      The appellant is 32 years old and has a lengthy criminal history dating back to 1997.   A significant number of his 76 previous convictions are for dishonesty offences and he has previously served lengthy terms of imprisonment for theft and burglary.  The appellant has frequently offended while on bail and he was on bail and subject to release conditions at the time of this offending.  He is plainly a recidivist thief and burglar.

[4]      Judge Burnett noted that relevant sentencing purposes included making the appellant  accountable,  denouncing  his  offending,  deterring  him  from  further offending and deterring others.   Having regard to the appellant’s lengthy criminal history, the Judge took into account the need to protect the community, although she also referred to the issues of long-term rehabilitation and reintegration back into the community.     I  am  bound  to  say  that  the  appellant’s  obvious  attitude  to  the community, by offending in this manner while on prison release, suggests that he has a considerable way to go.

[5]      Significantly, the Judge noted that she was required to impose a sentence which involved the least restrictive outcome for the appellant which was reasonable in the circumstances.

[6]      The Judge regarded the Auckland Airport theft as being the lead offence for sentence purposes.   Bearing in mind that that offending was at the upper limit of theft in the bracket for which 12 months’ imprisonment is the maximum penalty, and having regard to  the totality of the offending,  she took  a period  of 12 months’ imprisonment as a starting point.  Judge Burnett was entitled to take this approach because  the  maximum  penalty  faced  by  the  appellant  was  in  fact  21 months’ imprisonment; being one period of 12 months and three periods of three months’ imprisonment.  She was also entitled to apply an uplift of four months’ imprisonment to reflect the appalling history of offending and the particular need in the case of the appellant to impose a deterrent sentence and one which provided protection for the community.    The  Judge  also  noted,  in  applying  an  uplift  which  she  correctly regarded as modest, that, at the time of his offending, the appellant was on bail and on release conditions from prison having served a sentence for similar offending.

[7]      A standard guilty plea discount of 25 percent from the 16 months uplifted starting point produced a sentence of 12 months’ imprisonment.

[8]      Applying conventional sentencing principles, the Judge imposed a sentence of 12 months’ imprisonment on the lead charge and concurrent sentences of three months' imprisonment on the other three charges, in all cases these being the maximum penalties available on each charge.

[9]      Mr Stevens  today complains  that  the  Judge  should  not  have  uplifted  the sentence above the maximum available for the Auckland Airport theft and says that the theft was not the worst of its kind.  He argues that it should not have attracted the statutory maximum; and he said that having regard to the way in which the Judge approached this matter, in effect it provided no incentive at all to him to plead guilty.

[10]     The approach adopted by the Judge was consistent with that described by the

Court of Appeal in R v Lowe,[1]  where the Court said that the approach to be taken required the Judge to choose the worst offence and impose the sentence appropriate

for the totality of the offending.   A statutory maximum imposes a ceiling beyond which a court cannot go on arriving at a final sentence.[2]

[1] R v Lowe CA62/05, 4 July 2005.

[2] Lambess v Police HC Ham CRI 2008-419-88, 26 November 2008.

[11]     As the Court said in R v Williams,[3] there is no

... particular way in which total sentences must be put together in respect of multiple offending.  The issue is what is an appropriate total sentence for the various charges which have been admitted or proved.   How  that is constructed in the particular circumstances is a matter of individual discretion and assessment.  Sometimes there is an advantage of imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed.

[3] R v Williams CA79/00, 31 May 2000 at [11].

[12]     It follows that rather than imposing maximum concurrent sentences, it would have been open to the Judge in this case, for example, to have imposed a sentence of nine  months’  imprisonment  on  the  Auckland  Airport  charge  and  cumulative sentences of one month’s imprisonment each on the other three charges, producing the same effective end sentence of 12 months’ imprisonment.

[13]     Bearing in mind all of the factors properly taken into account by the Judge, and in particular the need to deter the appellant from offending in this way and to protect the community, I am satisfied that the effective sentence imposed was not manifestly excessive.

[14]     The appeal is dismissed.

....................................

Toogood J